Filed 6/24/20 Lundquist v. Lundquist CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Shasta)

—-

PATRICK LUNDQUIST,

Plaintiff and Appellant,

v.

MICHELLE LUNDQUIST, as Co-trustee, etc.,

Defendant and Respondent.

C078000

(Super. Ct. No. 27357)

This litigation involves a trust dispute between the two adult children of one of the settlors. Plaintiff Patrick Lundquist (Patrick) and defendant Michelle Lundquist (Michelle) are the adult children of Katherine (Katherine) Swenson. In 2008, Katherine and Dean Swenson (Dean), who were then married, created the Dean & Katherine Swenson 2008 Trust (the Trust), naming themselves as cotrustees and Patrick and Michelle as successor trustees and contingent beneficiaries. Dean died in 2012. Thereafter, Katherine executed an amendment to the Trust (the Amendment), naming Michelle as current cotrustee with Katherine, leaving Patrick as successor cotrustee. This development exacerbated what was already a contentious relationship between the siblings. Patrick filed a petition for: the removal of Michelle as cotrustee based on an alleged breach of fiduciary duty, an accounting, a determination that the Amendment was not validly executed, and damages based on a claim of financial elder abuse. Michelle cross-petitioned, alleging that Patrick had withheld Trust property and that he was therefore unqualified to serve as a trustee. The trial court: (1) denied Patrick’s petition, finding that Katherine validly executed the Amendment; (2) found that Patrick withheld certain Trust property, ordered him to return it or compensate the Trust, and removed him as a successor cotrustee; and, after Patrick filed a notice of appeal from the judgment, (3) approved Michelle’s second accounting and request for reimbursement of personal costs, trustee fees, and attorney fees.

We conclude that substantial evidence supports the trial court’s determinations that the Amendment was validly executed and that Patrick withheld Trust property. We further conclude that, upon Patrick’s appeal from the judgment, the operation and effect of the judgment was stayed pursuant to Probate Code section 1310, subdivision (a), and, as a result, under the circumstances of this case, the trial court lacked subject matter jurisdiction to issue the postjudgment order for reimbursement of trustee fees for Michelle’s pre-judgment work and for attorney fees resulting from the litigation on the siblings’ petitions.

Accordingly, we affirm the judgment but reverse the order related to the trial court’s approval of trustee fees for Michelle’s work done before the judgment on the siblings’ petitions and further reverse the order for attorney fees insofar as they relate to the litigation on the siblings’ petitions. We remand the matter for further proceedings on these matters without prejudice to Michelle to refile her request for reimbursement of trustee fees and attorney fees. Because the trial court will have jurisdiction again at that point, it is not precluded from once again approving those fees.

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

Michelle and Patrick are Katherine’s adult children from a prior marriage. In 2008, Katherine and Dean created the Trust, a revocable funded trust. Katherine and Dean were the initial trustees, the surviving or remaining settlor was named as the first successor trustee, and Michelle and Patrick were named second successor trustees. The Trust further provided that a remaining trustee had the power to designate successor trustees. Upon the death of the surviving settlor, the trust assets were to be divided among Michelle and Patrick in substantially equal shares.

In 2008, Katherine suffered a stroke, her second. This one caused her to have difficulties seeing, communicating, and ambulating. Meanwhile, Dean began his fight with cancer. Michelle and Patrick both attempted to assist Katherine and Dean, but both lived out of the area. Michelle and her husband relocated to Shasta County where Katherine and Dean lived, and where Michelle and her husband could provide greater assistance to them.

Dean died in 2012. Consistent with the terms of the Trust, Katherine, who was 89 years old, became the sole trustee. Two days after Dean’s death, Katherine, Patrick, and Michelle met with an attorney, Archer Pugh, to discuss what to do if Katherine became incapacitated. Pugh testified that Katherine was not incapacitated at that time. It was apparent to Pugh that the siblings were unable to work together, although Katherine expressed the desire that they do so.

Patrick understood that, in order to have him and Michelle act as cotrustees, letters from two doctors establishing Katherine’s incapacity would be required. In July 2012, Patrick sought and obtained a letter from Dr. Elaine Hearney, Katherine’s primary care physician. The letter stated that Katherine had been tested and had “advanced dementia with significant cognitive impairment and partial blindness from strokes.” Dr. Hearney stated that Katherine was “very impaired and requires assistance from others for all of her activities.”

Thereafter, Patrick brought Katherine to another doctor, Dr. Sara Seeger. Dr. Seeger issued a letter stating that Katherine had moderate cognitive impairment and was unable to handle her own affairs.

At some point, Katherine became interested in moving into Kirkwood assisted living facility in Redding. However, Michelle knew that, if Katherine was diagnosed with advanced dementia, she would not be eligible for admission to the facility. Michelle asked Dr. Hearney to reevaluate Katherine, hoping that she would change her diagnosis. Dr. Hearney again concluded that Katherine was suffering from dementia. However, Dr. Louis Bernstein, who by this time was apparently Katherine’s primary care physician, diagnosed Katherine as moderately impaired and Katherine was permitted to move into the assisted living facility.

On October 3, 2012, Katherine and Michelle met with attorney Jerrald Pickering, to discuss the Trust. Pickering testified that he spoke with Katherine privately to gauge her decisionmaking capabilities. He was not informed that Katherine had undergone previous mental evaluations. Pickering concluded that Katherine was capable of making her own decisions and that she had the capacity to make changes to the Trust. Pickering testified that Katherine expressed her desire to amend the Trust, and that the Amendment would serve to appoint Michelle as immediate cotrustee. Katherine executed the Amendment, prepared by Pickering, on October 11, 2012. The Amendment named Katherine and Michelle as cotrustees, with Katherine retaining authority to resolve any dispute that should arise between them. Patrick was to remain a successor trustee.

Patrick testified that he was not told of the October 11, 2012, appointment with Pickering. He had gone to the assisted living facility that day and discovered that Michelle had signed Katherine out. Suspecting they might be meeting with Pickering, Patrick went to Pickering’s office, and, when he went inside, he found Katherine at a table signing something. Michelle and her husband were also there.

At some point, Patrick learned that Michelle intended to sell personal property of the Trust through an online auction. The auction was activated online and property was sold. However, Patrick contacted Robert Crouse, the auctioneer, and caused the auction to be voided and the auction contract cancelled.

Patrick’s Petition

On November 7, 2012, Patrick filed a petition: (1) to remove Michelle as trustee based on an alleged breach of her fiduciary duties; (2) for an accounting; (3) to invalidate the Amendment; (4) to recover Trust assets from Michelle; and (5) seeking damages for financial elder abuse.

In the cause of action seeking Michelle’s removal as cotrustee, Patrick alleged that Michelle “exercised control over the . . . Trust assets through an ongoing pattern of deception, threats and physical abuse of Katherine . . . .” Patrick asserted that Michelle’s conduct amounted to a breach of her fiduciary duties.

In the cause of action seeking to invalidate the Amendment, Patrick asserted that Michelle attempted to have the Trust amended “to gain an advantage by being appointed Co-Trustee with Katherine . . . . This was done with full knowledge by Michelle . . . that Katherine . . . lacked the mental capacity to make financial decisions, as noted by Katherine[’s] . . . personal physicians in July, August and September, 2012.” (Capitalization omitted.) Based on this, Patrick asserted that the Amendment must be declared invalid, “as it was obtained through the deceptive acts of Michelle . . . , at a time when Katherine . . . lacked the mental capacity to understand the nature or effect of such amendment.” (Capitalization omitted.)

With regard to the elder abuse claim, Patrick asserted that the facts alleged in his petition constituted financial elder abuse within the meaning of the relevant statutes. Patrick asserted that the “facts will clearly show that Michelle . . . abused the confidence placed in her by Katherine . . . in an attempt to deprive Katherine . . . of all of her investments.” (Capitalization omitted.) Patrick asserted that Michelle took control of the Trust assets and diverted them to her own use.

Katherine’s Conservatorship

Dr. Bernstein diagnosed Katherine with dementia and signed a capacity declaration on January 16, 2013, for a hearing set for February 11, 2013. Sometime in February 2013, Katherine was conserved. Thereafter, Michelle worked in conjunction with the conservator to ensure that Katherine’s personal and financial needs were met. Michelle later asserted that Katherine became incapacitated to serve as cotrustee as of the time she was conserved.

Michelle’s Cross-petition

On June 14, 2013, Michelle filed a cross-petition seeking an order directing Patrick to return all Trust personal property identified in the cross-petition and any additional Trust personal property taken from the Trust estate, surcharging Patrick for the value of personal property taken from the Trust, and finding Patrick unqualified to serve as a trustee. Michelle asserted that, after Katherine moved into the assisted living facility, Patrick converted certain identified Trust assets, and perhaps additional Trust assets, to his own use. Michelle further alleged that Patrick had taken actions to interfere with Michelle’s efforts to secure the contents of Katherine’s home, resulting in the Trust unnecessarily incurring expenses and increasing risk of loss.

In opposing the cross-petition, Patrick asserted that the items identified in the cross-petition were the subject of an online auction conducted by Michelle, or were otherwise not taken by Patrick or under his control.

The Trial Court’s Ruling on Patrick’s Petition and Michelle’s Cross-petition

On May 27, 2014, the court issued a written ruling. The trial court found that Michelle acted to provide security to Katherine, and that Patrick’s defining quality was rage against Michelle’s actions and what he believed to be her conduct in taking advantage of Katherine. The trial court stated that Patrick failed to satisfy his burden of proof in support of his petition. He failed “to show any evidence of a breach of fiduciary duties by Michelle.” Instead, the trial court found that the evidence showed Michelle “diligently attended to her Mother’s needs and — at no time — sought to self-benefit from the trust. There were no tell-tale signs of self-service, no unexplained or questionable checks . . . or supplementation of income . . . .” The court found that Michelle had Katherine’s best interests at heart.

Accordingly, the trial court denied Patrick’s petition to remove Michelle as trustee of the Trust. The trial court stated that it found no convincing evidence to support Patrick’s claim that Michelle breached her fiduciary duties.

The trial court further found, by clear and convincing evidence, that Katherine possessed the mental capability to understand and appreciate the consequences of her actions in signing the Amendment and that the Amendment was validly executed.

The trial court also found that there was no evidence to support Patrick’s claim of elder abuse. The trial court stated: “[n]ot one valid or factual example of abuse was shown at trial. The evidence is strong that Michelle’s actions were altruistic and taken without personal interest — as a daughter should — for the betterment of her Mother.”

As for Michelle’s cross-petition, the trial court found that the “evidence preponderates that Patrick had access to and withheld the items as stated by the cross-claim, except the cameo set and the Cartier silver plate. These latter two items had been found. As to the other property listed, Patrick is ordered to return said items . . . or compensate the Trust for their value.” (Capitalization and bold omitted.)

With regard to the auction, the trial court stated: “Patrick plied his domination skills on the innocent by-stander auctioneer. This power-play caused great loss to the Trust, for no good reason. The evidence preponderates that the auction would have produced good, reasonable value for the Trust assets. It was being handled professionally and the auction itself would be of little expense to the Trust. The auctioneer was treated cruelly and was subjected to unnecessary stress and personal cost. Michelle, too, was subjected to unnecessary anxiety and had to outlay trust funds back to the auctioneer and then pay the cost of placing the assets in storage (including air-conditioned storage): all because of Patrick’s unnecessary, unreasonable actions. Patrick . . . is ordered to reimburse the trust for the cost of the auction and all expenses of the storage. Patrick is surcharged for these losses to the Trust.” (Capitalization and bold omitted.)

At the end of its ruling, the trial court wrote: “Following the passage of time for an appeal, the distribution of the trust shall proceed forthwith . . . .”

Corrected Final Statement of Decision

On June 4, 2014, Patrick requested a statement of decision. Thereafter, the trial court invited Michelle to submit a proposed statement of decision. At some point, both Michelle and Patrick submitted proposed statements of decision.

On July 25, 2014, the trial court issued a proposed statement of decision, consistent with its earlier ruling. On August 8, 2014, Patrick filed objections to the proposed statement of decision and refiled his proposed statement of decision. On August 15, 2014, the trial court issued a final statement of decision, and on September 2, 2014, the trial court issued a corrected final statement of decision.

The trial court first stated that Patrick failed to satisfy his burden of proving that the Amendment was not validly executed. The trial court stated that Michelle presented clear and convincing evidence that Katherine had the mental capacity to understand and appreciate the consequences of her actions in executing the Amendment. Noting that Katherine’s “mental acuity fluctuated,” the court found that “[d]espite certain opinions by members of the medical community, such as Dr. Hearney, Katherine’s state of capacity was known to Michelle and Patrick to be sound.” The court further found that Michelle and Patrick “knew [Katherine], knew her ways, and understood what her disabilities were. Others – including . . . Dr. Hearney – had none of this special knowledge.”

The trial court noted, based on case law, that the testimony of the drafting attorney, though not conclusive, is entitled to much weight. Pickering testified that he found Katherine to be alert, cognizant, and mentally competent at the time she executed the Amendment. The court found that “Mr. Pickering had no issue with Katherine’s mental status” and “Katherine answered each and every question and expressed her desire that Michelle be appointed to act as Co-Trustee of the Trust with her.” The trial court found that “Katherine decided — free of influence — to name Michelle [] as Co-Trustee.” In response to one of Patrick’s objections to the initial statement of decision, the court stated: “Although the evidence regarding the date and Patrick’s notice of the date [of the meeting with Pickering] was at issue, the Court determines that Michelle was not focused on Patrick and his desires; rather, she was focused on Katherine and what Katherine had requested of Michelle. The weight of the evidence supports the inference that Michelle was not enthusiastic about Patrick attending the meeting; however, no fraud or deception or harm of any kind was intended by Michelle against Patrick.” The court explicitly found that “Michelle’s testimony – that she knew her Mother; that she knew that her Mother was aware and on occasion, went into the shell to avoid confrontations – was convincing. In other words, Michelle was believable. . . . The Court’s findings are based, in great part, on the believability of Michelle’s testimony. Michelle knew her Mother and spent a substantial amount of time with her Mother than [sic] any doctor or any lawyer. The Court finds Michelle’s testimony in this regard to control.” (Capitalization and bold omitted.)

Applying section 6100.5 and Lintz v. Lintz (2014) 222 Cal.App.4th 1346, the trial court noted that the question to be determined was whether the settlor had the mental function “ ‘to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.’ ” The court found that Patrick failed to meet his burden of establishing incapacity, whereas “Michelle presented clear and convincing evidence that Katherine had the mental function to understand and appreciate the consequences of her actions with regard to her decision to sign” the Amendment.

The trial court further found that there was no reason to remove Michelle as cotrustee. The court stated that, because Katherine appointed Michelle as cotrustee when Katherine had capacity to express her wishes, the court was required to impose a high burden on Patrick in his efforts to have Michelle removed as cotrustee. The trial court stated that it “should be noted that the Court found strong circumstantial evidence supporting the fact that Patrick’s attitude and presentation, as time passed and as Katherine became more fearful, was the impetus that drove Katherine to make the decision to nominate Michelle as sole successor trustee.” The court reiterated that it found no convincing evidence to support Patrick’s claim that Michelle breached her fiduciary duties. Therefore, the trial court concluded that Patrick failed to meet his burden of proof, and denied Patrick’s request that Michelle be removed as cotrustee.

The trial court also found that Michelle did not commit financial elder abuse. The court stated that Michelle produced “substantial convincing evidence” demonstrating that she “diligently attended to [Katherine’s] needs and at no time sought to benefit herself from the Trust. There was no evidence of the supplementation of Michelle’s income, even validly, as the Trust Administrator. Michelle had, and as the Trust Administrator continues to have, [Katherine’s] best interests at heart.”

The trial court found that Patrick had access to, and withheld, Trust property as alleged in Michelle’s cross-petition and itemized the Trust property withheld by Patrick. The court reasoned: “Michelle testified that the . . . items were stored in rooms in [Katherine and Dean’s] house which were locked and were not readily accessible to anyone not having a key. Although Dean . . . had a key, the only others having keys were Michelle and Patrick. Dean . . . did not tend to give away his property items. As both Michelle and Patrick testified, he was somewhat a hoarder. [¶] It is clear from the evidence presented that Michelle worked very hard with Robert Crouse and a reputable appraiser to inventory the . . . household items and to account for all the assets. [Michelle’s husband] testified concerning the guns and the access Patrick had to the guns. Although circumstantial, the evidence was compelling that the missing items were taken by Patrick. He is therefore ordered to return the items or compensate the Trust estate for their value.” Reprising the conclusions in its original ruling, the trial court ordered Patrick to compensate the Trust for the cost of the auction and storage expenses.

Finally, the trial court found that Patrick was not qualified to act as successor trustee. In this regard, the trial court stated: “Patrick had access to and withheld the items of the Trust as alleged in the cross-claim, except for two items which had been found and conceded by Michelle, and Patrick plied his domination skills on the innocent bystander auctioneer which caused great loss to the Trust, for no good reason. In light of Patrick’s proven failure to act in the best interest of all Trust beneficiaries as required by . . . §§ 16002 and 16003, to avoid a conflict of interest by dealing with Trust property for his own benefit in violation of . . . § 16004, and to meet the standard of care required by . . . § 16040 in dealing with Trust matters, the Court finds that . . . Patrick . . . is not qualified to serve as Trustee of the Trust.”

The September 2, 2014, Judgment

On September 2, 2014, the trial court entered judgment in favor of Michelle, ruling that: (1) the Amendment was validly executed; (2) Michelle would not be removed as co-trustee of the Trust; (3) Michelle did not commit financial elder abuse; (4) Patrick was not entitled to an additional accounting; (5) Patrick was required to return specified items to the Trust because he had improperly withheld them as alleged in the cross-petition; (6) Patrick caused the Trust to incur unreasonable costs in connection with the auction, and therefore he would be surcharged for those losses; (7) Patrick was not qualified to act as successor trustee of the Trust; and (8) the court would retain jurisdiction to rule on matters related to Patrick’s return of the withheld property and the surcharge to be paid.

Michelle’s Postjudgment Petition

On September 17, 2014, Michelle filed a petition for order approving second account and report of administration for the period between July 1, 2013, through June 30, 2014, for instructions authorizing the sale of real and personal property, and for reimbursement of expenses and payment of trustee fees. In connection with her request for reimbursement for expenses and attorney fees, Michelle asserted that she had spent considerable time and substantial sums in administering the Trust, defending the litigation, and tending to Katherine’s needs. Michelle stated that she had advanced money for these expenses from her personal funds, and she had not been reimbursed.

Specifically with regard to attorney fees, Michelle stated she advanced $85,050 and described the nature of these legal expenses as follows: “Such expenses include assistance with these trust administration proceedings, with the compilation and finalization of two accountings, with the defense of Patrick[’s] . . . aggressive, contentious, and relentless efforts to challenge [Michelle’s] efforts to serve as a trustee (including defenses of devastating allegations of elder abuse and the issuance of a temporary restraining order against her) and preparation of numerous pleadings filed with this Court related to trust litigation, including preparation of this petition.”

Patrick opposed Michelle’s postjudgment petition. We discuss the litigation regarding this petition, post.

Patrick’s Postjudgment Motions

On September 18, 2014, Patrick filed a motion for a new trial. On that same day, Patrick filed a separate motion to vacate judgment. The trial court subsequently denied both motions on November 3, 2014.

With regard to Patrick’s contention in the motion to vacate judgment that the trial court improperly made changes in the corrected final statement of decision, the trial court explained that, because the judgment had not been entered, it retained the authority to make those changes. In open court, the trial court explained a letter from Michelle’s attorney bringing the issue of the date to the court’s attention was “review[ed]” by the court, but the court did not “consider it.” According to the trial court, it had not intended to modify that date from the first statement of decision to the final statement of decision. Thus, the letter caused the court to realize that it had inadvertently made that unintentional change, and therefore the court changed the date in the corrected final statement of decision.

As for Patrick’s contention in the motion to vacate that the judgment rested on an incorrect or erroneous legal basis not consistent with or supported by the facts, the trial court found that the “material and principal controverted issues as set forth in the Conclusions of Law within the Corrected Statement of Decision are adequately supported by legal and factual bases cited within the Corrected Statement of Decision.”

The trial court also denied Patrick’s separate motion for a new trial. Among the grounds supporting his motion for a new trial, Patrick asserted that the judgment was “against law” within the meaning of Code of Civil Procedure section 657, subdivision (6), because the corrected final statement of decision failed to make a finding on the material issue of undue influence. Specifically, he asserted that the evidence established that Katherine was susceptible to undue influence, and Michelle exerted undue influence to gain control of the Trust.

In denying the motion, the trial court noted that, in his petition, Patrick sought the removal of Michelle due to breach of fiduciary duty for failure to properly account for Trust assets, and in taking exclusive control of the Trust assets; sought to invalidate the Amendment based on deceptive acts and an attempt to gain advantage by means of the Amendment when Katherine lacked capacity; and asserted an allegation of financial elder abuse. The court noted that the only reference to undue influence in Patrick’s petition was in connection with the financial elder abuse cause of action brought under Welfare and Institutions Code section 15610.30, not with regard to the Amendment. As for the elder abuse cause of action, the court noted that it had found that Patrick failed to prove any of the statutory grounds for financial elder abuse and that the trial court was under no obligation to make specific findings as to each of the three statutory circumstances in Welfare and Institutions Code section 15610.30, which includes undue influence. The court reasoned there was no failure to make a finding on a material issue which was raised by the pleadings, and reiterated that Patrick in his petition did not raise undue influence as a basis for invalidating the Amendment.

As for Patrick’s separate claim related to asserted insufficiency of evidence supporting the trial court’s finding that he withheld trust assets, the trial court stated that each of its enumerated conclusions of law were supported by sufficient evidence as cited in the corrected final statement of decision. In responding to Patrick’s oral argument on the motion, the trial court stated that it “had no doubt as to Michelle[’s] credibility,” and that it “never felt under any circumstances that [Michelle] was dishonest with The Court. I felt she testified truthfully.” The court continued: “On the other hand, I got some strong feelings about [Patrick] and his credibility, to the extent that I sensed that he — he was a man that would intimidate those that he came upon, and that’s one of the reasons perhaps that there was this suspicion that was going on between the two. I can’t imagine that [Michelle] wasn’t concerned about her brother perhaps being a guy that could blow up at any moment. He demonstrated that in this courtroom. I saw it clear as day. [¶] I also felt very strongly about that tape recording that [Patrick] made about his mother and the way she felt in that tape recording. You could sense that she was intimated by her own son. That’s the kind of thing that in my mind really reverberates. [¶] I never got a sense whatsoever that [Michelle] did anything other than to try to protect her mother and to take her away essentially from the concerns and fears she may have had about [Patrick]. So that’s — I felt that strongly. The evidence was in my mind pretty darn clear as to who to believe and who to not believe. [¶] And so essentially I’m telling you at this juncture that the motion for new trial or the motion to set aside the judgment is denied.” (Italics added.)

Patrick’s Objection to Michelle’s Postjudgment Petition

On October 23, 2014, prior to the court’s rulings on Patrick’s postjudgment motions, Patrick filed objections to Michelle’s postjudgment petition. The hearing on the petition was ultimately postponed to November 24, 2014, to be heard after Patrick’s postjudgment motions. Following Michelle’s reply to the objections on November 14, 2014, Patrick filed amended objections on November 20, 2014.

Non-heirloom Personal Property and Attorney Fees

On November 24, 2014, the court issued an order authorizing the sale of non-heirloom personal property. The court also indicated its intent to issue instructions authorizing the payment of legal expenses to Michelle. The court continued the matter to December 22, 2014, to allow Michelle to submit additional evidence concerning her mileage reimbursement claim and additional argument on her request for an order limiting Patrick’s challenges to her actions as trustee.

First Notice of Appeal and Michelle’s Motion

to be Appointed Temporary Trustee Under Section 1304

On November 26, 2014, two days after the trial court continued the proceedings regarding Michelle’s postjudgment petition to December 22, 2014, Patrick filed a notice of appeal from the September 2, 2014, judgment and the November 3, 2014, order regarding the denial of the motion for new trial.

On December 2, 2014, Michelle moved ex parte for appointment as a temporary trustee pursuant to section 1310, subdivision (b), pending appeal. (See fn. 18, post.) She argued that the basis for her application was “to avoid a lapse in authority of a trustee to act on behalf of [the Trust] for the benefit of the trust and its current beneficiary, Katherine . . . .” It was further asserted that it was “necessary to have someone in the position to manage the real property and investments of the Trust, to pay the expenses of the Trust and to work with the conservator for Katherine . . . to ensure sufficient assets are available for [Katherine’s] care and well being. Absent the appointment of a temporary trustee, irreparable harm to Trust assets may occur.”

On that same day, Patrick filed an opposition to Michelle’s ex parte motion, arguing that it was “unnecessary” as Michelle “is in fact the existing successor Co-Trustee of the Trust, the continuation of which is her undisputed status pending the outcome of the appeal. [¶] There is no indication of any need for such an order ‘for the purpose of preventing injury or loss to a person or property,’ as there has been and will continue to be continuity in Michelle’[s] service as successor Co-Trustee.” (Italics added.)

At the hearing on December 3, 2014, Michelle’s counsel explained the motion for appointment as a temporary trustee had been made because, in the past, Patrick had interfered with Michelle’s ability to act as trustee and represented to investment advisors and others, including the auctioneer, that she had no authority to act. Michelle’s counsel told the court: “We simply want something in writing so she can show she does have authority to act.” Patrick argued that there was no need for the appointment because Michelle was the trustee and could continue to serve in that capacity. In the hearing, the trial court initially stated that section 1310 “may not be applicable to our case,” but that it was nonetheless inclined to grant Michelle’s request “out of an abundance of caution.” Later in the hearing, the court said it would look at the applicability of the automatic stay provision of section 1310 and took the matter under submission.

On December 5, 2014, the trial court, agreeing with Patrick, denied Michelle’s ex parte motion to appoint her temporary trustee pending appeal. Noting that “the basis for [the] requested appointment is to ‘avoid a lapse in authority of a trustee,’ ” the trial court observed that Michelle had been acting as trustee by operation of the Amendment, and stated: “In no way . . . does this order impact the applicant’s authority under the terms of the . . . Amendment . . . , which this Court has held to be valid.” We discuss in more detail, post, Michelle’s motion, Patrick’s opposition in the trial court, the court’s order, the post-notice-of-appeal litigation, and Patrick’s belated argument on appeal that all proceedings should have been stayed once he filed his notice of appeal on November 26, 2014.

Sale of Personal Property

As noted, on November 24, 2014, the court approved sale of non-heirloom personal property. On December 22, 2014, Patrick indicated there was a list of personal property he wanted to purchase from the Trust. The trial court directed that, before selling any personal property, Michelle was to first allow Patrick the opportunity to purchase personal property of the Trust and that the sale to Patrick was to be completed by February 23, 2015. Patrick submitted his list to Michelle.

However, several iterations of draft agreements concerning the sale of the property were exchanged, and Patrick ultimately refused to sign the written agreement proposed by Michelle. In a status report filed February 17, 2015, Patrick reported to the court his belief the parties were at an impasse on this issue. On March 4, 2015, Patrick filed a supplemental status report concerning the sale of the personal property, indicating the siblings remained at an impasse. He told the court he had submitted a draft agreement to Michelle confirming she would not sell the items listed in her accountings as “Heirlooms and Memorabilia” and instead continue to store those items.

Order on Michelle’s Postjudgment Petition

In an order entered March 9, 2015, the trial court approved of the second account and report. The trial court authorized Michelle as trustee to list and sell the home Katherine and Dean had shared and non-heirloom personal property. The trial court also approved the payment of attorney fees, reimbursement of Michelle’s personal costs while serving as trustee, and the payment of trustee fees to Michelle from the Trust assets. Of the amounts authorized, $85,050 was for legal expenses and $106,900 was for trustee fees.

Denial of Patrick’s Request for a Stay and Petition for a Writ of Supersedeas

On April 10, 2015, the trial court denied Patrick’s ex parte request for a stay pending appeal pursuant to section 1310. On April 13, 2015, Patrick filed an appeal from the March 9, 2015, order concerning Michelle’s postjudgment petition. This court denied Patrick’s petition for a writ of supersedeas. We address both of Patrick’s appeals in this opinion.

DISCUSSION

I. Invalidation of the Amendment

A. Patrick’s Contentions

Patrick asserts that the trial court “refused to make findings on the issue of undue influence.” (Capitalization and bold omitted.) He emphasizes that he timely requested a statement of decision, including on the issue of whether Michelle obtained the Amendment through undue influence, and he objected to the absence of findings on the issue of undue influence. According to Patrick, he presented evidence sufficient to raise a presumption of undue influence.

B. Additional Background – Patrick’s Petition

Patrick’s petition pled three discrete causes of action: (1) Removal of Michelle as trustee; (2) Invalidation of the Amendment; and (3) Financial elder abuse.

In the cause of action in the petition seeking the removal of Michelle as cotrustee, Patrick did not allege undue influence. Instead, he asserted that, between 2008 and October 2012, Michelle “exercised control over the . . . Trust assets through an ongoing pattern of deception, threats and physical abuse of Katherine . . . .” He asserted that, during the same time period, Michelle did not provide an accounting of her handling of the Trust, and she did not allow him access to information concerning the Trust and its assets. The petition further stated that Michelle “has refused to perform her fiduciary duties in accounting for the . . . Trust assets to the beneficiaries, and has taken exclusive control of those assets notwithstanding the requirement that she participate with [Patrick] as Co-Trustee.” (Capitalization omitted.) Patrick asserted that Michelle’s conduct amounted to a breach of her fiduciary duties to the Trust.

Patrick failed to allege undue influence in the cause of action seeking invalidation of the Amendment. He asserted that, on several occasions in 2012, Michelle attempted to have the Trust amended “to gain an advantage by being appointed Co-Trustee with Katherine . . . . This was done with full knowledge by Michelle . . . that Katherine . . . lacked the mental capacity to make financial decisions, as noted by Katherine[’s] . . . personal physicians in July, August and September, 2012.” (Italics added, capitalization omitted.) According to Patrick, “Notwithstanding the diagnosis by Katherine[’s] . . . personal physicians that she lacked the mental capacity to make financial decisions, Michelle . . . took [Katherine] to attorney Jerrald Pickering who, without being advised of such diagnosis, prepared an amendment to the Trust, which he then directed Katherine . . . to execute, on October 11, 2012.” (Italics added, capitalization omitted.) Based on this, Patrick asserted that the Amendment must be declared invalid, “as it was obtained through the deceptive acts of Michelle . . . , at a time when Katherine . . . lacked the mental capacity to understand the nature or effect of such amendment.” (Italics added, capitalization omitted.)

As for the elder abuse cause of action, Patrick asserted that the facts alleged in the petition constituted financial elder abuse under Welfare and Institutions Code section 15657. The petition quoted Welfare and Institutions Code section 15610.30, which defines financial elder abuse and the means by which such abuse can be committed. Patrick further quoted the portion of Civil Code section 1575 that defines undue influence as “the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him . . . .” (Civ. Code, § 1575, subd. (1).) Patrick asserted in his petition that the “facts will clearly show that Michelle . . . abused the confidence placed in her by Katherine . . . in an attempt to deprive Katherine . . . of all of her investments.” (Capitalization omitted.) Patrick asserted that, between 2008 and 2012, Michelle took control of the Trust assets and diverted them to her own use.

C. Patrick’s Failure to Plead or Litigate Undue Influence as to the Amendment

1. The Pleading

“The pleadings are the formal allegations by the parties of their respective claims and defenses, for the judgment of the court.” (Code Civ. Proc., § 420.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

We agree with the trial court that, contrary to Patrick’s contention on appeal, he did not raise the contention that the Amendment was procured by Michelle through undue influence in the cause of action seeking the invalidation of the Amendment or in his petition as a whole. Rather, the gravamen of Patrick’s cause of action seeking invalidation of the Amendment was that Michelle brought Katherine to Pickering to have the Trust amended when Katherine lacked capacity, and, without notifying Pickering of Katherine’s lack of capacity, had him draft the Amendment which Katherine executed.

Patrick acknowledges that his petition was “admittedly spare.” And he seems to tacitly acknowledge that his petition failed to explicitly raise the allegation of undue influence relative to the Amendment, asserting in a footnote that the factual allegations would “support a presumption of undue influence.” But there is no reference to the term undue influence in the cause of action related to the Amendment and the presumption of undue influence was not mentioned anywhere in the petition. Patrick’s allegations regarding the Amendment were insufficient to give rise to a claim that Michelle procured the Amendment through undue influence.

Looking now to the other two causes of action, the first cause of action, to have Michelle removed as cotrustee, alleges that Michelle employed deceptive practices. However, this did not equate to an allegation that she employed undue influence in procuring the Amendment. Rather, the cause of action alleges that Michelle “exercised control over the . . . Trust assets through an ongoing pattern of deception, threats and physical abuse of Katherine . . . .” The cause of action further demanded an accounting. The remainder of the cause of action alleged that Michelle breached her fiduciary duties to the beneficiaries and the Trust in her management of the Trust.

The third cause of action, to recover damages for financial elder abuse, does refer to undue influence. By reference to former Welfare and Institutions Code section 15610.30, the petition essentially alleged that Michelle took property from Katherine by a variety of means set forth in subdivision (a)(1)-(3), including undue influence. (See fn. 11, ante.) However, this by no means equates to an allegation that Michelle procured the Amendment through undue influence. The second cause of action seeking to invalidate to the Amendment is not referenced in the third cause of action. And while the third cause of action seeks damages for financial elder abuse, it does not allege undue influence related to the execution of the Amendment.

We agree with the trial court and conclude that undue influence relative to the Amendment invalidation cause of action was not raised by the pleadings.

2. The Litigation

Patrick asserts that, even if undue influence was not pled with specificity, it was actually tried without objection. “It is settled law that where the parties and the court proceed throughout the trial upon a theory that a certain issue is presented for adjudication, both parties are thereafter estopped from claiming that no such issue was in controversy even though it was not actually raised by the pleadings.” (Miller v. Peters (1951) 37 Cal.2d 89, 93.) Where an issue is actually litigated, a party cannot thereafter “escape the consequences by claiming that such issue was not pleaded.” (Cockerell v. Title Ins. & Trust Co. (1954) 42 Cal.2d 284, 288.) Thus, if the evidence presented before the trial court were to establish that the issue of Michelle’s procurement of the Amendment through undue influence was actually litigated, Patrick’s failure to raise the matter in his petition would not necessarily be dispositive. We therefore turn to the litigation and relevant evidence before the trial court.

According to Patrick, after they met with two attorneys, Michelle told Patrick she was looking for another attorney, and she mentioned Pickering. Patrick testified that, although he was told that an appointment with Pickering was scheduled for October 10, 2012, he learned on October 4 that Michelle met with Pickering the previous day. Patrick testified that Michelle later told him that another meeting with Pickering had been scheduled for October 12, but, on October 11, after going to the assisted living facility where Katherine was staying and learning Michelle had checked Katherine out, he went to Pickering’s office where he discovered that Michelle and Katherine were there and Katherine was signing something. According to Patrick, Michelle said something about Pickering finding Katherine capable of creating the Amendment.

Michelle testified that she contacted Pickering to have him review Katherine’s estate planning documents to ensure that they were in order. Michelle testified that she did not tell Pickering about Dr. Hearney’s or Dr. Seeger’s evaluations because she and Patrick agreed not to discuss the evaluations with Pickering. She said she accidentally gave Patrick the wrong date for the meeting. Michelle acknowledged that, after the initial meeting with Pickering, she did not tell Patrick about the proposed Amendment because she believed Patrick would be unhappy about the choice Katherine made, and she wanted to protect Katherine. Although Patrick was initially not at the meeting at which Katherine executed the Amendment, Michelle was told that Patrick was expected. Michelle’s husband similarly testified that Pickering told them that a delay of about 40 minutes before the start of the meeting was due to the fact that they were expecting Patrick. According to Michelle and her husband, Katherine signed the Amendment as or after Patrick arrived at Pickering’s office. Both Michelle and her husband opined that Katherine understood what she was signing.

Pickering testified that the Amendment is a very common kind of trust amendment because older settlors often want help handling their affairs, so they elevate someone to be their cotrustee, with the ultimate authority remaining with the settlor. Pickering personally, and privately, “vetted” Katherine’s ability to make decisions for herself. He found her to be “affable, engaging, and pleasant,” and determined that she had the capacity to execute the Amendment. Pickering testified that Katherine expressed her desire to amend the Trust, and that the Amendment would not change any dispositive provisions of the Trust, but would serve to appoint Michelle as immediate cotrustee. According to Pickering, “Katherine was more comfortable with the amendment once she learned she still had ultimate control.” Asked what steps he would take if someone came into his office and he sensed there could be “some undue influence involved” in making proposed changes to a trust, Pickering testified that he “probably wouldn’t take any steps. [He] probably wouldn’t get involved in it.”

Patrick points to no other questioning regarding undue influence or other reference in the trial record.

We do not agree with Patrick that an undue influence theory related to the Amendment was actually litigated based on the evidence presented at trial or that Michelle had notice and the opportunity to present their respective evidence on the matter. Further, we reject Patrick’s perfunctory argument that, because he argued undue influence in his written closing argument filed after the evidence was in, but before the case was submitted for decision, that undue influence was actually litigated in the trial. For the first time, Patrick stated in his closing argument: “The First Amendment to the Trust is invalid as Katherine[’s] . . . consent to the document was the result of fraud or undue influence.” (Italics added.) Patrick’s argument would be more persuasive if he had submitted a trial brief prior to the trial in which he made this contention or invoked the presumption of undue influence or otherwise advanced undue influence as a theory during the trial, but he did not. Arguing the issue after the close of all evidence was too late to qualify the issue as a matter actually litigated. Nor does the circumstance that he requested a finding on undue influence relative to the execution of the Amendment after the trial court issued its initial ruling mean that the matter was actually litigated. (Cf. Ayala v. Dawson (2017) 13 Cal.App.5th 1319, 1330 [in the context of considering whether collateral estoppel applied, “we determine what was ‘actually litigated’ by looking to the pleadings and the proof. [Citation.] ‘An issue is actually litigated “[w]hen [it] is properly raised, by the pleadings or otherwise, and is submitted for determination, and is determined . . . .” ’ ” (some italics added)].)

The cases on which Patrick relies for the premise that, even if not specifically raised in the pleadings, the trial court was required to make specific findings on undue influence because the matter was “actually tried without objection” are inapposite. As we have said, this issue was not actually litigated before the trial court. The issue was not pled, the presumption of undue influence was not mentioned, and Michelle did not have notice and the opportunity to present evidence on the issue of undue influence relative to the Amendment. Therefore, the cases Patrick cites have no applicability here.

Moreover, we conclude that the trial court’s remark in its statement of decision that “Katherine decided – free of influence – to nominate Michelle . . . as Co-Trustee,” did not establish, as urged by Patrick, that the trial court “implicitly recognized the fact that evidence had been introduced on the issue of undue influence at trial.” Given that the issue of undue influence was not tried before the trial court, the court had no obligation in its statement of decision, despite Patrick’s post-trial request, to explain “the factual and legal basis for its decision” as to this matter, as it was not a “principal controverted issue[] at trial.” (Code Civ. Proc., § 632 [The court shall issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial upon the request of any party appearing at the trial].)

The trial court did state in the statement of decision: “Katherine determined to nominate Michelle . . . Successor Trustee and made this decision of her own free will without the influence of anyone. Katherine made this decision at the risk of angering her son. The evidence preponderates that Michelle acted in order to provide repose and security to her mother during her mother’s final days. Katherine could be comforted by the knowledge that her daughter, the person she nominated as Co-Trustee, joined with her in charge. The facts demonstrate the efficacy of Katherine’s choice.” (Italics added.) The court’s statement that Katherine made this decision of her own free will and free of influence does not mean that the trial court recognized that the parties tendered evidence on, and actually litigated the issue of undue influence relative to the Amendment. Rather, the trial court’s statement merely expressed its finding that Katherine made the decision to make this common trust amendment on her own.

D. The Presumption of Undue Influence

We further note that Patrick never mentioned the presumption of undue influence in his pleadings, written closing argument, request for statement of decision, proposed statement of decision, or objections to the trial court’s proposed statement of decision. Moreover, contrary to Patrick’s contentions on appeal, he did not present substantial evidence “from which a presumption of undue influence could be found.”

Our high court has noted that the presumption of undue influence could arise from a three-part showing. “Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence [citation], this court and the Courts of Appeal have held that a presumption of undue influence, shifting the burden of proof, arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Rice v. Clark (2002) 28 Cal.4th 89, 96-97.)

Michelle, for her part, concedes the confidential relationship element, stating that she “certainly shares a confidential relationship with” Katherine. However, the record is devoid of evidence to establish the other two elements required to give rise to a presumption of undue influence.

There was no evidence presented in the trial court to support the conclusion that Michelle actively participated in the procurement of the Amendment. The evidence only goes so far as to establish that Michelle assisted in finding an attorney with whom Katherine could consult and driving Katherine to the appointment with counsel. It is generally not sufficient to give rise to a presumption of undue influence that the person alleged to have exerted undue influence merely procured an attorney if there is no evidence that the person also affected the contents of the instrument. (See Estate of Swetmann (2000) 85 Cal.App.4th 807, 820-821 [merely procuring an attorney to draft a will is insufficient to show that the beneficiary actively participated in preparing the will so as to give rise to a presumption of undue influence if the beneficiary did not affect the contents of the will]; cf. Estate of Lingenfelter (1952) 38 Cal.2d 571, 586 [“Active participation in procuring the execution of the will cannot be inferred from the fact that Madge accompanied Vivian to [the attorney’s] office, in the absence of any indication that Vivian went there at Madge’s instigation or request, or that Vivian was not acting entirely in accord with her own desire”].) There is no evidence in the record suggesting Michelle’s involvement in procuring the Amendment beyond procuring an attorney and taking Katherine to meet with the attorney.

Pickering’s testimony established that Katherine expressed the desire to amend the Trust, and that the Amendment would serve to appoint Michelle cotrustee. We do not agree with Patrick’s contentions that the miscommunication concerning the dates of the appointments or the fact that Katherine expressed comfort with the Amendment’s feature that she would have the ultimate say if there was a disagreement “strongly suggest[] that Michelle was intimately involved in making decisions concerning the content of the amendment.”

Furthermore, there is no evidence in the record to suggest that Michelle would benefit unduly as a result of the Amendment. The sole function of the Amendment was to appoint Michelle cotrustee with Katherine. The Amendment had no effect on the disposition of Trust property, who would benefit therefrom, or in what shares. Under the circumstances of this case, there is no evidence on which to conclude that Michelle would benefit unduly by the execution of the Amendment. (Cf. Estate of Ventura (1963) 217 Cal.App.2d 50, 59 [absent the element of personal profit, a stronger combination of other factors is required to make a prima facie case of undue influence when the person alleged to have exerted undue influence was merely named as executor of will, was not left a bequest under the will and did not personally benefit from the will]; see also Reiss v. Reiss (1941) 45 Cal.App.2d 740, 744 [child, who held bare legal title to properties transferred to him as a trustee to benefit the grantor, did not benefit unduly from the transfers to him, and no presumption of undue influence arises].) Michelle remains a beneficiary under the original terms of the Trust, and, following Katherine’s death, she will share with Patrick the Trust assets in substantially equal shares. The effect of the Amendment did not afford Michelle any undue benefit; she merely became cotrustee with Katherine while Katherine retained the ultimate decisionmaking authority in the event of a conflict. That she would at some point be eligible for trustee fees was not the kind of benefit that could result in raising the presumption of undue influence. Those fees are not “undue” and are essentially compensation for the work the trustee puts in on behalf of the trust.

We conclude that there was no evidence in the trial record that could give rise to the presumption of undue influence — a theory of liability that was neither raised in the pleadings nor actually litigated by the parties.

E. Conclusion

Based on all of the foregoing, we conclude that Patrick’s contention that the judgment confirming the validity of the Amendment must be reversed because the trial court refused to make findings on the issue of undue influence is without merit.

II. Withholding of Trust Property by Patrick

A. Additional Background

As noted, the trial court found that Patrick had taken certain property from the trust. (See fn. 8, ante.)

Patrick testified that he reviewed a list of the items Michelle alleged were missing and he believed that they were in storage, although he did not confirm that. He claimed he did not have the missing items, and further testified that he was able to determine, from photographs, that the items were part of the auction. According to Patrick, “[m]ost of the items were in the inventory provided by the storage company Michelle used.” He denied taking any firearms from his parents or the estate and denied knowing where the missing items were.

Michelle testified that she rekeyed their mother’s house at some point after she was designated cotrustee, and after Katherine moved to the assisted living facility. In April 2013, Michelle brought in an appraiser. Michelle testified that she felt compelled to empty the house because it was in a high-risk area for theft and fire. She went through the house with the appraiser to determine what property was valuable. Michelle and her husband created an inventory of the valuable items and either placed them in a safe deposit box or moved them to a secure storage facility. Hundreds of items were put into safe keeping, and the remaining items were to be sold at auction. The auctioneer created lots for the auction and placed the auction online. However, the auction was voided at Patrick’s insistence. Michelle provided her attorney with an inventory of everything she put into storage. She did not take any Trust property.

Michelle testified that, in his opposition to her cross-petition, Patrick identified certain items and stated where those items were located. She testified that the items identified by Patrick were not the same items as the items she alleged were taken. Michelle testified that, while two items identified in her cross-petition as missing — a cameo set and a Cartier plate — had been found, the other items were still missing.

With regard to the three missing guns, Michelle testified that Patrick sent her an e-mail stating that he took the guns from the house, had them cleaned, and returned them. However, according to Michelle, Patrick did not return the guns. According to Michelle’s husband, Patrick wrote an e-mail indicating that he took the weapons. Michelle’s husband testified that a Colt Trooper .357 revolver and three .22-caliber rifles were in storage, but the rest of the guns that had been at the house were missing. Michelle testified that the missing guns did not appear in photographs Patrick submitted of the auction lots.

The last time Michelle saw the gun cases was in 2008 in the office, when she and Dean prepared an inventory of household items. Michelle believed that, between 2008 and 2013, Patrick stole the gun cases. According to Michelle, no gun cases appeared in the photographs of the auction lots.

Michelle testified that knives appearing in auction lot photographs were not the missing knives.

According to Michelle, coins appearing in photographs of the auction lots were tokens of no value. She testified that the missing coins were valuable, although they had not been appraised. Michelle testified that the coins and coin sets were listed on the 2008 inventory. At the time of Dean’s death, he had valuable coins throughout the house. The missing coins had disappeared by the time of the 2013 appraisal.

Michelle also testified that two sets of sterling silver flatware were missing. Those sets of flatware had been stored in a cabinet in the laundry room to which Patrick had access. Michelle testified that silverware and flatware depicted in photographs of auction lots was not the missing silver flatware.

Michelle testified that a harmonica pictured in a photograph of an auction lot was a Yamaha harmonica, not the missing Hohner harmonica. She also testified that camera equipment appearing in auction lot photographs was not the missing camera equipment.

Michelle testified that the missing items had been in the great room, the closet, or under a bed. She acknowledged that there were approximately 70 boxes stored in the garage packed by either Dean or Patrick, the contents of which were not known to her. She testified that she did not know if those boxes contained the missing items. However, Michelle also testified that, to the best of her knowledge, the missing items had not been packed; rather, the packed boxes contained items that had been packed for years.

Michelle testified that Patrick had access to the entire house. She testified that some rooms in the house, including the great room and the office, were locked. Other rooms were accessible by Katherine’s caregiver, other caregivers, neighbors, and friends, as well as by Michelle and her husband.

Michelle’s husband testified that he knew Patrick removed property from the house. He testified that Patrick took truckloads of items and 18 boxes, and never accounted for them. He further testified that Patrick indicated in e-mails and in a deposition that he removed property from the house, and he had heard Patrick say as much. He testified that Patrick did not ask for Michelle’s consent. Katherine’s caregiver testified that Patrick threw away some things that belonged to Katherine and Dean, and that he did not always ask whether he should keep something or throw it out.

The auctioneer testified that Michelle gave him a key and that he kept the property secure and locked up. He testified that no one else had access to the property other than he and Michelle.

In rebuttal, Michelle testified that there were boxes at the storage facility that had not been opened and inventoried. She also testified that she and Patrick had keys to two rooms that caretakers could not access, and there were items missing from those rooms. Katherine and Dean both had access to those rooms. However, Michelle also testified that there were times the caregivers had access to those areas, although she was not sure about the office. Michelle acknowledged that her conclusion Patrick had taken the missing items was based on “ ‘some reasonable speculation.’ ” Michelle testified that, at some point, Patrick asked her where the Derringer was, and Michelle responded that she had seen it in a drawer in the office. Later, Patrick took the Derringer bullets; that is why Michelle believed that Patrick had taken the Derringer.

Michelle testified that it was not her parents’ custom to give away or sell property. Rather, their “practice was to put things somewhere and they would stay there forever.”

In his rebuttal, Patrick testified that he took loose coins he found around the house to a Coinstar location and converted them to cash which he returned to the office. Patrick acknowledged that he took truckloads of trash from the house without performing an inventory.

B. Patrick’s Contentions

Patrick asserts that the evidence on which the trial court relied in making its determination that he withheld Trust property fell far short of substantial evidence, and instead consisted of pure speculation. He emphasizes that Michelle acknowledged that her belief he withheld the property was based on speculation. Patrick asserts that others had access to the locations from which the missing items were allegedly taken, including Dean (prior to his death), Katherine, Michelle’ s husband, and caregivers. He further asserts the missing items may simply be in the 70 boxes in storage. Additionally, Patrick asserts that the computer equipment and software could have been among the obsolete garbage that he discarded. Patrick contends that, in light of the fact that there are numerous possibilities that are no less likely than the possibility that he took the missing items, substantial evidence does not support the trial court’s determination. He further asserts that, because the court’s determination on this issue must be reversed, so must the trial court’s determination that he was not a suitable successor trustee.

C. Standard of Review and Applicable General Principles of Law

“We review the trial court’s factual findings for substantial evidence. [Citation.] Substantial evidence is evidence ‘of ponderable legal significance, . . . reasonable in nature, credible, and of solid value.’ ” (Picerne Construction Corp. v. Castellino Villas (2016) 244 Cal.App.4th 1201, 1208 (Picerne Construction Corp.).) “ ‘Substantial evidence . . . is not synonymous with “any” evidence.’ Instead, it is ‘ “ ‘substantial’ proof of the essentials which the law requires.” ’ ” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.) “Substantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115, 126 (Michael D.).) “Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.” (Roddenberry, at p. 651.)

In reviewing for substantial evidence, “[w]e view the evidence in the light most favorable to the prevailing party, giving that party the benefit of every reasonable inference and resolving all conflicts in the evidence in support of the judgment.” (Picerne Construction Corp., supra, 244 Cal.App.4th at pp. 1208-1209; see also 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 365.) “[A] reviewing court will not find unsupported the trial court’s findings merely because it might reasonably draw different inferences from those the trial court reasonably drew unless it clearly appears that under no hypothesis is there substantial evidence to support the trier of fact’s finding.” (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1229 (Hellman).) “Substantial evidence review is deferential to the factfinder.” (Gillotti v. Stewart (2017) 11 Cal.App.5th 875, 899 (Gillotti).) As the appellant, Patrick bears the burden of demonstrating that there is no substantial evidence to support a challenged factual finding. (Picerne Construction Corp., at p. 1208.)

D. Analysis

Here, as the trial court found, the evidence that Patrick took and withheld the missing Trust property is circumstantial. However, “[s]ubstantial evidence includes circumstantial evidence and any reasonable inferences drawn from that evidence.” (Michael D., supra, 100 Cal.App.4th at p. 126.) And we must look at the evidence in a light most favorable to the prevailing party, giving that party the benefit of every reasonable inference. (Picerne Construction Corp., supra, 244 Cal.App.4th at pp. 1208-1209.)

The evidence before the trial court, set forth more fully ante, tended to show that the missing Trust property was taken from secured locations to which a limited number of people may have had access, including Patrick, Michelle, and Michelle’s husband, as well as Dean prior to his death and Katherine prior to her relocation to the assisted living facility, although Michelle did testify that there were times when caregivers may have had access to at least some of those areas. Michelle testified that, based on the location of the items, those who had access to the locations where the items were located, and the timing of the items going missing, she believed Patrick took the items. She testified that Patrick had access to the entire house. Michelle and her husband each testified that Patrick took guns from the house. Additionally, Michelle’s husband testified that he knew Patrick removed items from the house. Michelle also testified that she did not take any property; that, to the best of her knowledge, the missing items had not been packed and that the storage boxes contained items that had been packed for years and had been stored in the garage; and that it was not her parents’ custom to give away or sell property.

For his part, Patrick denied taking the items. He did acknowledge removing items from the house without performing any inventory, but he asserted that the items he removed were trash, including old computer equipment. He also acknowledged taking coins from the house, but asserted that they were nonvaluable coins he converted at a Coinstar location.

Patrick testified that the items allegedly taken appeared in auction lot photographs; Michelle testified that the items identified in the photographs by Patrick were not the items that were missing, and the missing items did not appear in any of the auction lot photographs.

In its original ruling, the trial court specifically agreed with the facts as set forth in Michelle’s trial brief. The trial court concluded that the “evidence preponderates that Patrick had access to and withheld the items as stated by the cross-claim, except the cameo set and the Cartier silver plate. These latter two items had been found.”

In the corrected final statement of decision, the trial court, speaking of Michelle’s testimony concerning Katherine, stated: “Michelle was believable. . . . The Court’s findings are based, in great part, on the believability of Michelle’s testimony.” Of Patrick, the trial court stated: “The court observed Patrick’s person through-out the course of the trial: he raged, shook his head, his face became red, and he looked back at his wife in disbelief during Michelle’s testimony. In other words, Patrick’s temper was on display during trial. His person radiated resentment. The circumstantial meaning of his mannerisms (and his testimony which confirmed it) showed that Patrick believed Michelle’s sole intentions were to take advantage of their Mother and to ‘rip him off.’ The Court finds that he was wrong. The undercurrent of Patrick’s conviction on this point pervaded the courtroom and was palpable throughout the proceedings. This palpable anger would easily frighten an aging parent, particularly one who had been ‘managed’ throughout her life by a similarly strong-willed husband.” (Capitalization and bold omitted.)

The trial court found that Patrick had access to, and withheld, Trust property as set forth in Michelle’s cross-petition. The trial court itemized the Trust property withheld by Patrick and continued: “Michelle testified that the above items were stored in rooms in [Katherine and Dean’s] house which were locked and were not readily accessible to anyone not having a key. Although Dean . . . had a key, the only others having keys were Michelle and Patrick. Dean . . . did not tend to give away his property items. As both Michelle and Patrick testified, he was somewhat a hoarder. [¶] It is clear from the evidence presented that Michelle worked very hard with Robert Crouse and a reputable appraiser to inventory the . . . household items and to account for all the assets. [Michelle’s husband] testified concerning the guns and the access Patrick had to the guns. Although circumstantial, the evidence was compelling that the missing items were taken by Patrick. He is therefore ordered to return the items or compensate the Trust estate for their value.”

It is clear that the trial court found Michelle’s trial testimony to be credible and found Patrick’s testimony to be lacking in credibility. “Credibility is an issue for the fact finder, and we do not reweigh evidence or reassess the credibility of witnesses.” (Gee v. Greyhound Lines, Inc. (2016) 6 Cal.App.5th 477, 492 (Gee).) Thus, we do not reweigh the evidence or reassess Michelle’s or Patrick’s credibility, but instead defer to the finder of fact in this regard. (Ibid.)

We conclude that the evidence before the trial court gave rise to conflicting reasonable inferences — that Patrick took and withheld the missing Trust property or that Michelle, her husband, Katherine, or Dean did something with the missing property. However, “[w]hen, as here, ‘the evidence gives rise to conflicting reasonable inferences, one of which supports the findings of the trial court, the trial court’s finding is conclusive on appeal.’ ” (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622-623; see Gee, supra, 6 Cal.App.5th at pp. 485-486.)

One reasonable inference which the trial court could draw from the conflicting evidence was that Patrick took and withheld the missing Trust property. This inference is supported by the circumstantial evidence in the form of, inter alia, the testimony of Michelle and her husband, set forth ante. And this reasonable inference supports the trial court’s findings. Moreover, as we have noted, the trial court simply did not believe Patrick’s testimony. A fair inference from false testimony is consciousness of guilt.

In any event, this is certainly not a case where “it clearly appears that under no hypothesis is there substantial evidence to support the trier of fact’s finding.” (Hellman, supra, 6 Cal.App.4th at p. 1229.) Therefore, looking at the evidence in a light most favorable to the prevailing party, as we must, we conclude that Patrick has failed to meet his burden on appeal of demonstrating that the trial court’s determination was not supported by substantial evidence. (See generally Picerne Construction Corp., supra, 244 Cal.App.4th at pp. 1208-1209.)

III. Michelle’s Postjudgment Motions

A. Additional Background

As we shall discuss in more detail, section 1310, subdivision (a), mandates an automatic stay of certain probate proceedings pending appeal. Subdivision (b) authorizes the appointment of a temporary trustee pending appeal and mandates that all acts of a fiduciary directed by the court are valid regardless of the outcome of the appeal. As noted, Patrick filed his first notice of appeal on November 26, 2014. He did not assert the applicability of the subdivision (a) automatic stay provisions until March 2015.

On December 2, 2014, Michelle filed an ex parte motion for order appointing her temporary trustee pending appeal pursuant to section 1310, subdivision (b). The sole basis for her application was to “avoid a lapse in authority of a trustee to act on behalf of [the Trust] for the benefit of the trust” while the court’s September 2014 judgment was on appeal. In a declaration, counsel for Michelle declared that, “absent the appointment of a temporary trustee, irreparable harm to the Trust assets may occur.” She did not state what harm or how any such harm may occur. And she did not expressly allege the appointment was necessary to prevent “injury or loss to a person or property.” (See fn. 18, ante.)

Patrick filed a written opposition on the same day, in which he asserted: “1. Such application is unnecessary, as Michelle . . . is in fact the existing successor Co-Trustee of the Trust, the continuation of which is her undisputed status pending the outcome of the appeal. [¶] 2. There is no indication of any need for such an order ‘for the purpose of preventing injury or loss to a person or property,’ as there has been and will continue to be continuity in Michelle[’s] . . . service as successor Co-Trustee. Barring some improper conduct on the part of the Co-Trustee, there should be no potential for injury or loss to a person or property during the interim period.” (Italics added.) Patrick added: “[o]bjection is also made as the application is a sham pleading, intended solely to protect Michelle . . . from any further findings by this court with regard to the Second Account, presently under consideration given the objections raised by Objector, Patrick . . . . This is clearly shown by the application of . . . § 1310(b), which states, in relevant part, [¶] ‘All acts of the fiduciary pursuant to the directions of the court made under this subdivision are valid, irrespective of the result of the appeal.’ [¶] This situation sets up the opportunity for Michelle . . . to argue that her actions with regard to the trust, including the accounting, are unassailable, notwithstanding any subsequent finding by the court that the accounting is improper. This presents a potential conundrum for the judge considering the objection to the trust accounting, as any sanction or other determination associated with a finding detrimental to Michelle . . . with regard to that accounting, or any other conduct regarding her execution of her duties as trustee, would be insulated from enforcement.” (Italics added.)

As can be seen by the italicized text, Patrick’s assertions contemplated that, while his appeal was pending, there would be further proceedings in the trial court concerning his earlier filed objections and the second accounting, and that, pending these proceedings, Michelle was authorized to serve as successor cotrustee. Patrick did not argue that section 1310, subdivision (a), operated to stay those proceedings.

At the hearing on Michelle’s request, Patrick further conceded that Michelle would continue to act as trustee and he had no objection to her doing so. Patrick’s counsel told the court: “There is a trust in place right now, there is an amendment in place right now. We are not objecting to the fact that the trust as it sits names Michelle . . . as the trustee.” Later the trial court asked Patrick’s counsel, “is it your position that . . . because of the appeal that [Michelle] is no longer trustee?” Counsel replied, “[n]o, of course, not. My position is that because of the appeal it doesn’t matter. She is the trustee.” (Italics added.) Later, Patrick’s counsel told the court: “She has been the trustee – co-trustee since October of 2012, and she has been acting independent since the conservatorship was established. Even though she’s still named in many of the pleadings . . . as the successor co-trustee, she has, in fact, been acting independently. [¶] We have not, other than the litigation that we’ve just participated in, made any further objection to that. We are not making an objection to that now and we’re not making an objection to that in the accounting. We’re simply saying, be the trustee. And why should we go through this process and have another order there that’s going to muddy the water?” (Italics added.)

On December 5, 2014, agreeing with Patrick, the trial court denied Michelle’s motion. In doing so, it stated: “The Court concurs that . . . 1310(b) authorizes the appointment of a temporary trustee ‘for the purpose of preventing injury or loss to a person or property.’ However, as stated within the application, the basis for requested appointment is to ‘avoid a lapse in authority of a trustee.’ [¶] Michelle . . . has been acting as trustee as per the . . . Amendment to the Trust and much of the litigation has so far centered on the validity of the . . . Amendment to the Trust.” In apparent reference to Patrick’s argument concerning the provision in section 1310, subdivision (b), insulating a fiduciary’s court-approved actions, the court further wrote: “Although the issues are close, there is a separate significance to this ex-parte request which the Court is not prepared to authorize and certainly not with the lack of foundation articulated for the request.” The court concluded its ruling, writing: “The ex-parte request is denied. In no way, however, does this order impact the applicant’s authority under the terms of the . . . Amendment to the Trust, which this Court has held to be valid.” Patrick made no objection to the court’s ruling or otherwise asserted that the automatic stay provision of subdivision (a) of section 1310 was contrary to the court’s ruling. (Capitalization and Bold omitted.)

After the court denied Michelle’s ex parte application for appointment as temporary trustee, Michelle filed a declaration on December 8, 2014, in reply to the objections to her postjudgment petition filed by Patrick before he filed his first notice of appeal. On December 15, 2014, Patrick filed a supplemental brief and supporting declaration regarding his objections to Michelle’s postjudgment petition. Michelle submitted a reply. On December 18, 2014, Patrick filed an original verification to his amended objections. Thereafter, Michelle submitted an “adjusted request” for payment of trustee’s fees. Patrick engaged in all of this litigation without asserting that the subject thereof was stayed by section 1310, subdivision (a), pending appeal.

On December 22, 2014, at a hearing before the trial court, the court granted Michelle’s request to sell personal property, but directed that she first allow Patrick the opportunity to purchase the property and further directed that the sale to him be completed by February 23, 2015. The order was made after the court asked Patrick to explain his objection to the second account concerning Michelle’s request for authority to sell personal property and Patrick only indicated he wanted to purchase some of the property. Thereafter, Patrick provided a list of the property he sought to purchase, and the parties arrived at an agreement in principle. Patrick made no mention of the automatic stay provision under section 1310.

On December 29, 2014, at a hearing before the trial court, the court set a new deadline of February 23, 2015, for Patrick’s purchase of the personal property to be completed. The parties agreed that, because Katherine had been conserved, she was incapacitated and therefore the trust was irrevocable, and the court so found. Again, Patrick made no mention of the automatic stay under section 1310.

On February 17, 2015, Patrick filed a status report concerning the sale of the property he was seeking to purchase, in which he referred to Michelle as “the trustee.” Again, Patrick did not mention section 1310 or its automatic stay provision. Patrick advised the court he had selected the property he sought to purchase, but the parties disagreed on the written agreement concerning the sale. Michelle submitted a response. On March 4, 2015, Patrick filed a supplemental status report responding to Michelle’s submission. Again, Patrick did not mention section 1310 or the automatic stay provision.

On or about March 4, 2015, Patrick submitted an ex parte petition for a stay pursuant to section 1310. This was the first occasion when Patrick mentioned the stay provision. His request also included a request that a third party be appointed as temporary trustee to “avoid a lapse in authority of a trustee to act on behalf of [the trust] for the benefit or the trust and . . . [Katherine],” the very same basis asserted by Michelle in her November 24, 2013, section 1310 petition. The request referenced tentative rulings the court had made concerning Michelle’s petition for approval of the second account, authorizing the sale of real and personal property and for reimbursement of expenses and payment of trustee fees. Patrick asserted that Michelle had arbitrarily attempted to dispose of heirloom property and refused to cooperate with him on the sale of non-heirloom property. He argued that if the stay were not imposed, the trust would be deprived of $197,775 in attorney fees and trustee fees and expenses, which he asserted would ultimately be retained if the September 2, 2014, judgment were reversed on appeal.

On March 9, 2015, the court issued an order approving the second account, and in so doing approved all acts and transactions set forth by Michelle in her petition. The court also authorized Michelle to list and sell Katherine’s home and an adjacent parcel and to invest and otherwise manage the Trust investment accounts as well as the non-heirloom personal property. The court acknowledged, as stipulated by the parties, that the trust was deemed irrevocable during Katherine’s incapacity. The court approved attorney fees and trustee fees and authorized reimbursement from the trust for $85,050 in legal expenses and $106,900 in trustee fees for Michelle’s service on behalf of the trust. Additionally, the court authorized reimbursement for Michelle’s personal expenditures related to administrative expenses and mileage.

On April 10, 2015, the trial court denied Patrick’s request for a stay. In doing so, the court stated: “if previous orders have not already made clear that the Court intended to deny the ex-parte request for a stay going forward, the Court hereby denies the stay based on the status of Katherine . . . and the lack of foundation for the stay.”

B. Patrick’s Contentions

Patrick asserts that the trial court’s order approving the second accounting, issuing instructions for the sale of property, and granting Michelle’s request for reimbursement of attorney fees and trustee fees and expenses from the sale of that property must be reversed. According to Patrick, the trial court’s order violates the automatic stay in effect pursuant to section 1310, subdivision (a), as a result of his appeal from the September 2, 2014, judgment and the November 3, 2014, order regarding the denial of the motion for new trial. Patrick further asserts that the statutory exception to this stay, set forth in section 1310, subdivision (b), does not apply to the circumstances here. (See fn. 17, ante.)

Patrick contends that, contrary to Michelle’s contention before the trial court, he did not waive the stay by failing to raise it at the hearing on her petition for approval of the second accounting. He contends that because he ultimately raised the issue of the stay before the trial court served its order, he had not waived his right to assert the stay. Patrick further asserts that, regardless of the automatic stay, the trial court abused its discretion in granting Michelle reimbursement for her attorney fees because the fees were not incurred for the benefit of the Trust, but instead for the protection of Michelle’s own rights and interests.

C. Statutory Provisions Concerning Automatic Stays Pending Appeal

Patrick asserts the automatic stay provision in section 1310, subdivision (a), applies here. Michelle’s briefing suggests we should apply the general provisions in Code of Civil Procedure section 916 and caselaw construing those provisions. Because section 1310 applies to orders and judgments that are appealable in Probate Code proceedings, it is the more specific provision and must be applied here instead of the general provision in Code of Civil Procedure section 916. (Blumberg v. Minthorne (2015) 233 Cal.App.4th 1384, 1392.) However, as we shall discuss, caselaw pertinent to Code of Civil Procedure section 916 is instructive as to how we should apply section 1310.

Section 1310, subdivision (a), provides in pertinent part: “Except as provided in subdivisions (b), . . . an appeal pursuant to Chapter 1 (commencing with Section 1300) stays the operation and effect of the judgment or order.” (Italics added.) Section 1304, which is in Chapter 1, provides, with exceptions not relevant here, that, with respect to a trust, the granting or denial of “[a]ny final order under Chapter 3 (commencing with Section 17200) of Part 5 of Division 9” is appealable. (§ 1304, subd. (a).) Section 17200, pursuant to which Patrick filed his petition, provides, with exceptions, that a beneficiary may petition the court concerning the internal affairs of a trust (§ 17200, subd. (a)), which include proceedings to: determine questions of construction of a trust instrument (§ 17200, subd. (b)(1)); determine the validity of a trust provision (§ 17200, subd. (b)(3)); and appoint or remove a trustee (§ 17200, subd. (b)(10)). Thus, the September 2, 2014, judgment involved the granting or denial of a final order under Chapter 3 of Part 5 of Division 9 of the Probate Code, which was appealable pursuant to section 1304, subdivision (a), of Chapter 1. Therefore, by its terms, section 1310, subdivision (a), applies to Patrick’s appeal.

Michelle relies upon Code of Civil Procedure section 916, and our Supreme Court’s construction of that statute in Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180 (Varian). Code of Civil Procedure section 916 applies to civil proceedings generally and provides, with exceptions not pertinent here: “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order, but the trial court may proceed upon any other matter embraced in the action and not affected by the judgment or order.” (Code Civ. Proc., § 916, subd. (a), italics added.) Thus, as the Varian court observed, “[u]nder section 916, ‘the trial court is divested of’ subject matter jurisdiction over any matter embraced in or affected by the appeal during the pendency of that appeal.” (Varian, at pp. 196-197.) “ ‘The effect of the appeal is to remove the subject matter of the order from the jurisdiction of the lower court . . . .” (Id. at p. 197, fn. omitted.) Code of Civil Procedure “section 916, as a matter of logic and policy, divests the trial court of jurisdiction over the subject matter on appeal—i.e., jurisdiction in its fundamental sense. [Citation.] The purpose of the automatic stay under section 916 is to preserve ‘the status quo until the appeal is decided’ [citation], by maintaining ‘the rights of the parties in the same condition they were before the order was made’ [citation]. Otherwise, the trial court could render the ‘appeal futile by altering the appealed judgment or order by conducting other proceedings that may affect it.’ ” (Varian, at p. 198.)

“In determining whether a proceeding is embraced in or affected by the appeal, [courts] must consider the appeal and its possible outcomes in relation to the proceeding and its possible results. ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the meaning of [section 916] depends on whether postjudgment [or postorder] proceedings on the matter would have any effect on the “effectiveness” of the appeal.’ [Citation.] ‘If so, the proceedings are stayed; if not, the proceedings are permitted.’ ” (Varian, supra, 35 Cal.4th at p. 189.) Instances identified by our high court in Varian as affecting the effectiveness of an appeal include: where the subsequent proceeding directly or indirectly seeks to enforce, vacate, or modify the appealed judgment; where the subsequent proceeding “substantially interfere[s] with the appellate court’s ability to conduct the appeal”; where the potential outcomes on appeal and the actual or potential results in the subsequent proceeding are irreconcilable; and where the purpose of the appeal is to avoid the need for the subsequent proceeding. (Id. at pp. 189-190.)

“By contrast, an appeal does not stay proceedings on ‘ancillary or collateral matters which do not affect the judgment [or order] on appeal’ even though the proceedings may render the appeal moot.” (Varian, supra, 35 Cal.4th at p. 191.) “A postjudgment or postorder proceeding is . . . ancillary or collateral to the appeal despite its potential effect on the appeal, if the proceeding could or would have occurred regardless of the outcome of the appeal.” (Ibid., italics added.)

The pertinent language in section 1310 is different from that in Code of Civil Procedure section 916, but we do not believe that language is different substantively. Where section 1310, subdivision (a), “stays the operation and effect” of a probate judgment, Code of Civil Procedure section 916, stays “proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby.” (Italics added.) Both statutes essentially stay the effect of a judgment. Consequently, our high court’s discussion of Code of Civil Procedure section 916 in Varian can inform our application of the automatic stay requirement in section 1310.

Accordingly, in determining whether the automatic stay provision in section 1310, “stay[ing] the operation and effect of the judgment” (§ 1310, subd. (a)), barred the trial court from considering Michelle’s postjudgment petition for a second account and report, for instructions on listing Trust property, and for reimbursement of attorney fees and trustee fees and expenses, we consider the question of whether any of those matters are ancillary or collateral in the sense that they “could or would have occurred regardless of the outcome of the appeal.” (Varian Medical Systems, supra, 35 Cal.4th at p. 191.) This requires us to consider the component parts of the trial court’s order as to Michelle’s postjudgment petition.

D. Analysis

Michelle’s accounting would have been ordered or otherwise performed, reviewed, and approved (or not approved) by the trial court regardless of the outcome of the appeal. Indeed, in his original petition, Patrick asked the court to order an accounting by Michelle. The same can be said for the sale of the home and the non-heirloom property.

Moreover, Patrick conceded that Michelle had the ongoing authority to continue managing the trust pending appeal in his written and oral opposition to Michelle’s section 1310, subdivision (b), motion. And he acknowledges as much in his reply brief, characterizing his position in the trial court relative to Michelle’s section 1310, subdivision (b), request for appointment as a temporary trustee as an assertion that the “application was unnecessary, as [Michelle] had already been acting as Co-Trustee prior to this litigation, and the appeal from the judgment finding the trust amendment valid did not impact her ability to continue serving as such.” It is clear to us that someone had to manage the trust at that point for Katherine’s benefit and that it could not be Katherine since she had been conserved. As the parties stipulated, Katherine was incapacitated.

Additionally, as the following italicized text from Patrick’s opposition to Michelle’s section 1310, subdivision (b), petition made clear, he expected the trial court to make further rulings concerning the second account and that Michelle would continue to perform services as a trustee while his appeal on the September 2, 2014, judgment and November 3, 2014, order denying a new trial was pending. Patrick contended that Michelle’s section 1310, subdivision (b) petition was a “sham pleading” and argued she filed it solely for the purpose protecting herself from “further findings by [the trial] court with regard to the Second Account, presently under consideration given the objections” he had raised. (Italics added.) Given the provisions of section 1310, subdivision (b), immunizing a fiduciary acting under the court’s directions, a ruling in Michelle’s favor on the petition for appointment as a temporary trustee, Patrick argued, would have made her actions “unassailable” as to any “subsequent finding by the court that the accounting is improper” or “any other conduct regarding her execution of her duties as trustee.” He argued that Michelle had filed the petition for the purpose of “insulat[ing] herself from enforcement” from future findings. At the hearing, Patrick’s counsel confirmed his position that Michelle should continue to act as trustee, telling the court, “My position is that because of the appeal it doesn’t matter. She is the trustee,” and later stating, “[w]e’re simply saying, be the trustee.”

Later, exercising the right bestowed upon him by the trial court’s order for the opportunity to purchase trust property, Patrick identified pieces of property he wanted Michelle, acting as trustee, to sell to him. In his status report to the court, he referred to Michelle as “the trustee.” Thereafter, he negotiated with Michelle concerning an agreement for the purchase of the property he had identified, although the siblings were ultimately unable to reach an agreement.

Patrick contends he did not waive a section 1310 automatic stay claim concerning Michelle’s postjudgment petition. We first address the second accounting, the sale of real and non-heirloom personal property, and the reimbursement of Michelle’s personal expenditures. To the extent that Patrick asserts on appeal that the automatic stay provisions of section 1310, subdivision (a), stayed the court’s order concerning those matters because they were within the scope of the operation and effect of the judgment, we conclude he is estopped from making that argument on appeal by the assertions he made to the trial court and by his subsequent conduct seeking to purchase property sold on behalf of the trust by Michelle, acting as trustee. Any such contention made now is inconsistent with the position he took in the trial court in opposing Michelle’s section 1310, subdivision (b) motion to be appointed as temporary trustee and his subsequent conduct; thus, the contention is barred by the doctrine of judicial estoppel. (See Owens v. County of Los Angeles (2013) 220 Cal.App.4th 107, 121 [judicial estoppel is an equitable doctrine designed to maintain the integrity of the courts and protect the parties from unfair strategies; it prohibits a party from asserting a position in a legal proceeding that is contrary to a position successfully asserted in the same or some earlier proceeding].) Indeed, as we have noted, after acknowledging that Michelle had been validly acting as cotrustee, Patrick never argued in the trial court that the automatic stay provisions in section 1310, subdivision (a), deprived Michelle of the authority to continue acting as a cotrustee — apparently given that she succeeded to that position because Katherine had been conserved. We view Patrick’s contention in the trial court that Michelle had the authority to continue acting as trustee to be inconsistent with any contention that she could not be reimbursed for her expenses or receive trustee fees for her postjudgment services under the trust instrument, consistent with sections 15680 or 15681 and California Rules of Court, rule 7.776. Further, given that it was Patrick’s position that Michelle had been acting as trustee and could continue to do so pending the appeal, we separately conclude that the accounting, sale of the property, reimbursement of Michelle’s personal expenditures in performing services for Kathrine and the trust and an award of any trustee fees for postjudgment activities were “ancillary or collateral” in the sense that those matters “could or would have occurred regardless of the outcome of the appeal.” (See Varian Medical Systems, supra, 35 Cal.4th at p. 191.)

However, we view the gravamen of Patrick’s contention on appeal concerning the section 1310, subdivision (a), stay to focus on the trial court’s order allowing reimbursement from the trust for pre-judgment attorney fees and trustee fees. In his opening brief, he argued that “the trial court issued an order allowing Michelle to reimburse herself over $197,000 in trustee fees and legal expenses from the trust while this appeal was pending. The order must be reversed as a violation of the automatic stay.” In his reply brief, Patrick argues that, while the trial court had jurisdiction to exercise supervision over the Trust, engage in ongoing proceedings, and order the second account, what it could not do was issue orders which, if the appeal were successful, would be invalid. According to Patrick, “those matters concerned the distribution of funds to Michelle from the Trust estate, when such distribution would be improper in the event this Court determines Patrick’s petition to invalidate the . . . [A]mendment should have been granted.” He further emphasized that his intent in seeking a section 1310, subdivision (a), stay was to prevent Michelle from depleting the Trust to reimburse herself for attorney fees and costs incurred defending against his challenge to the Amendment and for her expenses during the time she acted as cotrustee apparently under the Amendment, the very status he challenged on appeal.

Nothing Patrick asserted in opposition to Michelle’s section 1310, subdivision (b) petition for appointment as temporary trustee was inconsistent with his current position that the trial court could not issue an order allowing Michelle reimbursement for attorney fees related to the litigation on the siblings’ pre-judgment petitions or for pre-judgment trustee activities. Consequently, judicial estoppel does not apply to these components of the trial court’s order on Michelle’s postjudgment petition.

Accordingly, under the circumstances presented here, we must agree that the court lacked jurisdiction to allow reimbursement of (1) trustee fees for Michelle’s pre-judgment trustee activities and (2) attorney fees for defending against Patrick’s petition, and prosecuting her petition against Patrick, as well as the postjudgment litigation related to those petitions. Section 1310, subdivision (a), automatically stayed the effect of those particular components of the court’s September 2, 2014, judgment. The court’s approval of these fees was “ancillary or collateral” to that judgment in the sense that those fees could or would have been approved regardless of the outcome of the appeal. (See Varian Medical Systems, supra, 35 Cal.4th at p. 191.) To the contrary, if somehow, we had been of a mind to reverse the September 2, 2014, judgment, Michelle would not have been entitled to attorney fees related to that litigation and may not have been entitled to trustee fees related to her work as trustee preceding the judgment.

Because the trial court lacked subject matter jurisdiction to allow trustee fees related to Michelle’s pre-judgment trustee work and attorney fees related to the litigation on the siblings’ petitions, we must reverse the order entered March 9, 2015, relative to those fees and remand the matter for further proceedings as those fees. In light of our determination on the appeal from the judgment, there is no prejudice to Michelle seeking the same relief on remand.

DISPOSITION

The judgment is affirmed. The order entered March 9, 2015, is reversed insofar as it related to the reimbursement for trustee fees for Michelle’s pre-judgment work as trustee and attorney fees related to the litigation on the siblings’ original petitions. The matter is remanded for further proceedings consistent herewith. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3), (4), (5).)

/s/

MURRAY, J.

We concur:

/s/

HULL, Acting P. J.

/s/

HOCH, J.