Filed 2/26/13 Estate of Gill CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

Estate of DAVID HENRY GILL, 

Deceased.

___________________________________

JONATHAN R. GILL et al.,

 Plaintiffs and Appellants,

 v.

BRIAN GILL,

 Defendant and Respondent.

 H037114

 (Monterey County

 Super. Ct. No. MP11751)

This case is the latest chapter in a series of disputes1between family members 

concerning their late father‟s and husband‟s revocable trust. Jonathan and Jason Gill 

(collectively, Trustees)—who are the successor cotrustees, as well as beneficiaries, of the 

David Henry Gill Revocable Trust—appeal from a June 2, 2011 probate order requiring 

the liquidation of certain Trust assets to satisfy a prior 2010 judgment awarding costs and 

attorney fees in favor of Brian Gill, the former trustee who is also a beneficiary of the 

Trust. (Hereafter, the challenged probate order is referred to as the June 2, 2011 order.) 

That prior 2010 judgment was also the subject of an appeal by Trustees. This court 

 

1

There have been a total of five separate proceedings before this court.
2

disposed of that appeal in favor of Brian.2 (See Estate of Gill, May 4, 2012, H036291 

[nonpub. opn.] (Estate of Gill I).)3 

Trustees claim that the court erred in granting the June 2, 2011 order, asserting 

that it was based upon a petition filed by Brian without affording the beneficiaries and 

Trustees the requisite statutory notice. Brian responds that the issue of notice was waived 

because no objection was asserted below. (See Western Oil & Gas Assn. v. Monterey 

Bay Unified Air Pollution Control Dist. (1989) 49 Cal.3d 408, 427, fn. 20.) He argues 

further that the June 2, 2011 order was superseded by a June 23, 2011 order that is not a 

subject of this appeal. 

We conclude that the appeal is moot and will therefore dismiss the appeal. 

PROCEDURAL BACKGROUND

I. Prior Litigation

David Henry Gill, the trustor, passed away in 1990, five months after the creation 

of the Trust. He was survived by his widow (Elizabeth) and six children (Brian, 

Jonathan, Jason, Storm, Constance, and David [now deceased]). Brian, an attorney 

experienced in trust and estate matters, served as the successor cotrustee for over 17 years 

after his father‟s death.4 In January 2008, Brian resigned as trustee after disputes arose 

 

2

 We refer to the parties herein by their forenames. We do so as a matter of 

convenience and mean no disrespect in omitting their shared surnames. 

3

Pursuant to Evidence Code sections 452, subdivision (d) and 459, subdivision 

(a), we take judicial notice of our prior unpublished opinion in this case. Judicial notice 

of our prior opinion is appropriate and it “help[s] complete the context of this case.” 

(Flatley v. Mauro (2006) 39 Cal.4th 299, 306, fn. 2.) The facts and procedural history 

concerning the prior litigation as presented below are taken from our unpublished opinion 

in Estate of Gill I.

4

The trustor‟s widow, Elizabeth, served as successor cotrustee with Brian from 

1990 to 2006. Her conduct as cotrustee was not a subject of the prior litigation. 
3

among the family. The next month, Jonathan and Jason (appellants) were appointed as 

successor cotrustees.5 

In November 2008, Trustees filed a petition to recover funds from Brian that he 

had disbursed from the Trust. Trustees alleged that between 1990 and 2008, Brian had 

improperly disbursed Trust funds in the form of unexplained payments, undocumented 

loans, legal fees, and payments for personal expenses. The claim, made pursuant to 

Probate Code section 16440, was for approximately $55,415 in principal plus 

approximately $59,000 in interest. Trustees alleged further that Brian, on behalf of the 

Trust, hired an interior designer, his wife (Kim), to oversee the renovation of a home on 

Pelican Road in Pebble Beach that was a major Trust asset, and that he overpaid her for 

those services by approximately $75,000. Brian opposed the petition. 

After a four-day trial in June 2010, the court rejected Trustees‟ claims. It held 

that (1) Brian had not improperly diverted Trust funds to himself, and (2) the 

compensation he had paid to Kim for her services was reasonable. On September 3, 

2010, the court entered judgment, which included an award to Brian of $213,274.18 in 

attorney fees and costs, a sum that was about $92,000 less than the sum he had requested. 

Trustees, in their challenge of the judgment in Estate of Gill I, argued that the 

evidence established that Brian breached his fiduciary duty to the Trust by, inter alia, 

making unauthorized payments to himself and by paying unreasonable compensation to 

Kim. They also claimed that the court abused its discretion in awarding Brian his 

attorney fees and costs. We rejected each of Trustees‟ claims. Specifically, we 

 

5

In supplemental briefing of the parties solicited by this court in the present 

appeal, we were advised by Brian‟s counsel that the powers of Trustees were suspended 

and Albert Nicora was appointed the interim trustee of the Trust in an order of the court 

filed December 10, 2012. Nicora subsequently filed a formal consent to serve as interim 

trustee. We take judicial notice of this order and consent filed with the superior court. 

(Evid. Code, §§ 452, subd. (d), 459, subd. (a).) 
4

concluded that the trial court had committed no error in rejecting Trustees‟ breach of 

fiduciary duty claims alleged in Trustees‟ petition (Estate of Gill I, supra, at pp. 10-20) 

and had not abused its discretion in awarding Brian his reasonable costs and attorney fees 

associated with defending Trustees‟ claims challenging his administration of the Trust 

(id. at pp. 32-33).6

II. Current appeal

While the prior appeal was pending, a number of events occurred in the trial court 

relating to the September 2010 judgment. On December 1, 2010, the court ordered 

Trustees to post a bond of $426,548.36 in order to stay enforcement of the judgment 

during the pendency of the appeal in Estate of Gill I. In April 2011, Brian caused a writ 

of execution to be issued by the superior court to enforce the judgment. Shortly 

thereafter, Trustees filed an ex parte application seeking an order staying enforcement of 

the judgment, as well as an order staying other proceedings before the superior court, 

asserting that Trustees had recently “learned that [Brian was] attempting to levy on stock 

held by the Trust at UBS Financial Services and to terminate the income distribution due 

Elizabeth . . .”7 Brian opposed the application. After a hearing, the court shortened time 

 

6

In addition, we held that the court did not err in rejecting several unpleaded 

breach of fiduciary duty claims Trustees had raised at trial. (Estate of Gill I, supra, at 

pp. 20-27.)

7

The accounts containing Trust assets at UBS Financial Services are hereinafter 

referred to as the UBS accounts. With regard to the stay of proceedings sought in the 

trial court, Trustees alleged that they intended to file a petition for writ of mandate with 

this court challenging an order by the trial court denying their motion to disqualify 

counsel, and that the superior court proceedings should be stayed to give this court an 

opportunity to hear and decide that matter. A review of this court‟s files discloses that on 

April 29, 2011, Trustees initiated two proceedings challenging the order denying their 

motion to disqualify counsel: a writ petition and a separate appeal. The writ petition was 

denied by this court on May 9, 2011. (Gill v. Superior Court, H036848.) Trustees 

abandoned their appeal on July 14, 2011. (Estate of Gill, H037113.) We take judicial 

notice of these court filings. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); see also 

Flatley v. Mauro, supra, 39 Cal.4th at p. 306, fn. 2.)
5

for the filing by Brian of a petition for instructions regarding payment of the judgment; 

set a briefing schedule; ordered that no liquidation of the UBS accounts occur in the 

interim; and stayed enforcement under Code of Civil Procedure section 680.010. 

On May 3, 2011, Brian filed a petition for instructions (May 3 petition), requesting 

that the court order Trustees, inter alia, to liquidate certain Trust assets—namely, the 

UBS accounts, silver, coins and currency, and all accounts with financial institutions—

and pay the proceeds to Brian to partially satisfy the judgment.8 Trustees opposed the 

May 3 petition. In their objections filed with the court, Trustees asserted, among other 

things, that Brian‟s petition exceeded the scope of the court‟s order; liquidation would 

interfere with the orderly administration of the Trust; the Trust had assets well exceeding 

the amount of the judgment; and liquidation would interfere with Elizabeth‟s rights to 

receive Trust income during her lifetime. Declarations by Elizabeth, Constance, Storm, 

Jason, Jonathan, and Thomas Gill (David‟s executor) were submitted in opposition to the 

May 3 petition and two other petitions filed by Brian.9

 

8

In the May 3 petition, Brian also sought court orders requiring Trustees to 

(1) pay or return funds to the Trust to pay to Brian to satisfy judgment, or, alternatively, 

have the beneficiaries (other than Brian) return the pro rata shares of their respective 

distributions sufficient to pay Brian in satisfaction of the judgment; (2) grant a special 

power of attorney to Brian to market undeveloped Sand City real property owned by the 

Trust, or alternatively, market the property themselves; and (3) pay Brian‟s costs and fees 

for bringing the petition. 

9 On March 30, 2011, Brian filed a petition for instructions seeking an order 

requiring Trustees to provide him with copies of Trust financial records. And on April 8, 

2011, Brian filed a petition for instructions seeking orders instructing Trustees to post a 

$3 million fiduciary bond; refrain from using Trust assets to fund litigation against him; 

reimburse the Trust for funds already paid to finance that litigation; and reimburse Brian 

for the cost of the petition. The declarations filed by Elizabeth, Constance, Storm, and 

Thomas appear to have been directed toward the relief sought in Brian‟s April 8, 2011 

petition. It appears that Jonathan‟s and Jason‟s declarations were directed toward 

opposing Brian‟s May 3 petition for instructions regarding, inter alia, the liquidation of 

the UBS account. 
6

On May 13, 2011, the court initially heard the May 3 petition and two other 

petitions filed by Brian and ordered, inter alia, that the hearing on the May 3 petition be 

continued. On June 1, 2011, the court granted Brian‟s May 3 petition, instructing the 

Trustees to liquidate the UBS accounts and accounts of the Trust in other financial 

institutions, as well as to liquidate “[a]ll numismatic silver, silver coins and currency 

owned by the [T]rust.” The court further ordered that Trustees pay the proceeds from the 

liquidation to Brian in partial satisfaction of the judgment. A formal order was entered 

on June 2, 2011. It included a requirement that the liquidation of the UBS accounts and 

payment of the proceeds occur by June 6, 2011. Trustees filed a notice of appeal from 

the June 2, 2011 order on June 6, 2011. 

III. Subsequent Proceedings

Proceedings relevant to this appeal occurred after the entry of the June 2, 2011 

order.10 On June 13, 2011, Brian filed an application to hold Trustees in contempt based 

upon their alleged failure to comply with the June 2, 2011 order in that the UBS accounts 

had not been liquidated and no funds had been delivered to Brian in partial satisfaction of 

the judgment by June 6, 2011, as required in the order. The Trustees opposed the 

application, arguing, among other things, that the filing of their appeal had stayed the 

June 2, 2011 order. The court, after hearing argument, set the matter for a further hearing 

to afford the parties the opportunity to submit further briefing. 

On or about June 20, 2011, Brian submitted a petition seeking an order that 

Trustees post an undertaking in an amount equal to at least twice the current value of the 

 

10 Pursuant to the application of Trustees, by order dated May 30, 2012, this court 

has taken judicial notice of the court transcripts of hearings on April 27, 2011, and June 

15, 2011; Brian‟s application for contempt and Trustees‟ opposition thereto; Brian‟s 

petition for instructions requiring Trustees to post a bond to stay liquidation and Trustees‟ 

opposition thereto; an order dated June 23, 2011, directed to UBS Financial Services, Inc. 

directing the liquidation of the UBS accounts; and an order dated June 23, 2011, directing 

the liquidation of the UBS accounts unless Trustees posted an undertaking of $176,000. 
7

UBS accounts, as well as an order directing that UBS liquidate the accounts and pay the 

proceeds to Brian by a specified date. Trustees opposed the petition. The court granted 

Brian‟s petition on June 23, 2011. It ordered UBS to liquidate the UBS accounts by 

5:00 p.m. on July 1, 2011. In a separate order also dated June 23, 2011, the court 

required Trustees to post a bond of $176,000 “by 5:00 p.m. on June 30, 2011, if they wish 

the Court‟s order of [June 2, 2011,] insofar as it directs liquidation of the U.B.S. 

Accounts pending appeal, be stayed.”11 

DISCUSSION

I. Whether Appeal Is Moot

After briefing was completed, this court asked the parties to address whether the 

case should be dismissed on the ground that it is moot. Specifically, we noted that the 

present appeal was based in part upon the lack of finality of the September 2010 

judgment, and that we had subsequently affirmed that judgment in Estate of Gill I on 

May 2, 2012. We observed further that we had “denied appellants‟ petition for writ relief 

or for a temporary stay relative to an order of June 23, 2011, in which the trial court again 

ordered liquidation of certain Trust assets absent the filing of a bond. (Gill et al. v. 

Superior Court, H037093.) In light of these proceedings, this court questions whether 

actions (if any) taken in compliance with the June 2, 2011 order requiring liquidation of 

Trust assets to partially satisfy the judgment may have rendered the issues in this appeal 

 

11 On June 30, 2011, Trustees filed with this court a petition for writ of 

prohibition, mandate, or other relief and request for a temporary stay, challenging the 

court‟s June 23, 2011 orders (1) directing UBS to liquidate the UBS accounts, and 

(2) liquidating the UBS accounts by July 1, 2011, unless Trustees posted a bond to stay 

the order of liquidation. (See Jonathan Gill et al. v. Superior Court, H037093.) On July 

7, 2011, we denied the petition and request for stay. We take judicial notice of this 

petition and order. (Evid. Code, §§ 452, subd. (d), 459, subd. (a); see also Flatley v. 

Mauro, supra, 39 Cal.4th at p. 306, fn. 2.)
8

moot.” We therefore requested that the parties submit letter briefs on the subject of 

mootness.

We have been advised by Brian in his letter brief that “[t]he Trust‟s UBS accounts 

were in fact liquidated and the proceeds ($87,850.56) were given to Respondent Brian 

Gill in partial satisfaction of the Judgment.” Brian argues that the present appeal is moot 

because (1) Trustees‟ argument herein that the court should not have permitted collection 

efforts because their prior appeal of the judgment automatically stayed the judgment was 

rendered moot by the filing of our opinion in Estate of Gill I affirming the underlying 

judgment; (2) the June 23, 2011 order to UBS concerning liquidation of the UBS 

accounts superseded the June 2, 2011 order, and this court denied Trustees‟ writ petition 

seeking relief from the June 23, 2011 order; and (3) the liquidation of the UBS accounts 

came as a result of the June 23, 2011 order, and since no action was taken as a result of 

the June 2, 2011 order, there is no need to consider the validity of that prior order. 

Trustees concede in their letter brief that the UBS accounts have been liquidated. 

They also acknowledge that after the September 2010 judgment became final and Brian 

filed a petition seeking to hold Trustees in contempt, they “liquidated the other assets at 

issue.” Trustees conclude: “As a result of these events occurring through 2012, the issue 

on appeal is now moot.” Citing Abbott Ford, Inc. v. Superior Court (1983) 43 

Cal.3d 858, 868-869, fn. 8, Trustees suggest that the appeal may be considered 

notwithstanding its mootness if it “presents an issue of recurring public interest or a 

question of law for which clarification is needed.” 

In general, appellate courts will neither decide controversies that are moot nor 

render decisions on abstract propositions. (Eye Dog Foundation v. State Board of Guide 

Dogs for the Blind (1967) 67 Cal.2d 536, 541; see also Mercury Interactive Corp. v. 

Klein (2007) 158 Cal.App.4th 60, 78.) “A case is moot when the decision of the 

reviewing court „can have no practical impact or provide the parties effectual relief. 

[Citation.]‟ [Citation.] „When no effective relief can be granted, an appeal is moot and 
9

will be dismissed.‟ [Citations.]” (MHC Operating Limited Partnership v. City of San 

Jose (2003) 106 Cal.App.4th 204, 214 (MHC Operating Limited Partnership).) Stated 

slightly differently, a case may be moot when “neither a reversal nor an affirmance will 

affect the substantive rights of the parties.” (City of Hollister v. Monterey Ins. Co. (2008) 

165 Cal.App.4th 455, 479.) A question of mootness may be raised by the appellate court 

sua sponte. (Ibid.; see also Building a Better Redondo, Inc. v. City of Redondo (2012) 

203 Cal.App.4th 852, 865 (Building a Better Redondo, Inc.).)

Thus, for example, where a city amended a rent control ordinance in compliance 

with a writ of administrative mandamus granted by the trial court, that postjudgment 

action rendered moot any appellate challenge by the city to the issuance of the writ. 

(MHC Operating Limited Partnership, supra, 106 Cal.App.4th at pp. 214-215.) 

Similarly, an objector‟s CEQA challenge to an environmental impact report issued in 

connection with a construction project (which included a public park) was held moot 

where, during the pendency of the appeal, the project was completed and was opened to 

the public and no effective relief could be granted to the objector. (Santa Monica 

Baykeeper v. City of Malibu (2011) 193 Cal.App.4th 1538, 1547-1551 (Santa Monica 

Baykeeper).)

The controversy here, as argued by Brian and as conceded by Trustees, is moot. 

Trustees‟ challenge to the underlying judgment—as asserted in the prior appeal and 

reiterated in the present appeal—was unsuccessful. While the instant appeal was 

pending, we affirmed the judgment in Estate of Gill I. In addition, the June 2, 2011 order 

that is the subject of this appeal was plainly superseded by (1) the June 23, 2011 order 

requiring Trustees to post an undertaking of $176,000 by June 30, 2011, in order to stay 

liquidation of the UBS accounts which was otherwise ordered to proceed on July 1, 2011, 

and (2) the parallel order of June 23, 2011, directing UBS to liquidate those accounts. 

Moreover, the parties in their recently submitted letter briefs stipulate that (1) the UBS 

accounts have been liquidated and the proceeds have been paid to Brian in partial 
10

satisfaction of the judgment, and (2) Trustees have liquidated the other Trust assets that 

were the subject of the June 2, 2011 order involved in the instant appeal. Because “ „no 

effective relief can be granted‟ ” (MHC Operating Limited Partnership, supra, 106 

Cal.App.4th at p. 214) to address Trustees‟ challenge to the entry of the June 2, 2011 

order, the controversy is moot.12

Trustees propose that we may decide this case notwithstanding the mootness of the 

controversy based upon the case presenting issues of recurring public interest or 

involving questions of law requiring clarification. While the court may decide a case that 

is otherwise moot when it presents an issue of continuing public interest (Santa Monica 

Baykeeper, supra, 193 Cal.App.4th at p. 1548), this case does not fall within that 

exception. In our view, resolution of the instant controversy—including whether the June 

2, 2011 order was improper due to a lack of proper notice and a fact-specific inquiry 

regarding whether any notice deficiency was forfeited by Trustees and the 

beneficiaries—is unlikely to provide guidance to litigants in other trust proceedings. We 

therefore decline to exercise our discretion to decide the moot issues here. (See Building 

a Better Redondo, Inc., supra, 203 Cal.App.4th at pp. 867-868; MHC Operating Limited 

Partnership, supra, 106 Cal.App.4th at p. 215.) 

DISPOSITION

The appeal is dismissed on the ground that it is moot. 

 

12 There is no impediment to our reliance upon court-filed documents that postdate 

the entry of the appealable order here—including our opinion in Estate of Gill I, 

documents filed in this court by Trustees in related proceedings, pleadings filed below, 

and the letter briefs filed in this court—to establish that the appeal is moot. (See In re 

Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [appellate record properly included 

agency‟s addendum report filed after entry of judgment offered to show that rendered 

issue on appeal was moot].)
11

_______________________

Márquez, J.

WE CONCUR:

___________________________

Premo, Acting P.J.

________________________

Mihara, J.