Filed 10/30/19 McCutchan v. McCutchan CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

B. EDWARD MCCUTCHAN, JR.,

Plaintiff and Appellant,

v.

HAROLD THOMAS MCCUTCHAN, Individually and as Successor Trustee, etc.,

Defendant and Respondent.

A155964

(Sonoma County

Super. Ct. No. SCV258011)

This is an appeal from a ruling made in a dispute between two brothers regarding disposition of their father’s and mother’s trust assets following the death of their father. Although there are larger issues between the parties below, this appeal is by one of the brothers, B. Edward McCutchan, Jr. (Edward), from the trial court’s denial of his petition for an accounting and requires us to decide only whether the trial court erred in the result it reached on that petition. We conclude the trial court did not err in holding that Edward has not shown standing as a successor in interest to seek an accounting on his deceased father’s behalf and that, because the relevant trust is still revocable, contingent beneficiaries are not entitled to an accounting. We therefore affirm.

BACKGROUND

A. The McCutchan Family and the Parents’ Trusts
B.
Edward is the eldest of three children born to Barbara McCutchan (Barbara) and the late Ben McCutchan (Ben). Edward’s brother Harold McCutchan (Harold) is the Successor Trustee of The Ben Edward and Barbara Louise McCutchan 2000 Revocable Trust (the Family Trust). Ben and Barbara created the Family Trust in 2000 at the same time they executed a will.

Barbara and Ben were the original trustees of the Family Trust with the power to designate successor trustees or co-trustees. After one settlor died, the Surviving Settlor was permitted to designate one or more successor trustees if she was unable or unwilling to serve. The Family Trust established a series of subtrusts, including a Survivor’s trust and a Bypass trust. It provided that the assets of those subtrusts would be used for the benefit of the surviving settlor, which Barbara became when Ben died in 2012. It permitted the surviving settlor to revoke or amend the Survivor’s subtrust (Survivor’s Trust) after the death of the other spouse.

The Family Trust and the subtrusts other than the Survivor’s Trust became irrevocable and not subject to amendment after the death of the deceased settlor. However, the Family Trust conferred a power of appointment on the surviving spouse with respect to all property subject to the Bypass subtrust (Bypass Trust). It further provided that all property held in the Bypass Trust would be distributed on the death of the surviving spouse. When Ben died, the trust as amended provided that property in the Bypass Trust not disposed of by special gifts and over which the surviving settlor had not exercised the power of appointment would be divided in equal shares among the settlor’s three children, Edward, Nancy and Ben.

In 2009, Ben and Barbara amended the Family Trust (First Amendment), and Ben executed a Pour-Over Will. In the Pour-Over Will, Ben designated that certain personal belongings would go to Barbara and the residue of his Estate would go to the Trustee of the Trust and be “added, administered and distributed” as part of and according to the terms of the Trust. Ben also appointed Barbara as executor, and if she failed for any reason to act or continue to act as executor, appointed Harold.

Upon Ben’s death in 2012, Barbara became the surviving settlor. In January 2013, she resigned as trustee and appointed Harold as the sole successor trustee.

Barbara executed a new will and a restatement of the Survivor’s Trust in August 2013 (Restatement). In the will, she exercised the power of appointment conferred on her by the Family Trust with respect to the assets of the Bypass Trust by “distributing the assets of such Bypass Trust entirely to the Survivor’s Trust.” This included real property in Santa Rosa and real property in Healdsburg. She also distributed the residue of her estate to the Survivor’s Trust. She nominated Harold as the executor of her estate. In the Restatement, she retained her power to revoke or amend the Survivor’s Trust and to receive the income and such principal as necessary during her lifetime. She also changed the disposition of the property now held by the Survivor’s Trust so that all of the real property would go to Nancy and Harold and the residue would be divided between them and specified grandchildren. She disinherited Edward and his children, specifying they would be treated as having predeceased her with one exception. If all the beneficiaries named in the Restatement were deceased at the time of distribution of the estate and no other disposition was directed by the Restatement, the balance of the trust estate would go to her heirs. The Restatement acknowledged that her estate could in that instance pass to Edward or his issue “in seeming contravention” of her directive in other provisions. However she understood the power of appointment required her to exercise it in favor of “a group consisting of her issue,” and was, the Restatement said, endeavoring to comply with that provision by including Edward and his issue, albeit only as a “last resort, if none of her other children . . . or their issue are living” at the time of her death.

C. Edward’s Claims and the Trial Court Proceedings
D.
This case was initiated in 2015 when Edward sued Harold, asserting claims for elder abuse and other torts on behalf of their father’s estate, and for fraud, breach of fiduciary duty and other torts on his own behalf. Edward asserted causes of action for an accounting both on his own behalf and on behalf of his father’s estate.

After motions to strike or for judgment on the pleadings were sustained in part with respect to the original and a first amended complaint, Edward filed a Second Amended Complaint and a petition for an accounting. The trial court granted the motion to strike the entire Second Amended Complaint with leave to amend and denied the petition for an accounting. It is the latter ruling that is the subject of this appeal.

In the petition, Edward sought an accounting from both Harold and Barbara, asserting he was entitled to one for reasons that are somewhat muddled. Among them, he claimed his mother was incompetent when she signed the 2013 will and Restatement of the Survivor’s Trust attempting to disinherit him; that in any event he remained a remote contingent beneficiary of the Family Trust, which provided beneficiaries a right to an annual accounting; and that he was the representative for his father under Code of Civil Procedure section 377.32. In anticipation of Harold’s and Barbara’s opposition, Edward further argued that his request for an accounting was not barred by collateral estoppel because, in an earlier action in which he also sued Harold and his parents, Edward was only representing himself and not his deceased father.

Harold and Barbara opposed the petition, arguing that Edward had previously sought, litigated and been denied the same relief in the earlier action he had filed against Harold and his parents, which was a quiet title action, and was collaterally estopped from relitigating the issue of his right to an accounting; that neither Edward nor his deceased father’s estate were beneficiaries, in Edward’s case because he was disinherited by the Restatement; that the trust was revocable, his mother was alive and competent to revoke it and there was no duty to account as long as that was the case; and that Edward was not the representative of his father.

After a hearing, the trial court issued an order denying the petition. This appeal followed.

DISCUSSION

We begin with some basic principles of appellate practice and appellate review that are relevant to our discussion. “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment.” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.) We generally imply all findings in favor of the trial court’s decision on a motion if they are supported by substantial evidence. (Fair v. Bakhtiari (2011) 195 Cal.App.4th 1135, 1148.) “That rule flows logically from the fundamental precept of appellate practice that we review the court’s ruling, not its rationale.” (Id. at p. 1149.)

An appellant’s burden to show error “includes the obligation to present argument and legal authority on each point raised. This includes more than simply stating a bare assertion that the judgment, or part of it, is erroneous and leaving it to the appellate court to figure out why; it is not the appellate court’s role to construct theories or arguments that would undermine the judgment and defeat the presumption of correctness.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 8:17.1.)

In a trust dispute, like other disputes, we apply de novo review to the interpretation of trust instruments and wills as well as to the interpretation of statutes. (Johnson v. Greenelsh (2009) 47 Cal.4th 598, 604 [interpretation of trust where there is no conflict re extrinsic evidence]; Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, 1144-1145 [interpretation of Probate Code].) Thus, where a standing issue turns on statutory interpretation, it is a question of law subject to de novo review. (Babbitt, at p. 1143.) We review factual findings under the deferential substantial evidence test. (See Powell v. Tagami (2018) 26 Cal.App.5th 219, 231.)

I.

Harold’s Motion to Dismiss the Appeal Lacks Merit.

Before turning to the merits of the appeal, we address Harold’s motion to dismiss the appeal, which we took under submission for consideration with the merits of the appeal. The motion asserts several grounds for dismissal, none of which is meritorious.

First, Harold argues we should dismiss the appeal because it is moot since there is no pending complaint in the trial court, Edward having failed to timely to file a Third Amended Complaint or to satisfy the precondition that he pay Harold the amount of the sanctions award. We reject this argument because the trial court has not dismissed the case, there is no judgment in Harold’s favor and the parties stipulated to and the trial court entered a stay of proceedings, which once lifted, will leave a case pending in which Edward may seek leave to file an amended pleading.

Second, Harold argues we should dismiss the appeal under the disentitlement doctrine because Edward has willfully disobeyed a court order in the action, namely the order striking his Second Amended Complaint. This argument is unpersuasive because the trial court order permitted Edward to amend; it did not require him to do so. Hence, there is no violation of a trial court order here.

Third, Harold argues we should dismiss the appeal because Edward “forfeited his right to appeal” by failing to appeal from the order denying his petition for an accounting in the separate quiet title action he filed. He cites no case supporting the contention that the failure to appeal from a ruling in one action operates as a forfeiture of the right to appeal from a separate action, and we are aware of none. The only case Harold does cite is Laraway v. Pasadena Unified School Dist. (2002) 98 Cal.App.4th 579, 583 (Laraway), which was not a forfeiture case and did not involve two separate cases and thus fails to support his argument.

Fourth, Harold recasts his mootness argument as one of ripeness, claiming Edward lacks standing to appeal until he files a new complaint in the superior court and Harold is allowed to renew his summary judgment motion to challenge Edward’s standing to pursue the case. That issue, he posits, “has not been fully determined in the trial court.” We disagree. The trial court denied an accounting based on the then-present circumstances. Edward may again request an accounting if the circumstances change, but any such request would be based on different circumstances. In any event, the trial court’s ruling resolved the instant petition for an accounting against him with finality. The motion to dismiss the appeal on ripeness grounds is therefore denied.

II.

Edward Does Not Establish the Trial Court Erred in Holding He Lacks Standing As Successor in Interest to His Father to Demand an Accounting.

Edward contends, as he did in the trial court, that he is the “ ‘successor in interest’ for [his father] in this financial elder abuse action.” He relies on a “filed court order” he characterizes as so holding. He contends the trial court “ignored the material fact that this action is a financial elder abuse action” and ignored his “common law right to an accounting.” Edward also asserts that he is the successor in interest “under Code of Civil Procedure § 377.32,” and that as such he “ ‘steps into [his father’s] position’ ” as to the elder abuse cause of action, enabling him to obtain an accounting to address “looting” of the trust while it was revocable up to the time of his father’s death, and thereafter when it became irrevocable.

As Harold points out, the order on which Edward relies as having determined he was his father’s successor in interest determined “solely whether Edward could proceed on his representative claims at that early point in the case,” and did “not factually and legally conclude that he was Ben’s representative or successor in interest.” Specifically, the order denied in part and granted in part Harold’s and Barbara’s motion to strike the First Amended Complaint. The motion sought to strike the sixth cause of action on the ground that Edward was not a successor in interest under the relevant Code of Civil Procedure sections (377.10, 377.11, 377.30 and 377.32) because the declaration he submitted pursuant to those sections did not show his father had died intestate as required. The court had previously ordered him to modify his declaration to address the intestacy issue, presumably in connection with an earlier pleadings challenge. Apparently after the motion to strike was filed, Edward filed “a new declaration which expressly states that [Ben] died ‘intestate to the best of my knowledge having seen no actual Will of my late father . . . .’ ” In declining to strike the sixth cause of action, the court held this satisfied its prior order.

The court’s ruling about the sufficiency of a declaration to withstand a pleadings challenge is not tantamount to a final determination that Edward met the requisites of the successor-in-interest statute. (See Velez v. Smith (2006) 142 Cal.App.4th 1154, 1161 [purpose of motion to strike is to test sufficiency of pleadings].) The statute requires a declaration providing certain information as a pre-condition to commencing a proceeding or to continuing a pending proceeding as the decedent’s successor in interest. (Code Civ. Proc., § 377.32, subd. (a).) It does not specifically provide for a contest on the issue at the outset of the case, and nothing about the trial court’s order suggests the court was finally resolving the issue. Resolution of the motion to strike in this case established only that a sufficient showing had been made to allow the matter to proceed beyond the pleadings stage; it did not resolve factual disputes.

Further, in opposing the petition for an accounting, Harold proffered evidence contradicting Edward’s declaration that, “to the best of [his] knowledge,” his father had died intestate. Indeed, some of that evidence was included in Edward’s own papers, including a copy of the Family Trust and the First Amendment executed by Ben and Barbara. Harold also proffered a copy of Ben’s executed Pour-Over Will. And, as the trial court observed, “it is inconsistent for Edward to argue that his father died intestate and seek an accounting of his father’s trust that was set up for estate planning.” In denying Edward’s petition for an accounting, the trial court rejected Edward’s assertion that his father died intestate. Edward has failed anywhere in his briefs to explain why this was error. He does not address why the Pour-Over Will his father executed three years prior to his death does not preclude a determination that his father died intestate.

Nor does Edward explain why he is a “successor in interest who succeeds to [any] cause[s] of action” belonging to his father within the meaning of Code of Civil Procedure sections 377.11, 377.30 and 377.32, on which he has also relied. Section 377.11 defines “decedent’s successor in interest” to mean “the beneficiary of the decedent’s estate or other successor in interest who succeeds to a cause of action or to a particular item of property that is the subject of a cause of action.” Section 377.10 defines “beneficiary of the decedent’s estate” to mean, “[i]f the decedent died leaving a will, the sole beneficiary or all of the beneficiaries who succeed to a cause of action, or to a particular item of property that is the subject of a cause of action, under the decedent’s will.” (Code Civ. Proc., § 377.10, subd. (a).) Edward has not shown that he is the sole beneficiary of a cause of action or any item of property under Ben’s will, which, again, placed all of Ben’s assets into the Family Trust. But even if Edward were a beneficiary under section 377.10 and thus a “successor in interest” under section 377.11, section 377.30 allows a “successor in interest” to commence a cause of action to which he or she succeeds only if the decedent has no “personal representative.” The same is true of section 377.32. A “[p]ersonal representative” is an executor or administrator of a will. (Prob. Code § 58, subd. (a).) Here, Ben’s Pour-Over Will appointed Barbara and, failing her, Harold as the executor of his estate. Since the decedent, Ben, has a personal representative, Edward cannot pursue an action on Ben’s behalf.

In his appeal briefs, Edward invokes the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act),, Welfare & Institutions Code section 15600 et seq., as an alternative basis for standing. He did not cite or rely on that Act in his opening brief in the trial court and thus forfeited the argument. (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1528-1529 [arguments not raised in trial court are waived or forfeited]; City of San Diego v. D.H. Horton San Diego Holding Co. (2005) 126 Cal.App.4th 668, 685 [“Contentions or theories raised for the first time on appeal are not entitled to consideration”].) However, since Harold has not argued forfeiture, we will discuss the issue. We conclude that the Elder Abuse Act does not aid Edward.

Welfare and Institutions Code section 15657.3, subdivision (d)(1) provides that “after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the representative of the decedent.” It also creates an exception “[i]f there is no personal representative,” listing various categories of persons who, in that circumstance, may commence or maintain an elder abuse action. Edward has not shown the exception applies given that the Pour-Over Trust designated Barbara, or if she could not serve, Harold, as Ben’s executor. (See Prob. Code, § 58 [defining “personal representative” to include an executor].)

Welfare and Institutions Code section 15657.3, subdivision (d)(2) creates another exception where “the personal representative refuses to commence or maintain an action or if the personal representative’s family or an affiliate . . . is alleged to have committed abuse of the elder or dependent adult.” That exception is limited, conferring standing only on the three categories of persons described in Welfare and Institutions Code section 15657.3, subdivision (d)(1) as follows: “(A) An intestate heir whose interest is affected by the action. [¶] (B) The decedent’s successor in interest, as defined in Section 377.11 of the Code of Civil Procedure. [¶] (C) An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph.” (Italics added.) Section 15647.3, subdivision (d)(1)(C) further provides that “[a]s used in this subparagraph, ‘an interested person’ does not include a creditor or a person who has a claim against the estate and who is not an heir or beneficiary of the decedent’s estate.”

As we have already discussed, Edward failed to show his father died intestate, which means he does not fall within category (A). As to category (B), we have already discussed Edward’s failure to show he meets the definition of successor in interest under section 377.11. Finally, as to category (C), Edward does not cite Probate Code section 48 or its definitions of “interested person” or even argue that he falls within them. He simply asserts that he is a successor in interest, referencing the Elder Abuse Act but not explaining the application of section 15657.3. It is not clear that Edward is contending he is an “interested person” under Probate Code section 48. (See Lickter v. Lickter (2010) 189 Cal.App.4th 712, 728 [“a ‘beneficiary’ must have ‘a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding,’ in order to be an ‘interested person’ with respect to that proceeding”].) Edward has not discussed the issue in his appellate briefs, and Harold has not addressed it either. If Edward intended to assert such a claim, he has waived it by failing to provide argument or authority in his briefs. (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368 [“ ‘An appellate brief “should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration.” [Citation.]’ [Citation.] Again, ‘This court is not inclined to act as counsel for him or any appellant and furnish a legal argument as to how the trial court’s rulings in this regard [were erroneous]”]; Cahill v. San Diego Gas & Elec. Co. (2011) 194 Cal.App.4th 939, 956 [“ ‘We are not bound to develop appellants’ argument for them. [Citation.] The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived’ ”].)

Finally, Edward cites Estate of Giraldin (2012) 55 Cal.4th 1058 (Giraldin) and Teselle v. McLoughlin (2009) 173 Cal.App.4th 156 (Teselle), contending they support his standing as a successor in interest as a matter of common law. They do not.

In Giraldin, the California Supreme Court held that after a settlor of a trust “has died and can no longer protect his own interests, the beneficiaries have standing to claim a violation of the trustee’s duty to the settlor to the extent that violation harmed the beneficiaries’ interests.” (Giraldin, supra, 55 Cal.4th at p. 1071, italics added and original italics omitted.) Moreover, Giraldin involved a suit against someone who was a trustee at the time of the claimed breach. Giraldin involved a dispute between siblings who were remainder beneficiaries of a trust and their brother who was trustee, including during the trustor’s lifetime, and was alleged to have squandered trust assets while the trustor was still alive. (Id. at pp. 1062-1065.) Giraldin is not apposite for at least two reasons. Unlike the trustee in Giraldin, Harold was not appointed as trustee during Ben’s lifetime; and until he was appointed trustee he could not have owed any duty to account to trust beneficiaries or even to Ben. Further, unlike the trustor’s squandering of trust assets in Giraldin, which plainly affected the plaintiffs-beneficiaries, Edward does not explain how any failure to account or other breach of duty by Harold toward Ben could have affected Edward’s interest in the Family Trust or any of the subtrusts. For these reasons, Giraldin does not aid Edward.

Edward cites Teselle for the proposition that he has “the common law right to an accounting against [Harold],” and that such a cause of action does not require a fiduciary relationship but only some relationship between the parties and some balance due to plaintiff that can only be ascertained by an accounting. Teselle is not a standing case, much less a “successor in interest case.” But it does pertain to the circumstances in which a party may obtain an accounting. Edward cited it below and relies on it heavily here, and we therefore address it.

In Teselle, the parties were the executors of the estates of two brothers, who had formerly been in a longtime business partnership. (Teselle, supra, 173 Cal.App.4th at pp. 163-165.) The plaintiff was the sister of the two brothers, both of whom were deceased. (Id. at p. 163.) She was also the successor trustee and a beneficiary of the trust of one brother, George. (Id. at p. 164.) The defendants were the wife, daughter and son-in-law of the other brother, Charles, and had interests in Charles’s trust. (Id. at pp. 161, 163.) The plaintiff alleged that because she was unaware of an amendment to George’s trust, she had mistakenly transferred certain real property from George’s trust to Charles’s trust. (Id. at pp. 161, 165.) She also alleged that the defendants “ ‘took, secreted, appropriated, and/or retained’ [a] $100,000 sum from George ‘to a wrongful use or with an intent to defraud, or both’ ” and that they were aware of her mistake in transferring the real property. She alleged that before Charles’ death, the “defendants ‘took control of the assets and operations of [the brothers’ partnership]’ . . . to the detriment of George and his heirs, and requested an accounting.” (Id. at p. 165.) The defendants sought, and the trial court granted, summary judgment on the plaintiff’s claims for elder abuse, breach of confidential relationship, undue influence, declaratory relief, cancellation of deeds, quiet title, accounting, constructive trust, and conspiracy. (Id. at pp. 165-166, 167.)

The appellate court reversed. Regarding the accounting cause of action, it stated, “A cause of action for an accounting requires a showing that a relationship exists between the plaintiff and defendant that requires an accounting, and that some balance is due the plaintiff that can only be ascertained by an accounting.” (Teselle, supra, 173 Cal.App.4th at p. 179.) The defendants argued that “there was no relationship between the parties that would require an accounting,” that “they were never in a fiduciary relationship with George and that, without either of these, there was no predicate relationship entitling plaintiff to an accounting.” (Ibid.) The appellate court rejected these arguments, observing, “[A] fiduciary relationship between the parties is not required to state a cause of action for accounting. All that is required is that some relationship exists that requires an accounting. [Citation.] The right to an accounting can arise from the possession by the defendant of money or property which, because of the defendant’s relationship with the plaintiff, the defendant is obliged to surrender. [Citation.] If defendants took over the business and assets of the partnership, they would have a sufficient relationship to George, or to the executor of his estate and trustee of his revocable trust, to require an accounting of the partnership business. Defendants produced no evidence to show they did not take over the partnership assets after Charles’s death; therefore this material fact is still at issue.” (Id. at pp. 179-180.) In response to the defendants’ argument that the plaintiff had been unable in discovery responses to identify the assets “ ‘taken’ by defendants,” the court observed that an accounting cause of action is effectively a means of discovery. “An accounting is a ‘species of disclosure, predicated upon the plaintiff’s legal inability to determine how much money, if any, is due.’ ” (Id. at p. 180.)

The problem with Edward’s reliance on the Teselle theory is that his briefs do not explain what facts support the kind of special relationship with his brother that could entitle him to an accounting. Teselle does not suggest, and we do not understand Edward to argue, that the familial relationship alone is sufficient to entitle every sibling to an accounting from any of his or her brothers or sisters. Rather, Teselle requires circumstances in which one party, by virtue of a special relationship with the other, has come into possession of money or property that she or he is required to surrender to the latter. Edward makes many assertions but does not cite record evidence indicating any such relationship. He did not proffer evidence showing that, for example, Harold “took over” his parents’ real and personal property when his father was still alive, or that Harold exercised undue influence over his father that resulted in Edward’s disinheritance.

His declaration contains many facts, only one of which suggests possible wrongdoing by Harold, but the conduct involved Barbara rather than Ben. Edward stated in his declaration and attached documents he claims show that in 2013, after telling Barbara’s doctor she was “mentally . . . going downhill very fast,” Harold took her to a law firm with which she and his father had not previously dealt in an attempt to disinherit Edward and prevent Edward from obtaining an accounting. But Edward did not argue undue influence with respect to Barbara below, nor does he argue it on appeal. And he does not renew his argument below challenging Barbara’s competence. In those circumstances he has both forfeited and waived any such argument.

For all of these reasons, Edward has failed to show that the trial court erred in rejecting his claim that he was entitled to seek and obtain an accounting as a successor in interest to his father. Because we so hold, we need not address Harold’s further arguments that under the trust, Barbara, Harold and Nancy and Gena McCutchen are Ben’s successors in interest, that a survival action within the meaning of the relevant statutes only permits a successor in interest to recover losses the decedent suffered during his or her life, that Edward has failed to sue Harold as a trustee and that Harold was not in any event the trustee prior to Ben’s death and therefore owes no duty to account for periods prior to his appointment.

III.

Edward Has Failed to Show He Is Entitled to an Accounting
As a Beneficiary.

In the trial court, Edward relied in part on his elder abuse theory and the related contention that he was his father’s successor in interest in pressing his petition for an accounting. However, he also asserted that he was a beneficiary of the Family Trust at the time of his father’s death and remained a “remote contingency beneficiary” even after his mother’s Restatement because the Restatement “expressly names [him] as a remote contingency beneficiary of the [Family Trust]” and that as such, he was entitled to an annual accounting under provisions of the Family Trust. He also challenged the Restatement claiming his mother was “incompetent” when she executed it.

In his opening brief on appeal, Edward abandons his argument that his mother was incompetent when she executed the Restatement. And he arguably abandons the argument that he is a beneficiary in his own right; his opening brief focuses almost entirely on his argument that he is the successor in interest of a deceased elder entitled to an accounting in that capacity. At page 32 of his brief, he asserts that he is a remote contingent beneficiary in a single sentence but does not discuss that issue further. This is far from sufficient to raise the issue. (Bunzl Distribution USA, Inc. v. Franchise Tax Bd. (2018) 27 Cal.App.5th 986, 998 [“Isolated references in a brief do not constitute a cognizable argument”]; Fernandes v. Singh (2017) 16 Cal.App.5th 932, 942-943 [“[A] brief must contain ‘ “meaningful legal analysis supported by citations to authority and citations to facts in the record that support the claim of error” ’ and contain adequate record citations or else we will deem all points ‘to be forfeited as unsupported by “adequate factual or legal analysis” ’ ”].)

We will not treat Edward’s argument that he is a beneficiary as forfeited, however, because Harold does not argue forfeiture and instead discusses the beneficiary question on its merits in his respondent’s brief. Harold argued below and again argues on appeal that Edward is not a beneficiary because his mother went to great lengths to disinherit him in her will and in the Restatement. The trial court agreed with that reasoning. We disagree. Regardless of Barbara’s desire, the fact is that the Restatement left Edward as a contingent beneficiary, albeit in circumstances that are unlikely ever to occur. Specifically, in the event Harold, Nancy and all beneficiaries named in the Restatement predecease Barbara, Edward will be entitled to distribution of the balance of the Trust Estate remaining at the time of Barbara’s death. Barbara acknowledged that the power of appointment conferred on her in the Family Trust required her to leave Edward and his son as beneficiaries, even if only remotely. As Esslinger v. Cummins (2006) 144 Cal.App.4th 517—cited by both parties—points out, the Probate Code defines “beneficiary” to mean “a person to whom a donative transfer of property is made or that person’s successor in interest, and: [¶] . . . [¶] As it relates to a trust, means a person who has any present or future interest, vested or contingent.” (Prob. Code, § 24, subd. (c), italics added; Esslinger, at p. 524.) Under this broad definition, Edward is a beneficiary regardless of the fact that it is very possible he will never receive a distribution of trust assets. (Cf. Boys & Girls Club of Petaluma v. Walsh (2008) 169 Cal.App.4th 1049, 1051-52, 1058-59 [charities named in trust as to which trustees had discretion to distribute assets to some and exclude others were “beneficiaries” within meaning of section 24, subd. (d)].)

On the other hand, while the court was incorrect in holding Edward is not a beneficiary within the meaning of the Probate Code, it was correct in holding that Probate Code section 16062, subdivision (a) requires the trustee to provide annual accountings only “to each beneficiary to whom income or principal is required or authorized in the trustee’s discretion to be currently distributed.” As Harold points out, the only beneficiary currently entitled to income under the terms of the Family Trust is Barbara. (See Prob. Code, § 16062.) Edward does not contend that he is currently entitled to income or principal under the Family Trust or any of the subtrusts or that the trustee has discretion to provide him with either, and for that reason he has not shown error in the trial court’s denial of an accounting.

In his reply brief, Edwards claims he is “a vested beneficiary under [Family Trust] sections 3.2 and 5.3 as to the two never irrevocable trusts required after the Deceased Elder’s November 12, 2012 death.” For the first time, he argues that Harold “never created” certain “mandated” and “irrevocable” subtrusts after Ben’s death. He then argues these provisions of the Family Trust were “violated” when Harold “placed all [Family Trust] assets into this 2013 Survivor’s Trust” and that on their father’s death, Edward’s “ ‘financial interest’ ” as a “33.33% Trust beneficiary” “vested.” Relatedly, he presents as “questions before this court” a series of arguments about the Family Trust provisions regarding subtrusts and claimed violations of those provisions, none of which bears any resemblance to the questions raised and arguments made in his opening brief. We decline to consider these belated arguments. An appellant may not employ his opening and reply briefs as a bait and switch strategy, raising new arguments and issues in reply that were nowhere mentioned in the opening brief and depriving the respondent of an opportunity to respond. (See SCI California Funeral Services, Inc. v. Five Bridges Foundation (2012) 203 Cal.App.4th 549, 573, fn. 18 [“ ‘Obvious considerations of fairness in argument demand that the appellant present all of his or her points in the opening brief.’ [] An appellant cannot salvage a forfeited argument by belatedly addressing the argument in its reply brief”].)

IV.

Collateral Estoppel

Because Parts II and III above are dispositive of the appeal, we need not address the trial court’s alternative ground of collateral estoppel for denying Edward’s petition for an accounting.

DISPOSITION

For the reasons stated, we affirm the trial court decision denying Edward’s petition for an accounting. Respondent shall recover his costs.

 

STEWART, J.

We concur.

RICHMAN, Acting P.J.

MILLER, J.

McCutchan v. McCutchan (A155964)