Filed 7/15/22 Howard v. Mills CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

CAROL ANN HOWARD,

Plaintiff and Appellant,

v.

ANDREW MILLS et al.,

Defendants and Respondents.

D079478

(Super. Ct. No. 37-2014-

00030194-PR-TR-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Jeffrey S. Bostwick, Judge. Affirmed.

Law Firm of Steven M. Green and Steven M. Green for Plaintiff and 

Appellant.

Albence & Associates, Christopher J. Albence and Keeley C. Luhnow 

for Defendants and Respondents.

Andrew Mills’s original estate planning documents designated his 

stepdaughter, appellant Carol Ann Howard, as the successor trustee and 

primary beneficiary of his trust.1 After he began suffering from dementia, 

1 We will hereafter refer to interested parties by first name only. 
2

Andrew later modified his estate planning documents to designate his nieces, 

Debbie and Carolyn, as successor trustees and beneficiaries. 

In a different lawsuit, Carol sued Debbie and Carolyn for fraudulently 

and unduly influencing Andrew to modify his estate plan. The parties settled 

the fraud lawsuit, culminating in court orders confirming that the original 

estate planning documents remain in effect, Carol is the successor trustee 

and beneficiary, and the later estate planning documents are void.

In this lawsuit, Carol filed a petition once again seeking an order 

confirming that the original estate planning documents remain in effect, she 

is the successor trustee and beneficiary, and the later estate planning 

documents are void. She explained in the petition that she needed this relief 

to establish her standing as trustee to pursue a malpractice lawsuit against 

attorneys who represented Andrew in other matters. The trial court, viewing 

the requested relief as duplicative, unnecessary, and having the potential to 

interfere with other pending lawsuits, denied Carol’s petition.

Carol contends the trial court erred in denying her petition. For 

reasons we will explain, we disagree and affirm the order.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Petition

In July 2020, Carol filed a petition in this case under Probate Code 

section 172002 seeking an order clarifying the parties’ rights under Andrew’s 

estate planning documents.3 We summarize Carol’s allegations as follows.

2 Further statutory references are to the Probate Code unless otherwise 

indicated.

3 This case originated in 2014, but it is unclear from the appellate record 

what transpired between then and when Carol filed the petition in 2020. 
3

1. Interested Parties and Estate Planning Documents

Andrew married Carol’s mother in 1950 when Carol was three years 

old. Andrew raised Carol as his daughter, and helped her when she became a 

single mother with the raising of her daughter, Staci. Carol’s mother died in 

2006. 

Carolyn and Debbie are Andrew’s nieces.

On October 18, 2007, Andrew executed the following estate planning 

documents: (1) a last will and testament, which named Carol the executor; 

(2) a revocable trust (the Trust), which held title to Andrew’s main asset (a 

condominium unit) and which designated Andrew the original trustee, and 

Carol the successor trustee and primary beneficiary; (3) a power of attorney 

designating Carol his attorney in fact; and (4) an advanced health care 

directive designating Carol his agent. 

On June 1, 2011, Andrew executed a First Amendment to the Trust 

(the First Amendment), which added Staci as an equal one-half beneficiary 

with Carol. 

In March 2014, Andrew was diagnosed with dementia and moved into a 

memory care facility. 

Later in 2014, Andrew revised his estate planning documents. 

According to Carol, after a 30-year absence from his life, nieces Debbie and 

Carolyn reinserted themselves in Andrew’s life only after they learned he was 

suffering from dementia and owned his condominium free and clear. The 

nieces told Andrew that Carol was mismanaging his finances and refusing to 

let him return home from the memory care facility; and that they would take 

him home. 

In July 2014, based on the nieces’ statements, Andrew executed a new 

power of attorney and advanced health care directive that designated 
4

Carolyn his agent instead of Carol. On September 16, Andrew executed a 

“Second Amendment to and Complete Restatement of [the Trust]” (the 

Second Amendment), which designated Debbie the successor trustee; Carolyn 

as the alternate successor trustee; and Debbie, Carolyn, and Staci as equal 

one-third beneficiaries. The Second Amendment eliminated Carol as a 

trustee or beneficiary. 

2. Related Litigation

Carol described in the petition certain related litigation. We 

summarize here only the key cases.

(a) Conservatorship Case

In July 2014, Carol filed a petition for conservatorship over Andrew 

(San Diego Superior Court case number 37-2014-00025362-PR-CP-CTL; the 

Conservatorship Case). Andrew retained counsel (Albence & Associates, 

Christopher Albence, and Keeley Luhnow; together, the Conservatorship 

Counsel) and opposed Carol’s petition. The Conservatorship Counsel are the 

respondents in this appeal.

In June 2015, after a nearly five-day trial, the court (Judge Joel 

Pressman) denied Carol’s petition, finding she did not present clear and 

convincing evidence showing a conservatorship was warranted. However, 

while acknowledging the issue was not before it, the court found Andrew’s 

nieces exerted undue influence over him and, thus, the 2014 estate planning 

documents “should be declared void, and of no force and effect, but this 

matter was not referred to me.” 

(b) Fraud Case

In November 2017, Carol sued Debbie and Carolyn for (among other

things) fraudulently and unduly influencing Andrew into modifying his estate 
5

planning documents in 2014 (San Diego Superior Court case number 37-

2017-00046854-CU-FR-CTL; the Fraud Case). 

On February 8, 2019, the Fraud Case settled at a settlement conference 

presided over by Judge Lorna Alksne. As part of the settlement, the parties 

agreed Carol “shall become the Trustee of the [Trust],” and the Second 

Amendment “shall be vacated.” Judge Alksne formalized the settlement in 

an order (the February 8 Settlement Order). 

To clarify the terms of the settlement, the parties later stipulated that 

“[a]ny and all estate documents . . . executed after June 1, 2014, shall be 

vacated and void ab initio,” and, thus, Carol “continues to be the Trustee for 

the . . . Trust.” Judge Alksne signed the stipulation as an order on April 25, 

2019 (the April 25 Stipulated Order). 

(c) Malpractice Case

In April 2019, Carol—individually and as trustee of the Trust—filed a 

malpractice lawsuit against the Conservatorship Counsel and the attorney 

who modified Andrew’s estate planning documents in 2014 (San Diego 

Superior Court case number 37-2019-00021040-CU-PN-CTL; the Malpractice 

Case). Carol asserted causes of action for “legal malpractice,” breach of 

fiduciary duty, elder abuse, intentional infliction of emotional distress, gross 

negligence, “notary negligence,” and declaratory relief. 

Carol based her malpractice claim against the Conservatorship Counsel 

on the allegation they “negligently and carelessly . . . litigated [the 

Conservatorship Case] when [they] had actual knowledge that Andrew . . . 

suffered from dementia.” 

Similarly, Carol based her malpractice claim against the estate 

planning attorney on the allegation that, despite the attorney “ha[ving] 

actual knowledge that Andrew . . . suffered from dementia,” the attorney 
6

“negligently and carelessly drafted a revised will and trust for Andrew” 

without “refer[ring] Andrew . . . for an examination for dementia.” 

As we explain further below, in November 2020 (two months after 

Carol filed her petition in this case), the court in the Malpractice Case 

granted summary adjudication for the Conservatorship Counsel, and 

summary judgment for the estate planning attorney. The Malpractice Case 

is currently on appeal.

3. Carol’s Basis for Bringing the Petition

Carol explained in her petition that she needed the court to clarify the 

Trust because the defendants in the Malpractice Case were “arguing that she 

is not the Trustee” of the Trust and that the April 25 Stipulated Order “is 

invalid because it was not issued from the probate department.” 

Thus, “[i]n order to clarify her status in the Malpractice Case,” Carol 

asked the court to issue an “order invalidating the [Second Amendment], 

verifying that the terms of the [Trust] are set forth in the [Trust] and First 

Amendment, verifying that Carol is the Trustee of the [Trust], and that the 

beneficiaries of the [Trust] are (in equal shares) Carol and her daughter, 

Staci.” 

B. Ex Parte Application

The same day she filed the petition, Carol applied ex parte to obtain the 

relief requested therein. She explained she needed immediate relief because 

the defendants in the Malpractice Case had challenged her standing to 

pursue that case, and the discovery referee and trial judge were refusing to 

rule on issues until her standing was resolved. 

The trial court here denied the ex parte application on the grounds 

“[n]otice to defendants in [the Malpractice Case] is required,” and “this is not 

an appropriate matter for ex parte relief.” 
7

C. Objection to Petition

On December 8, 2020, the Conservatorship Counsel filed an objection to 

the petition on two grounds. 

First, they argued it was moot because Carol’s stated purpose in 

bringing the petition was to clarify her standing in the Malpractice Case, yet 

her claims in that case had already been adjudicated against her. More 

specifically, the Malpractice Case defendants moved for summary judgment 

(or, in the alternative, summary adjudication) on standing, substantive, and 

statute of limitations grounds. By stipulation, the court bifurcated the 

standing issue, set it for a later hearing, and assumed for purposes of the 

remaining grounds that Carol had standing as trustee. The court then 

granted the defense motions on substantive and statute of limitations 

grounds, and vacated the hearing on the standing issue. 

Second, the Conservatorship Counsel argued the Fraud Case 

settlement did not properly invalidate the Second Amendment because there 

was “no evidence before the Court that Staci . . . consented to the 

modifications requested.”4

D. Trial Court’s Initial Ruling

On December 9, 2020, the trial court denied the petition. The court’s 

minute order does not state the court’s reasoning, and the petition hearing 

was not reported. 

Carol filed a notice of appeal and prepared a proposed settled 

statement. At an unreported hearing on the proposed settled statement, the 

4 About two hours after the objection was filed, Staci filed a “notice of 

waiver” stating she waived notice of the settlement proceedings in the Fraud 

Case and on the petition proceedings in this case. 
8

trial court vacated its initial denial order and set the petition for hearing on 

June 16, 2021. Carol then abandoned her appeal. 

E. Objection

Two days before the re-calendared petition hearing, the 

Conservatorship Counsel filed an “Objection to Appellant’s Proposed Settled 

Statement.” In addition to taking issue with Carol’s proposed settled 

statement—which, by then, was moot—the objectors again argued the 

petition was moot in light of the disposition in the Malpractice Case, which 

was then on appeal. 

F. Hearing

On June 16, 2021, the court heard Carol’s petition. Carol and the 

Conservatorship Counsel appeared through counsel. The hearing was 

reported and the transcript is in the appellate record.

Counsel for the Conservatorship Counsel stated he did not oppose the 

requested relief applying prospectively, but opposed it applying retroactively 

because it could “overreach[ ] back in time and . . . wreak havoc” in the 

Malpractice Case, which was still on appeal. 

Carol’s counsel reiterated that the basis for the petition “was a court 

order by Judge Alksne that should be enforced.” 

The trial court prefaced its ruling by identifying three concerns. First, 

the court “had concerns about making any ruling that would prejudice the 

other pending actions.” 

Second, the court observed that the settlement in the Fraud Case 

culminated in valid court orders, which “have not been successfully 

collaterally attacked by any party” or “reversed by a reviewing court” and, 

thus, “those orders remain in place.” 
9

Third, the court stated that “part of the problems with this case ha[s] to 

do with the travel, if you will, of [the same] transactional facts through 

various departments of the court,” which “creates a minefield of problems for 

the Court to . . . navigate so that it doesn’t make another court order that 

somehow can be used to leverage another court order or impact another court 

order.” 

“So with all of those three points in mind,” the court took judicial notice 

of the February 8 Settlement Order, April 25 Stipulated Order, and summary 

judgment/adjudication order in the Malpractice Case, and made “no further 

orders.” 

The court elaborated that, although “the general purview of [Carol’s] 

petition” was to solicit “some type of comment . . . on Judge Alksne’s orders,” 

the court was refraining from doing so “by design” because “the orders say 

what they say,” and, thus, further comment was “unnecessary,” “has no 

judicial effect, whatsoever,” and is “duplicative and cumulative.” 

Carol’s counsel argued the court should elaborate on Judge Alksne’s 

orders because there was a “third piece” that was not included in them.5 The 

court responded that the unspecified “third part . . . dealt with . . . some other 

collateral issues,” so, “using the same rationale that [the court] just outlined,” 

the court repeated that it would be “making no comment on any orders of the 

Court that [Judge Alksne] . . . or any other judge made that haven’t been set 

aside or reversed on appeal.” 

Carol’s counsel pleaded with the court “to make it official that Carol 

Howard is the trustee of the trust” because no one else can serve as trustee. 

5 Carol has not explained on appeal what this “third piece” is.
10

The court responded, “Well, the Court disagrees with you. And it has nothing 

to add to the orders that I did make.” 

G. Trial Court’s Order

The same day as the hearing (June 16, 2021), the court issued a minute 

order stating a “[m]iscellaneous hearing [was] held,” and that the court was 

taking judicial notice of Judge Alksne’s February 8 Settlement Order and 

April 25 Stipulated Order, and the summary judgment/adjudication order in 

the Malpractice Case. 

Carol initially attempted to appeal from this minute order. After 

several exchanges of correspondence with our court regarding the 

appealability of that minute order, Carol requested and obtained from the 

trial court a signed minute order dated December 2, 2021, expressly denying 

the petition without prejudice.6 We deem Carol’s appeal to have been taken 

from this order.

II. DISCUSSION

A. Appealability

The Conservatorship Counsel’s only argument on appeal is that Carol 

has not appealed from an appealable order because “[t]he only signed order 

related to [her] petition reiterates the Court’s position that it will not make 

any orders other than taking judicial notice of prior orders.” Carol maintains 

6 We grant Carol’s December 16, 2021 request to take judicial notice of 

the trial court’s December 2, 2021 order. We deny Carol’s request as to the 

remaining exhibits for which she requested judicial notice because they either 

were not before the trial court (see Big Lots Stores, Inc. v. Superior Court of 

San Diego County (2020) 57 Cal.App.5th 773, 784, fn. 7), are duplicative of 

documents already contained in the appellate record (see Bravo Vending 

v. City of Rancho Mirage (1993) 16 Cal.App.4th 383, 406, fn. 12), or are not 

necessary for our disposition of the issues on appeal (see Arce v. Kaiser 

Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482).
11

the Conservatorship Counsel lack standing to raise this objection because 

they are not truly interested parties. Regardless of Carol’s standing 

challenge, we must address the appealability issue because “[t]he existence of 

an appealable judgment [or order] is a jurisdictional prerequisite to an 

appeal.” (Jennings v. Marralle (1994) 8 Cal.4th 121, 126; see Katzenstein v. 

Chabad of Poway (2015) 237 Cal.App.4th 759, 765.)

We are satisfied Carol has appealed from an appealable order. The 

Conservatorship Counsel’s appealability challenge appears to be based on the 

trial court’s initial June 16, 2021 ruling, which only took judicial notice of 

prior court orders. However, the trial court subsequently signed and filed an 

order expressly denying Carol’s section 17200 petition. Such orders generally 

are appealable. (See § 1304, subd. (a));7 Gridley v. Gridley (2008) 166 

Cal.App.4th 1562, 1586 [“With two exceptions not relevant here, final orders 

under section 17200 are appealable orders.”]; Boys & Girls Club of Petaluma 

v. Walsh (2008) 169 Cal.App.4th 1049, 1057 [same].) 

B. No Error in Denying the Petition

Carol contends the trial court erred by denying her petition. We review 

the trial court’s ruling on a section 17200 petition for an abuse of discretion. 

(Gregge v. Hugill (2016) 1 Cal.App.5th 561, 567; Dunlap v. Mayer (2021) 63 

Cal.App.5th 419, 423 (Dunlap).) On the record before us, we see no error.

7 Section 1304 states in part: “With respect to a trust, the grant or 

denial of the following orders is appealable: [¶] (a) Any final order under . . . 

Section 17200 . . . , except the following: [¶] (1) Compelling the trustee to 

submit an account or report acts as trustee. [¶] (2) Accepting the resignation 

of the trustee.”
12

As the trial court observed, Carol’s petition was essentially asking “the 

Court to make some type of comment . . . on Judge Alksne’s orders.” It was 

within the trial court’s discretion to decline to do so.

On one hand, if the trial court had been otherwise inclined to grant the 

petition by merely restating Judge Alksne’s orders, the trial court could 

reasonably have concluded—as it did—that doing so would be “unnecessary,” 

“duplicative,” and “cumulative.” A trial court has the discretion to deny a 

section 17200 petition on this basis. (See § 17202 [“The court may dismiss a 

petition if it appears that the proceeding is not reasonably necessary for the 

protection of the interests of the trustee or beneficiary.”]; § 17206 [“[t]he court 

in its discretion may make any orders and take any other action necessary or 

proper to dispose of the matters presented by the petition”]; Dunlap, supra, 

63 Cal.App.5th at p. 423 [“Sections 17202 and 17206 both provide the court 

with discretion to make orders regarding trusts.”].)

On the other hand, if the trial court had been otherwise inclined to 

grant Carol’s petition in a way that narrowed Judge Alksne’s orders, the trial 

court would have run afoul of the rule that “ ‘[o]ne department of the superior 

court cannot enjoin, restrain, or otherwise interfere with the judicial act of 

another department of the superior court.’ ” (Glade v. Glade (1995) 38 

Cal.App.4th 1441, 1450 (Glade); see Paul Blanco’s Good Car Co. Auto Group 

v. Superior Court (2020) 56 Cal.App.5th 86, 99 [“Because a superior court is a 

single entity comprised of member judges, ‘ “one member of that court cannot 

sit in review on the actions of another member of that same court.” ’ ”].) By 

denying Carol’s petition, the court avoided running afoul of this rule.

The trial court would also have acted within the scope of its discretion 

by denying Carol’s petition as moot. “When an event occurs that renders it 

impossible for the court to grant effective relief,” a trial court has the 
13

authority to dismiss that case as moot—indeed, “[i]n some cases, a trial court 

abuses its discretion in failing to” do so. (In re Schuster (2019) 42 

Cal.App.5th 943, 951; see Rio Vista Farm Bureau Center v. County of Solano

(1992) 5 Cal.App.4th 351, 383 [trial court did not err by dismissing, sua 

sponte, claims that had become moot].) Carol expressly alleged that her 

purpose in bringing the petition was “to clarify her status in the Malpractice 

Case.” But by the time of the petition hearing, the court in the Malpractice 

Case had already adjudicated her claims. The trial court here took judicial 

notice of that ruling. Because Carol’s stated purpose could no longer be 

achieved, it was within the trial court’s discretion to deny the petition as 

moot.

Under any of these theories, it was within the trial court’s discretion to 

deny Carol’s petition. (See Cape Concord Homeowners Assn. v. City of 

Escondido (2017) 7 Cal.App.5th 180, 193 [“ ‘we will affirm a judgment or 

order if it is correct on any theory of law applicable to the case’ ”].)

Carol raises several specific challenges to the court’s ruling, none of 

which we find persuasive.

First, Carol complains that the trial court erred by “summarily” 

denying her petition. But the court’s ruling is presumed correct (Jameson v. 

Desta (2018) 5 Cal.5th 594, 608-609), and “the fact that the court’s conclusion 

is set forth in summary fashion does not mean the court failed to engage in 

the requisite analysis, or that its analysis was incorrect” (City of Los Altos v. 

Barnes (1992) 3 Cal.App.4th 1193, 1198). Rather, it is Carol’s burden as the 

appellant to affirmatively show error. (Jameson, at pp. 608-609.)

Second, Carol contends the court erred in denying her petition because 

it was effectively unopposed. Carol acknowledges the Conservatorship 

Counsel did, in fact, object to the petition, but she maintains their objection 
14

was invalid because it was untimely and the objectors lacked standing. Even 

assuming Carol’s timeliness and standing challenges have merit, her 

underlying challenge fails because she has cited no authority that requires a 

trial court to grant a motion simply because it is unopposed. The closest she 

comes is Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, which involved 

a Los Angeles County Superior Court local rule that provided “ ‘[t]he failure 

to file opposition creates an inference that the motion or demurrer is 

meritorious.’ ” (Id. at 1410.) Sexton is inapposite because it involved a local 

rule from a different court (Carol has cited no local analogue) that merely 

created an inference of meritoriousness; it did not require that the court grant 

a motion merely because it was unopposed. (See ibid.) We decline to adopt 

such a rule.

Finally, citing Glade, supra, 38 Cal.App.4th 1441, Carol implies the 

trial court improperly “ignored or overlooked” Judge Alksne’s orders. To the 

contrary, the trial court respected them by judicially noticing them and 

refraining from commenting further upon them.

III. DISPOSITION

The order is affirmed. Carol to pay respondents’ costs on appeal.

HALLER, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.