Opinion
NOT TO BE PUBLISHED
Monterey County Super. Ct. No. MP18459
McAdams, J.
This appeal is taken from a probate order entered in October 2007, which concerns a trust established following a marital dissolution. The appellant is Constance Anne Dudley, who is one of the settlors of the trust, a former co-trustee, and a trust beneficiary. The respondents are the three current co-trustees of the trust: Paul Laub, Dudley’s ex-husband; Breck Tostevin, an accountant; and Andrew Swartz, an attorney. The trust has been the subject of other litigation, including several proceedings in this court.
The pending matters in this court include both appeals and writ proceedings. H031723 is Dudley’s appeal from an April 2007 probate order. H032660 is her petition for writ of habeas corpus, which follows contempt proceedings against her for violating the April 2007 order. On respondents’ request, we coordinated oral argument in those two matters and this one. H032889 is Dudley’s appeal in a malpractice and fraud action related to her representation in trust matters. H032769 is Dudley’s petition for a writ of mandate.
In this case, Dudley challenges the dismissal of her petition to remove respondents as trustees. We conclude that the trial court did not abuse its discretion in dismissing Dudley’s petition, nor did it violate her due process rights. We therefore affirm the order.
BACKGROUND
This dispute involves the Lincoln Trust, an irrevocable trust created following dissolution of the marriage of Laub and Dudley. In November 1996, Laub and Dudley entered into a written marital settlement agreement. The marital settlement agreement was merged into the dissolution judgment. In February 1997, the Lincoln Trust was created. The trust was simultaneously amended to incorporate an intervening family court order.
Trust Provisions
The parties to the trust are (1) the settlors, Laub and Dudley (then known as Constance Anne Laub), and (2) the three original trustees, Tostevin, Swartz, and Dudley.
The instrument references the marital settlement agreement, by which “the settlors agreed, among other things, to place certain improved real property in Carmel, California into an irrevocable trust for the benefit of” their two sons, with Dudley being “the sole income beneficiary for her lifetime,” and Laub “succeeding to such income interest for his lifetime, if he survives her.”
The improved real property of the trust is a commercial building in Carmel, located on the corner of Ocean and Lincoln, which is known as the Lincoln Building or “Linoc.” The building generates income from tenants.
Article Four of the Lincoln Trust is entitled “Trustee.” That article includes section 4.3, which reads: “Prior to the death of [Dudley], all decisions and actions by the trustees shall be made and taken by the affirmative vote of [Dudley] and at least one (1) other trustee.” Article Four also includes an exculpatory clause, section 4.14, which limits the trustees’ liability to situations involving their own willful misconduct or gross negligence.
On the date that the trust instrument was signed, the parties also executed a first amendment to the trust. The amendment incorporates verbatim a portion of a family court order, entered February 19, 1997, authorizing an encumbrance of $115,000 against the Lincoln Building but curtailing further secured borrowing.
Change in Trustees
In January 2005, while in bankruptcy, Dudley resigned as trustee of the Lincoln Trust. Laub was appointed as successor trustee.
Dudley’s Bankruptcy
In April 2003, Dudley filed a voluntary bankruptcy petition under Chapter 11.
In June 2005, the Chapter 11 bankruptcy trustee filed a motion for summary judgment, asserting a right to Dudley’s income stream from the trust. Dudley filed a cross-motion for summary judgment, on the ground that the income was exempt or excluded from the bankruptcy estate. Being non-parties to the bankruptcy, respondents lacked “standing with respect to the summary judgment motions” but they nevertheless “asserted [their] rights” by requesting relief from the automatic bankruptcy stay.
In July 2005, at the hearing on the motions, Judge Weissbrodt directed the parties to engage in mediation. The mediation resulted in a settlement among Dudley, respondents, and the Chapter 11 bankruptcy trustee. In December 2005, the parties executed a written agreement and mutual release, reflecting their settlement. The Chapter 11 trustee filed a motion for compromise, seeking bankruptcy court approval for the settlement.
At a hearing held in January 2006, Judge Weissbrodt orally approved the parties’ compromise, over the objection of a creditor, Charles Clapp. A written order reflecting the judge’s approval was filed the following month. Clapp appealed.
In September 2006, Judge Ware rejected Clapp’s appeal and affirmed Judge Weissbrodt’s approval of the settlement agreement. At the same time, Judge Ware also lifted the stay order that had been in place since April 2006, thereby granting respondents’ earlier request for that relief. At that point, respondents were able to proceed in state court. They did so promptly.
Trial Court Proceedings on Respondents’ Petitions (MP18285)
September 2006: Petitions
In September 2006, respondents brought two petitions for instructions in superior court pursuant to Probate Code section 17200. One (the “construction petition”) sought interpretation of the trust, together with an order for the return of trust property. The other (the “expenditure petition”) requested approval of the bankruptcy settlement, plus an order permitting respondents to borrow funds, secured by the trust property, to pay trust expenses.
A third petition was brought by Laub, acting in his individual capacity “as settlor and contingent income beneficiary.” Laub sought reimbursement “for $199,000 in expenses … incurred for the benefit of his sons,” who were to have been supported out of the trust’s income. Laub’s petition was denied.
The continued hearing was held on January 18, 2007. At the hearing, the trial court announced its tentative decision to grant both of respondents’ petitions. It then gave the parties the opportunity to further argue their respective positions orally and to address specific questions by the court. The court then took the matter under submission.
April 2007: Formal Order
On April 13, 2007, the court filed a formal order granting both of respondents’ petitions.
Addressing the construction petition, the court first took up the parties’ dispute over the interpretation of section 4.3. The parties’ disagreement centered on whether the decision-making power granted to Dudley in section 4.3 arose from her status as beneficiary, as she claimed, or from her status as a trustee, as respondents asserted. The court adopted the respondents’ view, concluding: “This authority was given to her only in her capacity as a trustee and does not extend to her in any other capacity.” Turning to the other issue raised by the construction petition, the trial court granted respondents’ request for an order compelling Dudley to return any trust property.
The court next addressed respondents’ expenditure petition. The court approved the bankruptcy settlement as requested. It also granted respondents’ “request to borrow money secured by a deed of trust on the Linoc Building.” The amount authorized was $725,000, which was to cover the bankruptcy settlement and other expenses, including attorney fees owed by respondents to the Grunsky law firm.
The April 2007 order is the subject of Dudley’s first appeal (H031723, filed May 11, 2007).
May 2007: Expungement Order
Dudley recorded certain documents against the Lincoln Building to reflect her claimed life estate in the property as well as the borrowing restrictions established by the family court’s February 1997 ruling. Respondents brought a motion to expunge those documents from the property records, which the court granted on May 29, 2007. As stated in the court’s written order, “the improper recordation of these documents has created a cloud on the title of the real property of the Lincoln Trust and has interfered with and prevented the Lincoln Trustees from obtaining a loan in compliance with [the April 2007 order] and a separate settlement agreement between the parties hereto and the Trustee in Bankruptcy.”
June 2007: Contempt Proceedings
Contempt proceedings were initiated against Dudley, based on allegations that she was disobeying the April 2007 order by failing to turn over trust property. Following a three-day evidentiary hearing in June 2007, the court found Dudley in contempt. The contempt order is the subject of Dudley’s petition for writ of habeas corpus in this court (H032660, filed February 29, 2008).
Trial Court Proceedings on Dudley’s Petition (MP18459)
February 2007: Petition
In February 2007, Dudley brought a verified petition to remove and surcharge the trustees.
Dudley proffered several grounds for respondents’ removal as trustees. First, Dudley asserted breach of their fiduciary duty of care to the trust. As to that point, Dudley alleged that respondents failed to: (1) distribute trust income to her after February 2006; (2) properly manage the trust, having failed to pursue a former tenant for monies owed from 2000 and 2005; (3) pay delinquent property taxes on the trust property in 2006; (4) file timely and accurate income tax returns for 2004 and 2005; (5) justify the retention of the Grunsky firm; and (6) obtain Dudley’s consent for those challenged actions. Dudley further asserted that respondents should be removed as trustees for their hostility toward her, even if no breach of trust were established. Dudley requested the removal of all three trustees on the further ground that they had failed to keep her informed of the trust, in violation of Probate Code sections 16060 and 16061. In addition, Dudley specifically targeted Laub for removal, asserting a breach of the duty of loyalty on his part.
Beyond removal, Dudley also asked the court to surcharge the trustees for unnecessary costs and losses resulting from the claimed breaches of trust.
April 2007: Response to Petition
In April 2007, respondents answered Dudley’s petition, in a response verified by all three of them.
First, respondents objected to Dudley’s decision to file her removal petition under a new case number, asserting: “The Removal Petition involves the same trust and the same parties and the same subject matter, namely, the internal affairs of the Lincoln Trust, and therefore, should have been filed under the same Case Number MP 18285.” Respondents further asserted that “Dudley should be barred from re-litigating the issues” then under submission in the earlier case.
Additionally, respondents requested dismissal of Dudley’s petition under Probate Code section 17202, as not reasonably necessary for protecting the trust or its beneficiaries. In support of that point, respondents asserted that “the gravamen of the grievances that form the basis of Dudley’s Removal Petition were already submitted to the Court in Case Number MP 18285 in connection with [their 2006] petitions.”
Addressing the merits of the petition, respondents maintained: “To the extent that any actions alleged in the Removal Petition as constituting a breach of trust have not already been tried in connection with the … petitions in MP 18285, such acts or omissions do not constitute willful misconduct or gross negligence, and therefore, Dudley is prohibited from seeking redress from the Lincoln Trustees for such alleged acts or omissions.” Respondents then set forth facts concerning Dudley’s bankruptcy to show “that the Lincoln Trustees were prevented from seeking relief” in the state probate court until September 2006. Respondents further alleged that “Dudley’s own actions have interfered with and delayed the ability of the Lincoln Trustees to manage the Lincoln Trust,” giving rise to equitable defenses to the relief requested in her petition. Respondents also denied any breach of trust or breach of duty.
September 2007: Hearing on Petition
After several continuances and a settlement conference, the court conducted a hearing on the petition. Both sides submitted trial briefs through their respective counsel.
Following unreported discussions in chambers, Dudley’s attorney made an oral motion to stay the removal proceedings while respondents’ attorney moved for dismissal of the petition. After hearing argument on the two motions, the court denied Dudley’s motion to stay. When Dudley’s counsel attempted to withdraw the motion, the court rebuffed her, saying: “Well, it’s been denied.” The court then granted respondents’ motion to dismiss.
October 2007: Dismissal Order
On October 19, 2007, the court signed a formal order granting respondents’ motion to dismiss Dudley’s petition under Probate Code section 17202. On October 22, 2007, the court served the order on the parties. On October 25, 2007, respondents’ counsel filed and served notice of entry of the court’s formal order.
November 2007: Motion for Reconsideration
On November 1, 2007, Dudley filed a motion for reconsideration. As grounds for the motion, Dudley asserted that “new or different facts, or circumstances, have arisen which prove that removal of the Trustees is reasonably necessary for the protection of the beneficiaries of the Lincoln Trust.” Dudley identified as new facts (1) respondents’ refusal to cooperate in Dudley’s efforts to arrange a loan to pay the bankruptcy settlement, and (2) their attorney’s August 2007 conduct in recording the May 2007 expungement order, allegedly in violation of the writ of supersedeas issued by this court. Dudley submitted hundreds of pages of documents in support of the motion.
Respondents opposed the reconsideration motion.
Dudley replied to respondents’ opposition, offering further argument and evidence.
On December 21, 2007, the court conducted a hearing on the reconsideration motion. The court denied the motion on the ground that no new facts were presented.
Appeal
On December 21, 2007, Dudley noticed this appeal.
CONTENTIONS
Dudley is representing herself on this appeal. From her opening brief, Dudley’s specific legal arguments are somewhat difficult to decipher. She appears to contend that her petition should not have been dismissed without a trial. Asserting the right to a hearing, Dudley characterizes the dismissal of her petition as an “abuse of discretion” and an “injustice.”
In their responsive brief on appeal, respondents maintain that the trial court properly exercised its discretion and that dismissal of the removal petition is consistent with equitable principles. Respondents also dispute assertions in Dudley’s opening brief that they violated bankruptcy court orders.
In her reply brief, Dudley repeats her contention that the trial court abused its discretion. In addition, she asserts a due process violation, equating dismissal of her petition to the improper grant of summary judgment where material disputed facts exist. Dudley further contends that the doctrines of res judicata and collateral estoppel do not apply. She suggests a trial de novo in this court.
DISCUSSION
To provide the framework of our analysis of the issues raised here, we begin by briefly describing the general principles of trust law that govern these proceedings.
I. General Principles of Trust Law
“A trust is a fiduciary relationship with respect to property in which the person holding legal title to the property—the trustee—has an equitable obligation to manage the property for the benefit of another—the beneficiary.” (Moeller v. Superior Court (1997) 16 Cal.4th 1124, 1133-1134, italics omitted.)
A. The Trustee’s Duties and Powers
“The Probate Code imposes numerous obligations on trustees administering express trusts such as the Trust at issue in this case.” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 428.) “On acceptance of the trust, the trustee has a duty to administer the trust according to the trust instrument and, except to the extent the trust instrument provides otherwise, according to this division.” (Prob. Code, § 16000; see generally Prob. Code, div. 9, Trust Law, § 15000 et seq.) Thus the duties imposed by statute “must give way to directions contained in the governing trust instrument.” (Copley v. Copley (1981) 126 Cal.App.3d 248, 279.)
The trustee’s codified duties toward the beneficiaries include the duty of loyalty, the duty to avoid conflicts of interest, the duty to preserve trust property and make it productive, and the duty to report and account. (See Prob. Code, §§ 16000-16014, 16060-16062.) Unless the trust instrument provides otherwise, the trustee must carry out these duties and administer the trust “with reasonable care, skill, and caution under the circumstances then prevailing that a prudent person acting in a like capacity would use in the conduct of an enterprise of like character and with like aims to accomplish the purposes of the trust as determined from the trust instrument.” (Prob. Code, § 16040, subd. (a).)
The Probate Code confers enumerated powers on trustees “that enable effective discharge of” their statutory duties. (Moeller v. Superior Court, supra, 16 Cal.4th at p. 1132; § 16200 et seq.) In addition to those conferred by statute, the “trustee’s powers include those specified in the trust instrument … and those needed to satisfy the reasonable person and prudent investor standards of care in managing the trust.” (Moeller v. Superior Court,at p. 1129.)
B. Breaches of Trust; Remedies
A trustee’s violation of any duty owed to the beneficiaries constitutes a breach of trust. (Prob. Code, § 16400.)
The Probate Code provides enumerated remedies for breach of trust. (Prob. Code, § 16420.) In addition, other remedies may be available under the statutory or common law. (Id., subd. (b).) “The remedies of a beneficiary against the trustee are exclusively in equity.” (Prob. Code, § 16421.)
The Probate Code describes the measure of liability for breach, as well as limitations on such liability. (Prob. Code, §§ 16460-16465.) Subject to certain exceptions, “the trustee can be relieved of liability for breach of trust by provisions in the trust instrument.” (Prob. Code, § 16461, subd. (a).)
C. Judicial Proceedings Concerning Trusts
The Probate Code contains a mechanism for trustees and beneficiaries to petition the probate court for orders concerning the internal affairs of the trust. (Prob. Code, § 17200, subd. (a).) Among other things, such petitions may be brought to remove a trustee and for redress of a breach of the trust. (Prob. Code, § 17200, subd. (b)(10), (12); see also Prob. Code, § 15642 [grounds for removal of trustee].)
Broadly speaking, probate proceedings are governed by the rules of practice that apply to other civil actions. (Prob. Code, § 1000.) The probate court “is a court of general jurisdiction and has all the powers of the superior court.” (Prob. Code, § 17001; see also Prob. Code, § 800.)
The probate court “in its discretion may make any orders and take any other action necessary or proper” to resolve the issues presented by a petition. (Prob. Code, § 17206.) As relevant here, the probate court “may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trustee or beneficiary.” (Prob. Code, § 17202.)
II. Analysis
As noted above, Dudley asserts that the trial court violated her due process rights and abused its discretion in dismissing her removal petition without a full evidentiary hearing. Respondents dispute those assertions. As we now explain, Dudley has failed to demonstrate error on either ground.
A. Trial Court’s Compliance with Procedural Due Process Requirements
As this court recently observed, “the California Supreme Court and the U.S. Supreme Court have repeatedly recognized that due process is a flexible concept.” (Gilbert v. City of Sunnyvale (2005) 130 Cal.App.4th 1264, 1276.) Nevertheless, it entails two fundamental elements: “notice and an opportunity to respond.” (Id. at p. 1279.)
1. Notice
Here, contrary to Dudley’s assertions, respondents gave ample notice that they were seeking dismissal of the removal petition. Respondents first requested dismissal in their response to the petition, which was filed more than six months before the hearing. They next requested dismissal at a hearing held on May 25, 2007. And respondents renewed their request for dismissal in their trial brief.
The foregoing constitutes proper notice, adequate to satisfy the constitutional imperative. (Cf. Prob. Code, § 1200 et seq. [statutory notice requirements]; Estate of Smith (1935) 4 Cal.App.2d 548, 553.) Furthermore, Dudley did not raise this claim below. Thus, even if notice were improper, Dudley “ ‘has waived the defect.’ ” (Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1081.)
2. “Hearing”
The other fundamental aspect of procedural due process is the opportunity to be heard. That entails “the right to be heard in a meaningful manner” by the court. (In re James Q. (2000) 81 Cal.App.4th 255, 265 [dependency].) But it does not necessarily mandate a formal evidentiary hearing. (See Gilbert v. City of Sunnyvale, supra, 130 Cal.App.4th at pp. 1276-1279 [administrative determination].) In this case, we discern no requirement for a full-blown trial and thus no error in failing to provide one.
In proceedings under the Probate Code, the court may proceed by verified pleadings and declarations unless a party objects to that procedure. “An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.” (Prob. Code, § 1022.) Pursuant to that provision, “where the parties do not object to the use of affidavits in evidence, and where both parties adopt that means of supporting their positions, the parties cannot question the propriety of the procedure on appeal.” (Estate of Nicholas, supra, 177 Cal.App.3d at p. 1088.) In such cases, the court is not “required to hold a full evidentiary hearing where witnesses could testify.” (Ibid.) By contrast, “when challenged in a lower court, affidavits and verified petitions may not be considered as evidence at a contested probate hearing.” (Evangelho v. Presoto (1998) 67 Cal.App.4th 615, 620, italics added.)
In this case, as reflected in the October 2007 written order, the court considered “the records in this action, … the proceedings in … MP 18285, the records attached as Exhibits A through Z and incorporated in Respondents’ trial brief,” as well as discussions in chambers and oral arguments. Dudley did not object below to the court’s consideration of the verified pleadings in the current matter (MP18459). “Absent an objection, these documents were properly considered as evidence.” (Estate of Nicholas, supra, 177 Cal.App.3d at p. 1088[petition properly adjudicated on verified petition and verified response]; accord, Evangelho v. Presoto, supra, 67 Cal.App.4th at p. 620 [same].) Nor did Dudley object to respondents’ request for judicial notice of the records in the prior matter (MP18285). (Cf. Estate of Nicholas, at p. 1089 [“no request for judicial notice was made, nor is there any indication in the record that the trial court took judicial notice of anything”].) Likewise, Dudley did not object to admission of the exhibits attached to respondents’ trial brief, which consisted largely of specific documents previously filed either in the earlier probate action or with the federal bankruptcy court. “Statements of fact in unsworn, unverified memoranda can also be properly considered as evidence in the absence of objections.” (Evangelho v. Presoto, at p. 620; compare, Estate of Nicholas, at p. 1090 [“except for stipulations or admissions contained therein, the unsworn pleadings of counsel do not constitute evidence”].)
In the face of the evidence properly before it, the probate court was justified in declining to hold a formal evidentiary hearing before dismissing Dudley’s petition. From a procedural standpoint, the fact that “[n]o witnesses gave testimony and no documents were formally introduced into evidence” provides no basis for reversal. (Evangelho v. Presoto, supra, 67 Cal.App.4th at p. 620.)
B. Trial Court’s Exercise of Discretion
Apart from her due process arguments, Dudley also characterizes the dismissal of her removal petition as an abuse of the court’s discretion. Again, respondents disagree. For reasons explained below, we reject Dudley’s claim that the court abused its discretion here.
1. Appellate Review Standard
Respondents urge us to review the dismissal of the removal petition for an abuse of discretion. As they point out, there are no reported cases interpreting Probate Code section 17202. But as respondents further note, the decision to remove a trustee “rests largely in the discretion of the trial court.” (Estate of Bixby (1961) 55 Cal.2d 819, 826.) Dudley does not dispute respondents’ position on the applicable standard of review.
We agree that the court’s decision to dismiss Dudley’s petition should be examined under the deferential abuse of discretion standard. In the words of the governing statute, the probate “court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trustee or beneficiary.” (Prob. Code, § 17202, italics added.) As a matter of statutory construction, the word “may” often denotes a permissive or discretionary grant of authority. In the words of the California Supreme Court, “the word ‘may’ ordinarily means just that.” (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 499.) We conclude that the word “may” signifies discretion in this instance as well. Our construction is consistent with the broad discretion generally enjoyed by the probate court in supervising trust matters. (See, e.g., Finkbeiner v. Gavid (2006) 136 Cal.App.4th 1417, 1421 [probate court “ ‘enjoys enjoys broad equitable powers’ ” but “summary denial” of successor trustee’s petition to modify the trust “was an abuse of discretion”].) Our construction is also consistent with other statutes involving the dismissal of civil actions. (See, e.g., Code Civ. Proc., § 583.410 [“court may in its discretion dismiss an action for delay in prosecution”]; Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 698 [dismissal under that statute is reviewed for an abuse of discretion].)
Where the governing statute gives the trial court discretion, we review its exercise deferentially. “In the absence of a clear showing of abuse, [the court’s] determination will not be disturbed on appeal.” (In re Marriage of Sullivan (1984) 37 Cal.3d 762, 769.) “ ‘The test is not whether we would have made a different decision had the matter been submitted to us in the first instance. Rather, the discretion is that of the trial court, and we will only interfere with its ruling if we find that under all the evidence, viewed most favorably in support of the trial court’s action, no judge reasonably could have reached the challenged result.’ ” (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1634.) That said, we nevertheless examine the trial court’s exercise of discretion with due consideration for the factual context. “The court’s discretion must be based on proper matter.” (Robbins v. Alibrandi (2005) 127 Cal.App.4th 438, 452.) “We do not defer to the trial court’s ruling when there is no evidence to support it.” (Ibid.) But the court’s discretionary decision will be upheld “as long as its determination is within the range of the evidence presented.” (In re Marriage of Nichols (1994) 27 Cal.App.4th 661, 670.)
2. Application
Applying that deferential review standard, we find no abuse of discretion in the trial court’s decision to dismiss the removal petition. In taking that action, the court effectively rejected the substantive allegations raised by Dudley in the petition. As stated in its written order: “In granting the Motion to Dismiss pursuant to Probate Code § 17202, the Court finds that the Petition to Remove the Trustees is not reasonably necessary for the protection of the interest of the beneficiaries of the Lincoln Trust.” As we now explain, the court was warranted in doing so, given the record before it. That record included (a) evidence that some of the allegations had already been resolved in the April 2007 order and (b) evidence that all of the allegations lacked merit.
a. Effect of prior order
The parties disagree on whether this case warrants application of the doctrines of res judicata (claim preclusion) or collateral estoppel (issue preclusion). In their trial brief below, respondents urged that “Dudley’s few specific claims of misdeeds by the Trustees are not only totally false but also were in the main previously ruled upon and rejected” by the trial court in the April 2007 order. In her reply brief on appeal, Dudley asserts that the preclusion doctrines do not apply when the prior judgment is on appeal.
The doctrine of res judicata precludes the relitigation of any claim “that has been finally determined by a court of competent jurisdiction.” (Levy v. Cohen (1977) 19 Cal.3d 165, 171; accord, Kopp v. Fair Pol. Practices Com. (1995) 11 Cal.4th 607, 620; see generally, 7 Witkin, Cal. Procedure (5th ed. 2008) Judgment, § 334, pp. 938-939.) As this authority suggests, there are at least two prerequisites to the doctrine. First, there must be a judicial determination. Thus, for example, “probate orders are conclusive only as to matters ‘actually passed upon by the probate court.’ ” (David v. Herman (2005) 129 Cal.App.4th 672, 683.) Second, the determination must be final. Where “an appeal ha[s] been taken from the judgment of the trial court” and is “still pending and undetermined at the time of the trial of the [subsequent] action,” the judgment is not final. (Pellissier v. Title Guarantee etc. Co. (1929) 208 Cal. 172, 183-184.) “Until a judgment has become final, it cannot be pleaded as a bar to a subsequent action, but if the party in whose favor the prior judgment has been rendered[] so elects, he may in a subsequent action plead a prior action in abatement and lay the foundation for securing a continuance of the trial of the second action until the final determination of the first.” (Id. at p. 184.)
In this case, the trial court did not expressly rest its decision on preclusion. We need not rest our determination on that ground either. Here, even assuming that the earlier probate order lacked finality, the court had a sufficient evidentiary basis for dismissing the removal petition on substantive grounds, as we now explain.
b. Trial court’s assessment of Dudley’s claims
As noted above, Dudley asserted several grounds for removal and surcharge in her petition. As against all three trustees, Dudley alleged (i) breach of duty; (ii) hostility toward her; and (iii) failure to inform her concerning trust matters.
In addition to her claims against all three respondents, Dudley singled out Laub in her removal petition, asserting his breach of the duty of loyalty. But Dudley has failed to press her specific claims against Laub on appeal. “To demonstrate error, appellant must present meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408; see Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) That requirement applies with equal force to parties representing themselves. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984.) In this case, Dudley has not supported her claims against Laub by citation to the record, by argument, or by authority. Those claims thus are forfeited. (In re S.C., at p. 408.)
The record contains evidence undercutting each of the grounds asserted against respondents. For that reason, the court was justified in concluding that the removal petition was “not reasonably necessary for the protection of the interest of the beneficiaries of the Lincoln Trust.”
(i) Breach of Duty
In asserting respondents’ breach of duty to the trust, Dudley made several specific factual allegations in her removal petition. Based on the record before it, the court was warranted in rejecting all of them.
Dudley’s breach of trust allegations largely concerned management of the financial affairs of the trust. For example, Dudley asserted that respondents failed to distribute trust income to her after February 2006 and to pay delinquent property taxes on the trust property in 2006. According to the evidence, however, Dudley herself was collecting the trust’s income at all relevant times. Dudley also alleged that respondents failed to pursue a former tenant for monies owed from 2000 and 2005. Again, however, the evidence shows that she was managing the tenants and collecting the rents at those times. Dudley asserted that respondents filed inaccurate income tax returns. But the evidence shows that the information for those returns came from Dudley, who was managing the trust assets at the time.
Dudley also claimed a breach of trust arising out of respondents’ retention of the Grunsky firm to represent the trust in the bankruptcy proceeding. But that decision was approved by the probate court in its April 2007 order, rendered after a contested evidentiary hearing. Dudley also asserted that respondents should be removed for failing to obtain her consent pursuant to section 4.3 of the Lincoln Trust. Again, however, respondents’ conduct on that point was approved in the April 2007 order, which explicitly rejected Dudley’s interpretation of that trust provision.
(ii) Hostility
As an additional ground for her removal petition, Dudley asserted respondents’ hostility toward her. The court did not abuse its discretion in finding no basis for removal on this ground.
“Hostility between the beneficiary and the trustee is a ground for removal of the trustee when the hostility impairs the proper administration of the trust.” (Estate of Gilmaker (1962) 57 Cal.2d 627, 632; accord, Copley v. Copley, supra, 126 Cal.App.3d at p. 288.) Here, however, the evidence supports an inference that the source of the apparent friction was Dudley’s interference with administration of the trust, not respondents’ hostility. The evidence also supports an implied finding that conflict between the parties was not unduly impairing administration of the Lincoln Trust. (See Copley v. Copley, at p. 289.)
(iii) Failure to Inform
Finally, Dudley requested respondents’ removal on the ground that they had failed to keep her informed of the trust, in violation of Probate Code sections 16060 and 16061. But with respect to this ground, as with the others, the record supports the court’s exercise of discretion in dismissing the petition.
Trustees have a duty to keep beneficiaries reasonably informed and to give them complete and accurate information relative to the administration of the trust when reasonably requested to do so. (Prob. Code, §§ 16060-16064; Strauss v. Superior Court (1950) 36 Cal.2d 396, 401; Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 527.)
In this case, the need for removal on this ground was not established. First, the evidence before the trial court did not demonstrate respondents’ nonperformance of any duty to account. Dudley has not “related that charge to a chronology of facts” that would give rise to a right of relief. (Cf. Strauss v. Superior Court, supra, 36 Cal.2d at p. 402.) Rather, she submitted a self-created log “detailing her emails and letters to” respondents. But that log does nothing more that list correspondence; it does not show or even fairly suggest a demand for information, much less the trustees’ failure to respond. Moreover, some of the information that Dudley sought appears to be attorney-client privileged and thus not subject to disclosure. (See Wells Fargo Bank v. Superior Court (2000) 22 Cal.4th 201, 208 [in California, “the trustee’s reporting duties” do not take “precedence over the attorney-client privilege”].) Second, “there is no indication in the record before us” that Dudley “availed [herself] of the specific relief compelling an account and report by the trustees as is permitted in Probate Code section [16061].” (Copley v. Copley, supra, 126 Cal.App.3d at p. 290.) Finally, the trustees’ actions in managing the trust were examined and approved in the prior probate action, MP18285. “Taken together these factors operate to excuse the trustees for [any] nonperformance of their general duty to the beneficiaries to give them upon their request complete and accurate information relative to the administration of the trust [citation]. Since the excuse applies, the failure to give information fails as a ground for removal of the trustees.” (Id. at p. 291.)
In sum, for all the foregoing reasons, the trial court had a sufficient evidentiary basis for its discretionary decision to dismiss the removal petition as unnecessary. The court’s decision finds support in longstanding legal principles as well. It is well settled that a “named trustee will be removed only for extreme grounds, such as incapacity, dishonesty, or lack of the qualifications necessary to administer the trust.” (Copley v. Copley, supra, 126 Cal.App.3d at p. 287.) “The trustee is entitled to the benefit of the presumptions of regularity and good faith.” (Neel v. Barnard (1944) 24 Cal.2d 406, 421.) Dudley has not overcome that presumption. Based on the evidence properly before it, the probate court did not abuse its discretion in dismissing Dudley’s removal petition.
DISPOSITION
The October 2007 order dismissing Dudley’s petition is affirmed.
WE CONCUR: Bamattre-Manoukian, Acting P.J., Mihara, J.