Filed 7/14/14 David v. Hermann CA1/1 Received for posting 8/5/14 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE
SUSAN DAVID, et al., Plaintiffs and Appellants,

v. WENDY ALTER HERMANN, Defendant and Respondent. A131825
(Marin County Super. Ct. No. PR000851)

ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT]

THE COURT:

It is ordered that the opinion filed herein on June 19, 2014, be modified as follows: 1. On page 2, footnote 1 is modified to read: We reversed the judgment only as to the attorney fees awards and the postjudgment order relating to enforcemen t of the judgment for attorney fees. ( David v. Hermann
, supra , 129 Cal.App.4th at pp. 690-691.)

2. On page 21, footnote 13 is modified to read: Given that both the 25 percent interest in the Partnership and in the Brannan Street real property are assets of the constructive trust, one might wonder why the parties care whether the 25 percent intere st in the real estate is an asset of the Partnership or not. We note, however, that if the 25 percent interest in the Brannan Street real property is not owne d by the Partnership, then the owner(s) of that 25 percent interest theoretically could seek to partition the realty. (Code Civ. Proc. § 872.210, subd. (a)(1).) We express no opinion, however, regarding whether anyone has a right to partition th e Brannan Street realty.There is no change in the judgment. Appellant’s and respondent’s pe titions for rehearing are denied.

Dated:_________________

_____________ ____ ____________ ___________ Margulies, Acting P.J.1 Filed 6/19/14 (unmodified version) NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

SUSAN DAVID et al., Plaintiffs and Appellants,

v. WENDY ALTER HERMANN, Defendant and Appellant. A131825
(Marin County Super. Ct. No. PR000851)

I NTRODUCTION This is the third appeal arising out of a dispute between sisters Susan David (David) and Wendy Alter Hermann (Hermann) re garding their mother’s living trust. In the first appeal, we affirmed the trial court’ s judgment invalidating the trust because of Herman’s misrepresentation and fraud, and impos ing a constructive trust. In the second appeal, we reversed the tria l court’s 2007 orders regardi ng Hermann’s accounting of the property held as constructive trustee, with directions to the trial court to prepare a
statement of decision. The trial court did so, and Hermann has appealed, claiming the court had no authority to enter a judgment differing from a 2006 order regarding the accounting. Hermann specifically contends th e trial court erred in denying her claim for approximately $51,000 she asserts she depos ited in the trust account, in assessing prejudgment interest on the surcharge against he r as trustee of the constructive trust, and in ruling a 25 percent interest in real propert y located on Brannan St reet (Brannan Street property) is owned by the 3 00 Company partnership (Partn ership). We conclude no substantial evidence supports the ruling as to the ownership of the Brannan Street2 property, but otherwise affirm the judgme nt. We therefore do not reach David’s “protective” cross-appeal seeking relief only in the event “this matter [is] remanded to the Trial Court for revision of the Judgment in a manner that would make it more beneficial to Hermann.” At oral argument, David el aborated her concern was a decision that “makes the surcharge and in terest more favorable to Ms. Hermann.” Because our decision does not do so, we dismiss Da vid’s “protective” cross-appeal.
B ACKGROUND The underlying lawsuit in this long-running dispute was brought by David, who sought “an order adjudicating the Jane Alte r Living Trust and the Second Amendment to the trust to be invalid on the ground of Jane ’s incapacity or [Hermann’s] undue influence over Jane.” ( David v. Hermann (2005) 129 Cal.App.4th 672, 679.) The court found the allegation of undue influence had been proven, and “proceed ed to also find that the depository provisions were caused by mi srepresentations of [Hermann] that were intended to alienate Jane [Alter] from her oldest daughter [D avid]. The decision declared the Jane Alter Living Trust and the Second Ame ndment to the trust to be void . . . .” ( Id

. at pp. 679–680.) We affirmed that portion of the judgment. 1 ( Id . at p. 690.)
We set forth the subsequent background of th is case in our 2009 opinion in case No. A119365, and thus quote from that opinion: 2
“David’s November 2005 Probate Code sect ion 850 petition sou ght an accounting
from Hermann for her administration of the Ja ne Alter trust from June 8, 1993 through October 31, 2005. The petition as amended sought to recover Hermann’s interests, obtained with trust assets, in a residence in Petaluma, and an office building at 300
Brannan Street in San Francisco. In Octo ber 2005, Hermann filed a petition to probate
Jane Alter’s 1991 will in San Fr ancisco Superior Court; David filed a will contest in that

1 We reversed the judgment only as to an attorney fees award. ( David v. Hermann, supra , 129 Cal.App.4th at pp. 690–691.)
2 On our own motion, we take judicial notice of our opinion in case No. A119365. (See Evid. Code, § 451, subd. (a).) We previ ously granted the partie s’ joint request to take judicial notice of appellant’s and respondent’s appendices in that case.3 matter. In opposition to Hermann’s unsucce ssful attempt to have the case at bench coordinated with the San Francisco probate pr oceeding, David argued that there was ‘no factual or legal basis for transferring admini stration of the post-judgment accounting to
the San Francisco Probate Court. There is no danger of inconsistent rulings or of a multiplicity of actions concerning the accoun ting that is now mont hs overdue. Indeed, forcing the preparation of the court-ordere d accounting in Marin could only serve to expedite the San Francisco probate proceedi ng. If the San Francisco Superior Court
determines that the 1991 will governs the distribution of Jane Alter’s probate estate, the exact nature and extent of that probate estate will have already been determined by virtue of the accounting. “The court granted the petition for an a ccounting, and ordered briefing on the other issues raised in the petition. In her opening brief on those issues, Hermann argued
that the assets she held as constructive truste e ‘are decedent Jane Alter’s’ assets, and that
she should be inst ructed to transfer those assets to Debra Dolch, the special administrator
of the estate of Jane Alter in San Francisco Probate Court. David opposed that approach, noting that an order in the San Francisco prob ate case had stated that ownership interests in the Petaluma property were issu es pending in the case at bench. “By stipulation of the parties, Dolch wa s appointed receiver of the Petaluma and Brannan Street properties; He rmann quitclaimed title to the Petaluma property, and a 25 percent interest in the Brannan Str eet property, to Dolch as receiver. “Hermann filed an accounting, petitioned to have the accoun ting approved, and requested that the case be transferred to th e San Francisco Probate Court ‘so that the assets may be distributed according to Jane Alter’s testamentary disposition subject to probate.’ David objected to the accounting, calling it inadequate a nd incomplete. David retained Charlene Haught Johnson, a probate attorney, to review the accounting; Johnson
concluded that Hermann owed the constructive trust $1,889,870. Jo hnson opined that the constructive trust assets included this $1,8 89,870 ‘receivable’ from Hermann, equity in the Petaluma property, and a 25 percent inte rest in the 300 Company partnership, which
collected income from the Brannan Street property. Johnson’s report stated that4 Hermann was entitled to 50 percent of the tr ust assets; David or David’s children were entitled to the other 50 percent. Johnson opined that Hermann’s share of the trust assets
‘should first be satisfied out of her receivable[].’ “In November 2006, the court rende red its decision on the accounting and
determined that Hermann would be surcharged for: attorney f ees of ‘$93,378 plus margin fees in the sum of $16,223 paid on loans Ms. Hermann borrowed for attorneys’ fees to defend herself against the ch arges of undue influence and fraud’; $24,000 of the $65,000 in trustee fees claimed; $1,120,712.67 in distributions from trust assets; and $69,349.86 from refinancing of the Petaluma property. The court found that Hermann owed interest at the rate of 10 percent per annum from the dates of the disapproved payments or
disbursements. The court wrote: ‘All ot her requests for settleme nt and appr oval are granted and all other objections by the parties are denied.’ “The parties disagreed on the amount of Hermann’s lia bility under the November 2006 decision. David argued that Hermann owed the trust $2,029,328.75 as of October 4, 2006; Hermann argued that, as of that da te, she owed the trust $1,296,228. In a December 2006 brief, David con tinued to oppose transferring the case to San Francisco
Probate Court for a distribution of assets. Da vid submitted that, ‘[i]n view of the dispute
over whether the constructive trust assets are assets of Jane Alter’s probate estate,’ it would be ‘premature’ for the co urt to make such an order. “The matter was set for a further hearing on January 17, 2007. The judge hearing the case retired on January 5, 2007, and anothe r judge thereafter presided. David filed a proposed judgment imposing a $2,029,328.75 su rcharge on Hermann as of October 4, 2006, increasing by $362.64 per day thereafter (referred to in the pr oposed judgment as the ‘Hermann Receivable’), and authorizing Dolch to obtain an appraisal of the
constructive trust’s ‘25% interest in the 300 Br annan real estate and partnership,’ part of
the constructive trust ‘Estate.’ Th e proposed judgment provided: “The parties all appear to agree that Hermann is probably entitled to 50% of the
value of the Estate. If Herm ann is determined by this Court or by the San Francisco Superior Court to be entitled to 50% of the Estate, and if said 50% share of the Estate is5 equal to or greater to the Hermann Receivabl e, the Hermann Receivable shall be applied
to Hermann’s 50% share of the Estate and Herm ann shall receive the balance . . . . If the
value of Hermann’s share of the Value of the Estate is less than the value of the Hermann
Receivable on the date of distribution to He rmann, Hermann will owe the balance to the persons entitled to receive the remaining balance of the Value of the Estate. . . . To the
extent that Hermann’s interest in the co nstructive trust does not fully reimburse the constructive trust, a money j udgment against Hermann for any deficiency shall issue for
the balance.’ “In an order filed January 19, 2007, the court found ‘various anomalies and inconsistencies in the proposals of Ms. Herm ann that are difficult to reconcile with the thrust of this court’s prior order of Novemb er 20, 2006. The court is persuaded that [David’s] motion and proposed judgment is more in keeping with the intent and the history of this litigation and that order. Petitioner Susan David’s motion for entry of judgment is granted, not as an entry of judgment, but as an interim order.’ The order stated that David’s proposed ju dgment ‘shall be issued as an order of the court,’ with only the title, and the hearing and briefing schedule, modified. “The contemplated order had not been f iled by the time of the next hearing, on March 9, 2007. At the March 9 hearing, He rmann requested a statement of decision with respect to the order, and filed a ‘Supplemental Request for Statement of Decision’ later that day. Hermann asked among other thin gs that the court ‘address how this March 2007 order justifies imposing a surcharge greater than the amount included in Judge Smith’s November 20, 2006 order, assuming the Court in this March 9, 2007 order
refuses to take into accoun t the credits approved in th e November 20, 2006 order.’ Hermann stated that the request for statem ent of decision would be withdrawn if the
March 2007 order remained an ‘int erim,’ rather than final, order. “The court filed an order on March 9, 2007, incorporating the provisions of David’s proposed judgment with minor mo difications, such as changing the word ‘judgment’ to ‘order,’ and the date of the next hearing from April 6, 2007 to May 7, 2007. The order ‘adjudged and decreed’: ‘1. Respondent Wendy Hermann (“Hermann”)6 is surcharged the sum of $2, 029,328.75, as of October 4, 2 006 . . . increased by additional interest at the rate of $362. 64 per day. . . . [¶] 2. The co nstructive trust estate is hereby
declared to consist of the follo wing: [¶]. . . [¶] c. The am ounts specified in paragraph 1 of this order as constituting surcharges agai nst Hermann, and the accrued interest thereon
until Hermann satisfies said amounts . . . .’ The court did not issue a statement of
decision. “In her opening brief on the remaining issues, Hermann objected to the court’s decision to rule on dispositi on of the constructive trust’ s assets, and reiterated her longstanding argument that the court was require d to transfer all of those assets to the San Francisco Probate Court with jurisdiction over the estate of Jane Alter. In her opening brief, David dropped her longst anding opposition to that argum ent, and ‘acquiesce[d] to and join[ed] in Hermann’s request that this Court determine that the personal representative of the Estate of Jane Alter, to be appointed by the San Francisco Superior Court, should receive the assets of the construc tive trust estate that have been determined pursuant to this Court’s March 9 Order.’ “David filed an appraisal from attorney Joseph Stemach valuing the constructive trust’s 25 percent interest in the 300 Compan y partnership, ‘which includes the 300 Brannan Street real property,’ at $1,191,000, based on a 2005 appraisal of the real property. Hermann objected that the Branna n Street real property was not owned by the partnership. Hermann argued that it would be premature and improper for constructive trust assets to be appraised in the case at be nch because the value of the assets had to be
determined at the time of their distribution in the San Francisco probate case. Dolch submitted an updated appraisal of the Bran nan Street real prop erty, which caused
Stemach to increase his valuation of the constructive trust’s 25 percent partnership interest to $1,401,801. “At the May 7 hearing, the judge said he thought it woul d be inappropriate for him to pass on the merits of Stemach’s appraisal because his wife had worked with Stemach.
Hermann did not consent to have the court rule on the matter, and reiterated her argument that any valuation of trust assets would be premature in any event. The hearing7 proceeded on the issue of wh ether the 300 Company partne rship owned th e Brann[a]n Street real property. David introduced do cumentary exhibits and served a trial brief aimed at overcoming the presumption that th e owner of legal title is the owner of full beneficial title (Evid. Code, § 662 [presump tion may be rebutted by clear and convincing proof]). The court granted Hermann’s request for further briefing on the issue, directed Hermann to file her brief by May 21, 2007, a nd directed David to f ile her reply brief by May 29, 2007. Dolch’s counsel asked ‘that whatever final order comes from this court
. . . have a list of the assets in the construc tive trust so that if Ms . Dolch is appointed in the San Francisco court, she kn ows what those assets are.’ “Minutes for the May 7, 2007 hearing in th e court’s register of actions state, ‘case under submission,’ but a May 11, 2007 entry in the register states, ‘case no longer under
submission.’ “In her posthearing brief, Hermann argued that, given ‘David’s concession that those assets held by the Receive r should be delivered to the personal representative of the Estate of Jane Alter, this Court should simply order the Receiver to deliver those assets to
the Probate Court . . . .’ “David filed a proposed order stating in part: ‘2. The Court finds that the
constructive trust estate consists of the fo llowing: [¶] a. A 25% interest in the 300 Company Partnership, which pa rtnership interest includes the 25% interest in the real property located at 300 Branna n Street, San Francisco of which record title is in the name of the Receiver. [¶] b. Herm ann’s surcharge, as determined by this Court’s March 9, 2007 Order, in the amount of $2,029,328.75, as of October 4, 2006. This surcharge shall be increased by additional interest . . . . [¶ ] c. Hermann is further surcharged the sum of $30,847 for costs of the receivership . . . pl us interest . . . . [¶] d. The foregoing surcharges and interest are money judgments ag ainst Hermann . . . .’ The proposed order concluded: ‘Except to the extent the March 9, 2007 Orde r is inconsistent with the foregoing, the March 9, 2007 Or der is hereby incorporated by this reference into this Order, which is a final order of this Court.’8 “In response to Hermann’s objections to the proposed order, David stated that she ‘does not contend that the March 9, 2007 Or der is final. Such contention would be
inconsistent with this Court’s order of Ja nuary 19, 2007 which declared the March 9,
2007 Order would be “interim.” The Court cl early reserved jurisdiction to modify that order. David proposes that th is Court now confirm those por tions of the March 9, 2007 Order that will become part of the final order of this Court. If this Court fails to do so,
there can be little doubt that Hermann will urge the San Francisco Probate Court to disregard portions of the Marc h 9, 2007 Order not to her lik ing and David will be forced to relitigate issues that have al ready been litigated and relitigated ad nauseum in this
Court.’ “On May 29, 2007, the last day for filing David’s reply brief, Hermann filed a ‘Supplemental Request for Statement of De cision.’ The May 29, 2007 request renewed the requests for statement of decision made on March 9, 2007, and sought a statement of
decision on a number of issues incident to th e ownership of the Brann[a]n Street real property, including: ‘When was this real pr operty inherited by Zal Alter [the parties’ father] and Renee Delman “co nverted” from ordinary indivi dually owned property to “partnership” property; by whom was the real property contributed; when was it accepted by the “partnership.” Who were the “partners” when this alleged conversio n took place; who are the “partners” today? Has Renee De lman, the only survi vor of the 1966 written [partnership] agreemen t, been provided proper notice of this allegation that property excluded from her agreem ent and identified as owned by tr usts of which she is a trustee
should be characterized as “partnership” property. Ho w does the Court construe paragraph 6 of the 1966 agreement between decedent Zal Alter and his sister Renee Delman which expressly excludes any real property from being “partnership” property.’ “David prepared a propos ed statement of decision, which, as Hermann pointed out, did not address any of the foregoing issues. “The court filed its Order After Postjudgme nt Hearing on July 20 , 2007. As to the subject matter of the May 7 hearing, the cour t found ‘that the 25% interest in the Brannan Street real property, held by receiver Debra Do lch, is included in the 25% interest in the9 300 Brannan Company Partnership, listed by respondent Hermann in her accounting of
constructive trust estate asse ts. . . . Petitioner David has submitted “clear and convincing evidence” to rebut the pres umption set forth in Evid ence Code § 662. . . .’ “With respect to the requests for stat ements of decision, the court wrote: ‘Respondent Hermann’s March 9, 2007 Request for Statement of Decision is moot by its own terms, because the January 19, 2007 order is an interim order. Respondent Hermann’s May 29, 2007 “Supplemental” Reque st for Statement of Decision is moot insofar as it relates to the March 9, 2007 re quest. The [May] 29, 2007 “Supplemental” Request is untimely insofar as it relates to the May 7, 2007 hearing, because it was not made “prior to the submission of th e matter for decision.” CCP § 632.’ “As for the March 9 order, the court did no t reiterate the prior rulings at length as David had proposed. Instead, the court wrot e simply: ‘As per their prior agreement, the parties are direct[ed] to the Probate Court in San Francisco for further evaluation in accordance with the rulings heretofore made, and, in particular, this Court’s order of March 9, 2007. The assets of the constructiv e trust estate are described in the March 9, 2007 [order].’ ” ( David v. Hermann (Aug. 3, 2009, A119365 ) [nonpub. opn.], fn. omitted.) In August 2009, we reversed the orde rs of March 9, 2007 and July 20, 2007, without addressing their merits, and directed the trial court to pr epare a statement of decision for those orders. ( David v. Hermann, supra
, A119365.) On January 31, 2011, the trial court issu ed its amended statement of decision, and notice of entry of judgment pursuant to that amended statement of decision was served and filed on April 12, 2011.
The court found the constructive trust estate included a: “25% interest in the 300 Company Partnership, which includes the 25% interest in the 300 Brannan Street, San Francisco, California real property”; the curr ent balance of the Bank of Marin account listed on Schedule E of Hermann’s accounting; and the real property at 1918 Sestri Lane, Petaluma or the proceeds from its sale. The court denied Hermann’s claim for $51,565.48, which she alleged was the total of nine payments she made to the trust. The10 court ordered a $1,370,375.75 surcharge agains t Hermann with per diem interest at the rate of $245.79 per day. The per diem interest is to begin “after October 4, 2006 . . . [but] shall not accrue during the one year period beginning February 1, 2010 and ending January 31, 2011 but shall con tinue to accrue after January 31, 2011 until satisfaction of Hermann’s obligations for said surcharges an d interest.” (AA 599) Th e court also ordered
all assets of the constructive trust be deliv ered to Debra Dolch, in her capacity as
administrator of the estate of Jane Alter in the San Francisco probate proceeding, and that
the “final distribution of the constructive tr ust estate shall be determined in the San
Francisco Probate Action.”
D ISCUSSION The November 20 , 2006, Ruling
Hermann maintains the trial court’s N ovember 20, 2006 ruling was “a final appealable order that may not be disregarde d.” Because David did not appeal from that ruling, Hermann asserts it is “f inal” and binding, and the trial court had no power to issue the March 2007 and July 2007 orders to the extent th ey differ from th e November 20 ruling. She relies on Probate Code section 1300, which provides in part: “an appeal may be taken from the making of or refusal to ma ke, any of the following orders: [¶] . . . [¶] (b) Settling an account of a fiduciary. [¶] . . . [¶] (f) Fixing, directing, authorizing or allowing payment of compensation or expens es of a fiduciary. [¶] (g) Surcharging, removing, or discharging a fiduciary.” (Prob. Code, § 1300.) To put Hermann’s finality assertion in proper context, we recount here the significant procedural events regarding the November 2006 order. Hermann filed her accounting and petition to approv e and settle it on August 14, 20 06, followed by errata to her accounting on August 21. On September 13, there was a hearing at which the court noted it had to decide whether the form of the accounting filed by Hermann was legally adequate, and whether a referee should be appointed to review the accounting. The court (the Honorable Vernon F. Smith was presiding in the probate department at that time) gave the parties until October 4 at 4:00 p.m. to file “substa ntive objections” to the accounting and any11 other responses, and stated “I will issue a tentative ruling and you can come in and argue.”
The court issued a “Decision” on November 20. As we stated in our August 2009 opinion in Hermann’s prior appeal, “[t]he pa rties disagreed on the amount of Hermann’s liability under the November 2006 decision” and the “ma tter was set for a further hearing.” ( David v. Hermann, supra
, A119365.) On December 1, Hermann filed a proposed amendment to the Decision, along with a proposed “Final Order.” On December 14, David filed objecti ons to Hermann’s proposed amendments and also filed her own “Proposed Judgment” and declaration of her counsel in support. Hermann filed a response to David’s objections on December 18, and David filed a reply the following day. The day after that, on December 20, He rmann filed objections to David’s Proposed Judgment. On December 27, David filed an ex pa rte motion for order shortening time for hearing on a motion for entry of judgment and other relief. The declaration in support of
the motion indicated “while this Court’s ‘D ecision’ of November 20, 2006, resolves many of the issues between the parties, it doe s not fully adjudicate a number of remaining open issues . . . . [¶] Appare ntly counsel for Hermann has similar views as both parties have submitted proposed orders to the Court and have ma de proposals that address various aspects of this Court’s ‘Decision.’ The Court declined to enter any of the proposed orders when the parties were before the Court . . . in connection with the related civil case brought by David against Hermann . . . . [¶] Assuming that this Court’s November 20, 2006, ‘Decision’ is intended to be a final order, the last date for appeal is January 22, 2007.” The court granted the motion for an orde r shortening time, setting the hearing for January 17, 2007. Judge Smith retired before the hearing took place, and Judge James Ritchie heard the matter. At the hearing, Hermann claimed the November 20 “Decision” was final, and the objections she had filed si mply addressed “typographical” issues, “like how much was the margin interest was not added up properly.”12 The trial court, however, found “various anomalies and inconsistencies in the proposals of Ms. Hermann that are difficult to reconcile with the thrust of this court’s prior order of November 20, 2006. The co urt is persuaded that [David’s] motion and proposed judgment is more in keeping with the intent and history of this litigation and
that order. Petitioner Susan David’s motion for entry of judgment is granted, not as an entry of judgment, but as an interim order.” The court added to the order that “The other
issue before the court is determination of the persons entitled to the constructive trust
estate. This issue will be d ecided after further hearing,” wh ich it scheduled for April 9,
2007. In light of the foregoing, it is appare nt the November 20, 2006, ruling was not a final disposition, nor was it treated as such by the court, David an d, even, Hermann. Judge Smith stated in Septembe r 2006, at the hearing preceding the ruling, that he would issue “a tentative ruling and you can come in and argue.” The November 20 “Decision” was just that—a tentative one. Subsequent to its issuance, both pa rties filed objections and competing proposed “final” orders/judgments. Hermann, herself, requested the ruling be “amended,” filing a pleading entitled “Request to Amend Decision to Correct Mathematical Amounts, References to Refere e and Statutory Authority, Deny Motion for Contempt and Fina l Order to Provide an Amount Certain.” The finality issue was also argued by the parties at the hearing set pur suant to David’s application for an order shortening time—soug ht because, if the court had issued a final order, the time to appeal would run. The trial court, regardless of the fact a new judge was sitting, was clearly conversant with the procedural history of the case and plainly concluded the November 2006 ruling was not final and set the matter fo r further proceedings on remaining issues. In its amended statement of decision, the court noted Hermann ha d submitted a proposed amendment to the November 20 decision, and “found that much wa s ‘left for future consideration’ after Judge Smith’s N ovember, 2006 ruling in the case.” There is no question the trial court had authority to modify the nonfinal November 2006 ruling. “If a court believes one of its prior interim orders was erroneous, it should
be able to correct that error no matter how it came to acquire that belief.” ( Le Francois v.13 Goel (2005) 35 Cal.4th 1094, 1108.) A tria l court’s decision “on its own motion to revisit its interim ruling . . . [is] an action within its inherent authority.” ( Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th 1233, 12 39.) “Even after a court has issued a written decision, the court retains the power to change its findings of fact or conclusions of law until judgment is entered.” ( Bay World Trading, Ltd. v. Nebraska Beef, Inc . (2002) 101 Cal.App.4th 135, 141.) Thus, contrary to Hermann’s assertion, the November, 2006, ruling was neither final nor binding. Denial of Hermann’s Clai m for a $51,565.48 Credit
Hermann also maintains the trial court erred in denying her a $51,565.48 credit against the assets of the constructive trust. Hermann claimed, on Schedule A to her “Amended Summary of Account,” that she made nine cash payments to the Jane Alter trust, totaling $51,565.48. She asserts “Sche dule A consists of moni es undisputedly paid back to Wendy’s mother’s Trust.” “Our review of the judgment is conducted in view of the trial court’s issuance of a
detailed statement of decision that addresse d each of the above described substantive areas. When reviewing a judgment based on such a statement of decision, ‘any conflict
in the evidence or reasonable in ferences to be drawn from th e facts will be resolved in support of the determination of the trial court decision.’ ” ( Community Youth Athletic Center v. City of National City (2013) 220 Cal.App.4th 1385, 1407, quoting In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) In order to address this issue, we look to the law regarding the accounting obligations of trustees. An individual who wrongfully becomes the trustee of certain property must still provide an accounting, de spite the trust subseque ntly being declared void. (See England v. Winslow (1925) 196 Cal. 260, 268–270.) “[I]t must be regarded as
settled law that one who assu mes voluntarily to act in th e capacity of a trustee and
receives and holds the funds of another by virtue of such assumed relation, cannot be heard to allege the irregularity or invalidity of his appointment as such trustee in an action brought by the cestui que trust for an accounting for the proceeds of his trust.” ( Id

.14 at p. 269.) “ ‘Trustees are . . . under an oblig ation to render to beneficiaries a full account of all their dealings with the trust property , and where there has b een a negligent failure to keep true accounts all presumptions are ag ainst them upon a settlement.’ [Citations.]” ( Blackmon v. Hale (1970) 1 Cal.3d 548, 560.) “Trust ees are also under the duty to prove every item of their account by ‘satisfactory ev idence’; the burden of proof is on them and not on the beneficiary; and any doubt arising from their failure to keep proper records, or from the nature of the proo f they produce, must be re solved against them.” ( Estate of
McCabe (1950) 98 Cal.App.2d 503, 505.) At the hearing on September 13, 2006, after the accounting was filed, the court indicated it recommended appointing a referee to review the accounting and make recommendations, given the size and complexity of the report. The parties did not agree to share the costs of appointing a referee, so no referee was appointed. David’s counsel ultimately hired Charlene Haught Johnson, an experienced probate attorney and a California Probate Referee, to prepare an analys is of the assets, accounts and transactions
of the constructive trust. Johnson was “aske d to make [her] own recommendations to the
Court in this matter without interference from . . . Ms. David’s attorneys . . . .” Johnson indicated the post-death portion of the a ccounting did not balance, and Hermann’s claimed credit for $51,565.48 in payments made to the constructive trust was “unsupported by any evidence.” Ohman, Hermann’s accountant, submitted a declaration in response to Johnson’s report, in which he opined the accounting bala nced. In regard to the claimed $51,565.48 credit, Ohman attached copies of six check s which he stated had been “inadvertently omitted.” Four checks were from Hermann, ma de payable to the Jane Alter Trust and totaling $45,636.71. No explanation was provided as to why Hermann wrote these checks. Ohman also attached copies of two checks from Hermann made payable to Prudential Securities, totaling $1,000, again with no expl anation as to why Hermann
should be credited. As to the claimed sums of $353.77 a nd $75, Ohman declared these were “two Visa entries concern[ing] purch ases of goods by Ms. Hermann for the Trust15 (e.g., such as office supplies).” He c onceded he was not “able to track down” documentation for the final $4,500 claimed payment. In its Amended Statement of Decision, th e court explained its denial of the entire amount of claimed Schedule A credits. “[T]he re is no reason to apply the other credits that Hermann has requested. In particul ar, Hermann seeks additional ‘Schedule A’ credits for $51,565.48 she allegedly deposited into trust accounts. Ms. Johnson did not recommend approval of this credit because the post-death account to which Schedule A relates did not balance . . . . As a result, Ms. Johnson’s focus was on disbursements and distributions, ‘to determine which of these e xpenses were for valid trust purposes.’ . . . The court adopts Ms. Johnson’s reasoning an d furthermore notes that Hermann did not timely provide support for these alleged Sche dule A contributions and her late filing included copies of checks su pporting only ‘approximately $ 36,637 of’ the $51,565.48 she claims to have deposited.” 3 Thus, the record demonstrates Hermann failed to meet her burden of proving by “satisfactory evidence” that sh e paid all the claimed Schedule A sums to the Jane Alter trust, and that these checks and payments we re for trust purposes. At the time of the claimed payments, Jane Alter was deceased and Hermann controlled the entire trust estate as the sole beneficiary. ( David v. Hermann
, supra , 129 Cal.App.4th at p. 679.) The copies of cancelled checks she submitte d totaled only $45,636. 71. There is no explanation of why four of these checks we re deposited to the trust account, and no explanation of the two paymen ts to Prudential Securities. 4 And, the only explanation

3 The $36,637 figure was referenced in He rmann’s response to the Johnson report and recommendations, in which she claimed “the bank statements of the Trust . . . reflect approximately $36,637 of these deposits.” The bank statements and other documents were submitted to the trial court in bind ers. We previously granted Hermann’s application to transmit these exhibits from the superior court to this court under California Rule of Court, rule 8.224.
4 Prudential Security statements provi ded in the black binder submitted entitled “Copies of Hermann’s Documents in S upport of Petition to Approve and Settle Accounting” show two $500 deposits were ma de to Wendy Alter He rmann’s account, not a trust account.16 provided for the “two Visa en tries” totaling $428.77, is Ohman’s declaration that they “concern purchases of goods by Ms. Herma nn for the Trust (e.g., such as office supplies).” His declaration, executed in 2006, does not indicate how he had personal knowledge of the purpose for those Visa char ges claimed to be made in 2000 and 2001, and there is no documentation, in the form of Visa statements or receipts, supporting these claimed payments. Given that the bul k of these claimed payments were checks Hermann wrote from her personal account and de posited to the Jane Alter trust account at
a time when Hermann controlled the account and was the sole beneficiary of that trust, we cannot say the court erred in holding He rmann had not met her burden of proving she was entitled to reimbursement for claimed pa yments to the Jane Alter Trust account. Moreover, the court was confronted with the opposing opini ons of Johnson and Ohman regarding whether the post-death a ccounting balanced, and whether Hermann’s claims should be approved. In its Amended Statement of Decision, the court explained “both sides continue to refer to the repor t of Charlene Haught Johnson, a California Probate Referee with experience in San Mateo and San Francisco Counties. . . . Although that report was origin ally requested by David, it has been variously cited by Hermann as support for her contentions. . . . Thus, it may be closer to a ‘neutral’ review than many of the other arguments before this court. In some instances, the court has accepted the report as substantiation for matter s claimed by either side.” The court did not err in finding one declaration more cred ible than the other, and adopting the Johnson recommendation in that regard. 5 Interest on Assets of Constructive Trust Hermann maintains for a variety of reasons that no interest should have been imposed after October 2006 on the surcharge against her. She asserts the amount of the

5 Supplemental declarations of both Johnson and Ohman were filed, restating their respective opinions regarding whethe r the accounting balanced. David filed a motion to disregard the argumen ts in Hermann’s reply brie f at pages 28–36 discussing Ohman’s November 16, 2006 s upplemental declaration opini ng the accounting balanced. Given our holding, we deny the motion as moot.17 surcharge was not “ ‘certain or ca pable of being made certain.’ ” 6 She also contends it
was error to award interest after October 20 06 because “the accountin g already includes . . . interest up to October 6, 2006.” She add itionally claims it was inequitable to award
interest because she acted reas onably but was “ ‘prevented . . . by the act of the creditor from paying [t]he debt.’ ” And, she asserts the court abused its discretionary equitable authority to deny interest during periods when Hermann was “ ‘attempting to redress [the trial] Court’s prejudicial and erroneou s rulings’ ” and during which David was “resistan[t] to [Hermann] deliver ing their mother’s property.”
“The law is clear that if a constructive trust is to be imposed on money and other property, the beneficiary thereof is entitled to recover not alone th e money and property so acquired but also interest on such money at the legal rate from the time of its receipt and the rents, income and prof its on such property together with interest thereon at the legal rate from the time of receipt. Any ot her principle of law would reward the wrong doer by permitting him to obtain the benefit and use of the property and money which he had wrongfully obtained withou t accounting for the rents there from or interest thereon.” ( Bank of America Nat’l Tr ust & Sav. Assn. v. Ryan (1962) 207 Cal.App.2d 698, 709–710 ( Ryan ) italics added.) Indeed, the rightful ow ner of the constructive trust assets may recover more than the legal rate of interest on those assets in certain circumstances. “The purpose of the constructive trust remedy is to prevent unjust enrichme nt and to prevent a person from taking advantage of his own wrong. . . . By the time plaintiff obtains a final judgment, the original fund may have grown fa r greater than the legal rate of interest would recognize. To allow the defendant to pocket the difference would reward the defendant for his wrongdoing.” ( Heckmann v. Ahmanson (1985) 168 Cal.App.3d 119, 135.)

6 She does not object to interest imposed on the constructive trust estate prior to October 2006.18 Hermann nevertheless claims it was erro r to award interest on the surcharge
because that amount was not “certain.” 7 She relies on Civil Code section 3287, which provides in part: “A person who is entitled to recover damages certain, or capable of being made certain by calculation, and the righ t to recover which is vested in the person upon a particular day, is entitled also to r ecover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. This section is applicable to recovery of da mages and interest from any debtor . . . .” (Civ. Code, § 3287, subd. (a).) The court did not impose prejudgment in terest under the authority of Civil Code section 3287, nor was it required to. The cour t indicated it was relying on Probate Code sections 9601 and 9602, regard ing a personal representative’ s breach of duty, both in assessing the per diem interest and in fi nding “no factual basis for excusing the accumulation of interest during the entire period since Judge Sm ith’s November, 2006 decision . . . .” The court did, however, excuse interest for a period of one year following the November 2006 ruling under its “discre tionary equitable auth ority provided in Probate Code § 9602(b)” because “there ha ve been periods when neither party could proceed through no fa ult of her own.” Section 9601 provides in part “If a pe rsonal representative breaches a fiduciary duty, the personal representativ e is chargeable with any of the following that is appropriate under the circumst ances: [¶] (1) Any loss or depreciation in value of the decedent’s estate resulting from the breach of duty, with intere st.” (Prob. Code, § 9601, subd. (a)(1).) Section 9602 provides in part th at if the personal representative is liable for interest under section 9601, he or she is liabl e for “the greater of” the amount of interest at the legal rate on judgments or the amount of interest actually received. (Prob. Code, § 9602, subd. (a).)

7 Hermann nowhere explains why the am ount of the assets of the constructive trust were not capable of being made certain. Indeed, she asserted in her reply brief that “Wendy’s position is that . . . the November 2006 Decision was capable of calculation and was calculated correctly. . . .”19 David maintains an award of interest under Probate Code section 9601 does not require an amount certain or capable of being made certain. She relies on Uzyel v.
Kadisha (2010) 188 Cal.App.4th 866 ( Uzyel ), which addressed a virtually identical statute, Probate Code section 16440. That stat ute, regarding trustees rather than personal representatives, provides “If a trustee commits a breach of trust, the trustee is chargeable with any of the following that is appropriate under the circum stances: [¶] (1) Any loss or depreciation in value of the trust estate resulting from the breach of the trust with interest.” (Prob. Code , § 16440, subd. (a)(1).) Uzyel held section 16440 “authorize[s] prejudgment interest on such an award without the need to show that the amount was certain or capable of being made certain by calculation , as would be required under Civil Code section 3287, subdivision (a).” ( Uzyel, supra, 188 Cal.App.4th at p. 921, italics added.) The reasoning of Uzyel regarding interest awarded under Probate Code section 16440 applies equally to in terest awarded under section 9601. 8 Hermann also claims it was error to impose interest on the amount of the constructive trust assets wrongfully held by her after October 6, 2006 9 because $473,215.50 of “interest [w as] built into the extensive accounting,” and imposing per
diem interest after that date was an unfair “penalty.” Hermann’s citations to the record do not support the claimed sum of $473,215. 50, and neither her accounting, filed on August 14, 2006, nor th e errata filed on August 21, 2006, include interest on the sums she
held in constructive trust. 10 Moreover, awarding the statutorily authorized per diem

8 David maintains “The Trial Cour t should have cited Probate Code section 16641(b), which is applicable to trusts. However, the language therein is identical to the language of Probate Code sect ion 9602(b), so the erro r is harmless.” We affirm the ruling if correct for any reason. ( D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 19.)
9 On that date, the court issued an or der allowing Hermann to file a response to the Johnson report by October 23, 2006. In its Judgment, the court awarded interest on the surcharge of $1,370,375.75 “at the rate of $245.79 per day after October 4, 2006.”

10 The Johnson report recommended interest on the disallowed expenses claimed in Hermann’s accounting from the date of th e claimed expense paym ents. Hermann did not object to the interest imposed on the disa llowed claims prior to October 2006, only to20 interest on the amount Hermann owed doe s not unfairly penalize her, but fairly compensates the trust beneficiaries for th eir loss of use of the trust assets. Lastly, Hermann asserts “[w]ithout any rationale or reasoning, the Marin court then pulled out of its hat a ‘one-year pe riod of relief from in terest.’ ” Hermann acknowledges the trial court’s discretion in th is regard, but complains the court erred in not relieving her of all interest after October 2006 be cause she “has acted reasonably.”
Both Probate Code section 9602 and sec tion 16441 give the court discretion to excuse the personal representative or trustee from liability for in terest in whole or in part if he or she has “acted reasonably and in go od faith.” (§§ 9602, su bd. (b), 16441, subd. (b).) The trial court did exercise its discre tion, excusing the interest for a one-year period. Given the background of this case, we cannot say the court abused its discretion in not excusing all interest after October 2006. 11 Ownership of 300 Brannan Street In her accounting, Hermann lis ted the 25 percent interest in the Partnership as an
asset of the Jane Alter Trust. But, as Hermann acknowledges, the record also reflects a deed transferring Jane Alter’s 25 perc ent interest in the Brannan Street real estate to “Wendy Alter, trustee of the Jane Alte r Living Trust” on July 10, 1997. 12 Thus, it is

the interest imposed from after October 6, 2006 because it “i mproperly punish[ed] Hermann for attempting to redress [the trial c ourt’s] prejudicial and erroneous rulings.” Had Hermann’s attempts in this regard been successful, the interest award would have been reversed. Her unsuccessful attempts allo wed her to have the benefit of retaining the surcharge, thus justifying imposition of interest.
11 Hermann also claims the court was ba rred from entering a personal judgment against her because this was “a petition to appr ove and settle an accounting of the former trustee of a decedent’s estate.” To the c ontrary, it was an action against Hermann for fraud and misrepresentation, the outcome of which was imposition of a constructive trust on assets wrongfully held by Hermann. “A trustee is personally liable for torts committed in the course of administration of th e trust only if the trustee is personally at fault.” (Prob. Code, § 18002.) Hermann was.
12 Hermann’s assertion that David is barred from “attacking the 1997 San Francisco Probate Order distributing the real prop erty to Jane [Alter] in the Estate of Zal Alter” proceeding is disingenu ous. (Italics omitted.) As the record demonstrates, Debra Dolch, in her capacity as successor trustee of the Alter Family Trust deeded Jane Alter’s21 apparent both Jane Alter’s 25 percent in terest in the Partnership and Jane Alter’s 25 percent interest in the Brannan Street real property are assets of the constructive trust. 13 Accordingly, Hermann maintains the trial c ourt erred in finding Jane Alter’s 25 percent ownership interest in the Brannan Street real property was ac tually owned by the Partnership. We agree. Hermann asserts the statutory presump tions set forth in Corporations Code
section 16204 and Evidence Code section 662 mandate that Jane Alter, not the Partnership, held title to 25 percent of Br annan Street. Evidence Code section 662 provides “The owner of the legal title to prope rty is presumed to be the owner of the full beneficial title. This presumption may be re butted only by clear an d convincing proof.” Corporations Code section 16204 provides in pertinent part: “Property acquired in the name of one or more of the partners, without an indication in the instrument transferring title to the property of the person’s capacity as a partner or of the existence of a partnership and without use of partnership asse ts, is presumed to be separate property, even if used for partnership purposes .” (Corp. Code, § 16204, subd. (d).) Legal title to the Brannan Street property was not held in the name of the Partnership. Rather, the trial court based its ruling that the Partnership “is the property owner” of the 25 percent interest in Branna n Street in part on the supposed “ambiguity” of the Partnership Agreement between Zal A lter and Renee Delman regarding ownership of the real property. In 1966, when the partne rship agreement between Zal Alter and his sister Renee Delman was executed, each owned an undivide d 50 percent interest in the business, 300

25 percent interest in the Branna n Street property to Hermann as the then-trustee of Jane Alter’s trust.
13 Given that both the 25 percent interest in the Partnership and in the Brannan Street real property are assets of the constr uctive trust, one might wonder why the parties care whether the 25 percent interest in the real estate is an a sset of the Partnership or not. We note, however, that if the 25 percent interest in the Brannan Street real property is not owned by the Partnership, then the owner(s) of that 25 percen t interest theoretically could seek to partition the realty. (Code Civ. Proc., § 872.2 10, subd. (a)(1).)22 Brannan Street. The partnershi p agreement provided in part: “Whereas, the parties hereto have inherited certain real and personal prope rty from the estate of their late father, Marcus Alter, and are each the undivided owners of one-half of said property [¶] . . . [¶] . . . the parties by this Agreement do asso ciate themselves as equal partners for the purpose of carrying on, conduc ting and operating those certai n parcels of real property
described in Exhibit A” which included 300 Brannan Street. The partnership agreement also provided “ Nothing herein contained shall affect the respective partner’s ownership of undivided one-half interests in the real pr operty now owned by each of them in such
undivided interests , or any real property which may here after be acquired by them in such undivided interests.” (Italic s added.) The partnership ag reement further gave each partner a right to purchase the other’s interest in the realty if that partner “receive[d] a bona fide offer . . . for the purchase of any re al property owned by the partnership.” The agreement further provided “Any profits and losses of said partnership shall be borne in proportion to the partnership interests.” Thus, there was no “ambiguity” in the part nership agreement. On the contrary, it clearly acknowledged that, while Zal Alte r and Renee Delman were operating the business as partners, they retained their separate undivided one-half interests in the real property. 14 In 1989, Zal and Jane Alter crea ted the Alter Family Trust. ( David v. Hermann,

supra , 129 Cal.App.4th at p. 676.) In 1993, the trust wa s split into the Zal Alter Trust and the Jane Alter Trust, with an “undivided one-f ourth (1/4) interest in the 300 Brannan Street Partnership” listed as an asset. ( Id . at p. 678.) In 1997, after Zal’s death, Debra Dolch, as trustee of Zal’s trust, deeded a 25 percent interest in the 300 Brannan Street real property (one-half of Zal’s 50 percent interest in the real estate) to Hermann, as the

14 As Hermann correctly notes, “it is not unusual that property be used for partnership purposes and not be long to the partnership.” ( Ellis v. Mihelis (1963) 60 Cal.2d 206, 218.) In Ellis , the court concluded a ranch owned by two brothers and operated as a partnership did not become a partnership asset because “[t]here was no showing that the ranch was acquired for the part nership or with partne rship funds or that the partnership existed at the time the ranch was acquired.” ( Id . at pp. 218–219.)23 trustee of Jane’s trust. After Jane’s death, Hermann deeded the 25 percent interest in the
300 Brannan real property from herself, as trustee, to hersel f, as her separate property. In June 2006, the parties stipulated and the court ordered Hermann to deed the 25 percent
interest in the real property to Debra Dolch, the receiver. Despite the plain language of the Partne rship agreement recogn izing the individual ownership of the real property and the un contradicted record title of the 25 percent ownership in the property at issue here, the tr ial court relied on the following to conclude the property was, in fact, owned by the bu siness: Hermann’s own representations on various schedules of her accounting which indica ted the real estate was an asset of the business; Ohman’s statement in his declaration that he relied on the estate tax return for Jane’s estate in preparing Sc hedule E to Hermann’s accounting; the Jane Alter estate tax return signed by Hermann in 1999 also indicating the prop erty was an asset of the business; and Hermann’s “ ‘Supplemental Declar ation’ filed 9/12/06, saying that Dolch was ‘retained by the 300 Company partne rs who owned the 300 Brannan Street property.” However, Hermann’s representations in these documents, whether intentional or simply mistaken, cannot act to change the record title to the 300 Brannan Street property. None of these documents provide the “clear a nd convincing proof” necessary to rebut the presumption that “[t]he owner of the legal title to property is . . . the owner of the full beneficial title.” (Evid. Code, § 662.) Moreover, David stipulated that Hermann deed the 25 percent interest in the 300 Brannan real property to Debra Dolch, as receiver of the constructive trust property. David did not contend at that time that the property was a Partnership asset. Indeed, if the real prope rty was a partnership a sset, we do not see how Hermann could unilaterally have transferred title; rather, th e transfer would have had to have been authorized by the partnership. 15

15 We ordered supplemental briefing from both parties on whether other parties with a record ownership interest in the Brannan Street real property or with an ownership interest in the partnership were indispensabl e parties. Because we conclude the record title remains controlling, we need not and do not reach that issue.24 Accordingly, we reverse that part of the April 12, 2011, judgment decreeing the Partnership owns a 25 percent interest in the Brannan Street real property. 16

D ISPOSITION The portion of the judgment decreeing the Pa rtnership owns a 25 percent interest
in the 300 Brannan Street real property is reversed, and the judgment is ordered modified
to state the constructive trust estate includes both a 25 percent interest in the Partnership and a 25 percent interest in 300 Brannan Stre et. In all other respects, the judgment is
affirmed. Each side shall be ar their own costs on appeal.

_ ____________ ____________ Banke, J.

We concur:

_____________ ____________ Margulies, Acting P. J.

_____________ ____________ Becton, J. 

16 Hermann contends the trial court erred in denying her request for judicial notice of various documents relating to this issue, including a title company’s report, deed of trust, a probate referee’s report, recorded bank documents and “record title for 300 Brannan,” in support of her “Brief Respond ing to David’s New Issues Raised Without Notice at the May 7, 2007 Hearing.” The co urt did not abuse its discretion in denying this request because these doc uments did not fall into any of the mandatory judicial notice categories, nor were the documents pr operly authenticated. (Evid. Code, §§ 451, 403, subd. (a)(3).) Moreover, even when a c ourt takes judicial notice of a document, it does not take notice of the truth of matters stated therein. ( Heritage Pacific Financial, LLC v. Monroy (2013) 215 Cal.App.4th 972, 987–988.) In any event, the issue is moot.

 Judge of the Contra Costa County Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.