Filed 6/27/24 Donkin v. Federizo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

ANNEMARIE DONKIN et al.,

Plaintiffs and Respondents,

v.

AILEEN FEDERIZO, as Interim 

Trustee, etc.,

Defendant and Respondent;

MATTHEW DONKIN et al.,

Appellants.

 B323043

 (Los Angeles County

 Super. Ct. No. BP109463)

 ORDER MODIFYING 

 OPINION (NO CHANGE 

 IN THE JUDGMENT)

The opinion in the above-entitled matter filed on May 30, 

2024 is modified as follows:

On page 7, the language in footnote 5 is deleted and 

replaced with the following:
2

Matthew’s notice is captioned as a notice of cross-appeal. 

Because Matthew’s cross-appeal is the only challenge currently 

before us, we refer to Matthew’s challenge simply as an appeal, 

rather than a cross-appeal.

This modification does not constitute a change in the 

judgment.

____________________________________________________________

ROTHSCHILD, P. J. BENDIX, J. WEINGART, J.
Filed 5/30/24 Donkin v. Federizo CA2/1 (unmodified opinion)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

ANNEMARIE DONKIN et al.,

Plaintiffs and Respondents,

v.

AILEEN FEDERIZO, as Interim 

Trustee, etc.,

Defendant and Respondent;

MATTHEW DONKIN et al.,

Appellants.

 B323043

 (Los Angeles County

 Super. Ct. No. BP109463)

APPEAL from orders of the Superior Court of Los Angeles 

County, Ana Maria Luna, Judge. Affirmed.

Matthew E. Donkin, in pro. per., for Appellant.

No appearance for Appellant Christopher Donkin.

Mark H. Boykin for Plaintiffs and Respondents Annemarie 

Donkin and Lisa Kim.

Rodnunsky & Associates and Yevgeny L. Belous for 

Defendant and Respondent Aileen Federizo, as Interim Trustee, 

etc.
2

Matthew Donkin appeals from two probate orders

regarding the trust of his grandparents: one requiring the sale 

of a property in the trust and one requiring liquidation of the 

trust’s assets. He argues that his contingent interest in the 

trust entitled him to notice of the proceedings leading to these 

orders, and that because he and other contingent beneficiary 

grandchildren did not receive such notice, the orders are void. 

We conclude that neither the Probate Code nor due process 

required notice to Matthew1 of the petitions or proceedings 

resulting in the challenged orders. 

Matthew also challenges the order appointing an interim 

trustee, respondent Aileen Federizo, as void for lack of proper 

service on any party. Even assuming Matthew has standing to 

challenge this order, we conclude it is not void for lack of proper 

service. 

Finally, Matthew argues the probate court erred in 

declining to enforce the trust’s no contest provisions, which he

contends were triggered by the petition to liquidate the trust 

assets. Because Matthew had the opportunity to raise this issue 

below and did not, he has forfeited the argument. 

Accordingly, we affirm the orders.

FACTUAL BACKGROUND AND PROCEEDINGS BELOW

A. The Trust

In August 1988, Rodney E. Donkin and Mary E. Donkin, 

a married couple, executed a revocable trust as part of their 

1 To avoid confusion, we use first names to identify the 

various members of the Donkin family involved in the events 

and proceedings leading to this appeal. No disrespect is intended 

thereby.
3

estate plan, which they then amended in 2002.2 According to the 

trust document, the primary beneficiaries of the trust after the 

death of both trustors were their children: Rodney E. Donkin, Jr.

(Rodney Donkin, Jr.), Lisa, and Annemarie. “Rodney Jr. and his

wife Vicki R. Donkin were named as ‘first’ co-successor trustees, 

while Lisa and Annemarie were . . . ‘second’ co-successor 

trustees.”3 (Donkin II, supra, B266036, capitalization omitted.)

The trust provides that, upon the death of the first trustor 

(the predeceasing spouse or decedent), “the trustee shall divide 

the trust estate into two . . . separate shares” (capitalization 

omitted): (1) the “Survivor’s Trust” (Trust A), consisting of the 

surviving spouse’s interest in Trustors’ community property and 

the surviving spouse’s separate property, and (2) the “Decedent’s 

Marital Share,” consisting of the predeceasing spouse’s interest 

in the community property and the predeceasing spouse’s 

separate property. (Underscoring omitted.) Upon the death of 

the surviving spouse, the trust requires the trustee to further 

divide the decedent’s marital share into decedent’s Trust B and 

decedent’s Trust C. The trustee is to include in Trust B only 

assets in an amount up to the maximum marital deduction from 

federal estate tax, and to allocate the remainder of the marital 

share to Trust C. 

2 The effect of the 2002 amendment is not at issue on 

appeal.

3 In our March 2017 unpublished opinion, Donkin v. 

Donkin (Mar. 29, 2017, B266036) (Donkin II), we summarized 

many of the key underlying facts of the dispute between the 

parties. We replicate portions of that summary as relevant here. 
4

In 2002, Rodney, Sr., died. Under the terms of the trust, 

this rendered the decedent’s trust, both the Trust B and Trust C 

portions thereof, irrevocable.

The trust further provides that, “upon the death of the

surviving spouse [Mary], the trustee shall hold, administer and 

distribute the trust in the following manner.” (Capitalization 

omitted.) The provisions that immediately follow require the 

trustee to do various things not relevant to the instant appeal 

(for example, dispose of personal property and make special 

distributions under certain circumstances). Then, “[w]hen 

[these] conditions are satisfied, the debts and obligations of 

the trust estate have been paid, and any special bequests have 

been distributed, the trustee shall allocate and divide [the] trust 

estate as then constituted into separate shares so as to provide 

one share for each of the designated primary beneficiaries[—as 

noted, the trustors’ children, Rodney, Jr., Lisa, and Annemarie—] 

living at the death of the surviving [trustor].” (Capitalization 

omitted.) Finally, the trust requires that “the trustee . . . 

distribute the shares allocated to primary beneficiaries outright 

as soon as is practicable.” (Capitalization omitted.)

The trust also provides instruction on how the trustee 

should proceed in the event that a primary beneficiary dies after 

the trustee has divided the trust estate into shares for each of 

the primary beneficiaries, but before the trustee has distributed 

those shares. Namely: “After division into shares . . . upon 

the death of a primary beneficiary . . . prior to [the] complete 

distribution of his or her share,” the remaining undistributed 

balance of their share shall be distributed to the deceased 

primary beneficiary’s then-living issue pursuant to an age and 

percentage formula. (Capitalization omitted.) “If a primary 
5

beneficiary has no such issue, the remaining balance of their 

share shall be distributed to the [trustors’] then living issue.” 

(Capitalization omitted.) Currently, there are six living 

individuals who are issue of the primary beneficiaries: Matthew

Donkin, Kathryn Rose Donkin, Christopher Kenneth Donkin, 

and Robert Craig Donkin—all of whom are the children of 

Rodney, Jr.—and Lisa’s children: April Kim Cortesi and 

Laura Kim Shaunessy. Of these six individuals (the secondary 

beneficiaries), only Matthew is a party to the instant appeal.4

In 2004, shortly before her own death, Mary executed an 

amendment to the trust. The amendment “substituted a new 

paragraph regarding the allocation of the trust assets after her 

death as the surviving spouse. Instead of directing an immediate 

allocation and division of the assets into separate shares for 

the beneficiaries, the new paragraph grants the successor 

trustees— . . . initially, . . . Rodney Jr. and Vicki—‘complete 

discretion’ after the death of Mary to retain the assets of the 

family trust intact and to continue to manage the property for 

the equal benefit of the primary beneficiaries. Among other 

things, the new paragraph granted the successor trustees 

‘sole discretion’ over distribution of income and principal from 

the trust to the beneficiaries.” (Donkin II, supra, B266036, 

capitalization omitted.) The language in the contested 

amendment did not differentiate between Trusts A, B, and C.

In the unpublished portion of the April 3, 2020 opinion, however, 

we concluded that this amendment could only apply to the 

surviving spouse’s trust (Trust A), because at the time Mary 

4 Christopher signed the notice of appeal as well, but has 

not made an appearance in the appeal. 
6

executed the 2004 amendment, both the Trust B and Trust C 

portions of the decedent’s trust had already become irrevocable.

(Donkin v. Donkin (Apr. 3, 2020, B293127) (Donkin III).) 

We further concluded that the terms of the trusts required

distribution of Trusts B and C to beneficiaries “ ‘ “as soon as is 

practicable” ’ ” after Mary’s death and did not permit the trustees 

to continue to administer Trusts B and C as spendthrift trusts 

for any longer after Mary’s death than necessary to address 

the special scenarios addressed in the trust, calculate the 

primary beneficiaries’ shares, and prepare the trust assets 

for distribution according to those shares.

In 2005, Mary died, at which point the Trust A portion 

of the trust became irrevocable as well.

B. Prior Litigation and Appeals Regarding 

No Contest Clause

The trust contains a no contest clause. The 2004 

amendment, which we have concluded applies only to Trust A, 

also includes a no contest clause. For several years beginning 

in 2008, Rodney, Jr., and Vicki, as trustees, and the primary 

beneficiaries besides Rodney, Jr. (Lisa, and Annemarie), litigated 

the no contest clauses resulting in one California Supreme Court 

decision, Donkin v. Donkin (2013) 58 Cal.4th 412, 416 (Donkin I), 

and multiple Court of Appeal decisions, including Donkin II and 

Donkin III. The final reviewing court determined that none of 

the conduct at issue triggered a no contest clause. 
7

C. Petitions at Issue in Challenged Orders

The two orders identified in Matthew’s notice of appeal5

are: (1) An April 13, 2022 order (the Baker property order) 

granting a May 10, 2021 petition of interim trustee Aileen 

Federizo6 requesting instructions to sell a property known as the 

Baker property (the Baker property petition); and (2) an April 25, 

2022 order (the liquidation order) granting Annemarie’s May 7, 

2019 petition to instruct the interim trustee to terminate and 

distribute the trust (the liquidation petition).

The proof of service for the liquidation petition reflects that 

it was served on Matthew by mail in 2019 at the Baker property 

address. The proof of service for the Baker property petition 

reflects that it was served on Matthew by mail in March 2021 at 

an address in Florida on Belle Grande Avenue (the Belle Grande 

address). Per a declaration Matthew would later file with the 

5 Matthew’s notice is correctly captioned as notice of crossappeal, given that Rodney, Jr., and Vicki had already appealed 

the orders Matthew identifies in his notice. After Rodney, Jr.,

and Vicki twice failed to file the requisite documents to prosecute 

their appeal, however, this court dismissed it. Matthew’s crossappeal is thus the only challenge currently before us. To avoid 

confusion, we refer to Matthew’s challenge simply as an appeal, 

rather than a cross-appeal.

6 Aileen Federizo is a professional fiduciary and not related 

to the Donkin family. Because we refer to all other individuals 

by their first name, however, we refer Aileen in this way as well. 

No disrespect is thereby intended. The court memorialized 

its appointment of Aileen as interim trustee in a December 13, 

2018 order. We discuss additional details regarding Aileen’s 

appointment below as needed.
8

court, he did not live at either of these addresses at the times the 

petitions were served.

The record contains proofs of service filed with the court 

reflecting that in 2021, Matthew was served with notice of the 

hearing on the Baker property petition by mail, as well as a 

continuance of that hearing, at an address in West Virginia 

on Craighill Drive (the Craighill address). Per a declaration 

Matthew would later file with the court, he was living at the 

Craighill address at the time of these mailings.

1. Objections based on notice to secondary 

beneficiaries

Rodney, Jr., and Vicki objected to the liquidation petition

based on, inter alia, lack of sufficient notice to the secondary 

beneficiaries, including Matthew. They did not make this 

same objection to the Baker property petition. They, however, 

did object to Annemarie’s October 4, 2016 petition involving, 

inter alia, the sale of the Baker property, based on lack of 

sufficient notice to the secondary beneficiaries. Rodney, Jr., and 

Vicki’s objections alleged both a failure to even attempt to give 

notice to some secondary beneficiaries, and the use of inaccurate 

addresses for sending notices to some secondary beneficiaries, 

including Matthew. Rodney, Jr., and Vicki filed proofs of service 

attesting to having mailed copies of their objections in October 

2016 and June 2019 to, inter alia, Matthew at the Belle Grande

address. Per a declaration Matthew would later file with the 

court, he was living at the Belle Grande address at both times. 

In August 2021 briefing, Rodney, Jr., and Vicki reiterated 

their objections based on insufficient notice to the secondary 

beneficiaries.
9

2. Trial and tentative rulings on petitions

The court heard the liquidation petition, the Baker 

property petition, and the October 4, 2016 petition involving 

the Baker property on various days between August 17, 2022 

and September 8, 2022. On September 8, 2022, the court 

issued tentative rulings denying the October 4, 2016 petition, 

granting the Baker property petition, and partially granting the 

liquidation petition. The court overruled Rodney, Jr. and Vicki’s 

objections regarding notice to the secondary beneficiaries, but 

“direct[ed] [counsel] to give notice of the tentative [rulings] to 

the [primary and secondary beneficiaries].” The court further 

directed Annemarie, Rodney, Jr., and Lisa “to provide the current 

or last known addresses of their children to Aileen Federizo 

by [September 15, 2021]” and set an October 19, 2021 deadline 

for the secondary beneficiaries to object to the tentative rulings, 

“otherwise they will be deemed waived and the court will adopt 

the tentative ruling as its final ruling on [November 19, 2021].” 

(Capitalization omitted.) Counsel provided notice of the tentative 

rulings to, inter alia, all secondary beneficiaries, including 

Matthew. This notice was sent to Matthew at the Craighill 

address. Per a declaration Matthew would later file with the 

court, he was living at the Craighill address at the time this 

notice was sent.

3. Secondary beneficiary objections to the 

tentative rulings and court’s final orders

Four of the six secondary beneficiaries—Matthew, 

Christopher, Robert, and Kathryn—filed a joint set of objections 

to the court’s rulings based entirely on the lack of effective 

notice to all secondary beneficiaries. They also requested 

a written statement of decision. The objections were signed 
10

by and supported by Matthew’s and Christopher’s declarations. 

Matthew’s declaration states that he lived at the Belle Grande

address “[f]rom 2015 to 2019.” He also identifies his “current[ ]”

address—that is, his address as of October 2021 when he 

executed the declaration—as the Craighill Drive address, and 

further states that he had not lived at the Baker property since 

2010.

On January 21, 2022, the court held a hearing at which 

it considered these objections to the tentative rulings. Matthew 

and Christopher appeared at this hearing. The court overruled 

all objections on the basis that notice to the secondary 

beneficiaries was not required by statute, and thus any failure 

to provide sufficient notice of the petitions to them was not 

a basis for changing the court’s tentative rulings. The court 

explained that it had “ordered that notice be given [to the 

secondary beneficiaries] in an abundance of caution, so everybody 

was clear what was going to be happening with these properties.” 

The court declined to provide a written statement of decision and 

adopted its September 8, 2021 tentative rulings as final. These 

rulings were ultimately memorialized in orders dated April 13, 

2022 and April 25, 2022, respectively.

Matthew timely appealed, identifying the April 13, 2022 

and April 25, 2022 orders as the subjects of his appeal.

DISCUSSION

A. Notice to Secondary Beneficiaries

Matthew contends that, based on his and the other 

secondary beneficiaries’ contingent interests in the trust—that 

is, their entitlement to receive the shares of Trusts B and C 

allocated to their respective parents if such parents die after the
11

trustee divides the trust assets into shares, but before the trustee

distributes those shares—he and all other secondary beneficiaries 

were entitled to notice in the trust proceedings. He contends 

that he and the other secondary beneficiaries did not receive the 

required notice regarding the liquidation petition, Baker property 

petition, and related hearings, and that, as a result, the Baker 

property order and the liquidation order are void. We disagree 

with Matthew that his status as a secondary beneficiary entitled 

him to notice either under the applicable statutes or as a matter 

of due process.

1. Statutory notice requirements

In arguing he is entitled to notice, Matthew relies on 

Probate Code section 17203,7 which describes the service 

required for petitions initiating probate proceedings, in relevant 

part, as follows: “At least 30 days before the time set for the 

hearing on the petition, the petitioner shall cause notice of 

hearing to be delivered pursuant to Section 1215 to all of 

the following persons: [¶] . . . [¶] (2) All beneficiaries, subject 

to Chapter 2 (commencing with Section 15800) of Part 3.” 

(§ 17203, subd. (a) & (a)(2).) The notice requirement is 

thus qualified by the provisions of “Chapter 2,” among them 

section 15804. Section 15804 provides, in relevant part, that 

“it is sufficient compliance with a requirement in this division 

that notice be given to a beneficiary, or to a person interested 

in the trust, if notice is given as follows: [¶] . . . [¶] . . . Where 

an interest has been limited to a living person and the same 

interest, or a share therein, has been further limited upon the 

7 Unless otherwise indicated, all statutory references are 

to the Probate Code.
12

happening of a future event to the surviving spouse or to persons 

who are or may be the distributees, heirs, issue, or other kindred 

of the living person, notice shall be given to the living person.”

(§ 15804, subd. (a) & (a)(2).) This section applies to the trust 

provisions governing when and how the secondary beneficiaries 

may be entitled to distributions directly from the trust. Namely, 

the trust requires the distribution of its assets in Trusts B and C, 

in equal shares, to each of the primary beneficiaries if they are 

“living person[s].” If at the time of distribution, all primary 

beneficiaries are “living person[s,]” the secondary beneficiaries 

are entitled to nothing. But “upon the happening of a future 

event to . . . persons who are . . . the distributees”— here, upon 

the death of any of the primary beneficiaries after division of 

the trust assets into shares, but prior to distribution of those 

shares—the “same interest” that would have otherwise been

granted to the deceased primary beneficiary is either granted to

the issue of the deceased primary beneficiary (i.e., one or more 

secondary beneficiaries) or is reallocated between the shares of 

the living primary beneficiaries. Because section 15804 applies 

to Matthew’s interest in the trust as a secondary beneficiary, 

and because all primary beneficiaries are alive, the only notice

section 17203 and section 15804 require is notice to the primary 

beneficiaries—the “living person[s]” referenced in section 15804. 

Matthew’s status as a secondary beneficiary thus does not 

statutorily entitle him to notice.

2. Due process notice requirements

Matthew also argues that because “[t]he law has long 

recognized that a contingent future interest is property [citation] 

no matter how improbable the contingency” (In re Marriage 

of Brown (1976) 15 Cal.3d 838, 846, fn. 8), he, as a secondary 
13

beneficiary, has a property interest in the trust triggering certain

due process procedural protections. (Roth v. Jelley (2020) 45 

Cal.App.5th 655, 669–670 (Roth) [interests “ ‘subject to complete 

divestment’ ” are still property interests that may trigger due 

process right to notice].) Specifically, he argues that due process 

required he receive notice of the Baker property petition and 

liquidation petition, even if the code did not require notice, 

based on the potential effect of these petitions on his interest 

as a secondary beneficiary. (See id. at p. 674 [under Mullane v. 

Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 319

(Mullane), “meeting a state’s statutory notice requirements does 

not automatically satisfy federal due process”].) According to 

Matthew, because he did not receive such notice, the orders on 

these petitions are void.

Due process requires “ ‘notice reasonably calculated to 

apprise interested parties of the pendency of the action affecting 

their property interest and an opportunity to present their 

objections. [Citation.]’ ” (Ryan v. California Interscholastic 

Federation-San Diego Section (2001) 94 Cal.App.4th 1048, 

1072 (Ryan).) Thus, “[i]f a proceeding will ‘adversely affect’ a 

person’s property interest, due process requires that the person 

be given notice by mail of the proceeding and an opportunity 

to be heard when the person’s name and address are reasonably 

ascertainable.” (Roth, supra, 45 Cal.App.5th at p. 670, quoting 

Mennonite Bd. of Missions v. Adams (1983) 462 U.S. 791, 800.)

These concepts apply with equal force in the probate context. 

In “a proceeding to determine the rights of beneficiaries under a 

trust . . . when the rights of beneficiaries to a trust are inevitably 

affected, they are entitled to notice.” (Estate of Reed (1968) 259

Cal.App.2d 14, 21 (Reed).)
14

But what it means to “adversely affect” or “inevitably 

affect” a property interest depends on the context of the specific 

proceedings and the specific interest at issue. Due process, 

“ ‘ “unlike some legal rules, is not a technical conception with 

a fixed content unrelated to time, place and circumstances.” ’ ” 

(Barclay Hollander Corp. v. California Regional Water Quality 

Control Bd. (2019) 38 Cal.App.5th 479, 510.) It “is a flexible 

concept, as the characteristic of elasticity is required in order 

to tailor the process to the particular need.” (Ryan, supra, 94 

Cal.App.4th at p. 1072, citing People v. Hansel (1992) 1 Cal.4th 

1211, 1219.)

Here, the petitions could not and did not adversely 

affect Matthew’s interest in the trust in the manner necessary 

to trigger due process notice obligations. Regardless of how 

the court ruled on the petitions, Matthew’s rights under the 

trust would remain (and, indeed, have remained) unchanged: 

If certain circumstances outlined in the trust come to pass,

Matthew will be entitled to distribution per those trust

provisions. The challenged orders granting the petitions do not

alter how those provisions are applied or what they require. 

Matthew’s “right[ ] [as a] [secondary] beneficiar[y] under [the]

trust” is thus not “inevitably affected” by the petitions (Reed, 

supra, 259 Cal.App.2d at p. 21)—to the contrary, that right is 

not affected at all. 

Of course, the petitions might change the amount or value 

of what Matthew stands to collect, should the circumstances come 

to pass that trigger his right to collect directly from the trust, 

because the relief the petitions seek may reduce the value of the 

trust corpus. But this is an insufficient adverse effect to justify 
15

requiring notice to Matthew as an element of due process.

8 Were 

such notice required, any contingent trust beneficiary, regardless 

of how remote the likelihood that he or she will ever collect 

anything from the trust, could require notice of even the most 

mundane of housekeeping tasks, citing as a basis a possible 

reduction in the value of the trust corpus. Such “ ‘[a] construction 

of the Due Process Clause which would place impossible or 

impractical obstacles in the way [cannot] be justified.’ ” (Noel 

v. Thrifty Payless, Inc. (2019) 7 Cal.5th 955, 981; see ibid.

[describing courts’ “nuanced and pragmatic approach” to 

assessing the requirements of due process]; see also Mullane, 

supra, 339 U.S. at pp. 314–315 [noting significance of “the 

practicalities and peculiarities of the case” in assessing the 

notice due process requires and that “ ‘[t]he criterion is not 

the possibility of conceivable injury but the just and reasonable 

character of the requirements [of the notice statute], having 

reference to the subject with which the statute deals’ ”].)

The primary due process cases on which Matthew relies 

in arguing to the contrary—Roth, supra, 45 Cal.App.5th 655,

Reed, supra, 259 Cal.App.2d 14, and Estate of Sigourney (2001) 

93 Cal.App.4th 593 (Sigourney)—are distinguishable. These 

cases involve a failure to give notice to the appellant of a probate 

court order that effectively changed or eliminated the terms of a 

will or trust governing the appellant’s contingent interest in the 

trust. Such orders plainly “adversely affected” these appellants’

respective interests in the trusts at issue, because the interests 

ceased to exist in the wake of the orders. This is in stark contrast 

to the challenged orders here, which have no effect on Matthew’s 

8 To the extent Estate of Lacy (1975) 54 Cal.App.3d 172 is 

inconsistent with this conclusion, we disagree with its holding. 
16

right to collect from the trust (even though they may indirectly 

affect the amount he stands to collect).

In Roth, the appellant was the grandson of the trustor, 

McKie Roth, Sr. (McKie, Sr.). (Roth, supra, 45 Cal.App.5th at 

p. 659.) McKie, Sr., “created [the] trust in his will for the benefit 

of his wife Yvonne Roth (Yvonne) during her life and granted her 

a testamentary power of appointment over the remainder. The 

will provided a default distribution scheme in case Yvonne did 

not exercise her appointment power, under which McKie, Sr.’s 

three adult children from a prior marriage”—one of whom was 

the appellant’s parent—“and Yvonne’s one adult son from a prior 

marriage would each take a one-quarter share of the remainder 

of the trust, with the proviso that, if an adult child did not 

survive Yvonne, then that child’s surviving issue would take that 

child’s share . . . . Thus, under the will, the issue of each of the 

four adult children”—which included the appellant grandson—

“had a contingent remainder interest in the trust, subject to 

divestment by Yvonne’s exercise of her appointment power.” 

(Ibid.) In the 1991 decree that was the subject of the appeal, the 

trial court “included language changing the default distribution 

of the trust upon Yvonne’s death, . . . specif[ying] that the 

remainder of the trust was to be distributed solely to Yvonne’s 

son or his surviving issue in case of default (i.e., failure of Yvonne 

to exercise her testamentary power of appointment).”

9 (Id. at 

9 The court revised the trust provisions in this manner 

consistent with a settlement agreement, to which appellant 

was not a party and of which appellant did not receive notice, 

in which McKie, Sr.’s, children (including appellant’s parent) 

disclaimed any right to collect distributions from the trust under

its original terms. (Roth, supra, 45 Cal.App.5th at p. 659.)
17

pp. 659–660.) McKie, Sr.’s grandchildren, including appellant, 

“were not given prior notice of the 1991 decree, even though the 

decree eliminated their contingent interests in the remainder of 

the trust.” (Id. at p. 660.)

Thus, in Roth, the challenged 1991 decree “adversely 

affected [the appellant’s] property interest . . . [because] under 

the . . . will, [appellant] had a contingent future remainder 

interest in the trust, but under the 1991 decree, he had no 

property interest in the trust.” (Roth, supra, 45 Cal.App.5th at 

p. 670, capitalization omitted.) Under the terms of the original 

trust in Roth, the appellant was a contingent remainderman, 

even though he may or may not have received any actual money 

or property as a result of this interest. Under the trust as revised

by the challenged decree, however, he was no longer a contingent 

remainderman and under no circumstances would receive any 

property from the trust. On these facts, “due process required 

that [the appellant] be given notice of the proceeding that 

resulted in the 1991 decree and an opportunity to object. 

Because [the appellant] was not given such notice, the 1991 

decree [was] void.” (Roth, supra, 45 Cal.App.5th at p. 660, 

capitalization omitted.) 

In Reed, supra, 259 Cal.App.2d 14, the son of the trustor

of a testamentary trust had a power of appointment over the 

corpus of the trust estate. (Id. at p. 23.) Through his (the son’s) 

will, the son “disposed of his entire estate, devising one-third 

of the remainder of the [trust] corpus to each of [three] named 

charities.” (Ibid.) Reed held that the charities were entitled to 

notice of proceedings assessing whether the son’s disposition of 

his share of the trust constituted an effective exercise of the son’s 

power of appointment, because if the court concluded that it did 
18

not, the charities would lose any interest in the trust corpus they 

would otherwise have under the terms of the son’s will. (Id. at 

pp. 19–22.) An order to this effect resulting from proceedings of 

which the charities did not receive notice was thus void for lack 

of due process. (Id. at pp. 19 & 23.) 

And in Sigourney, supra, 93 Cal.App.4th 593, “the

court held that where a will gave an organization authority to

select future trustees of a testamentary charitable trust, that

organization had a property interest in the selection power 

created by the will, and the executor could not simply eliminate 

the organization’s interest in the charitable trust under the guise 

of construing the will without providing notice to the organization 

and [an] opportunity to be heard.” (Roth, supra, 45 Cal.App.5th 

at p. 675.) At issue in Sigourney was a “petition ‘to construe, 

amend, and conform [the] will and . . . trust’ ” (Sigourney,

supra, at p. 596) so that the organization would no longer have 

ultimate authority to select the successor trustees. (See id. at 

pp. 596–597.) Sigourney held that an order granting this petition 

and amending the terms of the charitable trust was “void because 

the [organization] was not given notice of the proceeding.” (Roth, 

supra, 45 Cal.App.5th at p. 674 [summarizing Sigourney].)

In conclusion, due process did not entitle Matthew to 

receive notice of the Baker property petition or liquidation 

petition. The orders are thus not void on this basis. 

In analyzing Matthew’s argument that he, as a secondary 

beneficiary, was entitled to notice of the petitions at issue, 

we have necessarily resolved the issue of whether the other 

secondary beneficiaries are entitled to notice of the petition. 

It is therefore moot whether Matthew has standing to challenge 
19

the lack of notice to other secondary beneficiaries. We thus need 

not address the standing issue. 

B. No Contest Clause

Matthew also argues that, based on Annemarie and 

Lisa’s role as the original petitioners prosecuting the liquidation 

petition, the no contest clause in the trust and/or the no contest 

clause in the 2004 amendment required Annemarie and Lisa to

forfeit any interest they had in the trust. Rodney, Jr., and Vicki

argued below that the liquidation petition constituted a contest. 

Matthew contends that because the liquidation order partially 

granted the petition without consequence for Annemarie and 

Lisa, it reflects the court’s implicit ruling that the petition 

was not a contest. He argues this ruling was in error and is 

reviewable in an appeal from the liquidation order. Based on this 

purportedly erroneous ruling, Matthew asks this court to “[d]irect 

the probate court to enforce the no contest clauses . . . and enter 

an order that all asset distributions allocated to the shares of 

challenging beneficiaries Annemarie . . . and Lisa . . . shall be 

retained in trust and distributed to the remaining beneficiaries 

herein named, as if said challenging beneficiary and his or her 

issue had predeceased the distribution of the trust estate.”

Matthew failed to raise this argument in his objections 

to the court’s tentative ruling granting the liquidation petition, 

as well as at the January 2022 hearing, in which he personally 

participated. During that hearing, the court specifically asked 

Matthew whether he “want[ed] to put anything else on the record

with regard to [his] objection” beyond his notice-based objections, 

and Matthew responded, “No, that would be my objection.” 

Having failed to raise this issue below, despite having been

invited by the court to do so twice, Matthew has forfeited the 
20

right to raise it now.10 (See Doers v. Golden Gate Bridge etc. Dist. 

(1979) 23 Cal.3d 180, 184–185, fn. 1 [“ ‘[a]n appellate court will 

ordinarily not consider procedural defects or erroneous rulings, 

in connection with relief sought or defenses asserted, where 

an objection could have been but was not presented to the lower 

court by some appropriate method’ ”].)

C. Aileen’s Appointment as Interim Trustee

Matthew also challenges the December 13, 2018 order 

appointing Aileen as interim trustee (the appointment order), 

arguing, inter alia, that it is void for lack of service to any 

parties (not just the secondary beneficiaries). He notes that 

the formal request to appoint Aileen as interim trustee came 

through Annemarie’s October 4, 2016 petition (originally 

regarding matters unrelated to Aileen’s appointment), which 

on October 16, 2018, the court and parties deemed amended 

to include the relevant appointment request. Matthew argues 

that this petition was never served on anyone, and thus the court 

lacked jurisdiction to grant the request for appointment it was 

deemed to contain, rendering the appointment order void. (See 

Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1200 [a judgment 

or order may be “void, as a matter of law, due to improper 

service”].)

10 Matthew suggests that the court’s refusal to provide him 

the requested statement of decision somehow prevented him from 

raising this issue below. But the argument he has forfeited—that

a petition requesting immediate liquidation of the trust assets 

triggers the no contest clause—is based on an aspect of the 

petition that is evident in the petition’s very title. Matthew thus 

cannot attribute his failure to object on this basis to a lack of a 

statement of decision. 
21

1. Threshold appealability issues

The July 2022 notice of appeal is untimely as it applies 

to the December 2018 appointment order. Because a void order 

may be collaterally attacked at any time, however, including for 

the first time on appeal (see People v. Safety National Casualty 

Corp. (2007) 150 Cal.App.4th 11, 17), to the extent Matthew’s 

appeal challenges the appointment order as void, we may 

entertain it. But we may not and do not address Matthew’s 

additional arguments challenging the appointment order on 

the other bases Matthew raises. To the extent his appeal from 

the appointment order relies on these additional arguments, 

it is time-barred.

2. The appointment order is not void

As the sole basis for his contention that the petition 

ultimately resulting in the appointment order was not served 

(and that the appointment order is therefore void), Matthew cites 

the lack of a signature on the proof of service for the October 4,

2016 petition and a declaration of Annemarie’s counsel stating, 

inter alia, that such counsel had no direct recollection of serving 

anyone with that petition. This declaration further states, 

however, that based on decades of custom and practice and 

proofs of service his office filed, counsel had caused all primary 

beneficiaries to be served with the October 4, 2016 petition. 

In considering such arguments based on disputed evidence of 

service, “we defer to factual findings on disputed evidence so long 

as those findings are supported by substantial evidence.” (First 

American Title Ins. Co. v. Banerjee (2022) 87 Cal.App.5th 37, 

42 [discussing service of summons and complaint in context of 

motion to vacate purportedly void judgment for lack of service].) 

Here, the court found that notice of the October 4, 2016 petition 
22

was proper. Substantial evidence in the record supports this 

finding: namely, the declaration of counsel. (Giorgio v. Synergy 

Management Group, LLC (2014) 231 Cal.App.4th 241, 247 

[“[w]hether the evidence is oral testimony, affidavits, or 

documents, when there is conflicting evidence, the trial court’s 

express and implied factual determinations are not disturbed 

on appeal if supported by substantial evidence”].) Moreover, 

because the agreement to amend the petition to include the 

appointment request was made in open court with the agreement 

of all primary beneficiaries, all those entitled to receive notice of 

the petition’s appointment request (see Discussion ante, part A) 

received actual notice thereof at that hearing.

Accordingly, the record does not support Matthew’s 

argument that the appointment order is void for lack of notice or 

proper service.
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DISPOSITION

The orders are affirmed. Respondents are awarded their 

costs on appeal.

NOT TO BE PUBLISHED.

ROTHSCHILD, P. J.

We concur:

BENDIX, J.

WEINGART, J.