It is currently Wed Aug 23, 2017 6:51 am

All times are UTC - 8 hours [ DST ]

Post new topic Reply to topic  [ 1 post ] 
Author Message
 Post subject: TR - Bank of the West v. Lewschin (9/10/2004)
PostPosted: Thu Feb 19, 2009 10:04 am 

Joined: Mon Dec 15, 2008 11:29 am
Posts: 112
Bank of the West v. Michael Lewschin,
No. B174128 (Cal.App. Dist.2 09/10/2004)


September 10, 2004, Filed.


PRIOR HISTORY: APPEAL from an order of the Superior Court of Los Angeles County, No. BP061143. Thomas W. Stoever, Judge.


COUNSEL: Law Offices of Janet R. Randle and Janet R. Randle, for Objector and Appellant.

Thomas Stindt; Greines, Martin, Stein, & Richland, and Marc J. Poster, for Petitioner and Respondent.




Michael Lewschin, the objector, n1 appeals from a January 23, 2004, probate order granting the petition of Bank of the West (the bank) to approve its accounting as trustee of the Lewschin Family Trust and denying his petition for instructions. We affirm the order in all respects.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n1 As explained by the objector's counsel, he appeared in this case as both an objector and petitioner. Solely for purposes of clarity, we will refer to him as the objector but with full respect for the fact the probate court permitted him to present claims for affirmative relief.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*2]


A. The Trust and July 25, 2001, Settlement Agreement

The Lewschin Family Trust is an irrevocable trust that was created inter vivos in July 1994 by trustors, Meyer and Evelyn Lewschin, who are now both deceased. n2 Meyer was the original trustee of the trust. The objector and his sister, Rebecca Thomas, are the trust beneficiaries. The trust provides in part that it became irrevocable upon the first trustor's death. The trust further provides that upon Meyer's death, which occurred in February 1999, that Ms. Lewschin would serve as successor trustee until she resigned, died, or became incompetent. Ms. Thomas became the trustee after Ms. Lewschin became incapacitated. Ms. Lewschin died in July 1999. Pursuant to the terms of the trust, upon Ms. Lewschin's death, one-half interest of the distributable share of the trust was to be given outright to Ms. Thomas. The objector received the other one-half interest but it was to be held as a separate trust and administered for his benefit for his remaining lifetime.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n2 Because Meyer and Michael Lewschin have the same surname, we refer to Meyer by his first name for purposes of clarity and not out of any disrespect.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - - [*3]

After disputes arose between the objector and the then trustee, Ms. Thomas, he entered into a settlement agreement on July 25, 2001. The July 25, 2001, settlement agreement provided that there were pending disputes between the objector and Ms. Thomas concerning the trusts. The settlement agreement provided that by entering into the agreement the parties, who were both represented by counsel, desired to settle all disputes and resolve all issues among them. On December 31, 2001, the probate court entered an order approving the July 25, 2001, settlement agreement between the objector and Ms. Thomas. The probate court also approved Ms. Thomas' accounting as trustee. The December 31, 2001, probate court order provides in part: "From the date this order is served on MICHAEL LEWSCHIN'S attorney of record, KENNETH PETRULIS of GOODSON & WACHTEL, MICHAEL LEWSCHIN shall have fourteen (14) days to have a qualified trustee (as defined in the Settlement Agreement of the parties) to accept the office and duties of successor trustee of this trust. In the event MICHAEL LEWSCHIN fails to obtain said acceptance within the prescribed time period, [BANK OF THE WEST] is appointed as successor trustee [*4] of this trust." (Original capitalization.) The objector did not appeal from the December 31, 2001, orders approving the July 25, 2001, settlement and accounting of Ms. Thomas.

B. The May 15, 2002 Petition to Confirm the Bank As the Successor Trustee

The bank filed a petition to confirm its appointment as successor trustee, which was scheduled for hearing on May 15, 2002. The objector filed an objection to the petition to confirm the bank as successor trustee. The objector opposed the bank's petition on the grounds the December 31, 2001, order should not be enforced because: the settlement agreement was obtained with undue influence; the July 25, 2001, settlement agreement contained modifications of the express terms of the irrevocable trust which undermined the purpose of the trust; and the release of trustee liability was unenforceable. During the negotiations leading up to July 25, 2001, settlement, the objector was represented by an attorney Kenneth G. Petrulis. The objector only signed the July 25, 2001, settlement agreement because of pressure from Mr. Petrulis and the mediator. The objector declared, among other things, that prior to executing the agreement: he had not [*5] taken his medication for epilepsy; he had not eaten; he was experiencing an "epileptic aura" and high pitched buzzing in his ears; and he did not know what he was signing.

On June 27, 2002, the probate court confirmed the appointment of the bank as the interim trustee. The June 27, 2002, order states in part, "This appointment is independent of the original Order entered herein of December 31, 2001." Under the terms of the June 27, 2002, order, the bank was directed not to make disbursements under the July 25, 2001, settlement agreement pending further resolution of the parties' dispute by mediation or trial.

C. The Terminating Sanction

Ms. Thomas attempted to conduct a deposition concerning the issue of the appointment of the bank as the successor trustee. Eventually a terminating sanction was imposed against the objector. As noted below in depth, in Lewschin v. Thomas (Mar. 30, 2004, B165215), a nonpublished opinion, we upheld the probate court's ruling imposing monetary and terminating sanctions against the objector.

The discovery controversy arose after Ms. Thomas attempted to depose the objector concerning his challenges to the July 25, 2001, settlement agreement, [*6] which had been approved on December 31, 2001, by the probate court. According to Ms. Thomas' attorney, Bruce Fuller, shortly after the deposition began, the objector became violent and uncooperative. The objector had to be restrained as he charged towards his sister, Ms. Thomas. The probate court subsequently ordered: the objector to pay sanctions in the amount of $ 7,226; continued the deposition to a date after August 19, 2002, by agreement of counsel; and ordered security arrangements of Mr. Fuller's choosing to be implemented. The deposition was not taken on that date because Mr. Fuller could not reach the objector's attorney, Janet R. Randle, to ensure the deposition would go forward. On August 22, 2002, Mr. Fuller brought an ex parte application on Ms. Thomas's behalf to have the court select the deposition date. On August 29, 2002, the probate court set the objector's deposition for September 10 and 11, 2002. The court also imposed $ 2,000 in monetary sanctions against Ms. Randle for failing to respond to Mr. Fuller's request to set the continued deposition.

On September 9, 2002, the objector filed an ex parte application for an order to defer his deposition. The application [*7] was based in part on the declaration of Dr. William Vicary, a psychiatrist. Dr. Vicary believed the objector was unable to participate in the deposition. The objector, therefore, requested a continuance of two to three months. As another alternative the September 9, 2002, ex parte motion sought to delay the deposition until Dr. Vicary concluded the objector was medically able to participate in a legal proceeding. Dr. Vicary had been caring for the objector since July 20, 2002. Dr. Vicary diagnosed the objector with bipolar disorder. Dr. Vicary initially believed that three weeks were needed to stabilize the objector. Dr. Vicary had been unable to accomplish this. On September 4, 2002, Dr. Vicary changed the objector's medication in response to drowsiness. On September 7, 2002, Dr. Vicary advised Ms. Randle that the objector should not be deposed. In Dr. Vicary's opinion, the objector was: susceptible to irrational states of mind; subjected to unpredictable and uncontrolled fits of agitation and self-destructive behavior; and incompetent to make informed and intelligent decisions about legal matters. On September 9, 2002, the probate court denied the objector's ex parte application [*8] and ordered him to appear as previously scheduled.

On September 10, 2002, the objector arrived for the deposition 45 minutes late. Two off duty Inglewood Police Officers had been hired as security. The objector became agitated and assaulted the off duty officers. The objector called the Los Angeles Police Department. The responding Los Angeles Police Officers investigated the incident and arrested the objector.

On December 20, 2002, the probate court issued a terminating sanction against the objector regarding his objections to the petition to confirm the bank as trustee. The court ordered the objector's objections to the petition to confirm the settlement agreement stricken. This included an objection that the settlement agreement was invalid. The probate court then confirmed the appointment of the bank as the successor trustee. We upheld the imposition of the terminating sanction in response to the objector's unjustified "refusal to comply with its prior discovery orders." (Lewschin v. Thomas, supra, typed opn. p. 2.)

D. The Bank's Petition for Approval of Account, Modification and Instructions

On July 3, 2003, the bank filed a first account and report of trust administration. [*9] The bank also sought: settlement and approval of the account; modification of the trust with regard to qualifications of any future trustee for the objector's lifetime spendthrift trust; instructions to reserve funds for litigation expenses; and extraordinary fees of $ 14,125.

On August 13, 2003, Ms. Thomas filed limited objections to the bank's petition for settlement and approval of the account. Ms. Thomas argued: the extraordinary fees of $ 5,625 requested by the bank should be charged to the objector's share of the trust because he caused those expenses to be incurred by acting in bad faith; any successor trustee should be appointed in accordance with the July 25, 2001, settlement agreement of the parties and the court's December 31, 2001, order; and Ms. Thomas should be restored as trustee. In reply, the bank indicated it was prepared to abide by any court orders concerning allocation of extraordinary fees to a beneficiary.

E. The Objector's Objections and Request for Instructions

On August 14, 2003, the objector filed objections to the petition for settlement and approval. The objector candidly admitted that he intended to use the opposition to the petition as an opportunity [*10] to focus on issues that had been raised and adjudicated against him in prior proceedings. This included arguments concerning his litigation tactics, which had resulted in evidentiary and monetary sanctions against him and his attorney, Ms. Randle. The objector further indicated that his opposition to the bank's petition would address the alleged misconduct of Ms. Thomas during her tenure as trustee, which as noted above, ended by the July 25, 2001, settlement agreement.

The objector argued: the bank had failed to investigate and redress known breaches of judiciary duty by Ms. Thomas; the trust should be modified to allow him to select a successor trustee; no trust funds should be disbursed until the probate court reviewed Ms. Thomas' actions as trustee; the May 15, 2002, order appointing the bank as interim trustee was based on the December 31, 2001, order which was violative of statute and void; the bank was "in conflict" with the objector over the issue of the legality of the December 31, 2001, order; and testimony by Dr. Vicary established that the bank should be replaced as trustee. The objector also requested the probate court to instruct the bank: to obtain a full disclosure [*11] for legal services rendered and paid to and by the trust while Ms. Thomas was acting as trustee; transfer from Ms. Thomas' portion of the trust attorney fees paid as a result of her alleged breach of fiduciary duties; transfer from Ms. Thomas' portion of the trust disbursements made without court order and while her powers as trustee were suspended; and to order Ms. Thomas to pay 50 percent of the objector's attorney fees owed to Ms. Randle for legal services rendered during the period March 2002 to August 2003. In addition, the objector argued he needed documents concerning the sale of the trust assets for an independent review.

Dr. Vicary declared that the objector was bipolar and engaged in self-destructive behavior. In Dr. Vicary's opinion, the conduct was not volitional. Rather, the objector was unable to invoke rational thought when he encountered his sister and others involved in the administration of the trust. Dr. Vicary stated, "It [would] [be] in the best interest of Mr. Lewschin if the Court substituted a qualified individual Trustee chosen by Mr. Lewschin to manage the trust, as his beliefs regarding the current trustee's association with his sister's attorney is [*12] interfering with Mr. Lewschin's ability to benefit from his own trust."

The bank responded to the objector's contentions thusly: the objections did not address its petition but raised unrelated issues; the objections sought removal of the trustee without complying with the relevant statutory and procedural requirements; the objector's claims for affirmative relief were based on overturning the July 25, 2001, settlement agreement by a trial at a time when his objections had been stricken as a discovery sanction; the bank was neutral as to trust assets but asserted it had the right to support its confirmation as a trustee; the objector's self-created hostility could be the basis for its removal as the trustee; the objector's contentions were a diversionary tactic; the objector did not object to the May 15, 2002, order confirming and appointing it as the interim trustee; and no grounds existed for its removal as trustee.

The bank also filed declarations which addressed claims made by the objector regarding the trust administration. Rebecca Duguid, the trust officer, declared that she did not know either of the parties prior to having the matter assigned to her. Further, Ms. Duguid [*13] denied having a special relationship with Ms. Thomas. When the bank accepted the trust, it relied on the probate court's December 31, 2001, order approving Ms. Thomas' accounting. The bank also obtained documents from the attorney representing Ms. Thomas when information was needed. The bank requested any information from the objector and his attorney, Ms. Randle, that would aid in an investigation of any misconduct by Ms. Thomas, the former trustee. However, neither the objector nor Ms. Randle provided any such information.

Thomas E. Stindt, the bank's counsel filed a lengthy declaration outlining the administration of the trust including efforts to address the objector's concerns. It was noted that the objector's account and his requests for information were given priority. The efforts to extend the courtesies to the objector and his attorney, Ms. Randle, were made notwithstanding his disruptive and hostile conduct directed at bank employees. This included accusations by the objector that Ms. Duguid wanted to kill him. The objector: also threatened Mr. Stindt in the hallway before a hearing; shouted obscenities at Mr. Stindt; and called Mr. Stindt profane names. Orally and in writing, [*14] the objector accused Mr. Stindt of being a "Jew hater."

F. The Probate Court Rulings

On October 2, 2003, the probate court granted the objector's request to treat his objections as a petition for instructions. On December 19, 2003, the probate court granted the bank's petition for: settlement and approval of account; instructions for modification of the trust; request to establish a reserve defense account; and payment of extraordinary fees. The court also overruled and granted the objections of Ms. Thomas in part. The objector's objections were overruled and his request for instructions was denied. Thereafter, the bank's counsel filed a proposed order. The objector filed objections to the order. On January 23, 2004, the probate court signed and filed the order as proposed. All of the objector's objections were overruled. In addition, the probate court denied all of objector's requests for instructions and other orders. Extraordinary fees for the bank were approved and allowed in the amount of $ 14,125 payable $ 5,000 from the objector's share and $ 9,125 from the trust as a whole. On March 23, 2004, the objector filed a timely notice of appeal from the order.


A. [*15] The Objector's Contentions

The objector contends: the probate court improperly denied his challenge to the legality of the December 31, 2001, order premised on the July 25, 2001, settlement agreement allowing the appointment of bank as successor trustee; refused to instruct the bank pursuant to Probate Code n3 section 15403, subdivision (b)(3) regarding an investigation of alleged past abuses of Ms. Thomas; denied his request to instruct the bank to pay 50 percent of his attorney fees from his own trust share; and denied his request to have the bank replaced based on evidence of a conflict of interest and the medical opinion of Dr. Vicary. The objector also contends that the bank did not properly account for the proceeds from the sale of a trust asset.

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n3 All further statutory references are to the Probate Code unless otherwise indicated.

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

B. The Validity of the July 25, 2001, Settlement Agreement

The objector initially argues that the orders under review must be reversed because the probate court should [*16] have ruled that the December 31, 2001, order based on the July 25, 2001, settlement agreement allowing the appointment of the bank as successor trustee was void as a matter of law pursuant to section 15403, subdivision (b). We disagree.

First, the order approving the settlement agreement, modifying trust, approving account, and appointing successor trustee was entered on December 31, 2001. No timely appeal was taken from the probate order which is now final and binding. (Code Civ. Proc., § 904.1, subd. (a)(10); § 1300; Cal. Rules of Court, rule 2(a); Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 ["The orders listed as appealable in the Probate Code must be challenged timely or they become final and binding. They may not be collaterally attacked in a subsequent appeal from the final order of distribution"]; see also Pangborn Plumbing Corp. v. Carruthers & Skiffington (2002) 97 Cal.App.4th 1039, 1046, fn. 3 [order enforcing settlement agreement appealable]; Viejo Bancorp, Inc. v. Wood (1989) 217 Cal. App. 3d 200, 205, 265 Cal. Rptr. 620, [enforcing a settlement [*17] agreement pursuant to Code Civ. Proc., § 664.6 is appealable]; Estate of DiPinto (1986) 188 Cal. App. 3d 625, 626-627, 231 Cal. Rptr. 612 [order accepting stipulation and determination of title to property is appealable as judgment on merits of the claim under the Prob. Code].)

Moreover, the objector's contention that a claim the July 20, 2001, settlement agreement was illegal is cognizable on appeal because illegality issues may be considered as a question of law at any time is without merit. According to the objector, the December 31, 2001, probate court order approving the July 20, 2001, settlement agreement did not comply with section 15403, subdivision (b) which rendered the order approving the settlement agreement void as a matter of law under Civil Code sections 1441 n4 and 1667. n5 No doubt, a void judgment is subject to collateral attack. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288; Carlson v. Eassa (1997) 54 Cal.App.4th 684, 691-692.) Thus, the objector can attack an order on the ground the probate court lacked subject matter [*18] or personal jurisdiction or if it granted relief it had no power to grant. (Estate of Buck (1994) 29 Cal.App.4th 1846, 1854; Adoption of Matthew B. (1991) 232 Cal. App. 3d 1239, 1268-1269, 284 Cal. Rptr. 18.) However, the objector's contentions are nothing more than an improper collateral attack upon a final order entered on December 31, 2001. The objector's collateral attack upon the December 31, 2001, order may not be premised on a failure to state a cause of action, the insufficiency of the evidence, abuse of discretion, or mistake of law. (Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950, 126 Cal. Rptr. 805; Estate of Buck, supra, 29 Cal.App.4th at p. 1856.) Thus, the December 31, 2001, order is not void merely because it involved a mistake of law, violated a statute, or granted excessive relief. (Armstrong v. Armstrong, supra, 15 Cal.3d at p. 950; Estate of Buck, supra, 29 Cal.App.4th at p. 1856.)

- - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

n4 Civil Code section 1441 provides: "IMPOSSIBLE OR UNLAWFUL CONDITIONS VOID. A condition in a contract, the fulfillment of which is impossible or unlawful, within the meaning of the Article on the Object of Contracts, or which is repugnant to the nature of the interest created by the contract, is void." [*19]

n5 Civil Code section 1667 provides: "That is not lawful which is: [P] 1. Contrary to an express provision of law; [P] 2. Contrary to the policy of express law, though not expressly prohibited; or, [P] 3. Otherwise contrary to good morals."

- - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -

Here, the objector argues the December 31, 2001, order approving the settlement agreement and modifying the trust to appoint a successor trustee was void because the probate court failed to make discretionary determinations that the reason for the modification outweighed the interest in accomplishing the material purposes of the instrument. The probate court has jurisdiction to modify the trust pursuant to section 15403, which provides in its entirety: "(a) Except as provided in subdivision (b), if all beneficiaries of an irrevocable trust consent, they may compel modification or termination of the trust upon petition to the court. [P] (b) If the continuance of the trust is necessary to carry out a material purpose of the trust, the trust cannot be modified or terminated unless the court, in its discretion, determines that the [*20] reason for doing so under the circumstances outweighs the interest in accomplishing a material purpose of the trust. Under this section the court does not have discretion to permit termination of a trust that is subject to a valid restraint on transfer of the beneficiary's interest as provided in Chapter 2 (commencing with Section 15300)."

Thus, the express language of section 15403, subdivision (a) provides that with the parties consent, the probate court has authority to modify the trust provisions. In this case, the only two beneficiaries and the trustee jointly requested the probate court to modify the trust pursuant to the July 25, 2001, settlement agreement. The probate court had the power to decide the issue which was brought by the trustee and beneficiaries as to whether the trust should be modified to change the designated successor trustee. ( §§ 15409, 17200; Stewart v. Towse (1988) 203 Cal. App. 3d 425, 429, 249 Cal. Rptr. 622; see also Estate of Heggstad (1993) 16 Cal.App.4th 943, 951-952.) Moreover, a probate court has jurisdiction over both inter vivos and testamentary trusts to entertain petitions for instructions regarding validity [*21] of agreements or amendments. ( § 17200; Conservatorship of Irvine (1995) 40 Cal.App.4th 1334; Estate of Heggstad, supra, 16 Cal.App.4th at pp. 951-952.) Because all interested parties consented to the modification as expressly permitted by statute, there is no merit to the objector's argument that the probate court's actions were void as a matter of law. ( § 15403; Conservatorship of Irvine, supra, 40 Cal.App.4th at pp. 1342-1343; Stewart v. Towse, supra, 203 Cal. App. 3d at pp. 428-431; see also Estate of Sigourney (2001) 93 Cal.App.4th 593, 605.)

Second, the very issues raised in this appeal concerning the illegality of the July 25, 2001, settlement agreement, the alleged misfeasance of Ms. Thomas and the appointment of a successor trustee to her were the subject of a previous appeal. In that appeal, we upheld the probate court's ruling in issuing a terminating sanction against the objector's claims because of his discovery abuses. (Lewschin v. Thomas, supra, typed opn. p. 2.) The same claims have been stricken and the objector is not entitled to revive them because the bank filed a petition to settle [*22] and approve the accounting. The order striking the objection operates as a conclusive finding that the appointment of the bank was lawful. The finding is final and binding and the objections may not be renewed each time an accounting is made by the bank. (Estate of Ivey (1994) 22 Cal. App. 4th 873, 878-879 [discovery sanction can operate as a finding objections were without merit and rendering claims barred by res judicata]; see also California Teachers Assn. v. Governing Board (1984) 161 Cal. App. 3d 393, 400, 207 Cal. Rptr. 659; Bernstein v. Allstate Insurance Co. (1981) 119 Cal. App. 3d 449, 451, 173 Cal. Rptr. 841; Kahn v. Kahn (1977) 68 Cal. App. 3d 372, 384, 137 Cal. Rptr. 332.) Such an effort in the future will potentially lead to the imposition of further monetary and other sanctions. (Code Civ. Proc., § 128.7; Cal. Rules of Court, rule 27(e)(1)(A).)

C. The Failure to Investigate Ms. Thomas' Conduct As the Trustee

We disagree with the objector's contention that the January 23, 2004, order must be reversed because the bank was not ordered to investigate [*23] allegations that Ms. Thomas had breached her fiduciary duties. First, the probate court approved the first and final account of the former trustee on December 31, 2001, as part of the July 25, 2001, settlement agreement. Paragraph 16 of the July 25, 2001, settlement agreement provides: "Disposition of Pending Proceedings. Except for the Trustee's Petition for Approval of Accounting by Successor Trustee and For Appointment of Successor Trustee filed April 16, 2001 (the 'Accounting') in the Trust Proceedings, all petitions, objections and responses now pending in the Trust Proceedings . . . shall be withdrawn with prejudice and taken off calendar. The Accounting shall be supplemented by the Trustee to conform in all respects to the provisions of this Agreement and shall thereafter be submitted for approval by the Court in the Trust Proceedings without further objection by [Mr. Lewschin]. [Mr. Lewschin] shall dismiss the appeal pending the Appellate Proceedings." In compliance with this provision of the July 25, 2001, settlement agreement, Ms. Thomas submitted an accounting. The probate court approved the account for the administration of the trust on December 31, 2001. As no appeal [*24] was taken from the December 31, 2001, order approving the account, the determination is final and conclusive. ( § 1300, subd. (b) [order settling an account of a fiduciary is appealable]; Code Civ. Proc., § 904.1, subd. (a)(10); Cal. Rules of Court, rule 2(a); Estate of Gilkison, supra, 65 Cal.App.4th at p. 1450, fn. 5.)

D. The Instruction to Pay Attorney Fees

Citing Estate of Ivey, supra, 22 Cal.App.4th at pages 882-886, the objector argues the probate court erred in refusing to order the trust to pay his attorney fees for challenging its administration. Ivey concluded the beneficiary's spendthrift trust could be used to pay attorney fees incurred by other beneficiaries. This was because the spendthrift trust beneficiary engaged in frivolous litigation tactics which were violative of former section 128. 5. (Stats. 1990, ch. 887, § 1, pp. 3764-3765.) This is not what is at issue in this case. The issue in this case is whether the trust should be required to pay the objector's attorney fees in pursuing his sometimes frivolous contentions. Ivey provides no support for the objector's position. [*25] The probate court was not required to order the trust to pay the objector's attorney fees. ( §§ 15300-15302; DiMara v. Bank of California (1965) 237 Cal. App. 2d 254, 257-259, 46 Cal. Rptr. 924.) The only potentially frivolous conduct in this case has been engaged in by the objector. The objector claims that the failure to instruct the trustee to pay the fees was a violation of his equal protection rights. No pertinent authority is cited to support the issue. We deem the claim to be waived for failure to support it with reasoned argument and citations to authority. (Cal. Rules of Court, rule 14(a)(1)(B); People v. Stanley (1995) 10 Cal.4th 764, 793; Moulton Niguel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1220; Magan v. County of Kings (2002) 105 Cal.App.4th 468, 477, fn. 4.) There is no merit to the objector's attorney fee contentions.

E. The Refusal to Replace the Bank As the Trustee

The objector contends the probate court should have removed the bank as trustee. The objector reasons there was evidence of a conflict between him and bank. The objector relies on Dr. Vicary's [*26] medical opinion. The objector contends that his bipolar condition required that in order to avoid self-destructive behavior he alone had the authority to select a trustee. Hence, the objector argues that the bank of whom he disapproves of must therefore be removed as successor trustee. The determination of whether to remove a trustee is reviewed for abuse of discretion. (Estate of Gilmaker (1962) 57 Cal.2d 627, 633, 21 Cal. Rptr. 585; Estate of Bixby (1961) 55 Cal.2d 819, 826, 13 Cal. Rptr. 411; Estate of Baird (1955) 135 Cal. App. 2d 343, 351, overruled on a different point in Estate of Schloss (1961) 56 Cal.2d 248, 256, 14 Cal. Rptr. 643.)

No abuse has been established in this case. Hostility or antagonism existing between the beneficiary and the trustee may be a ground for removal. For example, when the hostility threatens to impair the proper administration of the trust, it may be proper to remove the trustee. (Estate of Gilmaker, supra, 57 Cal.2d at p. 632; IFS Industries, Inc. v. Stephens (1984) 159 Cal. App. 3d 740, 754, 205 Cal. Rptr. 915; Copley v. Copley (1981) 126 Cal. App. 3d 248, 288, 178 Cal. Rptr. 842.) [*27] There is absolutely no evidence the bank has engaged in any conduct which requires its removal or that its administration of the trust has been impaired. As the approved settlement and account shows, the trustee has utilized a number of resources in its trust department to deal with a very difficult situation. The trustee has among other things: taken control and custody of all trust assets; collected and disbursed income as required; reviewed assets; made investments; disposed of real property; defended the trust against challenges; prepared income tax returns; and accounted to the beneficiaries. No abuse of discretion occurred.

F. The Approval of the Sale of a Trust Asset

Without citation to any pertinent authority, the objector claims that the order must be reversed because he was denied access to documents to conduct an independent investigation of propriety of the sale of an apartment building belonging to the trust. The claim is waived for failure to support it with reasoned argument and citations to authority. (Cal. Rules of Court, rule 14(a)(1)(B); People v. Stanley, supra, 10 Cal.4th at p. 793; Moulton Niguel Water Dist. v. Colombo, supra, 111 Cal.App.4th at p. 1220; [*28] Magan v. County of Kings, supra, 105 Cal.App.4th at p. 477, fn. 4.) Nevertheless, the records shows that the bank gave a detailed account of the sale of the apartment building. The account was documented in depth and the objections were answered in supplementary papers filed by the trustee. No error has been established in the probate court's approval of the sale.


The January 23, 2004, order is affirmed in all respects. The Bank of the West, as the successor trustee of the Lewschin Family Trust, shall recover its costs incurred on appeal from the objector and appellant, Michael Lewschin.


We concur:



Offline Profile  
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 1 post ] 

All times are UTC - 8 hours [ DST ]

Who is online

Users browsing this forum: No registered users and 1 guest

You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum

Search for:
Jump to:  
Powered by phpBB © 2000, 2002, 2005, 2007 phpBB Group
Theme created