Warneke v. Bell CA2/4 ( 2021 )

Filed 11/17/21 Warneke v. Bell CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
KIMBERLY WARNEKE et al., B303441
(Los Angeles County
Plaintiffs and Respondents, Super. Ct. No. 16STPB02983)
v.
JOHN L. BELL, JR., as Trustee,
etc.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los Angeles
County, Paul T. Suzuki, Judge. Affirmed.
The Law Offices of John A. Schlaff, John A. Schlaff; Law Office of
Barton Mark Senkfor and Burton Mark Senkfor for Defendant and
Appellant.
Feinberg, Mindel, Brandt & Klein, Irwin B. Feinberg, Benedon &
Serlin, Gerald M. Serlin and Kelly Riordan Horwitz for Plaintiffs and
Respondents.
Plaintiffs and respondents Kimberly Warneke and Courtney
Raspin brought this action to remove their step-father, defendant and
appellant John L. Bell, Jr., as trustee of the Toni Grant-Bell Trust (TGB
Trust), named after plaintiffs’ late mother. During a mandatory
settlement conference, the parties entered into a handwritten
agreement pursuant to which Bell would step down as trustee,
reimburse $65,000 to the trust, and verify the trust account contained
$2,068,000 in assets. Bell and Warneke personally attended the
conference and signed the agreement. Raspin, who had attended the
conference telephonically from London, authorized Warneke to sign the
agreement on her behalf. The agreement provided that it was subject to
enforcement under Code of Civil Procedure section 664.6, the statutory
provision for summary enforcement of a settlement agreement. 1
Plaintiffs subsequently filed a non-statutory (i.e., not based on
§ 664.6) verified petition to enforce the agreement. Bell opposed the
petition and argued the agreement was unenforceable, as Raspin had
failed to personally sign the agreement, as required by section 664.6.
During an interim hearing, the court inquired of plaintiffs’ counsel
whether Raspin could file a signed ratification of the agreement. When
counsel answered in the affirmative, the court issued a minute order
ordering her signature.
1 At the time of this action, former section 664.6 provided: “If parties to
pending litigation stipulate, in a writing signed by the parties outside the
presence of the court . . . for settlement of the case, or part thereof, the court,
upon motion, may enter judgment pursuant to the terms of the settlement. If
requested by the parties, the court may retain jurisdiction over the parties to
enforce the settlement until performance in full of the terms of the
settlement.”
Subsequent unspecified references are to the Code of Civil Procedure.
2
Several days before trial commenced on the issue whether the
agreement was enforceable, Bell filed an ex parte application to
continue trial, contending that his newly retained counsel had
purportedly discovered evidence in Bell’s former counsel’s file showing
that plaintiffs had committed fraud. The court denied the application.
Following a three-day trial, the court entered judgment
confirming the agreement in favor of plaintiffs. In doing so, the court
reasoned that Raspin’s personal signature was not required for the
agreement to be enforceable. The agreement merely provided for one
means to enforce the agreement through a section 664.6 motion.
Because plaintiffs did not proceed by way of section 664.6, the omission
of Raspin’s signature was irrelevant.
In this appeal, Bell contends the court erred by enforcing the
handwritten agreement unsigned by Raspin personally. He also
contends the court displayed judicial bias by ordering Raspin’s
ratification, and abused its discretion by denying his application to
continue trial. We reject these arguments and affirm.
BACKGROUND
A. The Toni Grant-Bell Trust (TGB Trust)
In anticipation of their marriage, Bell and plaintiffs’ mother, Toni
Grant-Bell, entered into a premarital agreement which provided that in
the event the couple moved into a residence together, title would be
taken in Grant-Bell’s name with Bell retaining a life estate. After
living out of state for approximately seven years, in 2001 the couple
3
moved to California and purchased a residence (the Alta Loma
residence) in which Bell and Grant-Bell held title as joint tenants.2
The Toni Grant-Bell Trust (TGB Trust), initially created in 1994,
was amended and restated in 2003. The amended trust provided that
in the event Grant-Bell predeceased Bell, Grant-Bell’s principal
residence would be allocated to a separate trust for Bell’s use, which
would then pass to the trust’s beneficiaries upon Bell’s death.
Grant-Bell also executed a will in 2003. In her will, Grant-Bell
provided that all of her jewelry and personal items shall pass to her
surviving children.
By early 2015, Grant-Bell was in declining health and residing in
an assisted living facility. Through his counsel (Barbara Taaff), Bell
initiated a conservatorship proceeding and was named Grant-Bell’s
conservator. Consistent with Grant-Bell’s estate plan, Bell filed a
petition for substituted judgment, and sought authorization to transfer
the Alta Loma residence to the TGB Trust and transfer Grant-Bell’s
jewelry to plaintiffs. On July 13, 2015, the probate court entered
judgment approving the requested transfers.3 Two months later, Bell
filed for divorce from Grant-Bell. Grant-Bell passed away on March 27,
2016.
2 The couple purchased two additional units in the same Alta Loma
building in 2002 and 2012, each taking title as joint tenants. Those units are
not at issue in this appeal.
3 The court also authorized Bell to transfer the two Alta Loma units held
jointly by Bell and Grant-Bell to himself individually as his sole and separate
property.
4
B. The Underlying Trust Proceedings and Settlement Agreement
On August 2, 2016, plaintiffs, named beneficiaries in the TGB
Trust, filed a petition to remove Bell as successor trustee of the TGB
Trust, confirmation of the character of trust property, enforcement of
the terms of the trust, an accounting, and surcharge and disgorgement
of trustee and attorney fees. In the petition, plaintiffs alleged Bell had
failed to return their mother’s jewelry, and sold the Alta Loma
residence for $3.5 million, using the proceeds to purchase his own
residence. Bell had covered up the self-dealing by failing to provide
plaintiffs an accounting.
Bell filed a first accounting of the TGB Trust on April 17, 2017. In
it, Bell admitted he had commingled proceeds from the sale of the Alta
Loma residence with his own assets in a bank account he jointly held
with Grant-Bell. He also admitted that he had disbursed into the same
account over $235,000 in insurance proceeds from the loss of Grant-
Bell’s engagement ring. Bell alleged he had returned to the trust “the
amounts he believed were due the trust” from his commingling of funds.
Plaintiffs filed a petition to recover trust property in September
2017, and alleged inter alia that Bell’s real estate transactions
dispossessed the TGB Trust of valuable consideration for the Alta Loma
residence, and cost the trust approximately $600,000 in unnecessary
losses.
The court ordered the parties to attend a March 23, 2018
mandatory settlement conference. Based on their places of residence
(Raspin lived in England; Warneke in Texas), the settlement judge
5
excused each plaintiff from physically attending the conference so long
as each were available by telephone. Nonetheless, Warneke physically
attended the settlement conference, and along with her and Raspin’s
counsel, reached a settlement with Bell and his attorney.
Plaintiffs’ counsel memorialized the terms of the settlement in a
handwritten document entitled “Settlement Agreement.” The
agreement provided in part that Bell would resign as trustee, reimburse
the trust $65,000 upon appointment of the successor trustee, provide an
updated accounting, and verify a current statement of all trust assets
on March 26, 2018. Another provision stated that the agreement was
“subject to” verification that the trust account balance was “~$2,068,00
[sic].” Finally, the agreement stated that it was “subject to CCP § 664.6
and the court shall retain jurisdiction to enforce its terms,” and “subject
to CCP § 1542 wherein all parties agree to waive any and all claims
against the other, known or unknown.” With regard to these provisions,
the agreement declared that “Warneke represents that she has the
authority to sign on behalf of Courtney Raspin.” Bell, Warneke, and
Raspin “by Kim Warneke” signed the document. Counsel for Bell and
plaintiffs also signed the agreement as to form and content.
In a March 28, 2018 minute order, the court noted the parties had
reached a settlement, after which Bell requested a continuance to
petition for an approval of the agreement, and to amend the accounting.
The court ordered both to be done no later than May 15, 2018.
On March 24, 2018 (the day after the parties reached a settlement
at the settlement conference), Bell’s counsel emailed plaintiffs’ counsel
6
two account statements under the TGB Trust verifying a total valuation
of $2,068,488.
C. The Petition to Confirm the Settlement Agreement
Plaintiffs did not receive an amended accounting in 2018.4 On
February 4, 2019, they filed a verified petition, supported by signed
declarations by Warneke and Raspin, to confirm the handwritten
agreement. Plaintiffs sought a judgment enforcing the agreement,
which was attached to the petition, and attested to by Warneke and
Raspin as being “[s]igned by all parties and counsel” and “fully
executed.”
In an objection to the verified petition, Bell argued that the
agreement could not be enforced in part because Raspin did not
personally sign it, as was required under section 664.6. When
discussing the objection with counsel the day after it was filed, the court
asked if plaintiffs’ counsel could have Raspin “just sign it again?” When
counsel affirmed that he could obtain the signature, the court stated,
“That will ratify her signature that she had authority to sign.” The
court then bifurcated Bell’s accounting from the determination whether
the agreement was enforceable, and set the matter for a court trial on
July 29, 2019.
On June 19, 2019, Bell filed a written declaration in which he
declared, “I hereby revoke my offer to stipulate to settling this case.”
4 The first accounting filed by Bell made in response to the court’s order
was on May 28, 2019, following another court order to provide an updated
accounting.
7
One day later, Raspin filed a signed declaration in which she
“approve[d], ratif[ied], and confirm[ed]” her consent and agreement to
be bound by the agreement.
During a three-day trial beginning July 29, 2019, Warneke
testified that she participated in the settlement conference and was
present when the parties reached an agreement. Raspin testified that
while she was not personally present at the settlement conference, she
participated through telephonic communication with her sister and
their counsel. When the parties reached an agreement, Raspin
reviewed a photograph taken of the handwritten agreement,
communicated with Warneke about its terms, and directed Warneke to
sign the agreement on her behalf.
Bell testified that he too had signed the handwritten agreement.
He also admitted that the agreement stated that he was to provide a
“statement of assets in the approximate amount of $2,068,000.”
At the conclusion of trial, Bell moved for nonsuit based on the
omission of Raspin’s signature from the agreement. After finding
plaintiffs’ verified petition to confirm to be a different proceeding than
contemplated under section 664.6, the court denied the motion.
The court issued a proposed judgment and tentative statement of
decision confirming the handwritten agreement and entering judgment
for plaintiffs. Following Bell’s objections to the tentative statement of
decision, the court adopted its proposed judgment and tentative ruling
as final. It reasoned that while Raspin was not required to personally
sign the agreement, she had essentially done so by filing ratifications
(through the verified petition and declaration) confirming her personal
8
assent to the agreement’s terms. Bell’s primary argument—that the
agreement was unenforceable under section 664.6—ignored the posture
of the case, as plaintiffs did not bring the petition to confirm under
section 664.6, “and nowhere in that Petition do [plaintiffs] reference
said section.” The court also noted that Bell had admitted the trust
account held approximately $2,068,000 in assets.
DISCUSSION
A. The Settlement Agreement is Enforceable
Bell asserts the settlement agreement is unenforceable because a
“material” term of the agreement, that it “is subject to CCP § 664.6,”
required Raspin’s personal signature, the omission of which negated a
“meeting of the minds.”
We note that Bell did not argue in the trial court that the section
664.6 provision in the agreement was “material,” or that Bell’s assent to
the agreement was conditioned on plaintiffs personally signing the
agreement at the settlement conference. (See Fuller v. Department of
Transportation (2019) 38 Cal.App.5th 1034, 1041 (Fuller) [“Where the
parties try the case on the assumption that certain issues are raised by
the pleadings, or that a particular issue is controlling, neither party can
change this theory for purposes of review on appeal”].) Bell has thus
forfeited this argument on appeal.5
5 Bell also appears to have forfeited this argument for failure to address
the trial court’s principal finding that plaintiffs did not bring their petition to
confirm under section 664.6. (See Denham v. Superior Court (1970) 2 Cal.3d
557, 564 (Denham) [an order of the trial court is presumed correct, and an
9
Even considering Bell’s contention on the merits, we find no error.
A motion to enforce or confirm a settlement agreement, whether or not
brought under section 664.6, requires the trial court to determine “in
the first instance whether the parties have entered into an enforceable
settlement.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360
(Osumi); Terry v. Conlan (2005) 131 Cal.App.4th 1445, 1454.) In doing
so, the court may consider oral testimony or declarations to determine
whether the parties understood and agreed upon material terms of the
settlement. (Osumi, supra, at p. 1360; see Cheema v. L.S. Trucking,
Inc. (2019) 39 Cal.App.5th 1142, 1149 (Cheema) [failure to reach a
“‘meeting of the minds on all material points’” in agreement prevents
formation thereof].) The court simply decides what terms the parties
themselves have agreed upon; the court is without authority to create
additional terms. (Osumi, supra, at p. 1360.)
We review the trial court’s factual findings on a motion to enforce
or confirm a settlement agreement for substantial evidence, and
interpret the terms of the agreement de novo. (Osumi, supra, 151
Cal.App.4th at p. 1360; Karpinski v. Smitty’s Bar, Inc. (2016) 246
Cal.App.4th 456, 461.)
We conclude that under any standard of review, the agreement
did not condition its enforceability on the parties’ personal signatures.
The provision Bell identifies states that the agreement “is subject to
CCP § 664.6.” This simply affirms the parties’ ability to utilize 664.6 as
appellant has the burden of affirmatively showing error]; In re Sade C. (1996)
13 Cal.4th 952, 994 [appellant “must raise claims of reversible error or other
defect [citation], and ‘present argument and authority on each point made’”].)
10
one of several means of enforcing the agreement. (See Founding
Members of the Newport Beach Country Club v. Newport Beach Country
Club, Inc. (2003) 109 Cal.App.4th 944, 955 [the words of an agreement
are to be construed in their ordinary and popular sense]; Gauss v. GAF
Corp. (2002) 103 Cal.App.4th 1110, 1122 (Gauss) [§ 664.6 is one of
several ways in which a party litigant can enforce a settlement
agreement]; Levy v. Superior Court (1995) 10 Cal.4th 578, 583 [same].)
In other words, the Agreement contemplated use of section 664.6, but
did not itself impose the requirements set forth in the statute.
Bell’s subjective interpretation requiring the parties’ respective
signatures is also unsupported by the record. Bell has introduced no
evidence (outside of the agreement itself) to suggest that Bell, plaintiffs,
or their respective counsel understood that each party was required to
personally sign the agreement for it to be enforceable. On the contrary,
plaintiffs established they had been personally excused from attending
the settlement conference. In fact, Bell signed the agreement with the
understanding that Warneke had authority to sign for Raspin. Under
the circumstances, and without any conflict in the evidence, we
conclude that the parties did not intend to condition the enforceability
of the agreement on their personal signatures. (See Wolf v. Walt Disney
Pictures & Television (2008) 162 Cal.App.4th 1107, 1126–1127.)6
6 We also fail to see how this provision constitutes an essential term of
the agreement such that its ambiguity renders the entire agreement
unenforceable. (See Cheema, supra, 39 Cal.App.5th at p. 1149 [terms of an
agreement need not be stated “‘in the minutest detail,’” but must evidence a
meeting of the minds “‘upon the essential features of the agreement’”].) The
material terms and respective considerations given by each party to the
11
Even if Bell’s subjective interpretation were accepted, Raspin did
provide a physical signature verifying her assent—she filed a verified
petition to confirm the agreement before Bell filed a written revocation.
“Nothing in the statutory language suggests that, in a multiparty
action, all parties must agree to the settlement in the same manner.
And as long as the parties agree to the same material terms . . . the
purpose of section 664.6 is satisfied.” (Elyaoudayan v. Hoffman (2003)
104 Cal.App.4th 1421, 1428.) By filing a signed verification in support
of her petition to confirm the agreement and all of its terms, Raspin
satisfied the very condition on which Bell contends was required to
enforce the agreement. (Compare id. at pp. 1424–1425, 1429 [enforcing
settlement agreement after several litigants assented on the record
while other litigants executed a written agreement outside of court];
Gallo v. Getz (1988) 205 Cal.App.3d 329, 333–334 [plaintiff manifested
assent to agreement by accepting, endorsing, and depositing into his
account a bank draft sent as part of consideration for settlement];
Gauss, supra, 103 Cal.App.4th at p. 1121 [plaintiffs presented “no
writing signed by [defendant] indicating [its] consent to settle their
lawsuits”].)
B. Plaintiffs Were Not Required to Reform the Agreement Prior to
Filing Their Petition to Confirm
agreement pertain to the distribution and management of trust assets. The
parties’ memorialization of a statutory right to which they were already
entitled can hardly be deemed essential.
12
Bell contends plaintiffs were required to file a cause of action to
reform two ambiguous provisions within the agreement prior to filing
their petition to confirm. Those provisions are: (1) “This Agreement is
subject to CCP § 1542 wherein all parties agree to waive any and all
claims against the other, known or unknown”;7 and (2) “The agreement
is subject to verification of the account balance stated as ~$2,068,00
[sic].”
Bell never argued in the trial court that plaintiffs were required in
the first instance to file a reformation action. His failure to raise this
issue in the trial court constitutes a forfeiture on appeal. (Fuller, supra,
38 Cal.App4th at p. 1041; In re Marriage of Nassimi (2016) 3
Cal.App.5th 667, 695.)
The argument is meritless in any event. The trial court did not
reform the agreement to create material terms of the settlement; it
simply decided what terms the parties themselves had previously
agreed upon. (See Osumi, supra, 151 Cal.App.4th at p. 1360; In re
Marriage of Assemi (1994) 7 Cal.4th 896, 905 [a motion to enforce a
settlement deemed appropriate “even when issues relating to the
binding nature or terms of the settlement are in dispute”].) Bell
conceded at trial that he was required to, and did in fact, verify the
7 It is undisputed that the parties did not intend to reference Code of
Civil Procedure section 1542, which sets forth rights and responsibilities with
respect to the recovery of escheated property, but instead intended to
reference Civil Code section 1542. That statute provides: “A general release
does not extend to claims that the . . . releasing party does not know or
suspect to exist in his or her favor at the time of executing the release and
that, if known by him or her, would have materially affected his or her
settlement with the . . . released party.”
13
trust held $2,068,000 in assets. Bell also does not dispute that the
parties intended to reference section 1542 of the Civil Code, not the
Code of Civil Procedure, when discussing waiver of claims. The
judgment simply conforms to the parties’ intent.
C. Judicial Bias
1. Relevant Background
During a May 29, 2019 hearing to discuss Bell’s objection to
plaintiffs’ verified petition to enforce, Bell’s counsel noted that Raspin
had not personally signed the agreement. The following colloquy
ensued:
“THE COURT: Let me stop you for a second. [¶] Are we getting
the signature of the person that didn’t sign it? [¶] . . . [¶]
“THE COURT: So it was signed?
“[PLAINTIFF’S COUNSEL]: Yes. It was signed by Ms. Warneke
on behalf of her sister. . . .
“THE COURT: And she was on the phone at the time?
“[PLAINTIFF’S COUNSEL]: She was. [¶] . . . [¶]
“THE COURT: Hold on for a second. [¶] Can she just sign it
again?
“[PLAINTIFF’S COUNSEL]: Yes.
“THE COURT: Why don’t’ we do that?
“[PLAINTIFF’S COUNSEL]: Fine.
“THE COURT: That will ratify her signature that she had
authority to sign.”
14
Following the three-day trial, Bell filed a motion for new trial and
argued, inter alia, that the court’s order to have Raspin ratify the
agreement constituted an irregularity in the proceedings, as the court
provided guidance on how to “fix the problems created by . . . Raspin’s
failure to execute” the agreement. The court denied the motion,
reasoning in part that Raspin had ratified the agreement in her verified
petition to confirm before the court inquired of and ordered her written
ratification.
2. Analysis
Bell contends that the trial court’s order for counsel to obtain
Raspin’s ratification of the agreement deprived him of his due process
right to an unbiased judge.
Plaintiffs contend, and we agree, that Bell has forfeited this
argument for the failure to raise the issue in a timely manner. Civil
litigants have a constitutional due process right to an unbiased judge.
(Tri Counties Bank v. Superior Court (2008) 167 Cal.App.4th 1332,
1339.) “Nevertheless, a litigant should seek to resolve such issues by
the required statutory means and ‘his negligent failure to do so may
constitute a forfeiture of his constitutional claim.’ [Citation.] This is
particularly true in civil cases where ‘a constitutional question must be
raised at the earliest opportunity or it will be considered to be waived.’
[Citations.]” (Ibid.; accord, Moulton Niguel Water Dist. v. Colombo
(2003) 111 Cal.App.4th 1210, 1218.) Well aware of the asserted ground
for disqualifying the trial judge months before trial commenced (see
§§ 170.1, subds. (a)(2)(A) & (a)(6)(A)(iii), 170.3, subd. (c)), Bell waited
15
several months (until after trial and an adverse judgment) to assert his
claim of judicial bias. The failure to timely object renders Bell’s claim
on appeal forfeited.
In any event, viewed in context, the trial court’s statements and
order did not violate Bell’s right to an unbiased judge. The standard of
judicial bias is an objective one, focusing on “those circumstances where,
even if actual bias is not demonstrated, the probability of bias on the
part of a judge is so great as to become ‘constitutionally intolerable.’”
(People v. Freeman (2010) 47 Cal.4th 993, 1001.) Cases of judicial bias
are “generally are confined to ‘the exceptional case presenting extreme
facts’” (Today’s Fresh Start, Inc. v. Los Angeles County Office of
Education (2013) 57 Cal.4th 197, 219) in which the judge’s conduct
“‘was so prejudicial that it denied’” the complaining party a fair trial.
(People v. Snow (2003) 30 Cal.4th 43, 78.)
The trial court’s statement and order are not an exceptional case
in which the trial judge’s conduct colored the record with actual or
reasonably perceptible bias. Bell was never denied a fair or adversarial
proceeding. He remained free to, and did in fact, challenge the
agreement’s enforceability in light of the omitted signature. As we have
discussed, Raspin had already manifested written assent to the terms of
the agreement by giving Warneke authority to sign on her behalf, and
by later filing a verified petition to confirm even before the court
ordered her signed ratification. In short, the court’s directive was
simply a common sense and unremarkable method of resolving a
potential issue. On pain of being accused of partiality, trial courts are
not required to ignore practical and obvious procedural solutions.
16
D. Motion for Continuance
1. Relevant Proceedings
Three court days before trial was set to commence, Bell filed an ex
parte application to continue trial. In the application, Bell argued he
had substituted in lead counsel, Walter Weiss, 85 days prior, and in the
course of reviewing “certain documents within the files of predecessor
counsel less than thirty days ago . . . Mr. Weiss discovered a set of
notes” of alleged fraud on behalf of Barbara Taaff, Bell’s counsel in the
conservatorship proceeding. “Weiss and others aiding him in preparing
for trial of this matter” discovered the notes “[a]pproximately three
weeks ago.” Bell argued that Taaff’s notes, which were attached to the
application, referenced legal advice she had given plaintiffs for
proceeding against Bell, as well as counseling Bell to fund the TGB
Trust with his “sole and separate property.”8 Bell asserted he needed
more time to explore plaintiffs’ role in “misleading [Bell]’s prior counsel
into setting in motion the funding of the TGB Trust.”
8 It is unclear who authored the handwritten notes, which are dated
between May 2015 and February 2016. As best we can read them, the notes
stated in part: “[Courtney] is waiting to speak to John re receipt for
jewelry. . . . [¶] She & Kimberly don’t have (or want to spend) the money on
a conservatorship”; “Kimberly is afraid of what John might do to her if she
were appointed [conservator] and making decisions about hiring family law
attorney for mom. Advised them to get their own attorney to petition for appt
of PPF. They don’t want to spend the money; informed her they could be
repaid from mom’s estate if allowed by the court”; “Traded penthouse for
larger unit on 10th floor. Is that allowed under terms of trust? [¶] Can he
sell it?”
17
At a hearing on the ex parte application, Bell argued that
plaintiffs had “engineered the conservatorship” by having the trust
funded with Bell’s separate property. Plaintiffs opposed the
application, and argued the handwritten notes did not evidence
wrongdoing or extrinsic fraud. Following argument of counsel, the
court denied the ex parte application.
2. Analysis
Trial dates are regarded as “firm.” (Cal. Rules of Court, rule
3.1332(a).) Trial continuances “are disfavored,” and may be granted
“only on an affirmative showing of good cause requiring the
continuance.” (Id., rule 3.1332(c); see In re Marriage of Falcone & Fyke
(2008) 164 Cal.App.4th 814, 823.)
The denial of a request for a continuance of trial may not be
reversed on appeal absent a clear showing of an abuse of discretion.
(Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395;
Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) The appellant bears
the burden of demonstrating from the record that such an abuse
occurred. (Denham, supra, 2 Cal.3d at p. 566.)
Bell has not shown that the trial court abused its discretion in
denying his application for a continuance. The rules of court list seven
different circumstances indicating “good cause.” (See Cal. Rules of
Court, rule 3.1332(c).) Only one circumstance was raised in Bell’s
application, namely “[a] party’s excused inability to obtain essential
testimony . . . or other material evidence.” (Ibid.) But that exception
18
requires proof of diligent efforts. (Ibid.; see Kuhland v. Sedgwick (1860)
17 Cal. 123, 128 [“absence of evidence is no cause for a continuance,
unless reasonable diligence has been used to procure it”].) Bell has
never established when he or any of his counsel, current or former,
procured Taaff’s handwritten notes, or when those notes were initially
reviewed. Without any additional information provided by Bell, his
then-recently retained counsel’s discovery of the notes already in Bell’s
possession cannot be deemed reasonably diligent.
Moreover, Bell has not demonstrated how the court’s denial of his
ex parte application prejudiced him. (People v. Barnett (1998) 17
Cal.4th 1044, 1125.) Taaff’s handwritten notes, made years before
plaintiffs filed this action to remove Bell as successor trustee, do not
establish or even imply extrinsic fraud or unclean hands. (See 8
Witkin, Cal. Procedure (5th ed. 2020) Attack on Judgment in Trial
Court, § 225, p. 832 [essential characteristic of extrinsic fraud is that it
prevents a fair adversary hearing, keeps a party ignorant of the action,
or fraudulently prevents another from presenting a claim or defense];
Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820,
846 [misconduct which brings clean hands doctrine into operation
“‘must relate directly to the transaction concerning which the complaint
is made, i.e., it must pertain the very subject matter involved and affect
the equitable relations between the litigants’”].) As conceded by Bell in
the conservatorship action, the premarital agreement provided that
Grant-Bell’s primary residence would be held of title by her
individually. The TGB Trust also provided that Grant-Bell’s residence
would be held in trust for Bell’s use during his lifetime before passing to
19
the plaintiffs as the trust’s beneficiaries. The court’s substituted
judgment conveying the Alta Loma residence, Grant-Bell’s primary
residence, to the TGB Trust simply conformed to the intent of the
premarital agreement, and to the terms of the TGB trust.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
WILLHITE, J.
We concur:
MANELLA, P. J.
CURREY, J.
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