Filed 2/28/20 Lemstrom v. Lemstrom CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

RUSSELL LEMSTROM,

Plaintiff and Appellant,

v.

APRIL LEMSTROM,

Defendant and Respondent.

A154737

(Humboldt County

Super. Ct. No. DR090771)

Russell Lemstrom appeals from an order accepting and approving accountings filed by his former spouse, April Lemstrom, concerning real property the two have a stake in. We affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Russell and April entered into a written “co-ownership agreement” (the Agreement) concerning real property to which they held title as joint tenants. (Capitalization omitted.) As relevant here, Russell agreed to transfer his interest in the property to April (who agreed to manage and use the property to build its equity) in order to facilitate her obtaining favorable refinancing terms, which could then be used to finance their child’s college education. The Agreement also provided that April would be entitled to all rents from the property in order to pay property expenses, and any profit above those expenses must be allocated to Russell and April equally. For purposes of the Agreement, their child’s college education would end on December 31, 2016. The Agreement stipulated that April would convey title back to Russell on the earlier of December 31, 2016 or their child’s death.

In 2009, Russell sued April, seeking declaratory relief regarding the Agreement. Russell’s complaint alleged that he and April had conflicting views about the proper interpretation of the Agreement. Among other things, April allegedly believed that the Agreement did not require her to share with him profits realized from rents and that it established no fiduciary relationship between them such that she owed Russell a duty of good faith and fair dealing.

After a one-day bench trial in October 2011, the court issued a statement of decision finding, in part, that the Agreement established a fiduciary relationship between the parties such that April owed Russell the duty of good faith and fair dealing, and that April was required to equally allocate property-generated profits between them and also to regularly provide Russell with an accounting of the income and expenses during the term of the Agreement. In its statement of decision, the court reserved jurisdiction to appoint a receiver after judgment pursuant to Code of Civil Procedure section 564, subdivisions (b)(3) and (4). In August 2012, the court entered a judgment that included the foregoing terms.

Russell filed an opposition to the judgment, arguing in part that it should have directed April to render accountings to him concerning funds generated by refinancing and educational expenses paid. Minutes for the relevant hearing indicate Russell complained the judgment did not address the issue of accounting.

In response to Russell’s opposition, the trial court issued an amended judgment requiring that April provide Russell with an accounting of the property-related income and expenses regularly during the term of the Agreement. The amended judgment further required that if April refinanced the property to pay for their child’s education, then she must provide Russell an accounting of the funds generated by that refinancing and their use towards educational expenses. The amended judgment again reserved jurisdiction to appoint a receiver pursuant to Code of Civil Procedure section 564, subdivisions (b)(3) and (4).

Years later, in July 2015, Russell filed a “motion for the appointment of a receiver, injunctive order and other equitable relief.” (Capitalization omitted.) According to Russell, April failed to provide him an adequate accounting as required by the amended judgment, and he wanted a receiver appointed to manage the property and prepare an accounting. The trial court ultimately directed April to file an accounting. On March 13, 2017, April filed accountings of the property’s income and expenses and their child’s college expenses, and provided foundational documents. The accountings covered the time period from January 1, 2010 through December 31, 2016 (the latter date being the expiration of the parties’ Agreement).

In August 2017, April filed case management statements indicating that the matter previously went to trial and that it was unknown whether an additional trial was required without Russell filing objections to her accountings. Russell filed his own case management statement asserting that the case was about a contract, that a trial was already held, and that Russell understood the proceedings to be for a hearing on April’s accounting. The minutes for the August 22, 2017 case management conference reflect that Russell’s attorney was directed to “file a statement of the issues.”

At a September 19, 2017 case management conference, Russell reported that a certified public accountant (C.P.A.) was reviewing April’s accountings and that counsel would meet and confer regarding any resulting disagreements. A court trial was initially scheduled for five days in January 2018, then rescheduled to April 9, 2018. Minutes for a readiness conference on April 2 show the court had asked the parties what issues would be tried and, up to that point, Russell had filed no objections to the accountings. The court then ordered that all “pleadings” be filed by April 4.

On April 5, 2018, April filed a motion entitled as a motion in limine seeking to dismiss Russell’s action regarding the accountings she filed in March 2017. April argued Russell’s failure to file objections to her accountings should be deemed a waiver of any such objections, and she requested court approval of her accountings. On the same day, April 5, Russell filed a pretrial memorandum requesting that the court appoint a referee pursuant to Code of Civil Procedure section 639 to review April’s accountings. Russell stated that he retained a C.P.A. to review the accountings and attached the C.P.A.’s letter setting out their alleged deficiencies.

On April 9, 2018, Russell filed an opposition to April’s motion, arguing that an in limine motion could only be used to limit evidence at a jury trial and that the motion was untimely in any event. Russell also argued that the trial court was obliged to scrutinize the accountings independently regardless of whether he filed any objections, and that he was permitted to make objections orally at the hearing.

On the same day, April 9, the trial court granted April’s dismissal request and vacated the trial date. The court minutes state “there is a failure to object to the accounting by [Russell], unusual expense to appoint a referee, and . . . [Russell’s] case lacks proof and is not ready to go to trial.” On April 19, 2018, the court issued a written order, which included its findings that Russell failed to file any objections to April’s accounting, that his delay and failure to object was unreasonable and unfairly prejudiced April, and that Russell was “guilty of Laches.” The court further found that Russell made no offer of proof that April’s accountings were inaccurate yet he asked the court to appoint a referee to examine them, and the court’s own review indicated no plausible monetary issue that could justify the expense of a referee. The court accepted and approved April’s accountings as filed, dismissed Russell’s action regarding the accountings with prejudice, and denied his request for a receiver. Russell appealed.

DISCUSSION

A. Motion to Dismiss the Appeal
B.
First, we address April’s motion to dismiss Russell’s appeal. April argues Russell’s appeal is from a non-appealable order, i.e., the post-judgment order denying Russell’s motions to appoint a receiver and a referee. Although Russell’s notice of appeal states he was appealing from a judgment of dismissal under Code of Civil Procedure, sections 581 et seq., his civil case information statement and his opening brief indicate he is appealing from an order approving an accounting pursuant to Probate Code section 1300, subdivision (b), and Code of Civil Procedure sections 904.1 and 906. Focusing on the latter documents, April contends the order being appealed from here cannot be appealed under the Probate Code because this is not a probate proceeding, she is not a fiduciary within the meaning of the Probate Code, and there has been no settling of an accounting. April also claims the order is non-appealable under Code of Civil Procedure sections 904.1 and 906.

In opposing April’s motion to dismiss, Russell contends the Agreement created a “trust” within the meaning of Probate Code section 82, which the trial court’s amended judgment affirmed. He further asserts that April was a fiduciary and trustee while she held complete interest in the property, and that the order approving her accountings is therefore appealable under Probate Code section 1300, subdivisions (b) and (c).

“In California, the right to appeal is wholly statutory.” (Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1010.) An appeal can be taken from “an order made appealable by the Probate Code.” (Code Civ. Proc., § 904.1, subd. (a)(10).) Probate Code section 1300 states, in relevant part: “In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶] . . . [¶] . . . Settling an account of a fiduciary. [¶] . . . or approving or confirming the acts of a fiduciary.” (Prob. Code, § 1300, subds. (b) & (c).)

Division 9 of the Probate Code (Prob. Code, § 15000 et seq.) contains the state’s Trust Law, which generally applies to “all trusts” and “all proceedings concerning trusts.” (Id., § 15001.) The Probate Code defines “trust” as “[a]n express trust . . . wherever and however created” or “[a] trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust,” and provides some exclusions. (Id., § 82, subds. (a) & (b).) “An express trust is defined as a fiduciary relationship whereby a trustee holds property for another’s benefit.” (Prakashpalan v. Engstrom, Lipscomb & Lack (2014) 223 Cal.App.4th 1105, 1123.) “ ‘To be valid, a trust, whether oral or written, must contain three elements: a trust res, the manifestation of a trust intent, and a proper trust purpose. [Citations.]’ [Citation.] ‘It is well settled that no particular language or terminology is necessary to create a trust; nor need the word “trust” or “trustee” be used; nor need all the conditions of the trust be expressed in a single paper . . . .’ ” (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 661 (Higgins); see Nicholas v. Nicholas (1952) 110 Cal.App.2d 349, 352 (Nicholas) [“So long as the requisite intent is manifested to create such a fiduciary relationship with respect to a definite res and the beneficiary is ascertainable, a valid trust exists”].) Probate Code section 15200 provides different methods for creating a trust, including “[a] transfer of property by the owner during the owner’s lifetime to another person as trustee.”

Under the foregoing principles, the Agreement does appear to have created a trust relationship with April as trustee and beneficiary, and Russell and their child as beneficiaries. This is so regardless of the fact that words like “trust” and “trustee” were not used in the Agreement. (Higgins, supra, 11 Cal.App.5th at p. 661; Nicholas, supra, 110 Cal.App.2d at p. 352.) Since Probate Code section 15001 broadly contemplates that the Trust Law applies generally to all proceedings concerning trusts, the proceeding in this case appears to be “governed” by the Trust Law, which supports appealability under Probate Code section 1300. (Prob. Code, § 1300, subds. (b) & (c) [“In all proceedings governed by this code, an appeal may be taken from the making of, or the refusal to make, any of the following orders: [¶] . . . [¶] . . . Settling an account of a fiduciary. [¶] . . . or approving or confirming the acts of a fiduciary” (italics added)].)

April contends the order is not appealable under Probate Code section 1300, subdivision (b), because “[t]his is nothing more than a contract case between two individuals owning property together.” This argument, however, disregards the authorities above and is otherwise unsupported by citation to any authority. April also contends she was not a “fiduciary” within the meaning of the Probate Code, but this, too, is unpersuasive. Probate Code section 39 provides that a “trustee” is a “fiduciary,” and April offers no argument why she would not be considered trustee under the Agreement. (See Rest.3d Trusts, § 3, com. c, p. 36 [“The ‘trustee’ is the person who holds trust property”]; see also Prob. Code, § 15600 [trustee can accept trust by signing the trust instrument or “[k]nowingly exercising powers or performing duties under the trust instrument”]; Crocker-Citizens National Bank v. Younger (1971) 4 Cal.3d 202, 212 [“any person, including a beneficiary, may serve as trustee or hold trust powers”].)

Even assuming the order is not appealable under Probate Code section 1300 because this action was originally filed as a civil case, we would find it appealable under section 904.1, subdivision (a)(2), which provides that an order made after an appealable judgment is appealable. “To be appealable under section 904.1, subdivision (a)(2), a postjudgment order that follows a final appealable judgment must meet two requirements: (1) ‘the issues raised by the appeal from the order must be different from those arising from an appeal from the judgment’ and (2) ‘ “the order must either affect the judgment or relate to it by enforcing it . . . .” ’ ” (City and County of San Francisco v. Shers (1995) 38 Cal.App.4th 1831, 1838.)

The order in this case meets both requirements. The trial court’s decisions to approve April’s accountings and to decline appointment of a receiver or a referee did not raise the same issues as the underlying judgment, which concerned the establishment or clarification of April’s obligations under the Agreement. Moreover, the order approving the accountings may reasonably be understood to affect or relate to enforcement of the judgment, given that it did not require additional accountings or investigation into the propriety of April’s accountings.

Having concluded the order appealed from is appealable, we now proceed to consider the merits of Russell’s claims.

B. The Merits of Russell’s Appeal

Russell first argues the trial court erred in granting April’s motion in limine because it was filed on April 5, 2018, with trial scheduled for April 9, 2018. He alleges that this violated Local Rule 2.6(d) of the Humboldt County Superior Court, which requires that motions in limine be filed and served no less than 14 days prior to the scheduled date of trial, and he notes the absence of any explanation as to why this time requirement does not apply. We reject the contention.

Notwithstanding its prescribed time for filing and service, that local rule also contemplates that the trial court may require otherwise. (Super. Ct. Humboldt County, Local Rules (2018 ed.), rule 2.6(d), In Limine Motions [time prescription applies “[u]nless otherwise agreed to by the court”].) Furthermore, trial courts are empowered to amend and control their processes so as to make them conform to law and justice. (Code Civ. Proc., § 128, subd. (a)(8).) We review the exercise of that power for abuse of discretion. (In re Joshua G. (2005) 129 Cal.App.4th 189, 199.)

“ ‘It is axiomatic in appellate review that a judgment of a lower court is presumed correct. [Citation.] This presumption has special significance when . . . the appeal is based upon the clerk’s transcript.’ [Citation.] ‘It is elementary and fundamental that on a clerk’s transcript appeal the appellate court must conclusively presume that the evidence is ample to sustain the findings, and that the only questions presented are as to the sufficiency of the pleadings and whether the findings support the judgment.’ ” (Nat’l Secretarial Service, Inc. v. Froehlich (1989) 210 Cal.App.3d 510, 521–522 (Froehlich).)

In this appeal, Russell proceeds with only a clerk’s transcript. Although initially he indicated he would file a settled statement, he never did, and no record of the oral proceedings has been provided. Based solely on the clerk’s transcript, we do not know what took place at the April 9, 2018 hearing where the trial court considered and ruled on April’s motion in limine. Even if, as Russell suggests, the court only implicitly overruled Russell’s objection based on Local Rule 2.6(d), we presume the propriety of that decision and decline to second-guess the ruling. (Froehlich, supra, 210 Cal.App.3d at pp. 521–522; Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson) [“ ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented” ’ ”].)

Russell next contends that the trial court erred in finding him guilty of laches, and that the court failed to carry out its duty to independently scrutinize April’s accountings.

With regard to the court’s application of the laches doctrine, Russell asserts in his reply brief that “the clerk’s transcript establishes that no evidence was considered [at the April 9, 2018 hearing] beyond the pleadings; indeed, none was proffered. Instead, the Court based its decision solely on the pleadings before it and the argument of counsel at the hearing . . . .” We cannot agree with this characterization. The clerk’s transcript does not say one way or the other whether evidence was presented at the April 9, 2018 hearing. Given that this is a clerk’s transcript appeal and nothing in that transcript supports the claimed error, we presume the court’s finding concerning laches was supported and correct. (Froehlich, supra, 210 Cal.App.3d at pp. 521–522; Jameson, supra, 5 Cal.5th at p. 609.)

With respect to Russell’s contention that the trial court failed to independently scrutinize April’s accountings, assuming the court had such a duty, Russell provides no citation to any evidence in the record that might support his claim. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Indeed, the court’s April 19, 2018 order appears to reflect otherwise. In that order, the court said it considered the file and the account submitted by April, and then stated: “This Court’s review indicates there is no plausible monetary issue with [April]’s account justifying the expense of a referee to review an account [Russell] failed to object to for more than a year.”

Finally, Russell contends that April improperly used her motion in limine as a substitute for a dispositive motion. Claiming April’s motion in limine “can be more accurately characterized as a motion for nonsuit,” Russell contends we should determine “ ‘if there is no evidence which could support a judgment for [Russell] as a matter of law.’ ” We are unpersuaded.

In making this contention, Russell relies on Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582 and R & B Auto Center, Inc. v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327. While these cases comment that the use of a motion in limine as a dispositive motion is disfavored, Amtower and other cases acknowledge that in limine motions may be used in that manner. (Amtower, supra, 158 Cal.App.4th at p. 1595 [“In spite of the obvious drawbacks to the use of in limine motions to dispose of a claim, trial courts do have the inherent power to use them in this way”]; R & B Auto Center, Inc., supra, 140 Cal.App.4th at p. 350 [discouraging use of motions in limine to achieve summary adjudication]; see, e.g., K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 951 (K.C. Multimedia) [use of in limine motion to test whether a complaint states a cause of action is within the trial court’s “ ‘inherent equity, supervisory and administrative powers, as well as inherent power to control litigation and conserve judicial resources’ ”].)

As for the claim that the standard of review applicable to the grant of a nonsuit should be utilized here, we observe that a motion in limine can function as a motion for nonsuit “where such motions are granted ‘at the outset of trial with reference to evidence already produced in discovery.’ ” (K.C. Multimedia, supra, 171 Cal.App.4th at p. 952.) This case, however, does not appear to be one where an action was dismissed at the outset of a proceeding because of “evidence” produced in discovery. In this regard, Russell fails to explain what evidence he believes we are supposed to review under the standard of review applicable to the grant of a nonsuit.

In sum, we reject Russell’s contentions.

DISPOSITION

The order appealed from is affirmed. April shall recover her costs on appeal.

FUJISAKI, Acting P. J.

We concur.

PETROU, J.

JACKSON, J.

Lemstrom v. Lemstrom / A154737