Filed 3/30/20 Lavacot v. Richards CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

MICHAEL LAVACOT, as Trustee, etc.,

Respondent,

v.

ALICIA MARIE REMSEN RICHARDS

et al.,

Appellants.

___________________________________

ALICIA MARIE REMSEN RICHARDS

et al.,

Appellants.

v.

MICHAEL LAVACOT, as Trustee, etc.,

Respondent.

G056745 consol. w/ G056748

(Super. Ct. Nos. 30-2017-00910610

& A156574)

O P I N I O N
Appeal from orders of the Superior Court of Orange County (No. 30-2017-00910610-PR-TR-CJC, Aaron Heisler, Temporary Judge*) and (No. A156574, Janet Christofferson, Temporary Judge*). (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. Lawrence Remsen’s appeal is dismissed.

Alicia Maria Remsen Richards in pro. per.; Gregory Remsen in pro. per.; and Lawrence Remsen in pro. per. for Appellants.

Roehl & Glowacki and John P. Glowacki for Respondent.

* * *

Alicia Marie Remsen Richards and Greg Remsen, siblings and beneficiaries under the trust of their great-grandparents, appeal from the trial court’s refusal to grant their motion to set aside/vacate their settlement agreement (motion to set aside) with trustee Michael Lavacot. They maintain the motion, filed in two separate probate actions, should have been granted because there was evidence of fraud, mistake, economic duress, undue influence, and concealment. Alicia and Greg’s father, Lawrence Remsen (Larry), who is also a trust beneficiary, raises the additional argument the settlement should be set aside because he did not personally sign it or agree to waive his inheritance rights. We conclude all the contentions raised in this appeal lack merit, and we affirm the trial court’s two orders denying Appellants’ motion to set aside the settlement.

CONSOLIDATED APPEAL

Before delving into the substantive issues on appeal, we must briefly discuss a few important background facts relating to this consolidated appeal. Generally, consolidated appeals concern different rulings having related factual questions. Here, the two appeals challenge two identical rulings arising from two different probate actions. Probate court case No. A156574 appears to concern mostly trust administration disputes. Trust beneficiaries initiated this action in the 1990’s. More recently, the parties began litigating their dispute over the distribution of Larry’s trust proceeds in probate court case No. 30-2017-00910610-PR-TR-CJC.

In reviewing the issues raised on appeal, we discovered the appeal challenges rulings on Appellants’ two identical motions to set aside the same settlement agreement. We recognize the record contains two orders, issued from two different judges (Judge Janet Christofferson in case No. A156574 and Judge Aaron Heisler in case No. 30-2017-00910610-PR-TR-CJC). However, the two orders contain the exact same language in a two-page ruling. Confusing matters further is the evidence both actions were heard together on the same day before Judge Heisler. The reporter’s transcript shows Judge Heisler alone called both case numbers before considering the parties’ arguments. It is unclear how Judge Christofferson was involved in the hearing.

In any event, we consolidated the appeals from the identical rulings (G056745 arises from case No. 30-2017-00910610-PR-TR-CJC, and G056748 relates to case No. A156574). For purposes of this opinion, we have simplified our factual summary by referring to the underlying proceedings cumulatively as one action. This is possible because the relevant motions, oppositions, and declarations are duplicative and, therefore, our review is the same for both actions. For ease of reading, we will also refer to a singular trial court’s ruling (except of course in the final disposition of the two appeals).

FACTS

I. Prior Petitions and Litigation Regarding the Trust

In 2001, we considered an appeal filed by Alicia and Greg, and a cross-appeal filed on behalf of the trust. (Remsen v. Lavacot (Jan. 30, 2001, G025009) [nonpub. opn.] (Remsen).) At the time, the acting co-trustees were Robert Lavacot and his wife Carol (their son Michael is the current trustee).

Carol and Larry were two of the four grandchildren named in Willard and Ruth Cain’s trust. (Remsen, supra, G025009.) The four grandchildren were the principal beneficiaries of the trust estate. In addition, the Cains decided to leave $100,000 to each of their seven great grandchildren (which included Alicia and Greg). (Ibid.)

After the Cains passed away, Alicia filed a petition in 1990 demanding the trustees distribute her $100,000 inheritance. (Remsen, supra, G025009.) The court denied her petition after the trustees explained they were having difficulty selling the trust’s primary asset, beachfront property in Laguna Beach. (Ibid.) Six years later, the trustees notified Alicia that escrow had finally opened on the property and the sale price was $5.2 million. (Ibid.) Unwilling to wait any longer for payment, Alicia and Greg filed a petition seeking disbursement of their promised inheritance plus interest and attorney fees. They also requested an accounting. (Ibid.) The following year, the trustees filed an application seeking a determination that Alicia’s 1990 and 1997 petitions qualified as contests. (Ibid.)

The probate court denied the trustees’ petitions and granted Alicia and Greg’s petitions. (Remsen, supra, G025009.) It initially determined the promised $100,000 was a general pecuniary devise entitled to earn interest, but after considering the trustees’ motion for reconsideration, the court modified its prior order to remove the obligation to pay interest on the various bequests. (Ibid.) We affirmed this ruling and dismissed the trustees’ untimely filed appeal. (Ibid.)

II. Events Relating to this Appeal

A. Trustee’s Petition for Instructions on Larry’s Disclaimer of Interest in the Trust

In March 2017, there was only one acting trustee of the trust, Robert. He filed a petition asking the court for instructions regarding the validity of certain documents and legal maneuverings between Larry and his children (Alicia and Greg). Robert explained Larry’s inheritance was subject to several conditions. The trust’s article VII, paragraph (B)(4)(d), provided, “‘Notwithstanding anything to the contrary in this paragraph 4, the [t]rustee shall not make any payments of income or principal to or for the benefit of [Larry] during such time as he is in custody, or is not gainfully employed, or is (in the opinion of the [t]rustee) suffering from alcoholism.’” He attached a copy of the trust as exhibit A.

Robert informed the trial court that Larry was incarcerated in 1983 and he was serving a lengthy sentence (21 years to life) for second degree murder and forgery convictions. Robert concluded that because Larry was in custody, and not gainfully employed, two of the three conditions prohibited any trust payments to Larry.

Robert explained the reason for his petition was Larry’s recent decision to execute a “‘Disclaimer of Interest’” (Disclaimer) and a power of attorney (POA) naming Alicia as his agent “for, among other purposes, ‘[e]state, trust and other beneficiary transactions.’” He attached copies of the Disclaimer and POA to the petition as exhibits B and C respectively. Robert believed Larry’s Disclaimer was untimely (Prob. Code, § 279, subd. (c).) He sought the trial court’s instructions as to the validity of the Disclaimer. Robert acknowledged a valid and effective disclaimer would mean Larry gave up “any right, title and interest he might ever have in the [t]rust’s assets [and h]e would no longer have a right to any information concerning the [t]rust or to notice of proceedings concerning its affairs[] . . . [or] receive any distributions from the [t]rust.” Rather, “His rights would pass to the contingent remainder beneficiaries, who [Robert] understands are Alicia and Greg[.]”

Robert asked the court to relieve him of any liability if it deemed the Disclaimer valid and make the holding “irrevocable and binding on the parties; meaning, Larry cannot later allege Robert violated the [t]rust where he distributed Larry’s share to Alicia and Gregory, rather than holding it for or distributing it to Larry.” Robert explained he was seeking these instructions because he learned Alicia planned to seek “immediate distribution of her half of her father Larry’s share in the [t]rust.”

B. Alicia’s and Greg’s Ex Parte Application To Move Hearing Date

Two months after Robert filed his petition for instructions, Alicia and Greg filed an ex parte application to advance the August 3, 2017, hearing date to early June. They explained the hearing date was past the trial date set for Alicia’s marital dissolution action. Alicia explained the family law trial court had ordered her to obtain the inheritance money to buy out her ex-husband’s interest in the family home, and if she did not provide the funds by June 16, 2017, the residence would be sold. Alicia asserted the purpose of Robert’s petition was to obtain court approval for disbursement of Larry’s trust funds to Alicia, thus saving her home. Alicia and Greg maintained there were “no other interested parties in this action.”

In response, Robert’s counsel, John Glowacki, filed a declaration stating Larry was an interested party and he should have been given notice of the ex parte application. Glowacki asserted that although Larry’s beneficial interest in the trust had been suspended due to his incarceration, the ex parte petition sought to change the date on a hearing regarding the validity of a document “that purports to be a disclaimer” of any future inheritance.

The following day, Alicia filed a declaration stating Larry did not have a right to notice because he “disclaimed his interest” and gave her “his full power of attorney to handle all any [sic] matters.”

On May 9, 2017, Judge Thomas H. Schulte denied the ex parte application for the following reasons: (1) “There are insufficient emergency circumstances to cause this matter to be advanced[;]” (2) “Even if the hearing were to be advanced and the requested relief granted, there is insufficient time to complete all of the procedural requirements necessary to allow distribution prior to the family law trial[;]” (3) “While, the family law judge may have indicated what she may order after trial, it is speculative whether or not she will issue such an order after trial[;]” and (4) “Notice is required from all necessary parties.”

C. Alicia’s and Greg’s Ex Parte Application to Remove the Trustee

A few weeks after the court denied their first ex parte application, Alicia and Greg filed a second petition seeking an immediate hearing on the issue of removing the trustee or suspending his powers and freeing the trust assets. They also demanded an accounting. They alleged Robert had misappropriated funds, refused to speak with beneficiaries or answer their requests for an accounting, wasted trust assets, and treated the beneficiaries unfairly. They asserted this issue required “preference” because Larry, the sole beneficiary, was 75 years old and incarcerated in a medical facility. Alicia and Greg stated they were concerned that if the trustee (77 years old) should die, they would be unable to get an accounting or the opportunity “to surcharge the [t]rustee to repay the [t]rust for his mishandling.”

Robert denied any wrongdoing in his response to the ex parte application. He also asserted Alicia and Greg failed to show any urgency justifying ex parte relief. Robert provided the court with a summary of the status of the trust. “Following an extraordinarily difficult period of trust administration, the assets were distributed except for one share. [¶] . . . That share, presently held in trust pursuant to the Cain Family Trust’s explicit terms, is the subject of these proceedings. [¶] . . . The sole remaining named beneficiary of the Cain Family Trust is [Larry]” and by the terms of the trust, he is not entitled to any distribution while in custody, not gainfully employed, or suffering from alcoholism. Robert explained the contingent remainder beneficiaries are his children and they received an accounting when they “sought to litigate [their inheritance rights under the trust] in the late 1990’s” and they now seek Larry’s inheritance.

Robert submitted his “timeline” of what had transpired. In October 2016, his counsel, Glowacki, wrote a letter to Alicia and Greg’s attorney, Eugene V. Zech. Glowacki explained he would not provide an accounting to the siblings because they were not beneficiaries. Robert told Zech the remaining trust assets held for Larry totaled approximately $500,000. Soon thereafter, Zech sent Glowacki a document he “described as a ‘proposed Disclaimer by [Larry].’”

In November 2016, Glowacki informed Zech that the trustee could not accept the Disclaimer “in its existing form” and he could not assist in creating a disclaimer “which would be contrary to the beneficiary’s interests.” The reasons for this decision were as follows: “[T]he [t]rustee considered, among other factors, the lengthy and litigious history of some of the family members, the difficulty in exchanging verifiably authentic communications with [Larry], and the fact that the [t]rustee was being asked to approve of a document that would harm the [t]rust’s sole beneficiary to the benefit of contingent remainder beneficiaries without complete information.”

In December 2016, Alicia e-mailed a copy of a POA she claimed was executed by her father, Larry. Glowacki contacted Zech and then wrote a letter to Appellants stating the trustee questioned the POA’s validity.

In January 2017, Glowacki received a letter from Joshua Engle, who claimed to represent Appellants. Engle’s letter enclosed the Disclaimer and a new POA. Glowacki stated he determined this POA document was “facially valid.” The following month, Alicia told Glowacki that Engle was no longer representing the family. Soon thereafter, Engle gave notice he was placing an attorney lien upon any trust distribution made to Alicia or Larry.

In February 2017, Alicia wrote Glowacki an e-mail explaining she wanted trust funds to buy out her ex-husband’s interest in her home, which was an asset in her divorce proceedings. Robert and Glowacki received subpoenas to appear in the family court action and they were instructed to produce certain documents. The subpoenas were sent by Alicia’s attorney, Zech, and her ex-husband’s attorney, Kevin Robinson. Glowacki met with the family law attorneys and explained Robert would not be available for the hearing because he had a previously scheduled medical procedure. However, Glowacki provided financial documents about the trust’s assets and appeared at the hearing to discuss the status of the trust. Glowacki filed the petition for instructions the following day because Larry had not yet contacted him about the Disclaimer or the POA.

In May 2017, Judge Schulte denied the ex parte application to remove Robert as trustee. In its minute order the court reasoned, “There is insufficient exigent or emergency circumstances to support ex-parte relief.”

D. Supplements to Trustee’s Petition for Instructions

In May 2017, Glowacki filed a first verified supplement to the petition, stating he inadvertently failed to provide notice to Robert, Alicia, Greg, and Larry. He requested the court order the supplement be made part of the petition.

In July 2017, Glowacki filed a second verified supplement to the petition. In the supplement he acknowledged the probate examiner showed Alicia’s address was a post office box and the examiner could not determine the sufficiency of notice filed in May 2017. Glowacki provided a direct street address for Alicia.

E. Response to Petition for Instructions

Approximately one week after Glowacki filed the second verified supplement, Alicia, Greg, and Larry filed a response. Alicia signed the document on behalf of Larry as his attorney-in-fact.

In their response, Alicia and Greg discussed the terms of the trust, asserting all the grandchildren had been paid except Larry because he was incarcerated. They asserted Larry “believe[d] that he may never get out of prison and want[ed] to help his children while he is still living.” They stated Larry executed a disclaimer of his interest in the trust, and wrote a letter to the trustee asking that his inheritance be paid to his children. In addition, they noted Larry gave Alicia a POA. They disputed Robert and Glowacki’s determination the Disclaimer was untimely, and therefore, invalid. A few days later, Alicia and Greg filed an amended response stating they were not attorneys and did not previously understand the legal definition of the terms “vested” or “indefeasible” They asserted Larry had a “‘vested indefeasible interest’ in the Cain Family Trust.” They also repeated the same argument contained in the original response.

F. Second Account

In June 2017, Robert filed a second account and trustee report. Alicia, Greg, and Larry (by Alicia as his attorney-in-fact) objected to a prior “first” account filed in 1998, and they demanded a forensic audit from 1983 to the present. Approximately one week later, they filed a petition to review the 1998 accounting. The following week, they filed an objection to the more recently filed “second” account and trustee report.

G. Court’s Ruling on Petition for Instructions

In August 2017, Judge Jacki C. Brown ruled Larry’s January 2017 Disclaimer was valid. In her minute order, the court noted Glowacki objected to the order for the trustee to distribute funds and filed a notice that there was a related case (Case No. A156574). It “reserved” the issue of distribution for the next scheduled hearing.

H. Global Settlement

When Michael became the trustee of the trust, he and Alicia negotiated a settlement. On October 20, 2017, all the parties (Michael, Alicia, Greg, and Larry, by Alicia as his attorney-in-fact) executed a settlement agreement. The parties initialed every page. The agreement contained mutual releases, covenants not to sue, waivers of accountings, and waivers of unknown claims and rights under Civil Code section 1542. The agreement was fully integrated.

In November 2017, the court accepted a stipulation asking the court to enter an order approving the trustee’s petition for instructions “as prayed and the Disclaimer will be adjudicated to be valid and enforceable.” The order stated this stipulation was part of a global settlement agreement. The court’s minute order noted the parties did not seek the court’s approval of the settlement. The court also dismissed Alicia’s petitions regarding the accountings. Alicia and Greg each received a distribution of $216,394 from the trust.

I. Motion to Set Aside the Settlement Agreement

In early January 2018, Appellants filed a motion to set aside or vacate the settlement, arguing the settlement agreement was a product of “mistake, [f]raud, concealment, and economic duress.” Specifically, they alleged they were defrauded by the trustee’s failure to include in the trust accounting Virginia Cain’s separate property ($250,000 plus interest). They asserted this money belonged to Larry. In addition, Alicia asserted she was experiencing duress, harassment, economic duress, and undue influence “based on the financial pressure” of losing her home and the tax benefit. In his declaration, Larry asserted he did not give Alicia permission to sign a stipulation on his behalf waiving his rights to sue the trustee.

Michael filed an opposition, supported by his and Glowacki’s declarations. He asserted Alicia’s, Greg’s, and Larry’s declarations did not contain facts showing any of the necessary elements needed to set aside the agreement. Michael asked the court to take judicial notice of documents filed in the action initiated by Robert’s petition seeking instructions (case No. 30-2017-00910610-PR-TR-CJC), as well as the older probate case regarding the trust (case No. A156574).

On July 18, 2018, the courts in both actions denied the motion to set aside the settlement agreement. Both judges ruled the moving parties failed to meet their burden of proof with admissible or credible evidence, and therefore, there were not grounds for relief under Code of Civil Procedure section 473, subdivision (b).

J. Motion to Enforce the Settlement Agreement and for Attorney Fees

While the motion to set aside the settlement was pending, Michael filed a motion to enforce the settlement agreement and for attorney fees (totaling $17,500). Alicia, Greg, and Larry filed oppositions. The court considered and denied this motion in the same hearing as the motion to set aside the settlement agreement, and the ruling is not at issue in this appeal.

DISCUSSION

I. Larry’s Dismissal

Before oral argument, we invited the parties to submit supplemental briefing because, based on our review of the record, it did not appear Larry had any legal interest in the subject matter. Only an aggrieved party may appeal from an adverse judgment. (§ 902.) “One is considered aggrieved whose rights or interests are injuriously affected by the judgment. An appellant’s interest ‘“‘must be immediate, pecuniary, and substantial and not nominal or a remote consequence of the judgment.’”’ [Citations.]” (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1292.) Appellants did not file supplemental briefing. Michael filed a letter stating he agreed Larry had no legal interest in the subject matter of the appeal and should be dismissed.

For the following reasons, we dismiss Larry’s appeal. In January 2017, Larry disclaimed his interest in the trust, its assets, and its administration. In August 2017, Judge Brown determined the Disclaimer was valid and enforceable. This appeal concerns a subsequent global settlement agreement regarding the trust (October 2017) and a challenge to the court’s refusal to set the settlement agreement aside (entered in July 2018). Larry has nothing to gain or lose from this appeal, and the briefing does not specifically request relief on his behalf. The briefing does not raise any challenges to the validity of the Disclaimer. To the contrary, the reply brief contains the assertion Larry did not need to sign the global settlement agreement because he “disclaimed his interest in the [t]rust, and has no further right, title, or interest in the [t]rust property or in the administration of the [t]rust.” Lacking an interest in the controversy, Larry was not an aggrieved party and is not entitled to appeal from the court’s order denying the motion to set aside the global settlement agreement.

II. Motion to Set Aside

Appellants assert the court abused its discretion by failing to set aside the settlement agreement based on fraud, mistake, economic duress, undue influence, and concealment. We disagree.

Under section 473, subdivision (b), a “court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” The party seeking relief “bears the burden of proof in establishing a right to relief. [Citation.]” (Hopkins & Carley v. Gens (2011)

200 Cal.App.4th 1401, 1410.)

“‘A ruling on a motion for discretionary relief under section 473 shall not be disturbed on appeal absent a clear showing of abuse.’ [Citation.]” (Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 257.) “‘Moreover, all presumptions will be made in favor of the correctness of the order, and the burden of showing abuse is on the appellant. [Citation.]’ [Citations.]” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200.) Our review is highly deferential. “‘A ruling on such a motion rests within the sound discretion of the trial court, and will not be disturbed on appeal in the absence of a clear showing of abuse of discretion, resulting in injury sufficiently grave as to amount to a manifest miscarriage of justice. Where a trial court has discretionary power to decide an issue, an appellate court is not authorized to substitute its judgment of the correct result for the decision of the trial court. [Citations.] “‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’ [Citations.]” [Citation.] The burden is on the complaining party to establish abuse of discretion, and the showing on appeal is insufficient if it presents a state of facts which simply affords an opportunity for a difference of opinion.’ [Citation.] To obtain discretionary relief under section 473, the moving party must show the requisite mistake, inadvertence, or excusable neglect. [Citations.]” (McClain v. Kissler (2019)

39 Cal.App.5th 399, 414.)

Here, the trial court denied the motion to set aside because after reviewing the documents and evidence it concluded Appellants failed to meet their burden of proof with admissible or credible evidence. Thus, to prevail on appeal Appellants must establish this ruling “exceeded the bounds of reason” because they in fact presented sufficient and credible evidence of fraud, mistake, economic duress, undue influence, and concealment.

After carefully reviewing the briefing and record on appeal, it appears Appellants have simply repeated the same arguments raised in their motion to set aside and refer to the same supporting evidence reviewed by the trial court. This showing is insufficient. While we appreciate Appellants are unhappy the court did not view their evidence as they had hoped, this appeal does not provide a new forum for a complete do-over, i.e., our highly deferential review of the trial court’s ruling does not permit a second bite at the apple.

For example, Appellants presented a three-page argument to support their assertion the court “abused its discretion in denying a set aside and/or vacate the settlement agreement based on fraud.” (Capitalization and bold omitted.) After defining intrinsic fraud, Appellants maintain they would have never agreed to the settlement agreement if they knew it did not include Larry’s entire inheritance. They assert the trustee concealed Larry was entitled to an additional $250,000 in separate property from his mother’s estate/trust. They also maintain the trustee stole $30,000 ($15,000 belonging to Alicia and Greg respectively). However, the only record citations are to Appellants’ motion to set aside and their reply brief to the opposition motion.

In an abundance of caution, we searched the factual summary section of the briefing to look for any citations to admissible and credible evidence to support the alleged concealment of $250,000 and alleged theft of $30,000. In the introduction, Appellants mention these allegations but cite portions of the original trust document, which confirms the chain of asset distribution (a fact not in dispute).

Immediately following the record citation to the trust, Appellants added a bulky 39 page record citation as follows: “cf. 12CT: 3557-3596.” The abbreviation “cf.” is an introductory signal that usually proceeds a case citation to provide information about the nature and strength of the legal authority. (Cal. Style Manual (4th ed. 2000)

§§ 1:4, p. 9.) The signal “cf.” refers to the Latin word confer, meaning “‘compare with.’” (Id. at p. 10.) The 39 pages contain an unorganized mix of bank statements,

e-mails, and cashed checks. We will not speculate how this evidence “compares with” the trust or how each document related to the fraud allegations. We conclude Appellants did not meet their burden of showing the trial court exceeded the bounds of reason in concluding there was insufficient admissible or credible evidence the trustee fraudulently concealed $250,000 or stole $30,000 from Appellants. We find no reason to disturb the trial court’s decision.

We reach the same conclusion after reviewing Appellants’ briefing to support their four additional arguments the court abused its discretion in failing to set aside the settlement agreement due to evidence of mistake, economic duress, undue influence, and concealment. They again cite to legal arguments raised in the moving papers and oppositions filed in the trial court. Legal arguments cannot serve as admissible or credible evidence. Similarly, citations to arguments made during the hearing are just that—self-serving arguments—and do not supply admissible evidence of fraudulent conduct. By merely citing to these documents and making the same arguments raised below, Appellants have not shown how the trial court abused its discretion in either reviewing, evaluating, or making conclusions about the weight of the evidence.

III. Larry Did Not Sign the Settlement Agreement

Appellants argue the court abused its discretion in failing to set aside the settlement agreement because Larry did not sign it and the document “waived his final rights.” This argument is puzzling because there is no dispute Larry signed the Disclaimer waiving his right to any interest in the trust. His signature was not needed to dispose of trust assets. Thus, his failure to sign a document regarding the trust is immaterial.

Moreover, there is no dispute Larry gave Alicia POA over all “claims and litigation” as well as “[e]state, trust, and other beneficiary transactions.” She signed the settlement agreement on his behalf. Appellants do not argue the “uniform statutory form power of attorney” (capitalization omitted) was invalid, void, voidable, or otherwise unenforceable. The court did not abuse its discretion in rejecting what plainly appears to be a legally frivolous argument.

IV. Motion to Continue

Appellants assert the court abused its discretion “in denying a continuance

. . . to present testimony and evidence.” We disagree.

“The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. [Citation.] The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred. [Citation.]” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984-985.)

Appellants argue they requested a continuance before the hearing scheduled for the court to consider two motions (the motion to set aside the settlement agreement and the trustee’s motion to enforce the settlement agreement). Appellants assert Greg was unable to attend the hearing because he was sick and he would have liked to have testified “as to the facts set forth in his affidavit and provide additional evidence.” Alicia told the court Larry was having trouble receiving documents from the trustee and “he wanted to submit a supplemental declaration to the court to provide additional evidence to prove he never received any portion of his mother’s separate estate in the amount of $250,000” and he had not received the trustee’s “opposition papers.” Appellants conclude they were “extremely prejudiced” by the court’s refusal to grant a continuance because they had additional “evidence proving fraud as declared in their verified petition to set aside . . . the settlement agreement . . . that the [t]rustee concealed the fact he did not give them all the money that was due them pursuant to the terms of the Cain Family Trust.”

However, Appellants do not indicate what additional evidence Greg would have provided, over and above the information contained in his three declarations. Nor do they suggest what new information Larry’s supplemental declaration would have

provided. As such, Appellants have not carried their burden of proving the court abused its discretion. It is not enough to simply repeat the same arguments presented to the trial court and not directly address the reasons offered by the court for refusing to continue the matter. Appellants do not suggest what legal grounds would lead this court to reject the court’s conclusion the parties had adequate notice of the hearing or its determination the matter was adequately briefed in what were essentially cross-motions concerning the same subject matter.

We conclude the record supports the court’s determination the matter was adequately briefed and the parties had sufficient time to prepare for the hearing. Alicia, Greg, and Larry each filed three separate declarations. They filed declarations with the motion to set aside and to support their reply to the motion to set aside. They also each filed declarations in opposition to the motion to enforce the settlement agreement. Appellants’ moving papers and opposition were lengthy and raised numerous issues. As aptly noted by Michael in his respondent’s brief, there was ample time for all parties to prepare briefing and argument because “the hearing from which the [o]rders on appeal arose was held nearly eight months after Appellants filed their original [m]otions.” We find no reason to hold the court abused its discretion in this case.

V. Accord and Satisfaction

Appellants assert, “A [t]rust beneficiary’s acceptance of a distribution check does not prevent them from challenging the accuracy of the [t]rustees accounting and a release as a condition of accepting payment, under principles of accord and satisfaction, was not voluntary.” This argument is difficult to understand.

However, the heading sheds more light on the issue. It asks the following: “A question to this court is can a trustee affect an accord and satisfaction and relieve himself of all trust obligations and liability by giving a beneficiary a distribution as required by the trust?” (Capitalization and bold omitted.)

Our answer is simple and straightforward. We cannot offer Appellants an advisory opinion. (Pacific Legal Foundation v. California Coastal Com. (1982)

33 Cal.3d 158, 170 [“judicial decision making is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy”].) Our limited role in this appeal is to review the trial court’s ruling on Appellants’ motion to set aside the settlement agreement. The ruling was not based on the legal theory of accord and satisfaction. The accuracy of the trustee’s accounting is a matter of trust administration, an issue that has not been properly brought before us to review.

VI. Accounting

Appellants request that this court order the trial court or the trustee to provide a full accounting when the case is remanded to the trial court. This request is inappropriate. The appeal does not concern administration of the trust or the need for an accounting. As noted above, our review is limited to the court’s ruling on the motion to set aside the settlement agreement.

VII. Statement of Decision

Appellants maintain it was reversible error for the court not to issue a statement of decision pursuant to California Rules of Court, rule 3.1590 and section 632 (although Appellants incorrectly cite to a “rule 232” and “section 662”). A statement of decision is not required when a court rules on a motion “even if the motion involves an extensive evidentiary hearing [citations].” (In re Marriage of Fong (2011)

193 Cal.App.4th 278, 294, fn. omitted.)

Moreover, section 632 requires a statement of decision if one is timely requested. Appellants have not pointed to any part of the record where they requested a statement of decision. Appellants do not provide case authority to support their theory the trial court was obligated, sua sponte, to prepare a statement of decision for a hearing on a motion lasting less than one day. Accordingly, we deem the issue waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785, [“When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”].)

DISPOSITION

Lawrence Remsen’s appeal is dismissed. The two July 18, 2018, orders are affirmed. Respondent shall recover his costs on appeal.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.