Filed 4/9/15

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

STEPHEN PAUL et al.,

Plaintiffs and Appellants,

v.

RICHARD PATTON,

Defendant and Respondent.

 H040646

 (Santa Cruz County

 Super. Ct. No. CIS CV176597)

The decedent, Gilbert Paul, retained attorney Richard Patton to draft an 

amendment to his revocable living trust. The decedent signed the “Trust Amendment,”

which, as drafted by Patton, named the decedent’s wife, Helen, and his children, Stephen 

Paul, David Paul, Alan Paul, and Nancy Dybdahl as beneficiaries. Stephen and David 

Paul also are the successor trustees of the trust. Following the decedent’s death, they 

petitioned the probate court to modify the Trust Amendment, alleging it failed to conform 

to the decedent’s intentions by erroneously granting Helen an interest in decedent’s 

brokerage accounts and personal and real property. In connection with that probate court 

action, Patton admitted the Trust Amendment did not reflect the decedent’s intention that 

his brokerage accounts and personal and real property be divided among his children. 

Stephen and David settled the probate court action with Helen.

Subsequently, Stephen, David, Alan, and Nancy (the Pauls) filed the legal 

malpractice action that is the subject of this appeal against Patton. They alleged that 

Patton failed to exercise reasonable care in performing legal services for the decedent by

failing to draft the Trust Amendment in a manner consistent with the decedent’s 
2

intentions. The trial court sustained without leave to amend Patton’s demurrer to the 

Pauls’ first amended complaint. We shall reverse.

I. FACTUAL AND PROCEDURAL BACKGROUND

Because this matter comes to us following a judgment sustaining a demurrer 

without leave to amend, we assume the truth of the material facts properly pleaded in the 

Pauls’ operative first amended complaint. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 

(Blank).) Facts appearing in exhibits attached to the first amended complaint also are 

accepted as true and are given precedence, to the extent they contradict the allegations. 

(Dodd v. Citizens Bank of Costa Mesa (1990) 222 Cal.App.3d 1624, 1627.) The exhibits 

to the first amended complaint were: (1) the Trust Amendment; (2) a December 13, 2011 

letter from Patton regarding the decedent’s intent in connection with the Trust 

Amendment; and (3) a partial transcript of a 2012 deposition of Patton in which he 

discussed the decedent’s intent in connection with the Trust Amendment.

1

 In addition to 

the first amended complaint and its exhibits, we also may consider matters subject to 

judicial notice. (Hill v. Roll Internat. Corp. (2011) 195 Cal.App.4th 1295, 1300.) The 

Pauls request that we take judicial notice of the amended petition to modify the Trust 

Amendment filed in the probate court action and its exhibits, which include the 

decedent’s original revocable living trust. We grant that request pursuant to Evidence 

Code sections 452 and 459. Accordingly, the following factual recitation is based on the 

facts properly pleaded in the first amended complaint, facts appearing in exhibits attached 

to the first amended complaint, and facts appearing in the amended petition to modify the 

Trust Amendment and its exhibits.

 

1

The Pauls request that we take judicial notice of their first amended complaint 

and the documents attached to it as exhibits. Judicial notice is unnecessary because, in 

our review of the demurrer ruling, we accept the allegations in the complaint and the facts 

in the exhibits as true. (Blank, supra, 39 Cal.3d at p. 318; Dodd v. Citizens Bank of Costa 

Mesa, supra, 222 Cal.App.3d at p. 1627.) Therefore, we deny their request as to the first 

amended complaint and its exhibits. 
3

A. The 1995 Trust

The Pauls are the decedent’s four children with his first wife, who died in 1970. 

The decedent married Helen in 1988. At that time, he had substantial separate property, 

including real property referred to as “the Quick Stop Property,” other real property, 

brokerage accounts, and personal property. 

In 1995, the decedent established a revocable living trust (the “1995 Trust”) under 

which he was both trustor and trustee. The 1995 Trust provided that if Helen survived 

the decedent, she would have the right to live in (or lease) the marital home for the rest of 

her life and to receive the net income from the Quick Stop Property. The rest of 

decedent’s property was to be divided among his children, the Pauls. Upon Helen’s 

death, the Pauls were to receive the decedent’s one half community property interest in 

the marital home. 

B. The Trust Amendment

The decedent’s health and his relationship with Helen began to decline in 2009. In 

2011, he retained Patton to amend the 1995 Trust. 

As drafted by Patton and executed by the decedent, “the Trust Amendment”

defines “beneficiaries” as “Trustor’s adult children: Stephen Paul, Alan Paul, David Paul 

and Nancy Dybdahl (in equal shares, share and share alike) and Trustor’s spouse Helen 

C. Paul.” 

In a section entitled “Marital Home,” the Trust Amendment states “[i]t is Trustor’s 

wish that the marital home be sold after his death.” It provides that, upon the sale of the 

home, half the net proceeds from the sale shall go to Helen and the other half shall be 

distributed to “Trustor’s beneficiaries.” 

With respect to the income from the Quick Stop Property, the Trust Amendment 

directs the successor trustees “to use up to $4,000 per month” of that income “to pay for 

the mortgage, insurance, taxes and maintenance of the marital home.” If the marital 
4

home has been sold, the successor trustees are to pay “$4,000 per month from the Quick 

Stop Property to Helen” as monthly income. 

In a section entitled “Other Assets--Personal Property,” the Trust Amendment 

provides: “All other assets held in the Trust at the time of the Trustor’s death, shall be 

distributed as soon as practicable to my beneficiaries, in equal shares, share and share 

alike. Personal property held in the Trust shall be equally divided between my children 

as they agree.” 

Thus, as drafted and executed, the Trust Amendment (1) entitled Helen to one-half 

plus one-fifth of the proceeds of the sale of the martial home, (2) limited the income 

Helen could receive from the Quick Stop Property to $4,000 per month, and (3) gave 

Helen a one-fifth share of the decedent’s other assets (aside from his personal property). 

Under the 1995 Trust, she was entitled to live in or lease (but not to sell) the marital 

home and to all of the Quick Stop Property income, but to none of the decedent’s other 

assets.

C. The Petition to Modify the Trust Amendment and Resulting Settlement

The decedent died in July 2011. In their capacities as successor trustees of the 

1995 Trust, Stephen and David filed a petition to modify the Trust Amendment, arguing 

it did not conform to decedent’s intentions. (In re the Matter of Gilbert L. Paul 

Revocable Living Trust dated April 6, 1995, as amended, Superior Court, Santa Cruz 

County, case No. PR 045678.) Helen opposed the petition.

In connection with the petition to modify, Patton stated in a December 13, 2011 

letter, “I am certain that [decedent] did not intend to give Helen Paul a one-fifth interest 

in his assets.” Patton further wrote, “[i]t was never [decedent’s] intention to change the 

distribution pattern of his real property and/or his brokerage account but rather to clarify 

the language of the original Trust and to limit the amount of income Helen Paul was to 

receive from the Quick Stop property. . . . [¶] . . . I am prepared to make a sworn 
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statement that [decedent’s] intention was not to grant a one-fifth interest to Helen in his 

portion of the marital home or his separate property including the Quick Stop real 

property and the brokerage accounts. Any language to the contrary in the Amendment is 

a ‘scrivener’s error’ and does not reflect the intention of my client, Gilbert Paul.” 

Patton was deposed on June 5, 2012, also in connection with the action seeking to 

modify the Trust Amendment. He stated that, upon reviewing the “Other Assets--

Personal Property” provision of the Trust Amendment after decedent’s death, he realized 

“confusion is caused by the word ‘beneficiaries,’ as opposed to ‘children.’ And my 

reaction to that was that that was not what Gilbert intended.” According to Patton, the 

decedent “did not want [Helen] to share in the personal property, the Morgan Stanley 

account and the Quick Stop property.” As such, Patton characterized the “Other Assets--

Personal Property” provision of the Trust Amendment as containing a “clerical error.” 

Stephen and David reached a settlement agreement with Helen under which she 

received more than decedent intended. 

D. The Pauls’ Professional Negligence Action Against Patton

The Pauls sued Patton for professional negligence on March 29, 2013. The 

operative first amended complaint, filed on August 29, 2013, alleged Patton “failed to use 

reasonable skill and care in drafting the Trust Amendment in that Patton negligently and 

carelessly: [¶] a. included the term ‘beneficiaries’ . . . in the section titled ‘Other Assets--

Personal Property’ instead of ‘children,’ which directly contradicted [decedent’s] clear 

intent and instruction; [¶] b. referred to ‘beneficiaries’ instead of ‘children’ in the Trust 

Amendment section entitled ‘Marital Home,’ which also directly contradicted 

[decedent’s] clear intent and instruction.” The first amended complaint also alleged that 

“[a]s a direct result of Defendant Patton’s negligence, . . . Plaintiffs have been damaged,”

in that they “were forced to litigate to have the Trust Amendment modified[,] . . . [they] 

lost equity value of real property trust assets, and . . . [they] incurred substantial litigation 
6

expenses and attorney fees in connection with the Petition for modification of the Trust 

Amendment,” suffering damages “in excess of $115,000.” 

E. Patton’s Successful Demurrer

Patton demurred to the first amended complaint, arguing he owed no duty of care 

to the Pauls because they were not his clients. In an order filed on December 16, 2013, 

the trial court sustained the demurrer without leave to amend, stating “no liability exists 

as a matter of law under the analysis and precedent set forth in, inter alia, Chang v.

Lederman (2009) 172 Cal.App.4th 67.” A judgment of dismissal was entered on 

December 27, 2013. Patton served a notice of entry of judgment on January 6, 2014 and 

the Pauls timely appealed on February 10, 2014. 

II. DISCUSSION

The single issue raised on appeal is whether the trial court erred in sustaining 

Patton’s demurrer without leave to amend. Because the court’s order apparently was 

based on the conclusion that Patton did not, as a matter of law, owe a duty to the Pauls, 

“[t]he issue on appeal contains two subquestions: (a) whether the court properly 

sustained the demurrer because the complaint, as drafted, failed to state a cause of action 

for professional negligence; and (b) whether the court abused its discretion by refusing 

[the Pauls] leave to amend--i.e., that the court correctly concluded that there was no 

reasonable possibility that [the Pauls] could amend the complaint to state a viable cause 

of action.” (Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 316 (Osornio).) 

A. Standard of Review

A demurrer tests the sufficiency of the complaint as a matter of law. (Osornio, 

supra, 124 Cal.App.4th at p. 316.) Accordingly, it raises a question of law, to which we 

apply a de novo standard of review on appeal. (Ibid.) 

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but not 

contentions, deductions or conclusions of fact or law. [Citation.] We also consider 
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matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a 

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]

When a demurrer is sustained, we determine whether the complaint states facts sufficient 

to constitute a cause of action. [Citation.] And when it is sustained without leave to 

amend, we decide whether there is a reasonable possibility that the defect can be cured by 

amendment: if it can be, the trial court has abused its discretion and we reverse; if not, 

there is no abuse of discretion and we affirm. [Citations.] The burden of proving such 

reasonable possibility is squarely on the plaintiff.” (Blank, supra, 39 Cal.3d at p. 318.)

B. Elements of a Professional Negligence Claim

The elements of a claim for professional negligence are: “ ‘(1) the duty of the 

professional to use such skill, prudence, and diligence as other members of his profession 

commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 

connection between the negligent conduct and the resulting injury; and (4) actual loss or 

damage resulting from the professional’s negligence.’ ” (Osornio, supra, 124 

Cal.App.4th at p. 319.) While negligence is ordinarily a question of fact, the existence of 

a duty is generally a question of law that may be addressed by demurrer. (Id. at p. 316.)

C. Attorney Liability to Nonclients

Generally, “ ‘an attorney owes a duty of care, and is thus answerable in 

malpractice, only to the client with whom the attorney stands in privity of contract.’ ” 

(Osornio, supra, 124 Cal.App.4th at p. 320.) However, courts have extended an 

attorney’s duty of care to nonclients--including will and trust beneficiaries--in limited 

circumstances. (Lucas v. Hamm (1961) 56 Cal.2d 583 (Lucas) [permitting malpractice 

suit by will beneficiaries against attorney whose negligent preparation of a will caused 

them to lose their testamentary rights]; Bucquet v. Livingston (1976) 57 Cal.App.3d 914

(Bucquet) [permitting malpractice suit by trust beneficiaries who lost portion of 

testamentary rights because of attorney’s negligence].) In Heyer v. Flaig (1969) 70 
8

Cal.2d 223, 228, disapproved on other grounds in Laird v. Blacker (1992) 2 Cal.4th 606, 

617, the Supreme Court explained the rationale for extending tort liability to an intended 

beneficiary as follows: “When an attorney undertakes to fulfill the testamentary 

instructions of his client, he realistically and in fact assumes a relationship not only with 

the client but also with the client’s intended beneficiaries. The attorney’s actions and 

omissions will affect the success of the client’s testamentary scheme; and thus the 

possibility of thwarting the testator’s wishes immediately becomes foreseeable. Equally 

foreseeable is the possibility of injury to an intended beneficiary. In some ways, the 

beneficiary’s interests loom greater than those of the client. After the latter’s death, a 

failure in his testamentary scheme works no practical effect except to deprive his 

intended beneficiaries of the intended bequests . . . only the beneficiaries suffer the real 

loss.” (Heyer v. Flaig, supra, at p. 228.)

Attorney “[l]iability to testamentary beneficiaries not in privity is not, however, 

automatic.” (Bucquet, supra, 57 Cal.App.3d at p. 921.) Whether an attorney owes a duty 

to a nonclient beneficiary “is a matter of policy and involves the balancing of various 

factors.” (Lucas, supra, 56 Cal.2d at p. 588.) Those factors--the so-called 

Biakanja/Lucas2factors--are: “ ‘[1] the extent to which the transaction was intended to 

affect the plaintiff [beneficiary], [2] the foreseeability of harm to him, [3] the degree of 

certainty that the plaintiff suffered injury, [4] the closeness of the connection between the 

defendant’s [attorney’s] conduct and the injury[,] . . . [5] the policy of preventing future 

harm[,]’ . . . and [6] ‘whether the recognition of liability . . . would impose an undue 

burden on the profession.’ ” (Osornio, supra, 124 Cal.App.4th at p. 330.)

An attorney also may be held liable for professional negligence to a successor 

trustee, despite the fact that the attorney was hired by the original trustee. (Borissoff v.

Taylor & Faust (2004) 33 Cal.4th 523, 530-531 (Borissoff).) Such liability is not “a 

 

2

Biakanja v. Irving (1958) 49 Cal.2d 647.
9

matter of policy,” but instead is rooted in the Probate Code, which “gives successor 

fiduciaries, but not beneficiaries, the same rights as predecessor fiduciaries, including the 

power to sue for malpractice causing loss to the estate.” (Id. at p. 531.)

The Pauls argue their suit against Patton should have been permitted to go forward 

on either of two alternate theories--(1) Patton owed them a duty of care as trust 

beneficiaries or (2) they had standing as successor trustees. We address each theory in 

turn.

D. The Pauls Should Be Granted Leave to Allege Patton Owed Them a Duty 

as Beneficiaries

The first amended complaint does not allege Patton owed the Pauls a duty. 

Therefore, the trial court properly sustained Patton’s demurrer. The more difficult 

question is whether there was a reasonable possibility that the Pauls could have amended 

their complaint to allege the duty element of their legal malpractice claim, such that the 

court should have granted leave to amend. At this early stage in the litigation, we cannot 

say as a matter of law that Patton did not owe the Pauls a duty to ensure the Trust 

Amendment reflected the decedent’s testamentary intent. Accordingly, we conclude the 

Pauls should have been accorded the opportunity to amend their complaint.

Here, there is no executed trust instrument reflecting the decedent’s alleged intent. 

According to Patton, that is fatal to the Pauls’ action because attorneys owe a duty of care 

only to beneficiaries of executed wills or trust instruments that expressly reflect the 

testator’s intent. The Pauls contend that whether the testamentary document properly 

reflects the testator’s intent is irrelevant; as long as the testator’s intent to benefit the 

plaintiff is clear, a duty exists. 

It certainly is the case that the testator’s intent is central to the duty analysis. 

Where a doubt exists as to whether the plaintiff was the decedent’s intended beneficiary, 

no duty exists. (Boranian v. Clark (2004) 123 Cal.App.4th 1012, 1018 [“liability to a 
10

third party will not be imposed where there is a substantial question about whether the 

third party was in fact the decedent’s intended beneficiary”]; Ventura County Humane 

Society v. Holloway (1974) 40 Cal.App.3d 897, 906 [lawyer who drafted a will with a 

bequest to a nonexistent animal rights organization owed no duty to appellant animal 

rights organization where there was no allegation that the testator intended to leave a 

bequest to appellant].) Thus, in Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946 

(Radovich) this court “refused to extend an attorney’s duty to a nonclient who was a mere 

potential beneficiary under an unsigned draft will.” (Osornio, supra, 124 Cal.App.4th at 

p. 336.) In reaching that conclusion, this court reasoned that the first four 

Biakanja/Lucas factors did not support a finding of duty because the testamentary 

document at issue had not been signed and the decedent had “expressed an intention to 

discuss the draft with her sister” before signing it, casting doubt on whether she intended 

to execute the document benefiting the plaintiff. (Radovich, supra, at p. 964.) Given the 

practical reality “that potential testators may change their minds,” a meeting at which the 

decedent expressed her desire to change her will and the resulting draft will “were 

insufficient in and of themselves to manifest a commitment by the decedent to benefit 

[the plaintiff].” (Ibid.) The absence of a sufficiently clear “manifestation of 

commitment” to benefit the plaintiff likewise cast doubt on “the ‘foreseeability of harm’ 

to [the plaintiff], the degree of certainty that he ‘suffered injury’ attributable to [the 

attorney’s] conduct, and the ‘closeness of the connection’ between [the attorney’s] 

conduct and the injury [the plaintiff] assertedly suffered.” (Ibid.)

By contrast, courts have found a duty where the executed testamentary document 

itself reflects the testator’s undisputed intent that the plaintiff receive a specific benefit. 

(Bucquet, supra, 57 Cal.App.3d at p. 921 [“[a]n attorney may be liable to testamentary 

beneficiaries only if . . . due to the attorney’s professional negligence the testamentary 

intent in a legal instrument is frustrated and the beneficiaries clearly designated by the 
11

testator lose their legacy as a direct result of such negligence” (italics added)]; Chang v.

Lederman, supra, 172 Cal.App.4th at p. 82 (Chang) [“California decisions recognize an 

enforceable duty of care in cases involving a negligently drafted or executed testamentary 

instrument when the plaintiff was an expressly named beneficiary of an express 

bequest”].) For example, in Osornio this court found an attorney owed a duty of care to 

the intended beneficiary of a will he drafted where there was “a clear expression of [the 

testator’s] intention that [the plaintiff] be [the testator’s] sole beneficiary under the signed 

2001 Will.” (Osornio, supra, 124 Cal.App.4th at p. 336.) 

In short, the testator’s intent to benefit the plaintiff is a prerequisite to the 

imposition of a duty on the attorney to the plaintiff. This makes sense, as the rationale 

for allowing testamentary instrument beneficiaries to recover in the event of a breach by 

the attorney is that “the main purpose of the testator in making his agreement with the 

attorney is to benefit” those beneficiaries “and this intent can be effectuated . . . only by 

giving the beneficiaries a right of action.” (Lucas, supra, 56 Cal.2d at p. 590.)

Read liberally, as it is appropriate in evaluating a demurrer, the amended 

complaint alleges the decedent intended to grant the Pauls a particular bequest, directed 

Patton to draft an amendment to his trust effectuating that bequest, and signed the 

resulting Trust Amendment believing it made the intended bequest. But, as a result of 

Patton’s drafting error, the Trust Amendment does not contain the terms that were 

intended by the decedent. Accepting those allegations as true, as we must, we view this 

case as more analogous to Osornio than to Radovich. Unlike in Radovich, here the 

decedent signed the testamentary document at issue, alleviating any concern that he 

changed his mind after directing Patton to amend the trust. And, under the facts as 

alleged, “there is none of the ambiguity concerning the testator’s donative intent as was 

presented in Radovich.” (Osornio, supra, 124 Cal.App.4th at p. 336.) Of course, 
12

discovery may reveal more ambiguity than does the complaint. We merely conclude that, 

at this stage, we cannot say as a matter of law that Patton does not owe the Pauls a duty.

The six Biakanja/Lucas factors support our conclusion. We find Chang

instructive as to the first four factors. In Chang, the plaintiff alleged the decedent 

instructed the defendant attorney to revise the decedent’s trust (which named the 

decedent’s son and plaintiff as beneficiaries) to leave the entire trust estate to the 

plaintiff. (Chang, supra, 172 Cal.App.4th at p. 73.) The attorney refused and advised his 

client, who was seriously ill, to “have a psychiatric evaluation before making any 

changes to his estate plan.” (Ibid.) While, unlike here, there was no allegation the 

attorney confirmed the decedent intended to revise his trust, Chang also was decided at 

the demurrer stage. Accordingly, the court “accept[ed] as true the factual allegation[]” 

that the decedent “advised [his attorney] of his desire to leave his entire estate to [the 

plaintiff].” (Id. at p. 83.) In view of that allegation, the court concluded that “at least 

four of the six Biakanja/Lucas factors point[ed] toward extending [the attorney’s] duty of 

care to include” the plaintiff: “the transaction . . . was intended to directly affect [the 

plaintiff] (the first factor) and it was plainly foreseeable [the attorney’s] failure to 

exercise due care in carrying out [the decedent’s] instructions would harm [the plaintiff] 

(the second factor). [The plaintiff] has also alleged she suffered injury as a result of [the 

attorney’s] negligence (the third factor); and from the allegations in her complaint there 

appear to be no intervening circumstances that might have broken the causal connection 

between [the attorney’s] conduct and [the plaintiff’s] damage (the fourth factor).” (Ibid.) 

To this point, the Chang court’s analysis applies equally here. 

In our view, the fifth Biakanja/Lucas factor--the policy of preventing future harm-

-also weighs in favor of finding Patton owed the Pauls a duty of care with respect to the 

Trust Amendment. “If testamentary beneficiaries who” lose some or all of an intended 

bequest because of an attorney’s admitted clerical error “are deprived of the right to bring 
13

suit against the attorney responsible . . . , no one would be able to bring such action. The 

policy of preventing harm would thus be impaired.” (Osornio, supra, 124 Cal.App.4th at 

p. 332.) “The imposition of duty under the circumstances before us would . . . promote 

public policy . . . [by] encourag[ing] the competent practice of law by counsel 

representing testators [and] trustors . . . .” (Id. at pp. 332-333.)

Finally, the sixth factor--whether extension of liability would impose an undue 

burden on the profession--also favors the Pauls. Imposing liability on attorneys to 

properly define and use basic terms such as “beneficiaries” and “children” to carry out 

the testator’s wishes does not impose an undue burden on the legal profession. And, 

where, as is alleged here, there is no dispute regarding the decedent’s intent, the 

imposition of liability will not compromise the attorney’s duty of undivided loyalty to the 

testator.

We recognize that in Chang, which is factually analogous to this case in many 

ways, the court found no duty based exclusively on the sixth factor. The Chang court

expressed concern that “any disappointed potential beneficiary--even a total stranger to 

the testator--could make factual allegations similar in most respects to those in the second 

amended complaint . . . .” (Chang, supra, 172 Cal.App.4th at p. 83.) “Without a finite, 

objective limit on the identity of individuals to whom they owe a duty of care, the burden 

on lawyers preparing wills and trusts would be intolerable.” (Id. at p. 84.) We find that 

analysis inapplicable to the facts of this case. While in Chang the plaintiff merely alleged 

the decedent “instructed [the attorney] to revise his trust” (id. at p. 73), something “any 

disappointed potential beneficiary” could allege (id. at p. 83), here the Pauls allege Patton 

admitted to a drafting error in another action. That is not an allegation most disappointed 

beneficiaries can make. 
14

For the foregoing reasons, we conclude the trial court erred in concluding as a 

matter of law that the Pauls could not establish Patton owed them a duty as beneficiaries. 

On remand, the Pauls should be permitted to amend their complaint to allege such a duty.

E. The Pauls Failed to State a Claim as Successor Trustees

The Pauls also maintain that Stephen and David stated a claim against Patton in 

their capacity as successor trustees. The Pauls did not raise this argument below, but we 

agree with their contention that they can assert it for the first time on appeal. (20th 

Century Ins. Co. v. Quackenbush (1998) 64 Cal.App.4th 135, 139, fn. 3 [“When a 

demurrer is sustained without leave to amend the petitioner may advance on appeal a new 

legal theory why the allegations of the petition state a cause of action.”].) However, we 

find the argument to be without merit. 

Under the Probate Code, “successor [trustees], but not beneficiaries, [have] the 

same rights as predecessor [trustees], including the power to sue for malpractice causing 

loss to the estate.” (Borissoff, supra, 33 Cal.4th at p. 531, italics added; id. at p. 535 

[successor fiduciaries have “the power to sue for malpractice harming the trust” (italics

added)].) The first amended complaint does not allege facts suggesting any injury to the 

estate or the trust. Rather, the thrust of the factual allegations is that the Pauls, 

individually, received a smaller portion of the trust assets than they should have. For 

example, the complaint alleges “Plaintiffs have lost equity value of real property trust 

assets.” (Italics added.) Because the Pauls neither allege, nor establish that they can 

allege, harm to the trust, Borissoff and its progeny are inapposite. (Borissoff, supra, at p.

528 [successor fiduciary had standing to sue attorney whose negligence allegedly caused 

estate to lose ability to claim tax refund]; Stine v. Dell’Osso (2014) 230 Cal.App.4th 834

[successor conservator had standing to sue attorney who allegedly negligently failed to 

prevent misappropriation of estate assets]; Smith v. Cimmet (2011) 199 Cal.App.4th 

1381, 1387 [successor personal representative may sue attorneys who allegedly 
15

prosecuted a meritless lawsuit that unnecessarily expended estate assets].)

III. DISPOSITION

The judgment is reversed and, on remand, the trial court is directed to grant the 

Pauls leave to amend. The Pauls shall recover their costs on appeal.
Premo, J.

WE CONCUR:

Rushing, P.J.

Márquez, J.

Paul et al. v. Patton

H040646
Trial Court: Santa Cruz County Superior Court

Superior Court No. CIS CV176597

Trial Judge: Hon. Rebecca Connolly

Counsel for Plaintiffs/Appellants:

Stephen Paul, David Paul, Alan Paul, 

Nancy Dybdahl

Willoughby, Stuart & Bening

Bradley A. Bening

Ellyn E. Nesbit

Counsel for Defendant/Respondent:

Richard Patton

Law Offices of Richard L. Francis & 

Associates

Richard L. Francis

Paul et al. v. Patton

H040646