The opinion
Filed 12/21/22 Von Borstel v. Von Borstel CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DOLORES VON BORSTEL, B311420
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 18STPB06659)
v.
MONIQUE VON BORSTEL, as
Trustee, etc.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Brenda J. Penny, Judge. Reversed with
directions.
Sandra J. Applebaum; Salvatore Coco for Plaintiff and
Appellant.
FEIG Law Firm and Scott Feig for Defendant and
Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
This appeal arises out of an intrafamily dispute over the
validity of an alleged amendment to a living trust. Beneficiary
Dolores Von Borstel filed a verified petition seeking to compel
beneficiary and trustee Monique Von Borstel to distribute certain
real and personal property to Dolores1 consistent with the
amendment, which Dolores alleged had been signed, but lost.
The trial court granted Monique’s motion for judgment on
the pleadings, holding that Probate Code2 section 15206’s
requirement that a trust relating to real property be in writing
and signed barred Dolores’s petition, regardless of Dolores’s
contention that the amendment was a lost document and that
extrinsic evidence should be admitted to prove that it was signed.
We conclude Dolores stated sufficient facts to state a claim
that the trust amendment was a lost document. The crux of her
petition was that there was in fact a written and signed
document, but that it could not be located. We reject Monique’s
alternative contentions that the order granting the motion for
judgment on the pleadings is nonappealable and that the petition
was otherwise inadequate. We therefore reverse the judgment
and vacate the order granting the motion for judgment on the
pleadings.
1 We refer to the Von Borstels by their first names for the sake of
clarity; we intend no disrespect.
2All subsequent undesignated statutory references are to the
Probate Code.
2
FACTUAL AND PROCEDURAL BACKGROUND
Consistent with the applicable standard of review, we draw
our statement of facts from the allegations of Dolores’s July 2018
petition and other matters properly subject to judicial notice.
(Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256,
264.) “[W]e treat as true all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law.”
(Freeman v. San Diego Assn. of Realtors (1999) 77 Cal.App.4th
171, 178, fn. 3; Fontenot, at pp. 264–266.) Further, we may
examine written instruments attached to a pleading and properly
incorporated therein by reference, treating the pleader’s
allegations of their legal effect as surplusage. (Burnett v.
Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.)
Charles Von Borstel executed an inter vivos declaration of
trust in 2008. The trust, appended to the petition as an exhibit,
specified that real property located in Hacienda Heights,
California (the Hacienda Heights property), was to be held in
trust and upon Charles’s death, his wife Dolores, would reside
there until her death or whenever Dolores agreed the trustee
could sell the home. At that point, the balance of the trust estate
was to be distributed to Charles’s three children from another
marriage, Monique, Charles, and Carl, in equal shares. Upon
Charles’s death, Monique was to become his successor trustee.
Article II of the trust reserved the power to amend and
revoke through the following methods: “During the lifetime of
the Trustor, this Trust may be revoked in whole or in part by the
Trustor delivering written notice to the Trustee. In the event of
such revocation, the entire Trust Estate or the portion affected by
the revocation, shall revert to the Trustor retaining its character
as separate property. During the lifetime of the Trustor this
3
Trust may be amended in writing by written amendment thereof
delivered to the Trustee.”
According to Dolores’s petition, Charles executed a second
amendment to the trust on December 6, 2016, an unsigned
version of which was appended to the petition as an exhibit. The
exhibit, denominated “Second Amendment to the Charles Von
Borstel Living Trust” and bearing signature lines for Charles as
settlor and trustee and a notary block, purported to revoke a
prior 2012 amendment, and amend and restate the 2008
declaration of trust so as to provide that the Hacienda Heights
property be held in “Joint Tenancy with [Dolores] and no matter
how the title is now held, (if that property is in my Trust it is a
mistake) it is to be specifically given and bequeathed to Dolores
. . . as her sole and separate property.”3 The amendment further
provided that at Charles’s death additional real property in Pico
Rivera would be given and bequeathed to Monique. It also stated
that Charles’s rights to real property in Nevada should be in title
to Leisure Time, Inc., and that all real property and “all interest I
own in Leisure Time, Inc.” was given and bequeathed to Dolores.
Finally, the amendment specified that the residue of Charles’s
estate, including other business and real property interests, be
given to his three children. The amendment also indicated
Charles “retained the power to alter, amend, revoke or terminate
the Declaration of Trust.”
3 Dolores filed a declaration in support of her petition averring
that, prior to marrying Charles, she owned the Hacienda Heights
property, and then, upon their marriage, she placed Charles on
title to the property in joint tenancy.
4
The document was prepared by Attorney Allen Brown and
executed on December 6, 2016, at Charles and Dolores’s residence
before Brown and his secretary, a notary public. Brown and his
secretary took the original and left the unsigned version which
she later attached to her petition, which bore the inscription on
the title page “ ‘Copy/Signed 12/6/16.’ ” Charles passed away on
December 28, 2016.
Dolores, through counsel, demanded that Brown (who had
indicated he now represented Monique as trustee) produce the
signed amendment but, as of the time of filing the petition, six
months had passed and Brown was unable to locate the
document. Monique refused to distribute the Hacienda Heights
property and the corporate stock, as contemplated by the second
amendment, because she had not seen an executed copy of the
second amendment. Thus, Dolores requested that the trial court
determine the second amendment’s validity, order Brown to
produce the original, signed version of the second amendment, or
declare that the unsigned copy of the second amendment annexed
to the petition was, in fact, signed, and that the real and personal
property at issue must be transferred to Dolores. In a separate
declaration accompanying her petition, Dolores stated that,
without the notarized version and signature, she could not record
the document and “terminate the joint tenancy.”
In November 2018, Monique filed a response to the petition
requesting that it be denied for failure to plead a cause of action.
The response elaborated that Monique lacked sufficient
knowledge to admit or deny the existence of the signed second
amendment.
Nearly two years later, Monique moved for judgment on the
pleadings, arguing that the petition should be dismissed without
5
leave to amend for failing to state a claim. More specifically,
Monique claimed that because the second amendment attached to
the petition was “unsigned,” and because Dolores admitted that
“there only exists an unsigned” version of the second amendment,
Dolores’s request that it be deemed signed could not be granted
without violating section 15206, subdivision (b)’s rule that an
alleged trust in relation to real property is “ ‘not valid’ ” unless in
writing and signed by the trustee or settlor. Although Dolores
might argue that, under Evidence Code section 1523, oral
testimony regarding the contents of a document is permitted
under certain circumstances, there were no authorities, according
to Monique, providing that the evidentiary provision could be
utilized to overcome section 15206’s signed writing requirement.
As a separate alternative ground, the motion further
alleged Dolores’s petition failed to allege two necessary elements
of trust formation—trust intent and trust purpose—as to the
second amendment. Per Monique, because Dolores did not state
that Charles intended to amend the trust, and instead stated
that Charles intended to “ ‘restate the joint tenancy’ ” between
Charles and Dolores, the petition’s allegations of trust intent and
purpose were lacking.
In response, Dolores’s counsel filed three declarations, one
from Brown, another from a notary public, and the final one his
own. Brown attested that he served as Charles’s attorney and
had prepared both the 2008 trust and the two amendments.
According to Brown, the second amendment attached to Dolores’s
petition was the one he “prepared and took” to Charles and
Dolores’s residence for signature, and that Charles signed the
amendment in the presence of the notary public and himself.
Brown reviewed the handwriting on the exhibit’s cover page
6
indicating the document was a copy and determined it was his.
Brown left this copy with Dolores, but took the original with him
and had been unable to locate it or the rest of his file, despite
searching several locations. Although Brown was initially unable
to recall the notary public’s name, he eventually located the name
of the notary public and obtained a copy of the notary book
showing that the second amendment was signed.
The notary public’s declaration confirmed that he notarized
the second amendment, and that he and Brown witnessed
Charles sign the second amendment, the same document
appended to Dolores’s petition. The declaration attached a copy
of a page from the notary public’s journal confirming that Charles
signed the second amendment on December 6, 2016.
Finally, Dolores’s counsel’s declaration documented his
efforts to seek the original signed second amendment. As “points
and authorities in objection” to the motion, counsel argued that
the petition pertained to a lost document, not a document that
was never signed, thereby falling outside the ambit of the statute
of frauds. Counsel asserted that oral testimony of the content of
the second amendment was admissible under Evidence Code
section 1523, subdivision (c), and that secondary evidence, such
as the unsigned copy of the second amendment, could prove the
contents of the signed version pursuant to Evidence Code section
1521, subdivision (a). Further, Evidence Code section 1413
allowed Brown and the notary public to authenticate the second
amendment, while Evidence Code section 1451 provided that a
notary’s certificate of acknowledgement may serve as “prima facie
evidence” of the facts in the certificate and the genuineness of the
signature of each person by whom the writing purports to have
been signed. Counsel thus argued that, consistent with these
7
provisions, the propriety of admitting the “lost document” was an
issue for trial.
Monique filed a reply brief contending that because the
declarations included with Dolores’s opposition were extrinsic
evidence and not the proper subject of judicial notice, the court
could not consider them. Further, the legal arguments presented
in Dolores’s counsel’s declaration should be disregarded because
legal arguments were only properly presented in a memorandum
of points and authorities.
The next day, Dolores filed a pleading with the caption
“objection to motion for judgment on the pleadings,” stating that
she objected to the motion because the petition concerned “a lost
document which was signed” as her three accompanying
declarations demonstrated.
At a December 2020 appearance, the court announced its
tentative decision to grant the motion for judgment on the
pleadings, concluding that the purported second amendment to
the trust did not satisfy the requirements of section 15206, and
that Dolores had not provided adequate basis to treat the second
amendment as a lost document. The court heard argument from
the parties, during which Dolores’s counsel reasserted that the
amendment at issue was a “signed” but “lost document.” The
court adhered to its tentative ruling, granting the motion without
leave to amend, thereby “dispos[ing] of [the] petition.”
In February 2021, Dolores filed a notice of appeal from the
“[j]udgment on the pleadings (CCP sec. 438) as to [the] entire
Petition, without leave to amend.”4 Where asked to specify the
4The record contains no copy of any judgment, and the parties
have not represented to us that one was entered after the notice
8
date of the order or judgment being appealed, Dolores specified
“12/10/2020 (Notice of Ruling date).” Her subsequently filed case
information statement attached the December 10, 2020 notice of
ruling, which included the minute order from the December 2020
appearance indicating that Monique’s motion for judgment on the
pleadings was granted and “dispos[ing] of the pleadings.”
DISCUSSION
A. Appealability
Before turning to the substance of the appeal, we address
Monique’s contention that Dolores’s appeal from the “judgment
on the pleadings” must be dismissed because no judgment has
been entered and an order granting a motion for judgment on the
pleadings is not in itself appealable.
Where, as here, a matter is raised through a direct appeal,
we have jurisdiction based only upon an appealable order or an
appealable judgment. (Griset v. Fair Political Practices Com.
(2001) 25 Cal.4th 688, 696.) Because an appealable judgment or
order is an indispensable prerequisite to our review, “this court is
obligated to review the question of appealability. [Citations.]”
(Doran v. Magan (1999) 76 Cal.App.4th 1287, 1292.)
“Accordingly, if the order or judgment is not appealable, the
appeal must be dismissed. [Citation.]” (Canandaigua Wine Co.,
of appeal was filed. In addition, we take judicial notice of the Los
Angeles County Superior Court’s online docket for this case.
(Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a); Truong v. Nguyen
(2007) 156 Cal.App.4th 865, 872, fn. 3 [taking judicial notice of
superior court’s docket entries to determine disposition of
action].) The superior court’s docket for this case indicates that
no judgment has been entered.
9
Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) The
right to appeal is entirely statutory. (Rubin v. Western Mutual
Ins. Co. (1999) 71 Cal.App.4th 1539, 1544.)
Here, Dolores purports to appeal from a “[j]udgment on the
pleadings” under Code of Civil Procedure section 438. Her
opening brief further states that she appeals under Code of Civil
Procedure sections 438 and 577. However, Code of Civil
Procedure section 438 merely defines the procedures for a motion
for judgment on the pleadings and provides no statutory
authority to appeal, while Code of Civil Procedure section 577
merely provides the definition of a judgment. Therefore, neither
provision grants us jurisdiction to hear this appeal. Even so,
because we must construe Dolores’s notice of appeal liberally, in
favor of its sufficiency, our inquiry does not end there.
(Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447,
1455.)5
“The primary statutory basis for appealability in civil
matters is limited to the judgments and orders described in
section 904.1 of the Code of Civil Procedure, which essentially
codifies the ‘one final judgment rule’ and provides that only final
judgments are appealable.” (Art Movers, Inc. v. Ni West, Inc.
(1992) 3 Cal.App.4th 640, 645.) An appeal lies from a judgment
5 For the same reason, although Dolores identified the date of the
notice of ruling as the date of the order being appealed from, a
commonsense reading of the notice of appeal’s description of the
order as “[j]udgment on the pleadings,” as well as the
subsequently filed civil case information statement’s appending
the minute order from the December 2020 appearance, make
“reasonably clear what [Dolores] was trying to appeal from.”
(In re Joshua S. (2007) 41 Cal.4th 261, 272, italics added.)
10
of dismissal entered on an order sustaining a demurrer or
granting a motion for judgment on the pleadings. (Code Civ.
Proc., § 904.1, subd. (a)(1); Ellerbee v. County of Los Angeles
(2010) 187 Cal.App.4th 1206, 1212–1213 (Ellerbee).) However,
there is no right to appeal from the order itself. (Ellerbee, at pp.
1212–1213.)
Despite the trial court’s order granting Monique’s motion,
without leave to amend, thereby “dispos[ing] of [the] petition,” no
judgment of dismissal has, to date, been entered in this case.
Thus, Monique is correct that, in any ordinary civil case, Dolores
might have appealed from a nonappealable order. (Ellerbee,
supra, 187 Cal.App.4th at pp. 1212–1213.)6
However, this matter originated in probate court from a
beneficiary’s petition concerning trust administration. (§ 17200;
see Leader v. Cords (2010) 182 Cal.App.4th 1588, 1595 [petition
seeking distributions construed as § 17200 petition]; see also
Dana Point Safe Harbor Collective v. Superior Court (2010) 51
Cal.4th 1, 5 [substance, rather than form, governs appealability].)
The right to appeal in probate matters is governed by Code of
Civil Procedure section 904.1, subdivision (a)(10), which provides:
6 Although we do not rest our conclusion on this ground, Dolores
correctly points out that, as several of Monique’s cases reflect,
this rule typically only applies where the grant of a challenge to
the pleadings only partially resolves the case. (See Ellerbee,
supra, 187 Cal.App.4th at pp. 1212–1213; Lopez v. Brown (2013)
217 Cal.App.4th 1114, 1132.) Where the order is case dispositive,
yet no appealable judgment has been entered, courts of appeal
generally deem the order sustaining the motion or demurrer to
incorporate a judgment of dismissal, and look to the merits of the
appeal. (See Kruss v. Booth (2010) 185 Cal.App.4th 699, 712, fn.
12 [reasoning that this is a “better course” than dismissing].)
11
“An appeal . . . may be taken from any of the following: [¶] . . . [¶]
From an order made appealable by the provisions of the Probate
Code . . . .” Thus, “[i]n probate matters, there is no right of
appeal unless the Probate Code specifically authorizes an appeal
from the challenged order. [Citation.]” (Estate of Dito (2011) 198
Cal.App.4th 791, 799, fn. 5.) Because the instant appeal arises
from a “final order” of the probate court disposing of, by way of
sustaining a motion for judgment on the pleadings without leave
to amend, a petition to compel the trustee to make trust
distributions (i.e., a section 17200 petition), the order is itself
appealable (§ 1304, subd. (a); Johnson v. Kotyck (1999) 76
Cal.App.4th 83, 86 [order of dismissal following sustaining of
demurrer without leave to amend construed as a denial of §
17200 petition]).7
We thus proceed to consider the appeal’s merits.
B. Standard of review
On appeal from a judgment on the pleadings, “the standard
of review is the same as for a judgment of dismissal following the
sustaining of a general demurrer.” (Orange Unified Sch. Dist. v.
Rancho Santiago Community College Dist. (1997) 54 Cal.App.4th
750, 764.) “[W]e review the [pleading] de novo to determine
7Even were a final judgment required, we would liberally
construe the order from which Dolores appeals to incorporate a
subsequent judgment of dismissal. (Kruss v. Booth, supra, 185
Cal.App.4th at p. 712, fn. 12; see Bardin v. DaimlerChrysler
Corp. (2006) 136 Cal.App.4th 1255, 1263, fn. 3.) Because
Monique has briefed the appeal on the merits, she has not been
prejudiced, and no purpose would be served by dismissing the
appeal so that Dolores could secure a final judgment. (Estate of
Dito, supra, 198 Cal.App.4th at p. 799.)
12
whether it alleges facts stating a cause of action on any possible
legal theory. [Citation.] ‘ “ ‘We treat the [motion] as admitting
all material facts properly pleaded, but not contentions,
deductions or conclusions of fact or law.’ ” [Citations.]’ [Citation.]
‘Further, “we give the [pleading] a reasonable interpretation,
reading it as a whole and its parts in their context.” ’ ” (Rossberg
v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1490.) We
afford the petition a liberal construction with a mind toward
“ ‘ “attain[ing] substantial justice among the parties.” ’ ” (York v.
City of Los Angeles (2019) 33 Cal.App.5th 1178, 1193.)
A motion for judgment on the pleadings, like a demurrer, is
“ ‘not the appropriate procedure for determining the truth of
disputed facts.’ [Citation.]” (Joslin v. H.A.S. Ins. Brokerage
(1986) 184 Cal.App.3d 369, 374.) Such a motion, however, must
be granted if the petition and judicially noticeable facts establish
a complete defense. (Cryolife, Inc. v. Superior Court (2003) 110
Cal.App.4th 1145, 1152.)
C. The petition adequately pleaded a lost trust
amendment
Dolores contends that the trial court erred in granting
Monique’s motion for judgment on the pleadings by refusing to
recognize her claim that she could compel the trustee to make
distributions based upon a lost, but signed, trust document
concerning real property. Monique retorts that there is no
authority recognizing that an allegation of a lost trust document
may overcome section 15206’s requirement that trusts concerning
real property be contained in a signed writing. Monique also
contends that Dolores’s statutory arguments were waived—or
alternatively that Dolores invited error—when she failed to cite
to them below outside of the context of her counsel’s declaration.
13
We conclude that Dolores did not forfeit her claims or otherwise
invite error, and further that her petition adequately pleaded a
lost trust amendment.
1. Governing law
The statutory requirements pertaining to the creation and
validity of trusts are set forth at section 15200 et seq. Relevant
here, section 15206, titled “Statute of Frauds,” provides that “[a]
trust in relation to real property is not valid unless evidenced by
one of the following methods: (a) By a written instrument signed
by the trustee, or by the trustee's agent if authorized in writing to
do so. (b) By a written instrument conveying the trust property
signed by the settlor, or by the settlor's agent if authorized in
writing to do so. (c) By operation of law.”
Evidence Code section 1521, subdivision (a) provides that
“[t]he content of a writing may be proved by otherwise admissible
secondary evidence,” except when “[a] genuine dispute exists
concerning material terms of the writing and justice requires the
exclusion” or when “[a]dmission of the secondary evidence would
be unfair.” Evidence Code section 1523 governs admission of oral
testimony regarding the contents of a writing, providing, in
pertinent part, that such testimony is admissible “if the
proponent does not have possession or control of the original or a
copy of the writing and . . . [¶] . . . [n]either the writing nor a copy
of the writing was reasonably procurable by the proponent by use
of the court’s process or by other available means.” (Evid. Code,
§ 1523, subd. (c)(1).) Evidence Code section 1413 further provides
that “[a] writing may be authenticated by anyone who saw the
writing made or executed, including a subscribing witness.”
Finally, Evidence Code section 1451 specifies that “[a] certificate
of the acknowledgment of a writing other than a will, or a
14
certificate of the proof of such a writing, is prima facie evidence of
the facts recited in the certificate and the genuineness of the
signature of each person by whom the writing purports to have
been signed.”
2. Forfeiture/invited error
Monique contends that Dolores has forfeited her appellate
arguments invoking various provisions of the Evidence Code
relating to lost documents because she only cited to these
provisions in her counsel’s declaration in opposition, rather than
in a proper memorandum of points and authorities. Monique also
claims, for the same reasons, that Dolores invited any error in
the trial court’s decision. While we do not condone Dolores’s
including argument within her counsel’s declaration rather than
a memorandum of points and authorities (especially given the
attendant difficulties imposed upon a trial court attempting to
discern her legal arguments),8 we conclude this should not defeat
Dolores’s ability to raise these provisions on appeal.
Generally, under the principle of forfeiture, we do not
consider challenges to rulings if the complaining party failed to
lodge an objection in the trial court. (DiPirro v. Bondo Corp.
(2007) 153 Cal.App.4th 150, 177–178.) However, we are typically
reluctant to apply forfeiture when reviewing a pleadings-stage
8 We agree with the court in In re Marriage of Heggie (2002) 99
Cal.App.4th 28, 30, fn. 3, that the “sloppy practice” of including
argument in declarations should stop: “Even at its most benign,
it is a practice that forces the trial and appellate courts, and
opposing counsel, to sort out the facts that are actually supported
by oath from material that is nothing more than the statement of
an opinion ostensibly under oath. . . . The proper place for
argument is in points and authorities, not declarations.”
15
dismissal based upon failure to state a claim, as in the appeal at
bar. (See, e.g., Dudley v. Department of Transportation (2001) 90
Cal.App.4th 255, 259 [party contesting grant of motion for
judgment on pleadings may change theory on appeal]; Smith v.
Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625,
629–630 [distinguishing forfeiture argument raised in pleadings
context from posttrial posture].)
The application of the forfeiture rule in all of Monique’s
purportedly contrary cases stemmed from orders occurring at
more advanced stages of the proceedings (Ochoa v. Pacific Gas &
Electric Co. (1998) 61 Cal.App.4th 1480, 1488 [argument waived
where not raised in opposition to summary judgment motion];
Franklin Mint Co. v. Manatt, Phelps & Phillips, LLP (2010) 184
Cal.App.4th 313, 332 [argument not raised at trial waived for
appellate purposes]; Carian v. Agricultural Labor Relations Bd.
(1984) 36 Cal.3d 654, 668, fn. 6 [similar, as to posthearing
posture before administrative law officer]), and we therefore
decline to follow them.
Procedural posture aside, applying forfeiture is otherwise
inappropriate under the circumstances. Even where a legal
argument was not raised in the trial court, we have discretion to
consider it when the theory raised for the first time on appeal is,
as here, a pure question of law applied to undisputed facts.
(Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685,
699–700.) We may also, in our discretion, excuse any default in
the interest of justice. (People v. Williams (1998) 17 Cal.4th 148,
161, fn. 6 [reviewing courts have discretion to excuse forfeiture].)
The instant case calls for the exercise of that discretion.
Monique addressed some of the statutory provisions at issue in
her moving and reply papers and therefore appears to have had
16
ample notice that Dolores intended to invoke them, and thus has
not been prejudiced. Applying the forfeiture rule in this
context—where the proper arguments were advanced but
presented in an improper form9—would unfairly punish the client
for an attorney’s inadvertent failing. (Wittenberg v. Bornstein
(2020) 51 Cal.App.5th 556, 567 [“ ‘fairness is at the heart of a
waiver claim’ ”].) Moreover, the admittedly unspecific argument
that Dolores did muster in the pleading she titled an “objection”
to the motion, and then again at oral argument—that the second
amendment should be treated as a lost document—was wholly
consistent with the arguments she advanced, by way of her
counsel’s declaration, under these statutory provisions. (Schmidt
v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1511
[excusing failure to cite specific statutory provision where import
of appellant’s argument was consistent with it].)
Nor are we persuaded that Dolores’s failure to cite these
provisions invited error by the trial court. “Under the doctrine of
9 To the extent Monique contends that we cannot consider the
declarations because they were not properly filed below, we
disagree. While ample authority supports the proposition that
including legal argument within a declaration is improper (see,
e.g., Knickerbocker v. City of Stockton (1988) 199 Cal.App.3d 235,
239, fn. 2), Monique cites no authority to the effect that a clerk
cannot even file declarations without a separate memorandum of
points and authorities. Because the declarations were filed and
are therefore properly included within the clerk’s transcript, we
consider them for the limited purpose of addressing Monique’s
forfeiture and invited error arguments. (Tibbets v. Robb (1958)
158 Cal.App.2d 330, 337 [clerk’s transcript properly includes
documents in judgment roll pertinent to disposition of the
appeal].)
17
invited error, when a party by its own conduct induces the
commission of error, it may not claim on appeal that the
judgment should be reversed because of that error.” (Mary M. v.
City of Los Angeles (1991) 54 Cal.3d 202, 212.) The doctrine
typically applies to situations where a litigant has made a
“deliberate tactical choice” inducing error. (Pioneer Construction,
Inc. v. Global Investment Corp. (2011) 202 Cal.App.4th 161, 169.)
For instance, the sole case that Monique cites as supportive
of her “invited error” argument, San Mateo Union High School
Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436,
actually compels the opposite conclusion. In that case, a plaintiff
appealing the sustaining of a demurrer for failure to state a claim
on one cause of action and for governmental immunity on several
other causes of action was suggested to have invited error
because, after the court announced its ruling, plaintiff’s counsel
sought to clarify the scope of the immunity ruling. (Ibid.) After
the court clarified the scope of its ruling, counsel expressed
appreciation and replied, “ ‘Okay.’ ” (Ibid.) The Court of Appeal
held that this was not invited error because plaintiff did nothing
to “mislead the court” or otherwise “induce any error.” (Ibid.)
Here, as discussed above, Dolores’s failure to cite certain
Evidence Code provisions that are now at issue on appeal in a
memorandum of points and authorities appears to have been a
mere product of counsel’s inadvertence. Thus, we cannot say that
Dolores invited error. (Pioneer Consruction., Inc. v. Global
Investment Corp., supra, 202 Cal.App.4th at p. 169.)
3. Sufficiency of the petition’s lost document
allegations
Having disposed of Monique’s procedural objections, we
proceed to the merits. Assuming without deciding that the
18
second amendment was required to satisfy the provisions for a
valid trust including the statute of frauds embodied at section
15206,10 Dolores’s petition adequately alleged that the
amendment was a lost document, and section 15206’s
requirements did not otherwise bar this claim.
10 We note that section 15400 et seq. separately governs
amendments and revocations to a valid trust. A trust may be
revoked by “compliance with any method of revocation provided
in the trust instrument” (§ 15401, subd. (a)(1)) or in “a writing,
other than a will, signed by the settlor . . . and delivered to the
trustee during the lifetime of the settlor” (§ 15401, subd. (a)(2)).
The provision governing modification specifies that “[u]nless the
trust instrument provides otherwise, if a trust is revocable by the
settlor, the settlor may modify the trust by the procedure for
revocation.” (§ 15402.) Therefore, when “the trust instrument is
silent on modification, the trust may be modified in the same
manner in which it could be revoked, either statutorily or as
provided in the trust instrument.” (King v. Lynch (2012) 204
Cal.App.4th 1186, 1192.) When the trust instrument “specifies
how the trust is to be modified,” however, that “method must be
used to amend the trust.” (Id. at pp. 1192–1193.) Section 15402
“ ‘recognizes a trustor may bind himself or herself to a specific
method of . . . amendment of a trust by including that specific
method in the trust agreement.’ ” (King, at p. 1193.) Here,
because the 2008 trust specifically designates that amendments
merely be “in writing” and “delivered to the Trustee,” we harbor
some doubt as to whether section 15206’s signed writing
requirement applies to a document clearly titled, and intended to
be a, “[s]econd [a]mendment” to the trust. (Balistreri v. Balistreri
(2022) 75 Cal.App.5th 511, 517, review granted May 11, 2022, No.
S273909.) However, because this argument was not presented
below, we proceed, as the parties do, on the assumption that
section 15200 et seq.’s requirements apply to an amendment of
this nature.
19
According to Monique, no authority recognizes that a lost,
but allegedly signed,11 trust document relating to real property
can overcome section 15206’s signed writing requirement. On the
other hand, section 8223 recognizes that a lost will can be
probated, while there is no analogous provision for the admission
of lost trust documents. As such, she argues the motion was
properly granted because the statute of frauds provides a
complete defense to the petition’s allegations. (Cryolife, Inc. v.
Superior Court, supra, 110 Cal.App.4th at p. 1152.)
Dolores counters that her petition adequately alleged that
she sought the process of the court to obtain a signed version of,
or recognize, an otherwise valid trust amendment that was
unable to be found despite a diligent search. According to her,
she was entitled to seek such recourse not only under several of
the Evidence Code provisions cited above, but under Estate of
Duke (2015) 61 Cal.4th 871, a case in which our Supreme Court
recognized that “extrinsic evidence is generally admissible to
correct errors in documents, including donative documents other
than wills.” (Id. at p. 887, italics added.)
Monique asserts that Estate of Duke was a case involving a
lost will—not a lost trust—and therefore does not govern this
question, especially given the absence of a section comparable to
11 Monique repeatedly suggests that Dolores’s petition sought a
distribution based upon an “unsigned” amendment. To the
contrary, and as we address in further detail below, the petition
alleged that the amendment was signed, but that the signed copy
could not be located. We assume, for the purposes of this
analysis, the truth of those allegations. (Rossberg v. Bank of
America, N.A., supra, 219 Cal.App.4th at p. 1490.)
20
section 8223 applicable to trusts. In our view, however, Monique
reads Duke and section 8223 too narrowly.
The relevant sections of the Evidence Code, the Probate
Code, as well as the extensive common law history recognizing
that claims of lost trust documents may be proven by extrinsic
evidence demonstrate that Dolores’s petition was not legally
deficient. Section 8223 provides in relevant part that: “[t]he
petition for probate of a lost or destroyed will shall include a
written statement of the testamentary words or their substance.”
This language merely governs the prerequisites for a petition for
probate of a lost or destroyed will, and in no way excludes
petitions for other types of lost documents. Further, Monique
neglects that Estate of Duke cited several Court of Appeal cases
involving lost trust documents with approval after recognizing
that extrinsic evidence can be admitted to fill gaps in donative
documents “other than wills.” (Estate of Duke, supra, 61 Cal.4th
at p. 887; see Giammarrusco v. Simon (2009) 171 Cal.App.4th
1586, 1603–1604 [irrevocable trust]; Bilafer v. Bilafer (2008) 161
Cal.App.4th 363, 368–369 [irrevocable trust]; Ike v. Doolittle
(1998) 61 Cal.App.4th 51 [after trustors’ deaths, reformation
allowed to correct a drafting error].)
The absence of a statutory counterpart to section 8223
(enacted decades before Estate of Duke and the several trust
cases it cites) applicable to trusts does not defeat Dolores’s claim.
Section 15002, which falls at the outset of California’s trust law
among other provisions of general applicability (§§ 15000–15006
et seq.), supplies the default rule for cases involving trust
administration where no statutory provision might directly apply,
providing that: “[e]xcept to the extent that the common law rules
governing trusts are modified by statute, the common law as to
21
trusts is the law of this state.” (See Estate of Giraldin (2012) 55
Cal.4th 1058, 1072 [§ 15002 requires that California courts look
not just to trust statutes, but the common law of trusts].)
Applying this section, courts have recognized their “broad[]
equitable power[s]” to administer trusts, and modify and reform
them to the extent necessary and consistent with the relevant
common law authorities. (Bilafer v. Bilafer, supra, 161
Cal.App.4th at p. 368; Ike v. Doolittle, supra, 61 Cal.App.4th at
p. 84.) In this context, “common law” is intended to mean
“contemporary and evolving rules of decision developed by the
courts in exercise of their power to adapt the law to new
situations and to changing conditions.” (Cal. Law Revision Com.
com., Deering’s Ann. Prob. Code (2022 ed.) foll. § 15002.)
Several cases, handed down over a broad swath of dates,
reflect a general acceptance that trust documents may be treated
as lost documents. (See, e.g., Atkins Corp. v. Tourny (1936) 6
Cal.2d 206, 216 [court has “full power” to physically restore
voting trust document if lost]; JPMorgan Chase Bank, N.A. v.
Ward (2019) 33 Cal.App.5th 678, 684 [“long-standing” authority
for recognizing lost documents permitted court to recognize lost
deed of trust]; Penny v. Wilson (2004) 123 Cal.App.4th 596, 602
[unsigned copy of “trust split” document appropriately admitted
into evidence]; Osswald v. Anderson (1996) 49 Cal.App.4th 812,
819 [assuming that Evidence Code’s lost document provisions
might apply to defeat statute of frauds argument related to lost
trust document, but concluding they did not apply to the case
based upon doubts about authenticity]; Hall v. Crowley (1909) 12
Cal.App. 30, 33 [original trust deed properly admitted where
evidence showed it was executed and delivered by mortgagor and
destroyed by fire]; Cf. Hasshagen v. Hasshagen (1889) 80 Cal.
22
514, 517–519 [statute of frauds applied to destroyed trust where
alleged trust had fraudulent purpose].) Only some of these cases
apply the general Evidence Code provisions that Dolores cites
relating to lost documents. Thus, a wealth of case law
supplements the relevant provisions of the Evidence Code
invoked by Dolores,12 together recognizing that evidence of a lost
trust may, where fairness and justice requires, overcome section
15206’s signed writing requirement. (§ 15002; Evid. Code,
§ 1521, subd. (a); Hasshagen v. Hasshagen, supra, 80 Cal. at
p. 519.) Monique cites no common law authorities holding
otherwise. (See Estate of Giraldin, supra, 55 Cal.4th at p. 1074
[absence of contrary common law source probative in interpreting
trust law].)
Such a rule is consonant with the “pragmatic” approach we
must take with respect to the statute of frauds, mindful of the
purposes that the statute is supposed to serve. (Jacobs v.
Locatelli (2017) 8 Cal.App.5th 317, 325.)13 Specifically, “ ‘[t]he
12Beyond her forfeiture arguments, Monique does not address
the Evidence Code provisions that Dolores cites, or otherwise
explain why they should not apply under these circumstances. In
our view, these provisions necessarily govern the admissibility of
extrinsic evidence proving the contents of the alleged lost trust as
these proceedings continue, absent another contrary provision.
(See Evid. Code, § 300 [provisions of Evidence Code apply to
every superior court action unless excluded by statute].)
13Similar to the case at bar, that court noted that the statute of
frauds was not “directly applicable” because plaintiff alleged that
there was a written agreement, but he simply was not in
possession of the agreement. (Jacobs v. Locatelli, supra, 8
Cal.App.5th at pp. 324–325.) However, the court went on to
23
Statute of Frauds was not enacted to afford persons a means of
evading just obligations; nor was it intended to supply a cloak of
immunity to hedging litigants lacking integrity; nor was it
adopted to enable defendants to interpose the Statute as a bar to
a contract fairly, and admittedly, made. In brief, the Statute
“was intended to guard against the perils of perjury and error in
the spoken word.” Therefore, if after a consideration of the
surrounding circumstances, the pertinent facts and all the
evidence in a particular case, the court concludes that
enforcement of the agreement will not subject the defendant to
fraudulent claims, the purpose of the Statute will best be served
by holding the note or memorandum sufficient even though it is
ambiguous or incomplete.’ ” (Sterling v. Taylor (2007) 40 Cal.4th
757, 770–771.)
Applying this principle, courts faced with a credible lost
document claim typically construe the statute of frauds narrowly.
(Sunset-Sternau Food Co. v. Bonzi (1964) 60 Cal.2d 834, 838 [“We
must, of course, apply the California statute of frauds to a
situation which is precisely covered by the language of the
statute. If the extent of coverage is unclear, however, we know of
no policy reasons which compel a resolution of the ambiguity in
favor of its wide application.”]; see Rest.2d Contracts, § 137
[allegation of lost document generally trumps statute of frauds’
“evidentiary purpose”]; Rest.2d Trusts, § 49 [“The loss or
destruction of a memorandum does not deprive it of its effect as a
satisfaction of the requirements of the Statute of Frauds, and oral
evidence of its contents is admissible unless excluded by some
analyze the statute of frauds in connection with the issue of the
identity of the parties to the agreement.
24
rule of the law of evidence.”]; see Estate of Giraldin, supra, 55
Cal.4th at p. 1072 [Restatement of Trusts appropriately
considered in interpretation of California trust law].)14
For these reasons, there is abundant authority recognizing
the possibility of a lost trust document despite section 15206, and
we have not been presented with persuasive reasons for
departing from those precedents. Upon accepting that legal
proposition, Dolores’s petition is plainly adequate.
A proponent of a lost document’s admission through
secondary evidence must establish that a reasonable search has
been made. (Osswald v. Anderson, supra, 49 Cal.App.4th at
p. 819.) “Preliminary proof of the loss or destruction is required
and it is committed to the trial court’s discretion to determine
whether the evidence so offered is or is not sufficient.”
(Guardianship of Levy (1955) 137 Cal.App.2d 237, 249.) Courts
approach such evidence “liberal[ly].” (Dart Industries, Inc. v.
Commercial Union Ins. Co. (2002) 28 Cal.4th 1059, 1069.)
Once these requirements are met, the court may receive
parol evidence as to the lost document’s contents. (Robinson v.
Thornton (1969) 271 Cal.App.2d 605, 612.) “[T]o establish the
contents of a lost instrument . . . the evidence must show without
reasonable doubt the substantial parts of the instrument.”
14 Some of these authorities are not exclusive to trusts. However,
that section 15206 was largely derived from the general civil
statute of frauds, adopted without amendment, suggests that it
should be interpreted harmoniously. (See Cal. Law Revision
Com. com., Deering’s Ann. Prob. Code (2022 ed.) foll. § 15206
[indicating that provision merely restated Civ. Code, § 852 (not
pertaining to trusts) and also was derived from Code Civ. Proc.,
§ 1971 (relating to trusts)].)
25
(Barcroft v. Livacich (1939) 35 Cal.App.2d 710, 720–721;
Nicholson v. Tarpey (1899) 124 Cal. 442, 447 [parol evidence
must be “clear and certain” or otherwise frustrate the statute of
frauds].) Only where a court determines “(1) [a] genuine dispute
exists concerning material terms of the writing and justice
requires the exclusion” or “(2) [a]dmission of the secondary
evidence would be unfair” should secondary evidence be excluded.
(Evid. Code, § 1521, subd. (a).)
The case law pertaining to the pleading requirements for a
lost document (if any) is sparse. Courts to have examined the
question have suggested that a plaintiff need only allege a lost,
signed writing to defeat a statute of frauds argument. (Rossberg
v. Bank of America, N.A. supra, 219 Cal.App.4th at p. 1503; see
Walsh v. Standart (1917) 174 Cal. 807, 809–810 [tension between
complaint’s allegation that contract was signed and copy of
partially unsigned contract appended to complaint created
factual uncertainty as to applicability of statute of frauds to be
assessed at trial].) The question of whether a lost document
should be accepted is often a credibility issue reserved for trial.
(See, e.g., Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1063
[application of equitable estoppel to statute of frauds defense was
issue for trial]; Robinson v. Thornton, supra, 271 Cal.App.2d at
p. 612 [question was one of credibility]; Estate of Moramarco
(1948) 86 Cal.App.2d 326, 333 [whether document qualifies as
lost is fact question].)
Here, Dolores asserted in the petition that the second
amendment was “executed” and that, despite making demands of
the attorney who allegedly possessed the original signed version,
and that attorney’s searches over six months, Dolores had not
received a copy. The inability to produce a signed copy was the
26
reason that Monique, as trustee, declined to make distributions
under the second amendment. Thus, Dolores requested that the
court order Brown to produce a signed copy or declare that the
second amendment was valid. Although Dolores did not
expressly declare the amendment as “lost,” the import of her
allegations is as much. (Gerawan Farming, Inc. v. Lyons (2000)
24 Cal.4th 468, 516 [appellate court affords facts liberal
construction].) Most importantly, Dolores alleged that a diligent
search for the signed document was made and had not yet borne
fruit. (Osswald v. Anderson, supra, 49 Cal.App.4th at p. 819.)
These allegations, accepted as true, were amply sufficient
to withstand a motion for judgment on the pleadings despite
Monique’s statute of frauds argument. (Rossberg v. Bank of
America, N.A., supra, 219 Cal.App.4th at p. 1503.) While it
remains possible that the evidence may bear out that the second
amendment fails to satisfy the prerequisites for a lost document,
disposing of the petition at the pleadings stage was inappropriate
under these circumstances.15
15 In this regard, we decline Dolores’s request that we “direct” the
trial court to consider whether the second amendment is a lost
document in the event a summary judgment motion is filed.
Setting aside that this request was raised in the first instance in
Dolores’s reply brief (Sweetwater Union High School Dist. v.
Julian Union Elementary School Dist. (2019) 36 Cal.App.5th 970,
987 [arguments raised for first time in reply are forfeited]), we
have complete faith in the trial court’s abilities to properly
address any hypothetical summary judgment motion in a manner
consistent with this opinion.
27
As such, the trial court’s conclusion that Dolores’s petition
insufficiently alleged that the second amendment was a lost
document was erroneous.16
D. The petition adequately pleaded trust intent
Monique further contends that, if we conclude the trial
court erred in sustaining her motion on the rationale relied upon
below, the petition nonetheless failed because Dolores failed to
specifically allege a trust intent and trust purpose for the second
amendment. Instead, the petition stated that Charles’s intent
was to create a joint tenancy, not to create a trust. Dolores points
out that Monique does not contend the petition insufficiently
alleged that the 2008 trust lacked trust purpose and the petition
is no more specific as to the second amendment. Moreover,
Article II of the trust provided that Charles could freely amend
and revoke provisions of the trust. Regardless, both Dolores and
Monique appear to agree that, because Monique raised this
argument in her moving papers and the trial court never
addressed it, we must remand the case for the trial court’s
consideration of the argument in the first instance.
At the outset, we disagree that we must remand to the trial
court so that it may first consider this issue. In reviewing an
order granting judgment on the pleadings, we “independent[ly]”
review the sufficiency of the pleading and affirm if any ground
16Because we conclude that the existing petition on its own
sufficed to allege a lost document, we need not address Monique’s
further argument that Dolores failed to follow required
procedures for seeking judicial notice of the declarations that she
submitted in opposition to Monique’s motion for judgment on the
pleadings. Those declarations play no role in our analysis of the
merits.
28
raised in the motion is well taken, even if we disagree with the
trial court’s rationale or the trial court did not reach the
dispositive issue. (Hayter Trucking, Inc. v. Shell Western E&P,
Inc. (1993) 18 Cal.App.4th 1, 13; Baughman v. State of California
(1995) 38 Cal.App.4th 182, 187 [judgment on the pleadings “will
be affirmed if it is proper on any grounds stated in the motion,
whether or not the trial court relied on any of those grounds”].)
Therefore, we are obligated to reach the issue even though the
trial court did not formally reach it. Because the parties have
provided no contrary authority establishing that remand is
required under the circumstances (see, e.g., Badie v. Bank of
America (1998) 67 Cal.App.4th 779, 784–785 [party must support
appellate claims with citations to authority]), we proceed to
address the substance of Monique’s arguments and conclude they
lack merit.
As noted, the elements of trust formation are set forth at
section 15200 et seq. They include: (1) trust intent, (2) trust
property, (3) trust purpose, and (4) a beneficiary. (§§ 15201–
15205; Chang v. Redding Bank of Commerce (1994) 29
Cal.App.4th 673, 684.) Monique focuses her arguments solely on
trust intent, and, to a lesser extent, trust purpose, arguing that
Dolores’s petition’s allegations were inadequate because the
declared purpose and intent of the second amendment was to
create a joint tenancy, not a trust.
As to trust intent, the requirement is that a settlor must
properly manifest an intention to create a trust. (§ 15201;
Aguilar v. Aguilar (2008) 168 Cal.App.4th 35, 39.) As to trust
purpose, a trust may be created for any purpose that is not illegal
or against public policy. (§ 15203; Estate of Berges (1977) 76
Cal.App.3d 106, 110.) To the extent Monique maintains that
29
Dolores’s pleading insufficiently alleged trust purpose for the
same reason the pleading insufficiently alleged trust intent, her
argument improperly conflates these two separate and distinct
elements. The substance of Monique’s argument is not that the
second amendment was illegal or against public policy (thereby
failing to establish a trust purpose), but rather that the only
intent alleged was to create a joint tenancy. Thus, we construe
her contentions as relating only to the petition’s insufficient
allegations of trust intent and disregard any implication that the
petition also lacked sufficient allegations of trust purpose. (See
Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d
218, 228 [points raised without separate argument or supporting
authorities deemed forfeited or without merit].)
Assuming, again, for argument’s sake, that the second
amendment was required to meet the elements for trust
formation (ante, fn. 10), the petition adequately alleged that the
second amendment was formulated with trust intent. We first
note that the pleading requirements for trust creation appear to
have evolved over time. A body of early cases stringently adhered
to a rule that the elements of trust formation, including trust
intent, must be pleaded with specificity. (See, e.g., Simpson v.
Gillis (1934) 1 Cal.2d 42, 50 [trust intent inadequately pleaded
where appended lease documents negated trust intent]; Lezinsky
v. Mason Malt Whisky Distilling Co. (1921) 185 Cal. 240, 243
[alleged agreement to hold stock in trust sufficient]; Milliken v.
Valencia (1920) 47 Cal.App. 16, 18 [mere allegation that property
held “in trust” insufficient].)
Our Supreme Court has since recognized, however, that
“general allegations” that a property is held “ ‘in trust’ ” may
suffice under “modern rules of pleading.” (Altramano v. Swan
30
(1942) 20 Cal.2d 622, 627–628; see Fish v. Security-First Nat.
Bank of Los Angeles (1948) 31 Cal.2d 378, 389 [“modern tendency
is to relax the strict requirements of trust pleadings”]; accord,
Estate of Gardner (2010) 187 Cal.App.4th 543, 552.). Applying
this relaxed standard, other cases have held that the inclusion of
a written instrument indicating property is to be held in trust
suffices to allege trust intent. (See Moore v. Vandermast, Inc.
(1941) 19 Cal.2d 94, 98 [“[i]n the absence of clear and convincing
evidence to the contrary, a written instrument is presumed to
express the true intent of the parties”]). Some courts have even
declined to require that the words “trust” or “trustee” be stated.
(See People v. Pierce (1952) 110 Cal.App.2d 598, 605 [“to create a
trust, . . . the words ‘trust’ or ‘trustee’ need not be used”].)
Thus, while it is clear that some allegation that a trust was
properly formed (consistent with the elements of section 15200
et seq.) is necessary, there are no magic words. (See Kornbau v.
Evans (1944) 66 Cal.App.2d 677, 684 [“[n]o particular form of
words need be used to establish a trust”].) Provided that the
pleading and its attachments do not negate one of those
elements, a pleading will typically be upheld against a challenge
of the nature that Monique advances.
Viewed in this light, we identify no infirmity in Dolores’s
petition. The alleged second amendment attached and
incorporated into Dolores’s petition by reference makes amply
clear that Charles intended to create and/or modify a trust. (See
Davis v. Fresno Unified School District (2020) 57 Cal.App.5th
911, 925, fn. 9 [assessment of pleading’s adequacy includes
attached exhibits].)
Specifically, a trust may be created where there is “[a]
declaration by the owner of property that the owner holds the
31
property as trustee.” (§ 15200, subd. (a).) A trust may also be
created where there is “[a] transfer of property by the owner, by
will or by other instrument taking effect upon the death of the
owner, to another person as trustee.” (§ 15200, subd. (c).) The
second amendment is captioned as an amendment to a living
trust, invokes the 2008 trust by name, designates Charles as
trustee, retains Charles’s power to alter or amend the trust going
forward, restates portions of the 2008 trust, and designates, by
way of amending a specified portion of the 2008 trust, that
certain property be held in trust until Charles’s death. By this
document attached to and referenced by the petition, Charles
plausibly evidenced an intention to create a trust under either of
these subdivisions. Notably, Monique did not suggest that the
petition failed to adequately allege the trust intent of the 2008
trust, which the second amendment merely sought to amend and
restate.
The petition’s text—and its specific allegation that Charles
at least partially intended to create a joint tenancy through the
second amendment—did nothing to negate the amendment’s
trust intent. As an initial matter, the amendment’s clear text
speaks for itself and we are required to treat the pleading’s
allegations as to its legal effect as surplusage. (Burnett v.
Chimney Sweep, supra, 123 Cal.App.4th at p. 1064; see Mead v.
Sanwa Bank California (1998) 61 Cal.App.4th 561, 568 [factual
contradictions between exhibit and pleading resolved in favor of
exhibit].)
Even were that not the case, in our view, the two ideas are
not mutually exclusive: one can certainly intend to form a trust
as to certain property, while also intending that the same or
other property be held in joint tenancy. (See Estate of Gardner,
32
supra, 187 Cal.App.4th at p. 552 [other alleged actions by settlor
did “not preclude an alternative interpretation” of trust intent];
see also Byrne v. Laura, supra, (2 Cal.App.4th at p. 1071 [use of
trust as a joint tenancy is “ ‘reasonably permissible’ ”]; Brown v.
Volz (1949) 90 Cal.App.2d 793, 800 [similar].) This is especially
the case where, as here, the amendment attempted to alter the
distribution of—and, in some cases, continue to hold in trust—
other trust assets besides the real property that is the subject of
Monique’s statute of frauds argument.
For these reasons, the petition sufficiently alleged the
essential elements of trust formation with respect to the second
amendment. Monique’s contrary arguments do not constitute a
valid alternative basis for upholding the trial court’s order.17
17In light of our disposition, we need not reach Dolores’s
alternative contentions with respect to the Leisure Time stock
and the propriety of amending her petition.
33
DISPOSITION
The judgment is reversed and the matter remanded to the
trial court with instructions to vacate its order granting the
motion for judgment on the pleadings. Dolores Von Borstel is
entitled to her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
RICHARDSON (ANNE K.), J.*
We concur:
EDMON, P.J.
EGERTON, J.
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
34