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Probate Orders Suspending Trustee, Naming Interim Trustee Are Not Appealable—C.A.
Opinion Says, Answering Novel Question, That Such Directives Are Not Sufficiently Final to Warrant Direct Appeal
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal has answered what the opinion describes as “novel or nearly novel recurring question of appealability” by holding that orders suspending trustees and appointing interim fiduciaries in probate court are not directly appealable as they are not sufficiently final.
The court also indicated concerns with the “tenor of defendants’ attorney’s correspondence with plaintiff’s attorney” but declined to issue sanctions against the Huntington Beach-based lawyer Michael Leight or his clients for using the appeal as a delay tactic where the “appealability under California law was murky.”
At issue was an order by Orange Superior Court Judge Erin Rowe suspending the powers of trustee Debbie Fleshman and trust protector Stanley Hartford over the Carolyn Patricia Young Family Trust after the current beneficiary, Christa Ann Young, alleged that the fiduciaries conspired to improperly withhold funds from Young and certain charitable organizations that are due annual payments from the trust. The alleged purpose of the conspiracy was to preserve assets for the benefit of Fleshman, a residuary beneficiary.
Rowe appointed a private professional fiduciary to serve as interim trustee.
Justice Thomas A. Delaney authored the opinion, filed Tuesday, dismissing the appeal of the orders for lack of jurisdiction. Acting Presiding Justice Thomas M. Goethals and Justice Joanne Motoike joined in the opinion.
Probate Court Proceedings
Delaney noted that the “concept of finality is handled differently in probate court proceedings” and said:
“Where an ordinary civil case is conceptually structured around a dispute between parties, probate court proceedings are structured around a fiduciary relationship (a probate estate, guardianship, conservatorship, or trust). An ordinary civil case ends with the resolution of the dispute via a judgment or dismissal, while a probate court case will often continue long after the resolution of the original problem or dispute that brought the matter to court….As a result, there is no ‘final judgment’ to serve as the bedrock concept of appealability in probate court.”
He pointed out that “the Probate Code makes certain specific categories of orders appealable” and that “[a]s this is a trust dispute, the relevant sections are Probate Code section 1300 (the general probate court appealability statute) and section 1304 (the statute applicable to trust proceedings).”
Suspension Order
Sec. 1300(g) renders appealable any order “[s]urcharging, removing, or discharging a fiduciary.” The defendants argue that the order suspending the defendants’ powers is appealable because it was made under Probate Code §15642, which provides for the “removal” of a trustee.
Unpersuaded that the suspension qualifies as a removal, Delaney wrote:
“Suspension of a trustee’s powers and removal of a trustee are not the same. Suspension of a trustee’s powers is a provisional remedy available to the probate court ‘[i]f it appears to the court that trust property or the interests of a beneficiary may suffer loss or injury pending a decision on a petition for removal of a trustee and any appellate review….’….Removal is the final remedy.”
Noting the “absence of any contrary authority,” he said that “in keeping with the broader policy of permitting appeals only from final orders, we conclude the Legislature deliberately omitted suspension of a fiduciary’s powers from the list of orders made appealable by this subdivision.”
Sanctions Motion
Denying the request for sanctions, Delaney commented:
“In the absence of a clear rule, we cannot conclude defendants’ decision to appeal and oppose plaintiff’s motion to dismiss was objectively frivolous. Nor can we conclude defendants brought this appeal for the sole purpose of delay; had defendants elected not to appeal, they would have done so at the risk of waiving whatever appellate rights they might have had.”
However, he noted “two recent unpublished appellate opinions that plaintiff brings to our attention” in which Leight was sanctioned for pursuing frivolous appeals and “troubl[ing]” correspondence provided by plaintiff’s counsel.
According to the opinion, Leight wrote to opposing counsel “I am not sure why you think you are the civility police, but I want you to stop wasting my time complaining that I have hurt your feelings” and “If you would like ‘to go on record,’ you should ‘go on record’ some place else because I am not interested in your opinions about whether I am respectful or disrespectful.”
Delaney acknowledged that “Plaintiff’s filing does not give us the full context of these comments,” but said:
“Defendants’ counsel’s letter appears to reflect a disturbing lack of interest in [dignity, courtesy, and integrity], particularly in his belittling comments about the ‘civility police’ and ‘hurt…feelings.’ In combination with the two cases discussed above, it paints an unfortunate picture of defendants’ counsel’s approach to the practice of law, and transformed what otherwise would have been a straightforward denial of a sanctions motion, fit only for a footnote, into a close call consuming pages of this opinion.”
The case is Young v. Hartford, 2024 S.O.S. 3580.
Leight did not respond to a request for a comment on the court’s opinion and for information as to what remarks by his opposing counsel on appeal had precipitated his retort. Representing the plaintiff/respondent was Freda Mermelstein of FEM Law Group, P.C., in Huntington Beach.
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