Filed 1/25/24 Estate of Sherman CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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 FIVE

Estate of MARCIA SHERMAN, 

Deceased.

 

B323817

FRED BERGER, as Successor 

Trustee, etc.,

Petitioner and Appellant, 

v.

RANDI BERGER,

Objector and Respondent.

(Los Angeles County

Super. Ct. No. 19STPB10622)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Gus T. May, Judge. Affirmed. 

Oldman, Sallus & Gold, Jamie N. Gonzalez, and Kevin W. 

Yang for Petitioner and Appellant.

Steinhart Law Offices and Terran T. Steinhart for 

Respondent. 
2

This appeal concerns a brother’s petition to disinherit his 

sister for allegedly violating the no contest clause of their 

deceased mother’s trust. Fred Berger (Fred), as trustee of the 

Marcia H. Sherman Family Trust (the Trust), filed a petition in 

probate court asking the court to make certain orders related to 

the Trust. Randi Berger (Randi), Fred’s sister, filed an objection 

to the petition alleging that one of its primary allegations—that 

the Trust had been validly established—was false because the 

Trust agreement was the product of forgery or undue influence. 

The probate court found Randi’s objection was a direct contest

but concluded the objection had been filed with probable cause 

and thus did not violate the no contest clause. Fred appeals, and 

we consider whether Randi had probable cause to file her 

objection—focusing on Fred’s contentions that she lacked 

probable cause because (a) the objection was untimely and (b) the 

facts known to Randi when she filed her objection would not 

cause a reasonable person to believe the Trust was created 

through undue influence or forgery. 

I. BACKGROUND

A. The Trust 

Marcia Sherman (Marcia) established the Trust on October 

19, 2018. The Trust identified Fred, Randi, and Julie Berger as 

Marcia’s three children. It identified the estate held by the Trust

as all property held by or transferred to Marcia. 

The Trust provides that upon Marcia’s death, the trustee is

to divide the estate into equal shares for Marcia’s three children. 

The Trust appoints Marcia as the initial trustee, appoints Fred 

as the successor trustee to serve upon her death, and appoints

Randi as the alternate trustee if Fred is unable to serve. 
3

The Trust agreement includes a “No Contest” clause that 

provides in pertinent part as follows: “If any . . . beneficiary 

under this trust . . . in any manner, directly, or indirectly, and 

without probable cause (i) contests or attacks this Trust or any of 

its provisions, or seeks to impair or invalidate any of its 

provisions . . . then in such event any share or interest in the 

trust estate given to that contesting person under this Trust is 

revoked . . . .” The no contest clause defines a “direct contest” as 

“a pleading that alleges the invalidity of this instrument or one or 

more of its terms” on certain enumerated grounds including 

forgery and undue influence. The Trust agreement also defines 

probable cause, stating it “exists if, at the time of filing of 

a . . . Direct Contest . . . the facts known to the beneficiary would 

cause a reasonable person to believe that there is a reasonable 

likelihood that the relief requested in the action will be granted 

after an opportunity for further investigation or discovery.” 

Less than two weeks after the Trust’s creation, Marcia died 

on October 27, 2018. On December 12, 2018, Fred served Randi 

with a Probate Code section 16061.7 notice stating the Trust had 

become irrevocable.1 

B. Fred Files a Petition Regarding the Trust 

In November 2019, Fred filed a petition in probate court

alleging Marcia had validly established the Trust and Fred 

became the sole trustee upon her death. Fred also alleged Marcia 

executed a pour over will concurrently with the Trust agreement 

that directed her entire estate, other than her personal items, be 

1 Statutory references that follow are to the Probate Code.
4

distributed to the Trust. Fred further alleged Marcia was a 

beneficiary of the estate of her brother, Edward Sherman 

(Edward), who predeceased her. (At the time of the filing, 

Edward’s will was still in probate.) 

Fred’s petition asked the court to issue an order 

determining the Trust was executed on October 19, 2018, was in 

existence as of the date of Marcia’s death, and remained in 

existence as of the date of the petition. It also asked the court to 

issue an order determining that Marcia’s inheritance from 

Edward’s estate was an asset of the Trust. 

C. Randi Files an Objection to Fred’s Petition 

In July 2020, Randi filed an objection to Fred’s petition. 

Randi’s objection asserted the Trust had not been validly 

established because, even assuming Marcia’s signature on the 

Trust was valid, her establishment of the Trust was the product 

of Fred’s undue influence. Randi submitted six declarations in 

support of her objections, including her own. 

1. Facts averred in Randi’s declaration

Randi had been Marcia’s attorney in fact for financial 

purposes pursuant to a power of attorney since 1995. Marcia 

signed a durable power of attorney for health care purposes and a 

new durable power of attorney for financial purposes naming 

Randi as the primary attorney in fact in 2018. 

Randi had been Marcia’s caregiver for 20 years and had 

helped Marcia operate her legal practice for some time.

2

 Randi 

2 Marcia needed a caregiver because of various injuries she 

sustained over the years. 
5

previously owned residences in Washington state and Tarzana, 

California. She moved into Marcia’s Encino home in 2013, 

following a fire at Randi’s California home. The following year, 

Marcia began doing Randi’s bookkeeping in exchange for the 

caregiving Randi was performing for Marcia. They shared 

checking accounts and credit cards. 

Marcia’s brother Edward died in December 2017. Attorney 

Kira Masteller (Masteller) represented Marcia in matters related 

to Edward, first in Marcia’s capacity as Edward’s attorney in fact, 

and later in her capacity as executor of his estate. Edward’s 

estate became embroiled in litigation, and Marcia was stressed 

by dealing with Masteller and believed she was overbilling on the 

case. 

During the fall of 2018, Masteller sent Randi “trust 

documentation” she prepared for Marcia to sign—without any 

request to do so from Marcia—and asked Randi to obtain 

Marcia’s signature on the documents. Marcia did not want 

Masteller handling any legal proceedings for her and declined to 

sign the documentation Masteller prepared. Marcia also explored 

hiring a different attorney to replace Masteller in handling the

probate of Edward’s estate, but she found retainer deposits 

desired by alternative counsel would be too costly. 

In June 2018, Fred, who had almost no involvement with 

the family for decades, approached Marcia and expressed a 

willingness to help her. Fred stayed at Marcia’s house in early 

July 2018, and from mid-September to early October of that year,

while Randi returned to Washington state. Shortly after Randi 

returned to Los Angeles in October, Marcia was admitted to the 

hospital. She was released on October 18, 2018, but she needed 

to have some equipment installed at her home. Fred offered to 
6

let Marcia stay with him while Randi had the equipment 

installed. 

Between October 18 and October 27, 2018, Randi tried to 

reach Marcia by calling her cell phone but it was turned off. 

When she called Fred, he said Marcia was asleep on all but one 

occasion. Fred allowed Randi to visit Marcia at his home once. 

During the visit, Marcia seemed extremely fatigued and was 

slurring her words. A few days later, Fred told Randi he had 

Marcia admitted to a hospital in Simi Valley. Randi wanted to 

visit immediately, but Fred did not allow her to schedule a visit 

until October 28. The day before the visit, Fred informed her 

Marcia had died. 

After Marcia’s death, Randi and her sister Julie learned 

that on the second day Marcia was at Fred’s home, Marcia signed 

a trust document prepared by Masteller naming Fred the trustee 

of the Trust. Randi found numerous aspects of the Trust 

documents suspicious, including the Trust’s identification of Julie

by her maiden name rather than her married name and the 

absence of any provision in the Trust for Marcia’s beloved dogs. 

Randi also found numerous actions Fred took in the days 

before and after Marcia’s death suspicious. Fred closed all of 

Marcia’s bank accounts, including the accounts shared with 

Randi, the day before she died. Fred removed Marcia’s 

answering machine and phone from her bedroom before she died. 

Fred took possession of Marcia’s personal and business 

documents, including the 2018 powers of attorney. Fred refused 

to have an autopsy performed on Marcia’s body. Fred 

intentionally or negligently sold Marcia’s house for $200,000-

300,000 below its market value, without properly marketing it. 

Fred and Masteller fabricated reports about Randi during the 
7

administration of the Trust. And Fred sought to replace Randi as 

the executor of Edward’s estate. 

2. Other declarations

Five individuals who had known Marcia for many years 

asserted Randi was very involved in her life. Two of those 

individuals did not know Fred even existed prior to Marcia’s 

death, and the other two observed he only had minor involvement 

in Marcia’s life. Two of the declarants averred Marcia’s dogs 

meant the world to her, and accordingly, they would have 

expected her Trust to provide for the care of her dogs. 

One of the declarants, Susan McCoy, stated she spoke to 

Marcia on the phone in August 2018 and she sounded feeble, 

fatigued, and mentally debilitated. Sarah Belgard said she called 

Marcia several times during the last week of September 2018, 

when Randi was in Washington and Fred was staying at Marcia’s 

house, and each time Fred answered the phone and said Marcia 

was unavailable. 

Another declarant, Deanna Sherman (Deanna), was a 

notary public who performed notary services for Marcia for about 

six years and considered her a friend. She declared that, in 

August 2018, Marcia asked Deanna to prepare and notarize a 

durable power of attorney for health care purposes and a durable 

power of attorney for financial purposes. Marcia stated she 

wanted Randi to be her primary power of attorney on both forms, 

her daughter Julie to be the secondary, and her son Fred to be 

the tertiary. Deanna told Marcia it would be wiser to name Fred 

the secondary because Julie would have difficulty exercising her 

powers while living in London. Marcia responded that she was 

reluctant to do so because she questioned Fred’s trustworthiness, 
8

but Marcia nevertheless accepted Deanna’s advice and named 

Fred the secondary power of attorney. Around this time, Marcia 

told Deanna that her attorney, Masteller, was not competently 

representing her in matters involving Edward’s probate estate 

and was overcharging her attorney fees. 

Deanna further declared that on or around October 13, 

2018, Fred contacted Deanna saying Marcia was back in the 

hospital, had decided to remove Randi as her power of attorney, 

and wanted to create a trust naming Fred the trustee. Deanna 

was skeptical, said she needed to speak to Marcia, and offered to 

immediately visit Marcia in the hospital to speak to her about the 

requests. Fred seemed ill at ease and nervous; he said he would 

talk to Marcia and have her contact Deanna—though Marcia 

never did. Deanna did try to reach Marcia several times through 

the end of October 2018 by calling both Marcia’s cell phone and 

Fred’s phone number, but neither Marcia nor Fred answered or 

replied to her voicemails. Deanna thought Marcia’s silence was 

strange because she had never experienced difficulty contacting 

her before. Deanna did not learn of Marcia’s death until she 

contacted Randi in November 2018. 

D. Fred’s Initial Response to Randi’s Objection and His 

Subsequent Petition to Disinherit Her

Fred’s initial response to Randi’s objection contested

various factual representations supporting Randi’s undue 

influence claim. Fred also asserted Randi lacked standing to 

object because she brought her contest to the Trust more than 

120 days after she was provided notice, on December 12, 2018, 

that the Trust had become irrevocable. 
9

As evidence in support of his response, Fred submitted

declarations by attorneys involved in the creation of Marcia’s 

Trust. A declaration by attorney Kyla Parrino asserted Marcia 

signed the Trust documents herself and did not appear to lack 

capacity or to be acting under undue influence when she did so. 

A declaration by Masteller asserted Marcia called her from the 

hospital in October 2018 and asked her to prepare her estate plan 

and to work with Fred to get it done. Masteller also declared that 

Marcia told her she appointed Fred her power of attorney for 

asset management and health care, and as executor and trustee 

of her Trust, because her other local child, Randi, was very 

difficult to work with. Masteller denied Fred gave her any 

instructions regarding Marcia’s directions for her estate plan. 

She also stated Fred, Randi, and Marcia were all emailed drafts 

of Marcia’s estate plan.

3

 

After filing his response to Randi’s objection, Fred also filed 

a petition seeking an order determining Randi’s objection violated 

the no contest clause of Marcia’s Trust. Fred contended Randi 

lacked probable cause for her objection both because her objection 

was untimely (he calculated the deadline to file a timely contest 

as April 12, 2019) and because her forgery and undue influence 

claims were unsupported and contradicted by facts Fred asserted. 

Randi opposed Fred’s petition to disinherit her under the 

Trust’s no-contest clause. She argued her objection to Fred’s 

initial petition was not a contest to the Trust because it was a 

defensive pleading filed in opposition to a petition, not a pleading 

3 A later filing attached a copy of an email that Masteller 

sent to Fred, Randi, and Marcia with the draft trust documents, 

but it did not attach the draft trust documents themselves. 
10

alleging the invalidity of the Trust. Randi also argued that if her 

objection were a contest, she had probable cause to bring it. 

E. The Trial Court’s Rulings

The trial court granted Fred’s initial petition asking the 

court to determine the Trust was executed on October 19, 2018, 

was in existence as of the date of Marcia’s death, remained in 

existence as of the date of the petition, and included among its 

assets Marcia’s inheritance from Edward’s estate. Overruling 

Randi’s objection to the petition, the court found the objection 

was time barred by Probate Code sections 16061.7 and 16061.8. 

Fred’s separate petition to disinherit Randi for contesting 

the Trust, however, was still pending, and the parties submitted 

further briefing and evidentiary objections. The appellate record 

indicates the probate court held a hearing on the petition to 

disinherit Randi in May 2022, but Fred has not included a 

reporter’s transcript of that hearing (or a substitute therefor) in

the record. 

The probate court later issued a minute order 

memorializing its ruling denying Fred’s petition to disinherit 

Randi. The court found Randi’s objection to Fred’s initial petition 

to determine the existence and assets of the Trust qualified as a 

direct contest because the objection was brought to declare the 

Trust invalid. 

Turning to the question of whether Randi had probable 

cause to bring her contest given that the 120-day period had long 

since passed, the probate court concluded the issue of whether 

Randi’s objection was barred by the 120-day rule was “more than 

debatable,” at least in part because Randi filed an objection, 

rather than a petition that would constitute an “action” to contest 
11

the Trust under the relevant statute of limitations. The court 

concluded Randi’s failure to anticipate the issue was not 

sufficient to justify her disinheritance under the no contest 

clause. 

The probate court additionally concluded the facts 

presented by Randi in connection with her objection could cause a 

reasonable person to believe the Trust, created by Marcia nine 

days before her death, was the product of undue influence. The 

court reasoned that though all three of Marcia’s children received 

an equal share of the Trust, Fred was entitled to both a fee and 

control of the estate as trustee, a role he apparently coveted. The 

court also found the evidence pointed to Fred having a virtually 

non-existent role in Marcia’s life until shortly before she passed, 

and thus, it was not unreasonable to infer that he feared he 

might be disinherited or only left a small portion of the estate, 

with a greater portion going to “his apparent nemesis,” Randi, 

who spent a substantial time with Marcia during her lifetime.

II. DISCUSSION

Fred’s appeal of the probate court’s denial of his petition to 

disinherit Randi is unmeritorious. Even assuming for 

argument’s sake that Randi’s objection was a direct contest, the 

probate court did not err in concluding the objection was not 

brought without probable cause. As to timeliness, it is unclear 

from the language of the pertinent Probate Code statute that the 

120-day deadline applies to an objection filed in response to 

another party’s petition, and the probate court was justified in 

concluding a reasonable person could therefore have believed the 

deadline would not apply. As to the merits of the question of 

undue influence, the facts at Randi’s disposal when she filed the 
12

objection are amply sufficient to establish the requisite 

objectively reasonable likelihood the Trust had been procured by 

undue influence. 

A. Standard of Review

To the extent the probate court was required to make 

underlying factual findings upon conflicting evidence in resolving 

the petition, we review the record for substantial evidence to 

support the findings on which the legal rulings were based. (In re 

Estate of Fain (1999) 75 Cal.App.4th 973, 987-988.) “In the 

absence of disputed facts, we review a court’s application of a no 

contest clause de novo. [Citation.]” (Meiri v. Shamtoubi (2022) 

81 Cal.App.5th 606, 614.) We interpret relevant portions of the 

Probate Code de novo. (Jenkins v. Teegarden (2014) 230 

Cal.App.4th 1128, 1138.) 

B. Background Law 

“The court’s interpretation of a no contest clause and 

application of the clause to a proposed action is necessarily 

informed by competing policy interests. On the one hand, ‘[s]uch 

clauses promote the public policies of honoring the intent of the 

donor and discouraging litigation by persons whose expectations 

are frustrated by the donative scheme of the instrument.’ 

[Citation.] On the other hand, these interests are ‘[i]n tension 

with . . . the policy interests of avoiding forfeitures and promoting 

full access of the courts to all relevant information concerning the 

validity and effect of a will, trust, or other instrument.’

[Citation.] ‘In light of these opposing interests, the common law 

[and statutory law] in California recognized the enforceability of 

no contest clauses, albeit strictly construed, “so long as the 
13

condition was not prohibited by some law or opposed to public 

policy.”’ [Citations.]” (Meiri, supra, 81 Cal.App.5th at 613.)

C. Randi’s Objection Did Not Violate the No Contest 

Clause 

By law and under the substantively identical terms of the 

Trust, a party has probable cause to contest a trust if, at the time 

the contest was filed, the party knew facts that “would cause a 

reasonable person to believe that there [was] a reasonable 

likelihood that the requested relief will be granted after an 

opportunity for further investigation or discovery.” (§ 21311, 

subd. (b).) “The term ‘reasonable likelihood’ has been interpreted 

to mean more than merely possible, but less than ‘more probable 

than not.’ [Citations.]” (Cal. Law Revision Com. com., Deering’s 

Ann. Prob. Code (2022 ed.) foll. § 21311);

4

see also People v. 

Proctor (1992) 4 Cal.4th 499, 523.) 

1. Probable cause and timeliness

“Section 16061.8 sets forth the applicable statute of 

limitations for petitions that contest a trust.” (Bridgeman v. 

Allen (2013) 219 Cal.App.4th 288, 293.) In pertinent part, the

statute provides that a person served with a section 16061.7

notification may not “bring an action” to contest the trust more 

than 120 days from the date the notification by the trustee is 

served. (§ 16061.8.) The relevant portion of the Probate Code 

4 Though not binding, the comments of the California Law 

Revision Commission are entitled to substantial weight in 

construing a statute. (People v. Garfield (1985) 40 Cal.3d 192, 

199.)
14

does not define what it means to “bring an action” to contest a 

trust.5

In the absence of a specific definition, we consider the plain 

meaning of the phrase “bring an action,” a phrase that our

Supreme Court recently analyzed in the context of interpreting 

the Corporations Code. Our high court relied on common 

definitions of the phrase: “Merriam-Webster defines to ‘bring’ as 

‘to cause to exist or occur in any of a number of ways,’ including 

to ‘institute’ ‘legal action’ or ‘complaint.’ [Citations.] Black’s Law 

Dictionary likewise equates the phrase ‘bring an action’ with ‘[t]o 

sue’ or to ‘institute legal proceedings.’ [Citations.]” (Turner v. 

Victoria (2023) 15 Cal.5th 99, 114 [concluding the plaintiff 

“‘sue[d],’ ‘institute[d] [a] legal proceeding[],’ and ‘cause[d]’ an 

action ‘to exist’ by filing a petition in the probate court”].) On this 

understanding of “bring an action,” it would be reasonable to read 

section 16061.8’s limitations period as applying only to pleadings 

that initiate legal proceedings, not to documents filed in an 

already existing matter. 

Though the probate court in this case found, for purposes of 

ruling on Fred’s initial petition to determine the existence of the 

Trust, that Randi’s objection was brought after the section 

16061.8 120-day timeframe, that was not the obvious result

5 While Probate Code section 21310 provides a definition of 

the term “contest,” that definition is limited to the “part” in which 

section 21310 appears, namely, Part 3 of Division 7 of the 

Probate Code. Because section 16061.8 appears in Part 4 of 

Division 9 of the Probate Code, the section 21310 definition does 

not apply. 
15

looking just at the language of the statute that we have just 

reviewed. A reasonable person could have accordingly believed

section 16061.8’s limitations period did not apply because Randi 

did not “bring an action” merely by filing an objection. 

Relying primarily on Meiri, supra, 81 Cal.App.5th 606, 

Fred argues the untimeliness of Randi’s contest necessarily 

means she lacked probable cause to bring it. That, however, 

overreads the opinion. In Meiri, there was no question as to 

whether section 16061.8’s statute of limitations applied because 

the beneficiary in that case filed a petition to invalidate the trust

(among other things). (Id. at 611.) That, of course, is not true 

here, and Meiri therefore is not inconsistent with our holding 

that the date on which Randi filed her objection does not 

establish she lacked probable cause. 

2. Probable cause and undue influence

“Undue influence is pressure brought to bear directly on 

the testamentary act, sufficient to overcome the testator’s free 

will, amounting in effect to coercion destroying the testator’s free 

agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96.) “Although a 

person challenging the testamentary instrument ordinarily bears 

the burden of proving undue influence [citation], . . . a 

presumption of undue influence, shifting the burden of proof, 

arises upon the challenger’s showing that (1) the person alleged 

to have exerted undue influence had a confidential relationship 

with the testator; (2) the person actively participated in procuring 

the instrument’s preparation or execution; and (3) the person 

would benefit unduly by the testamentary instrument.” (Id. at 

96-97.)
16

Fred contends no reasonable person could believe Marcia 

was subject to undue influence based on the facts available to 

Randi when she filed her objection. Fred does not contest that he 

and Marcia had a confidential relationship, but he argues there 

was no evidence of active procurement or participation in 

obtaining the Trust, nor evidence of undue benefit. 

Active procurement “may be established by inference . . . .”

(Estate of Baker (1982) 131 Cal.App.3d 471, 481.) “[T]he one 

using the undue influence [need not] be present in person at the 

time of the execution of the document if the influence is present 

to constrain the party from exercising his free will.” (Ibid.) 

“‘“That the alleged wrongdoer had power or ability to control the 

testamentary act may be established by a variety of 

circumstances[ ]—such as control over the decedent’s business 

affairs, dependency of the decedent upon the beneficiary for care 

and attention, or domination on the part of the beneficiary and 

subserviency on the part of the deceased.”’” (Ibid.) “The question 

whether the proponent unduly profited by the will is resolved by 

the terms of the will itself.” (Id. at 480-481.) 

Taken together, the evidence proffered by Randi in her 

declaration and the declarations from others would cause a 

reasonable person to believe there was a reasonable likelihood 

Randi would prevail on the undue influence claim. Marcia was 

unwell and seemed feeble at the time. Fred had taken her into 

his home and the evidence supports an inference that he isolated 

her from her other family and friends. Marcia signed trust 

documents prepared by an attorney she previously stated she did 

not want to work with further, and aspects of the Trust seemed 

inconsistent with Marcia’s previously stated practices or desires. 

Additionally, though Fred did not “unduly” profit from the Trust
17

in the sense that his share of the estate exceeded that of Randi 

and Julie, a reasonable person could nonetheless consider his 

receipt of an equal portion an undue benefit given his limited 

presence in Marcia’s life prior to the months leading up to her 

death. So, too, could one consider his appointment as trustee, a 

position that gave him both authority and compensation, as an 

undue benefit under the circumstances. 

Fred’s two counterarguments are both unpersuasive. Fred

contends Randi did not submit any evidence regarding Marcia’s 

vulnerability at the time of execution of the Trust, but Randi 

submitted evidence from which a reasonable person could draw 

an inference that Marcia was weak and vulnerable in the days 

surrounding the Trust’s creation. Fred also contends he did not 

have any authority over Marcia when the Trust was drafted 

because she was in the hospital, not alone with Fred. The 

evidence Randi presented, however, would allow a reasonable 

person to infer that Fred did have control over Marcia because he 

limited Marcia’s ability to communicate with others when she 

was under his care, including when she was in the hospital. 

Additionally, Marcia signed the Trust after she was discharged 

from the hospital and was staying at Fred’s home. 
18

DISPOSITION

The probate court’s order is affirmed. Randi is awarded 

costs on appeal. 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.