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 Post subject: TR - Moore v. Massey (1/6/2004)
PostPosted: Thu Feb 19, 2009 9:58 am 

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David Moore v. Katherine J. Massey et al.,
No. C044483 (Cal.App. 01/06/2004)

DAVID MOORE, Plaintiff and Respondent, v. KATHERINE J. MASSEY etc. et al., Defendants and Appellants.



January 6, 2004, Filed


PRIOR HISTORY: Colusa. Super. Ct. No. CV19986.

DISPOSITION: Orders for sale and distribution of property and order re: effect of bankruptcy proceedings, affirmed. Moore shall recover his costs on appeal.

JUDGES: SIMS, Acting P.J. We concur: DAVIS, J., HULL, J.


OPINION: This is the fourth time this court has seen this case. In this appeal, defendants Katherine J. Massey (also known as Kay Massey) and J. Gale Massey challenge a probate order authorizing plaintiff David Moore to liquidate and sell the Masseys' interest in a trust estate and apply the proceeds to surcharges imposed against the Masseys. In an unpublished opinion in the third appeal (case No. C039434, filed August 26, 2002), we reversed the probate order for the purpose of remanding to the trial court to determine the effect, if any, of a bankruptcy court order (issued while the third appeal was pending in this [*2] court) discharging the Masseys' debt to Moore. On remand, the trial court made an order determining the bankruptcy discharge did not affect this case and confirming the order of sale.

In this appeal, the Masseys challenge the trial court's determination of the bankruptcy issue and rejection of their peremptory challenge to the judge on remand. The Masseys also challenge the trial court's confirmation of the order of sale, renewing contentions we found it unnecessary to address in the third appeal due to our decision to remand the case. We shall affirm the judgment (order).


"In the first appeal, Moore v. Massey (Oct. 16, 1998) C027261 [nonpub. opn.] (Moore I), we affirmed a June 1997 judgment setting aside certain amendments to the trust estate of decedent Cleo Stapp, the main asset of which was a family farm. The trial court found the Masseys, on whom these amendments bestowed a fee interest in Stapp's estate that had formerly belonged to Moore, obtained this benefit by exerting undue influence on Stapp. In consequence, the court struck the amendments and ordered that the Masseys hold the trust in accordance with its last valid amendment [*3] (which gave them only a life estate[ n1 ] in Stapp's family home and its surrounding 10 acres plus a one-fifth share of Stapp's cash, while leaving the remainder of the trust estate, aside from cash, to Moore). The court also ordered the Masseys to surrender control of Stapp's farm 'immediately' and to account for and pay into the trust estate all farm revenues from June 1994 [forward].

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n1 The Masseys assert this court's prior opinions incorrectly stated they had a life estate, whereas they held a fee simple interest. However, this court's prior opinions are final, and in any event our disposition of this appeal renders the point moot.

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"In the second appeal, Moore v. Massey (Sep. 29, 1999) C030547 [nonpub. opn.] (Moore II), we affirmed three orders by the trial court, filed in July and August 1998, which (1) denied the Masseys' requests for payment of past and future attorney fees from the trust; (2) imposed a surcharge against the Masseys for the sums already paid to their attorney out of the trust; [*4] (3) denied Kay Massey any compensation for services rendered to the trust as a trustee; (4) ordered Kay Massey to pay all farm revenues earned after Stapp's death; (5) approved Moore's application for attorney fees to be paid by the beneficiaries of the trust; (6) granted Moore's petition for a lien against the Masseys' interest in the trust estate to recover attorney fees and other sums; and (7) ordered the Masseys to dislodge their declaration of homestead, quitclaim deeds, and grant of lien." (Moore v. Massey (Aug. 26, 2002, C039434) [nonpub. opn.].)

In the third appeal, Moore v. Massey (Aug. 26, 2002, C039434) [nonpub. opn.] (Moore III), the Masseys challenged the trial court's October 9, 2001, "Order Re: Plaintiff's [Moore's] Report of Sale and Petition for Order Confirming Sale; Defendants' [Masseys'] Petition for Order Instructing Trustee to Distribute Property." The order denied the Masseys' petition for distribution and ordered that the Masseys' interest in the trust be liquidated and applied to the surcharges imposed against the Masseys. The surcharges, as stated in Moore's motion to liquidate the Masseys' interest, included $ 204,112 for farm revenue [*5] plus interest, and attorney's fees of $ 151,946.

While the appeal in Moore III was pending, a judgment was entered in the bankruptcy court concerning the Masseys' petition for bankruptcy. The bankruptcy court judgment, filed on November 15, 2001, discharged the Masseys' debt to Moore under the civil judgment in this case (which the Masseys had listed in their bankruptcy papers as a joint liability for a civil judgment in the amount of $ 234,315).

In Moore III, we reversed the October 2001 order and remanded to the trial court to consider the effect, if any, of the bankruptcy court judgment.

Upon remand, Moore argued the bankruptcy discharge merely extinguished any personal liability of the Masseys to pay the judgment; it did not extinguish the trust's lien on the Masseys' interest in the trust before the Masseys filed for bankruptcy on October 4, 2000. Moore argued the lien was established by the trial court's July 16, 1998, order labeled "Order Re Petition to Settle Account and Plaintiff's Application for Attorney's Fees and Application to File Lien," which stated in part: "The Court grants Plaintiffs [sic] [Moore's] petition to file a Lien against the Defendants' [*6] [Masseys'] interest in the Trust Estate in order to recover attorney fees and all other sums specified as surcharges against the Defendants in their accounting."

On May 21, 2003, the trial court issued a written "Order Re: Effect of Bankruptcy Proceedings," consistent with its earlier, written announcement of decision, stating in part: "This Court finds that Plaintiff [Moore] had both legal and equitable liens on the real property which was legally vested in the Trust at the date of the sale. The bankruptcy discharge did not affect the liens on the real property. The Bankruptcy Court discharge relieved Defendants [Masseys] from further personal obligation on the surcharged amounts." The court accordingly confirmed the Order of Sale nunc pro tunc to October 9, 2001. The court also denied the Masseys' motion to vacate filed December 26, 2002, and stated the Masseys' remaining motions were moot.

The Masseys filed a notice of appeal "from the Order Re: Effect of Bankruptcy Proceedings 1) granting [Moore's] Petition to confirm the Order of Sale, and 2) denying [the Masseys'] Motion to Vacate/Set Aside Order Confirming Sale of Real Property and ordering off calendar their Petition [*7] for Order Instructing the Trustee to Distribute Property as amended."


I. Peremptory Challenge

The Masseys first argue they were deprived of the due process right to an impartial hearing by the trial court's rejection of their post-remand peremptory challenge to the judge under Code of Civil Procedure section 170.6. n2

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n2 Undesignated statutory references are to the Code of Civil Procedure.

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We need not consider this contention on the merits, because the Masseys failed to pursue the exclusive remedy of writ petition.

Thus, upon remand, the Masseys on October 28, 2002, filed a "Motion for Disqualification CCP § 170.6," asserting the judge was biased.

On October 31, 2002, the trial court gave notice of its decision to strike the motion on the ground the remand was for a limited purpose, not for a new trial, and therefore the Masseys were not entitled to exercise a peremptory challenge to the judge.

The Masseys did not seek writ [*8] review, which was their only remedy. Thus, section 170.3, subdivision (d), states: "The determination of the question of the disqualification of a judge is not an appealable order and may be reviewed only by a writ of mandate from the appropriate court of appeal sought within 10 days of notice to the parties of the decision and only by the parties to the proceeding."

On appeal, the Masseys claim they are indigent, and they contend section 170.3 deprives indigent litigants of due process because it impermissibly imposes an unreasonable barrier to effective appellate review. They proffer no authority whatsoever supporting this contention. Instead, the Masseys merely cite a declaration of their own attorney (the same attorney who filed the peremptory challenge for them), sharing the unauthoritative opinion that due process is denied to impoverished litigants who cannot afford immediate writ review. The attorney's declaration attached a copy of a California Bar Journal article which discussed the "dire" state of funding of legal services for low-income persons. The article, which in any event is not authoritative, said nothing about writ review.

Since the Masseys failed to develop any [*9] due process analysis, they have waived the matter, and we need not discuss it. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 672-673, fn. 3; Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979 [counsel's opinion unsupported by citation to recognized legal authority did not constitute proper presentation of issue for appeal].)

II. Denial of Motion to Set Aside Prior Order

The Masseys next contend the trial court erroneously denied their motion to set aside the trial court's order confirming the sale of real property--an order which was issued on January 8, 2002, while the last appeal (Moore III, case No. C039434) was pending. The Masseys fail to show grounds for reversal.

The Masseys fail to cite to the record to show where their motion appears, as required by California Rules of Court, rule 14(a)(1)(C), n3 which requires that each brief on appeal "support any reference to a matter in the record by a citation to the record." They have therefore waived the issue. (People v. Turner, supra, 8 Cal.4th 137, 214, fn. 19; In re Marriage of Nichols, supra, 27 Cal.App.4th 661, 672-673, fn. 3; [*10] Kim v. Sumitomo Bank, supra, 17 Cal.App.4th 974, 979.)

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n3 Undesignated rule references are to the California Rules of Court.

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Moreover, it appears the Masseys are contending the trial court should have reversed the January 2002 order confirming the sale of property on the ground that this court's opinion in the last appeal--reversing the orders that were confirmed by the January 2002 order--voided any order made for enforcement of the reversed orders. However, the trial court's post-remand order, after concluding the bankruptcy proceedings had no effect on this case, expressly confirmed the order of sale, and the Masseys fail to show error.

III. Section 632

The Masseys next complain the trial court failed to explain the factual and legal basis for its underlying decision to order the probate sale and deny distribution to the Masseys. They fail to show grounds for reversal.

They claim the trial court violated the requirement for a statement of decision found in section 632. n4 However, [*11] even assuming this case constituted a trial of a statement of fact to which section 632 would apply (a point disputed by Moore in Moore III), section 632 does not require a statement of decision unless it is timely requested by a party with a specification of controverted issues as to which the party is requesting a statement of decision.

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n4 Section 632 provides in part: "In superior courts, upon the trial of a question of fact by the court, written findings of fact and conclusions of law shall not be required. The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial. The request must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision. The request for a statement of decision shall specify those controverted issues as to which the party is requesting a statement of decision."

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Here, the Masseys fail to show any timely request for a statement of decision specifying controverted issues as to which a statement of decision was requested. They merely state the judge "indicated" on two occasions that he would provide a "written opinion." However, on one of the cited occasions (a June 25, 2001, hearing), the trial court simply indicated it would take the matter under submission and issue a written "ruling," not a statement of decision. On the other occasion, the trial court merely stated at the end of a January 10, 2000, hearing on a motion to liquidate: "Let me think about it. I--I'll issue a written opinion so you can have something in writing to take to the [Court of Appeal]."

The Masseys claim they timely objected to the sufficiency of the court's ruling and asked the court to explain the legal and factual basis for its decision. However, an after-the-fact objection would not satisfy the need for a pre-decision request. Moreover, the Masseys cite a written "Objection to Statement of Decision" that predated the decision that is the subject of their present appellate contention. Thus, the "objection" was dated September 2000. The Masseys' appellate brief [*13] says the trial court failed to state reasons when it announced its decision from the bench at the final hearing. The Masseys' citation to the record is to a reporter's transcript from September 24, 2001. The written objection dated September 2000 cannot have referred to a decision which had not yet occurred.

Thus, the Masseys fail to show any timely request specifying controverted issues for a statement of decision.

The Masseys say the trial court also declined to give written reasons after remand despite their request. However, the only issue on remand was the effect of the bankruptcy, yet the Masseys requested a statement of decision on matters unrelated to the bankruptcy, e.g., the spendthrift provision and automatic dwelling interest. They fail to show entitlement to a statement of decision under these circumstances.

The Masseys cite case law discussing a rule that where contested issues in a probate proceeding necessitate underlying factual determinations, those determinations must be stated in writing sufficient to allow meaningful appellate review. (Conservatorship of Pelton (1982) 132 Cal. App. 3d 496, 502, fn. 3, 183 Cal. Rptr. 188, citing former Prob. [*14] Code, § 1230; Estate of Kennedy (1944) 64 Cal. App. 2d 757, 766; Estate of Baird (1943) 59 Cal. App. 2d 303, 305.) However, those cases were based on former Probate Code section 1230. (See Conservatorship of Pelton, supra, 132 Cal. App. 3d at p. 502, fn. 3.) The substance of that former provision was omitted upon repeal of the Probate Code in 1990 (Stats. 1990, ch. 79, § 14, p. 463 et seq.) and enactment of a new Probate Code. (See 52A West's Ann. Cal. Codes, Probate, Disposition Table, p. XXIII.) The Masseys cite no current provision of the Probate Code.

The Masseys say the trial court failed to rule on something about lien avoidance despite their requests. However, they fail to cite to any such requests in the record.

We conclude the Masseys fail to show any grounds for reversal based upon the absence of a written statement of decision.

IV. Separate Interest of J. Gale Massey

The Masseys next contend J. Gale Massey received a one-half separate property interest in the house, and his share may not be seized to satisfy a debt owed by his wife, Katherine Massey. We note this contention appears to raise a question of conflict [*15] between Gale and Katherine Massey, who are represented by the same attorney on appeal and have filed a single brief. In any event, and even assuming Gale Massey's interest was separate property, we shall conclude the Masseys fail to show grounds for reversal.

The Masseys assert J. Gale Massey was joined in the original action as a tort defendant. However, they cite nothing in the record supporting this assertion, as required by rule 14(a), which requires that an appellate brief "support any reference to a matter in the record by a citation to the record."

The Masseys assert the June 10, 1997, judgment did not award any damages against Gale Massey. However, the 1997 judgment (which was the subject of Moore I) invalidated the trust amendments upon which both Masseys sought to rely and ordered "Defendants" to account for any farm revenue. Although the judgment (prepared by Moore's attorney) was very poorly drafted (e.g., "The defendant [singular] Massey's [sic] are [plural] to hold" the estate subject to the 1992 trust agreement), that judgment as written was affirmed in Moore I, which is of course long-since final.

Moreover, our opinion in Moore III (case No. [*16] C039434), which is also final, stated, "The trial court found the Masseys . . . obtained this benefit [of the trust amendments] by exerting undue influence on Stapp."

The Masseys note the Accounting Order surcharged Katherine Massey $ 111,976 for trustee's attorney's fees, and surcharged "the Defendants' account" $ 3,000 for transcripts.

The Masseys assert J. Gale Massey is not responsible for the trustee's attorney's fees, and his interest in the house is valued at $ 56,250 yet has been seized to satisfy a debt of less than $ 1,500 (one-half of the $ 3,000 surcharge ordered by the court for transcripts).

However, the Masseys fail to cite to the record to show the value of Gale Massey's interest in the house, as required by rule 14(a). n5 Moreover, the Masseys fail to address the farm revenue or the fact that the trial court also ordered that the beneficiaries of the trust pay a pro rata portion of Moore's attorney's fees of $ 200,000, in proportion to their respective interest in the total trust estate to be distributed. They merely claim farm revenue was not a debt, since there were no net revenues after expenses were paid. However, they do not cite any evidence in the [*17] record, but only their memorandum of points and authorities filed in the trial court.

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n5 Our own review of the record discloses evidence the house and ten acres were appraised at $ 113,000--consistent with the Masseys' assertion.

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Thus, the Masseys fail to show any grounds for reversal on the basis that J. Gale Massey's interest in the house was seized to satisfy a separate debt of his wife for which he is not liable. ( § 475 [no decision shall be reversed for error unless such error was prejudicial and a different result would have been probable had the error not occurred].)

V. Spendthrift Trust Provision

The Masseys argue the house may not be executed upon while it remains protected by a spendthrift trust provision. n6 We see no basis for reversal.

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n6 The trust provided: "Spendthrift Provision. No beneficiary of this trust shall have the right to alienate, encumber or hypothecate his or her interest in the principal or income of this trust in any manner, nor shall such interest of any beneficiary be subject to claims of his or her creditors or liable to attachment, execution or other process of law."

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Moore responds this and other arguments should not be considered on appeal because the scope of our remand in Moore III did not encompass these issues. However, on remand the trial court reinstated the order of sale, and it is appropriate to consider in this appeal the challenges to the order of sale which we left unaddressed in Moore III due to our decision to remand for the trial court to consider the effect of the bankruptcy judgment.

Moore also argues the Masseys failed to raise the spendthrift issue in the trial court in a timely fashion. He suggests the Masseys concede their waiver in their appellate brief, where they complain of alleged misconduct by their own prior attorney in this case and state in a footnote, "This reprehensible conduct by the prior attorney was compounded because in defending the accounting, he focused on validating his fee payment, rather than raising the automatic dwelling exemption and spendthrift provision argued on this appeal that would have protected his clients' interests. He personally asserted a lien interest against the [Masseys'] home that was inconsistent with these defenses."

In their reply brief, the Masseys fail to refute the [*19] waiver argument presented in Moore's respondent's brief, and they have therefore waived the contention. (In re Kathy P. (1979) 25 Cal.3d 91, 102 [appellant has burden of presenting record and establishing error]; North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29 [appellant cannot change theory of case on appeal]; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal. App. 3d 325, 335, fn. 8, 265 Cal. Rptr. 788.)

VI. "Automatic Dwelling Exemption"

The Masseys argue the house qualifies for the "automatic dwelling exemption" because they have resided there since long before the judgment, and they assertedly have a vested beneficial interest pursuant to (former) Probate Code section 21116. n7

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n7 Though not acknowledged by the parties, former Probate Code section 21116 was repealed as overbroad in 2002. (Stats. 2002, ch. 138, § 25; see 54A West's Ann. Cal. Codes, Probate, § 21116 (2003 supp.) p. 139, citing Law Revision Commission Comments.)

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However, we disposed of this matter in Moore II, where we said:

"As to the order to dislodge [the Masseys'] declaration of homestead, quitclaim deeds, and granting of lien to Attorney Gisi, [the Masseys] contend that the trial court erred because their property interest in decedent's home and its surrounding land vested on her death under the terms of the trust, giving them the immediate right to transfer that interest. (Prob. Code, § 21116 [testamentary disposition by an instrument presumed to vest at transferor's death].) However, they made no such argument below. Their opposition to [Moore's] motion to quash the declaration of homestead, quitclaim deeds, and granting of lien asserted only that the motion was premature because the court lacked jurisdiction at that time to grant the relief [Moore] sought. [The Masseys] may not change their theory of the case on appeal by raising a brand-new argument that [Moore] and the trial court never got the chance to address. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 29; Neighbours v. Buzz Oates Enterprises (1990) 217 Cal. App. 3d 325, 335, fn. 8, 265 Cal. Rptr. 788.) [*21] Therefore, this contention is waived.

"In any event, the history of these proceedings demonstrates that [the Masseys'] acts were done in bad faith to try to nullify the effect of the trial court's post-judgment orders. If [the Masseys] truly believed that their right to file a declaration of homestead and quitclaim deeds and to grant their attorney a lien for his fees against their property interest vested at Stapp's death in 1995, they could have taken those steps then. Instead, so far as the record shows, they did so only after the trial court had first rendered judgment against them in the underlying action, then entered its post-judgment tentative decision invalidating their attempts to pay their attorney's fees out of the trust (and, not incidentally, to deplete the trust of moneys awarded to [Moore] by the trial court). This was simply the latest of [the Masseys'] many subterfuges to defeat [Moore's] rights and the trial court's intent. The court properly denied effect to it. (Cf. Civ. Code, §§ 3514, 3517.)" (Moore II, supra, C030547 at pp. 13-14.)

In this appeal, the Masseys assert in a footnote:

"[Moore] claims [*22] that the prior appellate decision purported to resolve this issue. Note that there is an entirely separate Article that authorizes 'Declared Homesteads,' Chapter 4, Article 5 (CCP § 704.910, et seq.), of this same division. It is that 'Declared Homestead' which was dislodged by judicial order, and affirmed on appeal. The declared homestead and the dwelling exemption are separate and distinct. Webb v. Trippet (1991) 235 C.A.3d 647, 286 Cal. Rptr. 742; PEOPLE v. MORSE (1993) 21 Cal App 4th 259."

The Masseys fail to explain how this assertion avoids the waiver we found in Moore II. They also fail to show they raised any issue of "automatic dwelling exception" in the trial court. They merely assert the trial court "implicitly" recognized a property interest because it authorized a lien and liens attach only to property.

We conclude the Masseys fail to show any grounds for reversal.

VII. Bankruptcy

The Masseys next argue they have been fully discharged in bankruptcy, and the debt may only be collected if there is a pre-bankruptcy petition lien, but no liens have attached.

The Masseys claim Moore concedes that [*23] no lien was perfected against the Masseys' interest in the trust estate. However, the Masseys' three citations to the record merely show the following statement repeated three times in various briefs filed by Moore in the trial court:

"The Masseys' argue that a lien did not exist because Moore did not do anything to perfect a lien, such as record an abstract of judgment. But, no perfection requirement exists. The lien against the Masseys' interest a [sic] distribution from the trusted [sic] constituted an equitable, possessory lien of the trust estate. Regardless of the Masseys' [sic] the nature of the Masseys' interest, the trust estate continued to hold title to the actual property of the trust estate prior to distributing it to the beneficiaries. Thus, the trustee had the power to set off any amounts owed a beneficiary against that beneficiary's interest. This court expressly approved such a lien in its July 16, 1998 order permitting surcharges against the Masseys' interest. The Masseys do not provide any legal authority for the proposition that the trust was required to perfect its lien against its own property."

The trial court found Moore had both legal and [*24] equitable liens on the property. On appeal, the Masseys focus on legal liens. They do not address equitable liens. They therefore fail to meet their burden as appellants to show grounds for reversal, because if the order can be sustained on the basis of equitable lien, then any error regarding legal lien is harmless and does not justify reversal. ( § 475 [no decision shall be reversed for error unless such error was prejudicial and a different result would have been probable had the error not occurred].)

Trust law incorporates an equitable rule, called the right of retainer, "embodied in section 251 of the Restatement of Trusts: 'If a beneficiary is under a liability to the trustee as such, his interest in the trust estate is subject to a charge for the amount of his liability.' Comment (c) of section 251 discusses the enforcement of such a charge: 'Where the interest of a beneficiary of a trust is subject to a charge, the trustee can properly refuse to pay him the amount to which he would otherwise be entitled without deducting the amount for which he is chargeable, and . . . he is under a duty to the other beneficiaries to do so.'" (County Nat. Bank etc. Co. v. Sheppard (1955) 136 Cal. App. 2d 205, 218 [*25] (Sheppard).)

Sheppard, supra, 136 Cal. App. 2d 205, held a trustee's equitable right of retainer "was not limited to the enforcement by execution of a simple money judgment. It had the further remedy of impressing its right of retainer upon the distributive shares of [the beneficiaries] by withholding distribution to the extent necessary to satisfy the judgments held by the trust estate. It would be unfair and inequitable to the others interested in the estate to allow a beneficiary to receive the fruits of an estate and at the same time to escape the reimbursement of his indebtedness to the estate." (Id. at pp. 218-219.)

The Masseys touch on the subject of the right of retainer in the portion of their brief devoted to discussion of the spendthrift provision. They argue Sheppard, supra, 136 Cal. App. 2d 205, is distinguishable with respect to the language of its spendthrift provision. However, we have seen the Masseys waived the issue of the spendthrift provision.

The Masseys also note Sheppard, supra, 136 Cal. App. 2d 205, distinguished itself from a case cited by the unsuccessful Sheppard litigants-- [*26] Estate of Polito (1921) 51 Cal.App. 752 (Polito)--which held that where the sole subject of distribution of an estate is real property, the probate court had no jurisdiction to set off against a debt due the estate by an heir the undivided interest of said heir in the real estate. However, Polito was decided upon the limited jurisdiction of the probate court at that time. (Id. at p. 754.) Current provisions of the Probate Code confer general jurisdiction on the probate court. (Prob. Code, §§ 800 ["court in proceedings under this code is a court of general jurisdiction"], 17001 [in judicial proceedings concerning trusts, court is a court of general jurisdiction].) Here, the Masseys cite no limitation on the court's jurisdiction.

Under a separate heading, the Masseys argue the bankruptcy court retains jurisdiction over the lien avoidance issue. They fail to show how this assertion helps them in this appeal. They cite a bankruptcy court order clarifying the extent of abstention, which states the bankruptcy court's "order abstaining in favor of state court was for the limited purpose of the determination of the debtors' [*27] interest in the disputed property and, if the debtors do have a cognizable interest, whether they are entitled to exempt such property under applicable nonbankruptcy law." The trial court in this case determined the Masseys have no cognizable interest in the property--a ruling which we affirm on appeal.

VIII. Attorney's Fees

The Masseys ask this court to award them attorney's fees on the theory that they have conferred a benefit on the public through this litigation. ( § 1021.5; rule 27.) We disagree and deny their request.

IX. Restitution

The Masseys ask this court to order Moore to pay them restitution for being ordered out of the house. We deny the request.


The judgment (orders for sale and distribution of property and order re: effect of bankruptcy proceedings) are affirmed. Moore shall recover his costs on appeal. (Cal. Rules of Court, rule 27(a).)

SIMS, Acting P.J.

We concur:



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