Filed 6/30/15 Schwan v. Heiser CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

DONNA SCHWAN et al.,

Plaintiffs and Appellants,

v.

SCOTT A. HEISER, as Cotrustee, etc., et 

al.,

Defendants and Respondents.

 A143400

 (Contra Costa County

 Super. Ct. No. MSP14-00302)

This appeal arises out of a dispute between various beneficiaries of The Walter C. 

Permann Separate Property Trust (Trust). Pursuant to the express terms of the Trust, 

Donna Schwan, Eileen Ostrosky, and Alexis Johnson (collectively, plaintiffs) are entitled 

to certain proceeds from the Trust if they are employed by Control Master Products, Inc.

(Control Master Products) at the death of Walter C. Permann and his spouse, Verla D.

Permann.1 

Following Walter’s death in 2013, plaintiffs filed a petition for a judicial 

determination that they are remainder beneficiaries of the Trust. Plaintiffs asserted the 

court should excuse them from the condition they be employed at Control Master 

Products at the deaths of Walter and Verla because the assets of the company were sold

in 2008, rendering satisfaction of the condition impossible. Plaintiffs also challenged a 

provision of the Trust allocating certain funds to Walter C. Youngman, Jr., and his spouse 

 

1 As Walter and Verla share the same surname, we shall refer to them by their first 

names for the sake of clarity and readability. We intend no disrespect in doing so.
2

(collectively, defendants) upon the deaths of Walter and Verla, arguing the allocation is

void under Probate Code2section 21380, because Youngman, an attorney, drafted and 

supervised the execution of the Trust. 

After plaintiffs moved for summary adjudication of their section 21380 claim, the 

trial court issued an order finding all of their claims premature because Verla had not yet 

died. Plaintiffs now argue (1) the court denied them due process by raising and 

addressing the ripeness issue sua sponte, and (2) their claims are ripe for adjudication. 

We agree plaintiffs’ claims are ripe and therefore need not and do not address their due 

process argument.

I. BACKGROUND3

Walter was the president, director, and sole shareholder of Control Master 

Products, a distributor of specialty wire and industrial cables incorporated in 1964. In 

2008, Walter sold the assets of Control Master Products to Industrial Electrical Wire and 

Cable, Inc. (IEWC). Walter than amended the articles of incorporation of the company, 

changing its name to Custom Model Products, Inc. (Custom Model Products). 

Thereafter, Walter operated Custom Model Products as a hobby model train business 

until his death in 2013. 

Plaintiffs are former employees of Control Master Products. Schwan was hired by 

the company in 1978 and eventually became general manager. She worked at Control 

Master Products until its sale, and since then has worked for IEWC. Ostrosky worked 

with Walter even before Control Master Products incorporated, and was employed as a 

supervisor at the company from 1964 through 2007, when she retired due to health 

problems. Between 2007 and 2013, Ostrosky occasionally performed various jobs at the

request of Walter, though it is unclear if she was directly employed by Control Master 

 

2 All further statutory references are to the Probate Code unless otherwise 

indicated.

3

The facts set forth in this section are taken from the allegations in plaintiffs’ 

pleadings and the terms of the Trust. We take no position as to whether plaintiffs have 

proven these allegations. 
3

Products after her retirement. Johnson was a secretary for Control Master Products from 

1997 through 2008. Following Control Master Products’ sale, she was employed by 

IEWC.

In 1999, Walter executed the Trust, which was drafted by Youngman, an attorney 

who had previously represented Walter in various other legal matters. Walter was 

appointed trustee, and his wife Verla, along with Youngman and Scott Heiser, were 

nominated as successor cotrustees. Pursuant to the Trust, while Walter was living, the 

trustee was to pay to him the entire net income of the trust estate, in addition to as much 

of the principal as he requested. 

The Trust also states that upon Walter’s death, the entire income of the Trust is to 

be paid for the benefit of Verla during her lifetime. Upon Verla’s death, the Trust may be 

distributed among 12 beneficiaries. Schwan, Ostrosky, and Johnson are entitled to 20, 

10, and 5 percent, respectively, so long as each “is employed by Control Master Products, 

Inc. at the death of [Walter] and [Verla] and if not, th[e] gift shall lapse and augment the 

share of the remaining beneficiaries.” Ten percent is to be distributed to Youngman if he 

survives Walter and Verla, and if not, to Youngman’s spouse. If Youngman’s spouse 

does not survive, the proceeds shall go to their issue by right of representation, and if 

there are none, the gift will lapse and augment the share of the remaining beneficiaries. 

The trustee also has the discretion to pay to any beneficiary so much of the principal up 

to and including the whole of the trust, if the trustee determines the payments from the 

trust “shall be insufficient . . . to provide for the reasonable support, care, and education 

of such beneficiary.”

Following Walter’s death in 2013, Youngman and Heiser advised plaintiffs that 

they were not entitled to a share of the Trust estate because they were no longer

employed by Control Master Products. Plaintiffs then filed this action pursuant to 

section 17200, petitioning for orders (1) determining their status as remainder 

beneficiaries of the Trust, and (2) voiding the transfer of any of the Trust estate to 

Youngman and his family. As to the first point, plaintiffs asserted the employment 

requirement should be struck under the legal doctrines of impossibility, substantial 
4

performance, betterment, and waiver. With respect to the second point, plaintiffs alleged

that under section 21380, the transfers to Youngman were presumptively a product of 

fraud or undue influence since Youngman drafted and supervised the execution of the 

Trust. Though another attorney also conducted a review of the Trust, plaintiffs maintain 

the review process failed to meet the validation requirements of section 21384. 

In June 2014, plaintiffs filed a motion for summary adjudication as to their claim 

regarding the disqualification of Youngman. At the conclusion of oral argument on the 

motion, the court indicated it was issuing an order finding plaintiffs’ petition premature 

and not ripe for adjudication. The court’s written order explained: “[T]he plain language 

of the trust dictates that the death of both the trustor and his spouse must have occurred 

[for plaintiffs to take]. Here, because Verla is still alive, any discussion of whether the 

doctrines of impossibility, substantial performance, and betterment waive or excuse the 

condition precedent is premature because any of the petitioners may predecease Verla. [¶] 

Similarly, the Youngmans must survive [Walter and Verla] in order to take under the 

trust.” The court stated plaintiffs could refile their claim in the future, after Verla’s death, 

and the court exercised its equitable authority to deem plaintiffs’ challenge exempt from 

the applicable statute of limitations.

4

II. DISCUSSION

A. Jurisdiction

Defendants argue we lack jurisdiction to hear this appeal because (1) the order 

finding the petition premature is not appealable, and (2) plaintiffs do not constitute an 

aggrieved party and therefore lack standing to appeal. We are not persuaded.

As to the first argument, section 1304 identifies a variety of appealable orders, 

including the grant or denial of any “final order” issued pursuant to section 17200. 

(§ 1304, subd. (a).) Defendants assert the trial court’s order was not final, and thus not 

 

4 At the hearing, the court also indicated plaintiffs’ motion for summary 

adjudication was denied because there were triable issues of fact. The court asked 

defendants’ attorney to prepare an order regarding the disposition of the motion, though it 

appears the parties have yet to agree on the content of that order.
5

appealable, because it did not grant or refuse to grant an order under section 17200, but 

merely determined plaintiffs’ petition was premature and not ripe for determination. The 

contention is unavailing. A case is not justiciable in the absence of a ripe controversy. 

(Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1585.) 

Where a plaintiff’s claims are not ripe, the appropriate remedy is for a trial court to 

dismiss the action. (Ibid.) Here, the court’s order concerning the ripeness of the action 

essentially terminated the proceedings. Although the court did not expressly deny 

plaintiffs’ requested order, there is no ambiguity about its intent—the court clearly 

indicated the parties’ dispute would need to be resolved in another action, stating 

plaintiffs could refile their claims upon Verla’s death. At the conclusion of the hearing, 

the court also indicated its order disposed of the matter in its entirety, stating, “writs [and] 

appeals may follow, but I don’t think I’ve got anything else in front of me.” 

Second, we find unavailing defendants’ contention that we should not address the 

trial court’s ripeness determination because plaintiffs lack standing to challenge it. Only 

an aggrieved party may appeal. (Code Civ. Proc., § 902.) “An aggrieved person, for this 

purpose, is one whose rights or interests are injuriously affected by the decision in an 

immediate and substantial way, and not as a nominal or remote consequence of the 

decision.” (In re K.C. (2011) 52 Cal.4th 231, 236.) According to defendants, plaintiffs’

interest in the Trust is not immediate and they were not injuriously affected by the trial 

court’s order because their claims are not ripe. As the merits of plaintiffs’ appeal turns 

on the ripeness of their claims, we find defendants’ argument circular. The concepts of

standing and ripeness are intertwined and both are issues of justiciability. (City of Santa 

Monica v. Stewart (2005) 126 Cal.App.4th 43, 59.) In this case, we cannot resolve 

defendants’ standing argument without addressing the merits of the appeal.
6

B. Ripeness

“[R]ipeness is a matter of law subject to de novo review.”5 (Environmental 

Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885.) 

In this case, the trial court concluded plaintiffs’ claims were premature because their 

interests in the trust were “indefinite.” The court reasoned plaintiffs sought to challenge 

their designation as contingent remainder beneficiaries when one of the conditions 

precedent had not yet occurred. But if plaintiffs are correct that the condition precedent

in the Trust must be waived, plaintiffs’ right to take is not dependent on satisfaction of 

that condition and there is no need to wait to adjudicate their claims. As the ripeness of 

plaintiffs’ petition is entirely dependent on the merits of their claim, we find they have 

presented a judiciable controversy.

“The ripeness requirement . . . prevents courts from issuing purely advisory 

opinions. [Citation.] It is rooted in the fundamental concept that the proper role of the 

judiciary does not extend to the resolution of abstract differences of legal opinion. . . . 

[and] is primarily bottomed on the recognition that judicial decisionmaking is best 

conducted in the context of an actual set of facts so that the issues will be framed with 

sufficient definiteness to enable the court to make a decree finally disposing of the 

controversy.” (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 

158, 170.) The ripeness doctrine, however, should not prevent courts from adjudicating 

matters where (1) the dispute is concrete and appropriate for immediate resolution, and 

(2) delayed resolution would present a hardship to the parties. (Id. at pp. 170–173.)

First, we focus on the ripeness of plaintiffs’ claim that they should be excused 

from the employment conditions set forth in the Trust. The definiteness of this claim

turns, in large part, on the nature of plaintiffs’ interest in the Trust. As drafted, the Trust 

grants each beneficiary a contingent remainder, i.e., a future interest, subject to a 

condition precedent, arising in a beneficiary, who is intended to take after the natural 

 

5 Defendants argue de novo review is inappropriate, but do not cite any supporting 

authority. Nor do they suggest an alternative standard of review. 
7

termination of the preceding estate, which will occur upon the death of Verla. (See 

Black’s Law Dict. (5th ed. 1979) p. 1162, col. 1.) The interest of most of the

beneficiaries is subject to the condition precedent that they, their spouse, or their issue 

survive Walter and Verla. Plaintiffs’ interests in the Trust are unique as they are subject 

to the condition precedent that plaintiffs be employed by Control Master Products at the 

deaths of Walter and Verla.

The crux of plaintiffs’ petition is performance of this condition precedent should 

be excused or waived under the doctrines of impossibility, substantial performance, and 

betterment. Plaintiffs reason the sale of Control Master Products renders performance of 

the condition impossible. According to plaintiffs, once performance of the condition is 

excused, there is no requirement they survive Walter and Verla in order to take under the 

Trust. While their possessory interest may not vest until Verla’s death, plaintiffs assert 

their right to take at that time is not subject to a survival requirement.

6

 

The trial court expressly declined to address whether the condition precedent set 

forth in the Trust should be waived or excused, stating plaintiffs’ claims were premature

because Verla is still alive and there is a possibility plaintiffs may predecease her. 

Implicit in the trial court’s reasoning is that, in the event plaintiffs predecease Verla, they 

will no longer have any claim to the Trust. Thus, the court rejected plaintiffs’ claim that 

the Trust does not impose a survivorship requirement, while expressly declining to reach 

the merits of that claim.

7

 This was error. Contrary to the court’s suggestion, plaintiffs’

 

6 Defendants contend the Trust imposes on plaintiffs two conditions precedent: 

(1) they must be employed by Control Master Products at Walter’s and Verla’s deaths, 

and (2) they must survive Walter and Verla. According to defendants, even if plaintiffs 

are excused from performing the employment condition, the survivorship condition still 

applies. This argument goes to the merits of plaintiffs’ claims, which as defendants 

concede, are not properly before us. 

7 Defendants argue the trial court already determined the Trust imposed a 

survivorship requirement on plaintiffs based on unambiguous terms of the Trust, pointing 

to the court’s statement that “the plain language of the trust dictates that the death of both 

the trustor and his spouse must have occurred.” But the court was merely explaining that 

plaintiffs’ possessory interests do not vest until after the deaths of Walter and Verla. 
8

claims would not be mooted if they predeceased Verla. In such an event, a later action by 

plaintiffs’ estates would present the same issues plaintiffs raise now, including whether 

the Trust imposes a survivorship requirement on plaintiffs and whether the employment 

conditions set forth in the Trust should be waived. In short, delaying the action will not 

resolve the issues presented.

Defendants argue resolution of plaintiffs’ claims should be delayed because there 

may be nothing left in the Trust upon Verla’s death. But Verla is entitled to only the net 

income from the Trust, and there is no indication the Trust’s administrative costs will 

exceed its income. At oral argument, defendants asserted, for the first time, that Verla is 

also entitled to take the entire principal of the Trust during her lifetime. They cited to the 

provision of the Trust granting the trustee discretion to pay to “any beneficiary” any 

portion of the Trust’s principal where payments from the trust, together with other 

income or resources of the beneficiary, are “insufficient in the discretion of the Trustee to 

provide for the reasonable support, care and education of such beneficiary.” Setting aside 

that we need not consider arguments not raised in the briefs, we are unconvinced. As the 

trial court dismissed this action sua sponte, there is no evidence in the record concerning 

the value of the Trust or whether the Trust’s income is adequate to meet Verla’s needs.8 

To the extent the Trust’s principal is significant, it is also seems unlikely the trustee 

would need or want to deplete the entire principal of the Trust in order to supplement

Verla’s income. Thus, at this point, it is entirely speculative whether Verla will outlive 

the Trust’s principal. 

Moreover, delayed resolution of the petition may pose a substantial hardship on 

plaintiffs. In time, witnesses may pass away and evidence may disappear, making it 

more difficult to conduct discovery concerning Walter’s intent in drafting the Trust.

Defendants contend the trial court need not consider extrinsic evidence because the plain 

 

Nowhere in the court’s order does it conclude the trust requires plaintiffs to survive 

Walter and Verla in order to take. 

8

In answering defendants’ newly raised contention at oral argument, appellant 

represented that the Trust’s principal is approximately $20 million. 
9

language of the Trust is clear and unambiguous. At the same time, defendants argue any 

proposed construction of the bequest to plaintiffs is not properly before us because the 

trial court did not construe those provisions below. We agree with the latter point, and 

we decline to opine on whether the introduction of extrinsic evidence is necessary or 

proper. Defendants also contend delay would not prejudice plaintiffs because the parties 

have already taken several depositions and exchanged documents, and plaintiffs filed a 

motion for summary adjudication on one of their claims. However, it remains unclear 

whether the period for discovery has expired or whether plaintiffs have had a fair 

opportunity to collect the evidence they require for each and every one of their claims. 

Our discussion thus far has focused on plaintiffs’ claim that they are entitled to 

take under the Trust. Plaintiffs’ section 21380 claim concerning Youngman’s right to 

take is less concrete since the gift to Youngman is expressly conditioned upon him, his 

wife, or his issue surviving Walter and Verla, and there is a possibility Verla will outlive 

them all. But this dispute is not so abstract as to warrant dismissal. To the extent the 

Youngmans do have children or grandchildren, it seems likely they would survive Verla. 

Also, indefinitely delaying the adjudication of the section 21380 claim may prejudice 

plaintiffs, as evidence concerning Youngman’s role in drafting the Trust, as well as 

evidence concerning the purportedly independent review of Youngman’s work, may 

disappear with time. Moreover, judicial economy counsels against continuing the 

proceedings on the section 21380 claim while allowing plaintiffs’ other claims to 

proceed. 

In sum, we conclude the court erred in dismissing plaintiffs’ claims as premature. 

However, we do not hold the doctrines of impossibility, substantial performance, or 

betterment apply in this case. Nor do we hold plaintiffs should be excused from the 

condition concerning their employment at Control Master Products, or even that the Trust 

does not impose a survivorship requirement on plaintiffs. These are all issues for the trial 

court to decide.

III. DISPOSITION

The order of the trial court concerning ripeness is reversed.
10

_________________________

Margulies, Acting P.J.

We concur:

_________________________

Dondero, J.

_________________________

Banke, J.