Filed 9/20/19 Plichcik v. Plichcik CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

ROCK PLICHCIK,

Plaintiff and Appellant,

v.

SUSAN PLICHCIK and ALICE PLICHCIK,

Defendants and Respondents.

A148402

(Sonoma County

Case No. SPR086430)

After a bench trial, the court found against plaintiff Rock Plichcik on his petition to contest his mother’s trust and to remove respondent Susan Plichcik as trustee. Rock Plichick contends the trial court erred in rejecting his claim that a 2012 amendment to his mother’s trust was fabricated. We affirm.

BACKGROUND

Rock Plichcik is the brother of Susan and Alice Plichcik; all three are children of Jacqueline Lois Pieri. On February 14, 1997, Ms. Pieri executed a Declaration of Revocable Trust, which was followed by a 1999 Complete Restatement and Amendment of Declaration of Revocable Trust (1999 Restatement), and subsequently by a 2003 First Amendment of Declaration of Revocable Trust (2003 First Amendment).

The central issue at trial was the validity of a document entitled “Final Amendment of the Complete Restatement and Amendment of Declaration or Revocable Trust of Jacqueline Lois Pieri dated February 14, 1997,” which appears to have been executed by Ms. Pieri on February 1, 2012 (2012 Final Amendment). As relevant here, the 2012 Final Amendment revoked in its entirety the 2003 First Amendment and thereby returned Rock, Susan, and Alice to their respective statuses as beneficiaries under the 1999 Restatement.

Ms. Pieri passed away on August 30, 2013. On February 14, 2014, Rock filed a petition under Probate Code sections 850 and 17200, seeking the return of property and removal of Susan as trustee. (Prob. Code, §§ 850, 17200.) On November 21, 2014, Rock filed an amended petition, asserting for the first time that Susan had fabricated the 2012 Final Amendment. Consistent with the February 2014 petition, the amended petition alleged that, based on the terms of the prior iterations of their mother’s trust (specifically, the 2003 First Amendment), Rock was to become the sole owner of a property located on Buchanan Street in San Francisco upon their mother’s death. In the amended petition, Rock further accused Susan of “engaging in a pattern of subverting [] and obstructing the administration” of their mother’s trust.

The case proceeded to trial in February 2016. Susan testified that she finalized a Notification by Trustee (Notification) shortly after Ms. Pieri’s death. The Notification, signed by Susan and dated September 4, 2013, provides in pertinent part as follows: “As required by law, you are hereby provided with notice of the following information regarding the Declaration of Revocable Trust of Jacqueline Lois Pieri dated February 14, 1997 (hereafter ‘the Trust’) now [sic] that the Trust is irrevocable following the death of the [sic] Jacqueline Louis [sic] Pieri on August 30, 2013. . . . The Trust was executed on: February 14, 1997. The Trust was amended and restated in full on April 14, 1999 and further amended on May 8, 2003, and February 12, 2012.” The Notification provides the names and telephone numbers of both Susan and Rock as “the current Trustees,” with a single address for both of them in Santa Rosa. The Notification states that it encloses a “true and complete copy of [the Trust]” and states in bold, capital letters that any action to contest the Trust may not be brought more than 120 days from service of the Notification or 60 days from the date on which a copy of the terms of the Trust is mailed or personally served during the 120-day period, “whichever is later.”

Alice testified that she gave a copy of the Notification to Rock on September 5, 2013. Rock testified that he never received it.

After trial, the court issued a statement of decision rejecting Rock’s claim that the 2012 Final Amendment was fraudulent. Based on Alice’s “credibl[e]” testimony, the court first found Rock’s challenge to be time-barred because he received the Notification more than 120 days before filing his February 2014 petition. In so ruling, the court noted that the Notification specifically mentioned the 2012 Final Amendment. In addition, the court found there was insufficient evidence to support Rock’s claim that the signature of Ms. Pieri was “lifted from another document,” in light of the “inconclusive” testimony of the competing handwriting experts. As to Rock’s claim seeking removal of Susan as trustee, the court ruled that neither Rock nor Susan would serve as trustee, and instead appointed a “professional trustee” due to the evident hostility between Rock and his sisters.

On appeal, Rock challenges only the trial court’s rulings as to his claim regarding the validity of the 2012 Final Amendment.

DISCUSSION

I. Standard of Review.
II.
In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo and apply a substantial evidence standard of review to the trial court’s findings of fact. (Cuiellette v. City of Los Angeles (2011) 194 Cal.App.4th 757, 765; Niko v. Foreman (2006) 144 Cal.App.4th 344, 364 (Foreman).) Under this deferential standard, factual findings are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings. (Citizens Business Bank v. Gevorgian (2013) 218 Cal.App.4th 602, 613 (Gevorgian).)

A single witness’s testimony may constitute substantial evidence to support a finding. (Gevorgian, supra, 218 Cal.App.4th at p. 613.) It is not our role to reweigh the evidence or to assess witness credibility. (Foreman, supra, 144 Cal.App.4th at p. 365.) “A judgment or order of a lower court is presumed to be correct on appeal, and all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133 (Arceneaux).) In addition, under the doctrine of implied findings, following a bench trial, we must infer that the trial court “impliedly made every factual finding necessary” to support its decision. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 48 (Fladeboe).)

III. The Notification.
IV.
Rock’s primary argument is that the Notification—which served as the factual underpinning of the court’s finding that Rock’s petition was time-barred—was “statutorily defective” under section 16061.7, subdivision (g)(2) because it lists Susan and Rock as co-trustees, when in fact Susan was the sole trustee under the terms of the Final Amendment. This assertion fails for two reasons.

First, Rock waived this argument by failing to raise it below. Rock’s theory at trial was that he never received the Notification, not that it was statutorily defective. In opposing Susan’s mid-trial motion for judgment, Rock’s counsel argued that Rock “never received any notice pursuant to that code,” and confirmed that non-receipt was his “only” theory on that point. When the trial court probed further, Rock’s counsel then offered that “[Rock] was a co-trustee as she said at the time, so I don’t think the thing would necessarily apply to him since he was supposed to be in possession of all the documents at the time.” But Rock’s counsel’s comment that the Notification (and, concomitantly, section 16061.8) might not be applicable to Rock is not the same argument raised here—i.e., that the Notification was statutorily defective. “It is axiomatic that arguments not asserted below are waived and will not be considered for the first time on appeal.” (Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488, fn. 3.) This rule “ ‘is founded on considerations of fairness to the court and opposing party, and on the practical need for an orderly and efficient administration of the law.’ ” (Rand v. Board of Psychology (2012) 206 Cal.App.4th 565, 587.)

Second, Rock’s new contention founders on the merits. Rock argues the Notification was defective because it named both him and Susan as co-trustees, in violation of section 16061.7, subdivision (g)(2), which provides that a notification by trustee must inform beneficiaries of “[t]he name, address, and telephone number of each trustee of the trust.” In support of this theory, Rock relies on Harustak v. Wilkins (2000) 84 Cal.App.4th 208 (Harustak). But Harustak is distinguishable, as it involved a claim that a trustee’s notification failed to comply with the entirely different requirement that disclosure of the 120-day deadline be “printed in the ‘reasonable equivalent’ of 10-point boldface type contained in a separate paragraph.” (Id. at pp. 210–211.) The court held that a warning in 12-point font was not the “reasonable equivalent” of 10-point boldface type where the 12-point font was the same size as the remainder of the notification and the warning was “not bolded, italicized, underlined, printed in all capital letters, or differentiated by type size or color.” (Harustak, at pp. 215–216.) In so holding, the court noted that the “purpose of the boldface type requirement [was] to ensure that the language is conspicuous,” in order to “draw the reader’s attention to the important operative language” of the limitations period. (Id. at p. 216.) That purpose has no bearing here, where Rock relies only on section 16061.7, subdivision (g)(2)’s requirement that a trustee’s notification provide the name, address, and telephone number of each trustee.

In any event, the Notification in this case did comply with section 16061.7, subdivision (g)(2), as it provided Susan’s correct name, address, and telephone number. That it provided Rock’s name and telephone number in addition to Susan’s can hardly prejudice Rock himself. (Germino v. Hillyer (2003) 107 Cal.App.4th 951, 956–957 [distinguishing Harustak as a case involving statutorily required text and format of notice; “courts will look to the issue of prejudice” when addressing other claims that a statutory defect excuses compliance with the 120-day deadline in section 16061.8]) Rock’s claim that the Notification “could only cause confusion” is speculative, as he cites nothing in the record indicating that he was confused by the Notification.

In sum, there is no merit to Rock’s claim that he is entitled to reversal because the Notification failed to comply with section 16061.7.

V. The 2012 Final Amendment.
VI.
Rock also contends the judgment must be reversed because there was no substantial evidence of the Final Amendment’s authenticity. We disagree.

As noted above, the trial court found that the 2012 Final Amendment was genuine and governs the distribution of the trust. The court found that “Rock did not present sufficient evidence to carry the burden of proof to establish that the Final Amendment is a fraudulent document,” in light of the “inconclusive” testimony of the handwriting experts. The court further found that “the signature [of Ms. Pieri] was clearly a signature of the trustor,” and that “there [was] insufficient evidence to establish that the signature was lifted from another document and placed on the Final Amendment.” These findings are amply supported by the testimony—including that of Susan, Alice, and the handwriting experts—and we will not disturb them. (Foreman, supra, 144 Cal.App.4th at p. 365.)

We thus reject Rock’s claim that no substantial evidence supports the court’s finding as to the genuineness of the 2012 Final Amendment.

DISPOSITION

The judgment is affirmed.

_________________________

BROWN, J.

WE CONCUR:

_________________________

POLLAK, P. J.

_________________________

TUCHER, J.