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Filed 2/26/16 Prichard v. Pergiovanni CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THERESA BROWN PRICHARD,

Plaintiff and Respondent,

v.

NICHOLAS PERGIOVANNI, JR.,

Defendant and Appellant.

E062203

(Super.Ct.No. PROPS1200335)

OPINION

APPEAL from the Superior Court of San Bernardino County. Raymond L. 

Haight III, Judge. Affirmed.

Nicholas Pergiovanni, in pro. per. for Defendant and Appellant.

Law Offices of Donald L. Prichard and Donald L. Prichard for Plaintiff and 

Respondent.

Defendant and appellant Nicholas Pergiovanni, Jr., appeals in propria persona 

from the probate court’s order that, among other things, removes him as cotrustee of the 

Pergiovanni Family Trust (the Trust), established by his now-deceased parents, and 
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appoints his sister, plaintiff and respondent Theresa Brown Prichard, as the sole trustee. 

The order also authorizes the liquidation of all the assets of the trust, including the house 

where defendant resides, with proceeds to be divided between defendant, plaintiff, and 

their brother Frank Pergiovanni. We find no abuse of discretion by the probate court, and 

therefore affirm.

I FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff, defendant, and Frank Pergiovanni are siblings who, after the death of 

their parents, became cotrustees of the Trust. The Trust documents include handwritten 

“Minutes of Trust” (minutes), which are to be “construed as instructions to the successor 

trustee” regarding the “allocation and distribution of specific trust assets.” Among these 

specific trust assets is a house in Fontana, California. The minutes instruct that the house 

“goes to” plaintiff, defendant, and their brother, and that the “house and furnishings 

should be shared equally,” but with the caveat that defendant “is entitled to live in it as 

long as he resides there.” The minutes further state that “[i]n the event that the house is 

to [be] sold, all three children are to agree upon its sale.”

Disputes arose among the siblings as to how to interpret the minutes, including as 

to whether only defendant should have access to the property, and whether defendant 

alone had the right to control whether additional boarders or renters should be placed 

there. Plaintiff initiated these proceedings on May 8, 2012, seeking to remove defendant 

as a cotrustee of the Trust, an accounting, and appointment of a successor trustee. 

Defendant filed a petition of his own, requesting either a finding that his cotrustees had 
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“breached the trust” or, in the alternative, to remove them as cotrustees. On August 29, 

2013, after a trial, the probate court entered a judgment regarding the proper distribution 

of the assets of the Trust, without removing or replacing any of the siblings in their roles 

as cotrustees.

The probate court’s August 29, 2013 judgment, among other things, directs 

plaintiff and Frank Pergiovanni to deed their respective interests in the property to 

defendant. Defendant, in turn, now as sole owner, is to execute a reverse mortgage on the 

property, and distribute one third of the proceeds to each of his siblings. The judgment 

provides additional instructions regarding distribution of the remaining Trust assets, and 

declares that when the distribution of assets in accordance with the judgment has been 

completed, the Trust shall be deemed dissolved.

The probate court held several hearings regarding the status of the reverse 

mortgage to be obtained by defendant. Plaintiff and Frank Pergiovanni apparently 

performed their obligations under the August 29, 2013 order to deed their interest in the 

property to defendant.1 Defendant, however, failed to obtain a reverse mortgage as 

required. The court rejected one reverse mortgage transaction that was approved by a 

bank, because the terms were inconsistent with its prior orders allocating expenses of 

 

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 The deeds do not appear in our record, but the probate court refers to defendant 

as “the owner of the property” in the course of a discussion with defendant as to why he, 

and not plaintiff or plaintiff’s attorney, is required to obtain the reverse mortgage.
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repairing and maintaining the house to defendant.2 Several other applications submitted 

by defendant were denied by the banks, apparently because of the condition of the house.

After the August 29, 2013 judgment, the probate court held several hearings with 

respect to the status of the reverse mortgage, among other issues. Finally, on April 30, 

2014, the probate court heard argument on plaintiff’s “Motion for Sanctions Against 

Nicholas Pergiovanni, Jr.,” filed December 23, 2013, asking that the court remove 

defendant as trustee, appoint plaintiff as the sole trustee, and order the assets of the Trust 

to be liquidated. The probate court granted the motion, ordering that plaintiff be 

appointed as sole trustee of the Trust, and granting her authority to liquidate all the Trust 

assets, including the house, which defendant was ordered to vacate. The probate court 

ordered that proceeds of the liquidation be divided among the siblings, with 50 percent to 

defendant, 25 percent to plaintiff, and 25 percent to Frank Pergiovanni. The probate 

court explained that the higher percentage to defendant was in recognition of the 

additional rights to the house defendant had been granted under the terms of the Trust, 

even though defendant’s failure to obtain a reverse mortgage made it impossible to “save 

the house.”

 

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 Those orders do not themselves appear in our record, but the probate court 

makes reference to them in the portion of the reporter’s transcript that was designated by 

defendant for inclusion in the record on appeal.
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II. DISCUSSION

Defendant contends, among other things, that the probate court erred in removing 

him as cotrustee of the Trust, appointing a new trustee, and authorizing the Trust assets, 

including and especially the house, to be liquidated. We disagree.

A probate court has “general power and duty to supervise the administration of 

trusts.” (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.) The probate court “may 

apply general equitable principles in fashioning remedies and granting relief.” (In re 

Estate of Kraus (2010) 184 Cal.App.4th 103, 114.) The probate court’s supervisory 

power includes the authority to remove a trustee, based either on a party’s motion or on 

its own motion. (Prob. Code, § 17200, subds. (a) & (b)(10).) Probate Code section 

15642 sets forth the statutory grounds for removing a trustee (§ 15642, subd. (a)). These 

grounds include “[w]here hostility or lack of cooperation among cotrustees impairs the 

administration of the trust” (subd. (b)(3)), “[w]here the trustee fails or declines to act” 

(subd. (b)(4)), and “[f]or other good cause” (subd. (b)(9)). A judgment removing a 

trustee is reviewed for abuse of discretion. (Schwartz, supra, at p. 430.)

There is no doubt that defendant, in his role as cotrustee, failed or declined to 

perform an act required of him by the probate court, namely, to obtain a reverse mortgage 

and distribute the proceeds equally among the three siblings. Moreover, it is apparently 

undisputed that there is hostility and a lack of cooperation between defendant and the 

other cotrustees that has impaired the administration of the trust, making even the 

simplest distribution of minor portions of the assets of the estate a fraught and sometimes 
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impossible exercise. The probate court acted well within the scope of its discretion in 

removing defendant as a cotrustee of the Trust, and appointing a sole trustee with the 

responsibility of making a final distribution of the Trust assets in accordance with the 

probate court’s orders.

Defendant objects that the probate court’s ruling effectively “strip[s]” him of his 

“life estate” in the property, to which he was entitled under the terms of the Trust. The 

August 2013 judgment entered by the probate court, however, amounts to a ruling that 

defendant was not entitled to a life estate, but rather to 100 percent ownership of the 

property in fee simple, subject to a reverse mortgage, with a portion of the proceeds from 

the reverse mortgage distributed to his siblings.3 Defendant did not timely appeal that 

judgment, so the probate court’s ruling became the final word on the issue. (See Shultz v. 

Harney (1994) 27 Cal.App.4th 1611, 1619 [“The doctrine of res judicata gives conclusive 

effect to a final judgment rendered upon the merits by a court having jurisdiction of the 

cause.”].) Given that defendant was unable or unwilling to obtain a reverse mortgage as 

ordered, the probate court had no choice but to devise a remedy appropriate to the 

circumstances. Defendant has not demonstrated that the remedy the probate court chose 

was beyond the bounds of reason, so we find no abuse of discretion.

 

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 The probate court, as well as the parties, have loosely referred to the interest 

granted to defendant by the Trust, entitling him “to live in [the house] as long as he 

resides there,” as a “life estate.” The probate court’s August 2013 judgment in effect 

determined, however, that the trustors’ intent was not to give defendant a life estate, in 

the strict sense of the term, as discussed in the text above. (See 12 Witkin, Summary of 

California Law (10th Ed. 2005) Real Property, § 24, pp. 78-79, § 29, pp. 82-83 

[discussing nature of life estate].)
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Defendant further argues that the probate court erred in failing to order plaintiff 

and Frank Pergiovanni to return certain funds withdrawn from a bank account that was 

part of the trust assets. Again, however, this is a matter that was litigated by the parties 

and was resolved by the probate court’s August 2013 judgment; the probate court ruled 

defendant was entitled to the funds remaining in the account, and (implicitly) not entitled 

to return of the funds previously withdrawn from the account. Defendant failed to timely 

appeal that judgment, so we will not revisit the issue.

Defendant also contends that plaintiff “deceive[d] the court wherein she failed to 

attach the entire trust agreement in her initial Petition filing in the probate court . . . .” 

Defendant failed to include plaintiff’s “initial Petition filing” as part of the record on his 

appeal, so we cannot judge the truth of this assertion. In any case, however, it is apparent 

from the record that the probate court was well aware of the purportedly omitted portion 

of the Trust documents at all times relevant to the present appeal. Defendant’s assertion, 

even if true, does not demonstrate any error by the probate court.

Finally, defendant asserts that plaintiff, by bringing her petition seeking his 

removal as cotrustee, in effect contested the Trust, in violation of the Trust’s no contest 

clause. Not so. Plaintiff did not “contest[] or attack[] [the Trust] or any of its 

provisions,” but rather contended defendant had breached his duties as cotrustee of the 

Trust, and sought remedies for that alleged breach. Generally, a pleading challenging a 

trustee’s exercise of his or her fiduciary power does not violate a no contest clause, 

regardless of the precise terms of the instrument, as a matter of public policy. (Bradley v. 
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Gilbert (2009) 172 Cal.App.4th 1058, 1071.) We need not address plaintiff’s argument 

that the issue of the no contest clause was not properly raised in the probate court; 

assuming the argument was raised below and adequately preserved for appeal, it is 

nevertheless without merit.

III. DISPOSITION

The order appealed from is affirmed. Plaintiff is awarded her costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

 J.

We concur:

RAMIREZ

 P. J.

CODRINGTON

 J.