Filed 4/5/21 (opinion following rehearing)

See dissenting opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DAVID BRESLIN, as Trustee, 

etc.,

 Plaintiff and Respondent,

v.

PAUL G. BRESLIN et al.,

 Defendants and 

Respondents;

PACIFIC LEGAL 

FOUNDATION et al.,

 Defendants and Appellants.

2d Civ. No. B301382

(Super. Ct. No. 56-2018-

00521839-PR-TR-OXN)

(Ventura County)

OPINION FOLLOWING 

REHEARING

The legal historian Frederic William Maitland is reputed to 

have said, “The law is a seamless web.” He didn’t.1 

1 “Such is the unity of all history that anyone who 

endeavors to tell a piece of it must feel that his first sentence 

tears a seamless web.” (Maitland, A Prologue to a History of 

English Law (1898) 14 L.Q.Rev. 13.)
2.

The phrase, however, applicable to the law in general, is 

particularly apt here. This case began and ended in probate 

court. But the law concerning mediation also applies. The 

proceeding here is made from the seamless fabric of probate and 

mediation law.

The trustee of a decedent’s trust petitioned the probate 

court to determine the trust beneficiaries. The potential trust 

beneficiaries received notice of the petition. The probate court 

ordered the matter to mediation. The same potential 

beneficiaries received notice of the mediation, but some did not 

participate. The participating parties reached a settlement that 

excluded the nonparticipating parties as beneficiaries. The 

probate court approved the settlement. The nonparticipating 

parties Pacific Legal Foundation et al.2 (collectively “the Pacific

parties”) appeal. We affirm. A party receiving notice under the 

circumstances here, who fails to participate in court-ordered 

mediation, is bound by the result.

FACTS

Don Kirchner died in 2018 leaving an estate valued at 

between $3 and $4 million. Kirchner had no surviving wife or 

children, but he was survived nieces and nephews.

Kirchner’s estate was held in a living trust dated July 27, 

2017.3 The trust was amended and restated on November 1, 

2 The nonparticipating parties are: Pacific Legal 

Foundation, Judicial Watch, Save the Redwoods League, 

Concerned Women of America, Catholics United for Life, Catholic 

League, Sacred Heart Auto League, National Prolife Action 

Center, doing business as Liberty Counsel, and Orbis 

International.

3 The parties take issue with case title, often referred to as 

the caption. They believe it should be “In the matter of the Don 
3.

2017 (restated trust). David Breslin (Breslin) was named the 

successor trustee in the restated trust.

Breslin found the restated trust, but initially could not find 

the original trust. The restated trust makes three $10,000 

specific gifts and directs that the remainder be distributed to the 

persons and charitable organizations listed on exhibit A in the 

percentages set forth.

The restated trust did not have an exhibit A attached to it, 

and no such exhibit A has ever been found. But in a pocket of the 

estate planning binder containing the restated trust, Breslin 

found a document titled “Estates Charities (6/30/2017).” The 

document listed 24 charities with handwritten notations that 

appear to be percentages.

Breslin filed a petition in the probate court to confirm him 

as successor trustee and to determine the beneficiaries of the 

Kirshner Living Trust.” Apparently, the parties did not consult 

the California Style Manual. This is what they would have 

learned: “Similar to estates . . . , trusts are not recognized as 

legal entities and cannot sue or be sued. Only trustees can be 

named as parties, thus it is improper to name ‘The ABC Trust’ as 

a party. (See Prob. Code, §§ 17200, subd. (a), 17200.1; see also 

Code Civ. Proc., § 369, subd. (a)(l).) Additionally, the description 

‘Trustee of the ABC Trust’ is not properly listed as a party name; 

the trustee's name is listed followed by ‘as Trustee, etc.’ ‘Trustees 

of the California State University’ is an official board name, not a 

description, so it is properly used in titles (see Ed. Code, § 66600). 

Trust administration cases do not use a nonadversary title, such 

as ‘In re the Matter of the Charles G Adams Trust,’ to identify 

the trust. In addition, the lower court designations of ‘Petitioner’ 

and ‘Respondent’ are changed to ‘Plaintiff’ and ‘Defendant’ in 

accordance with [California Style Manual] section 6:42.” (Cal. 

Style Manual (4th ed. 2000) § 6:47.)
4.

trust in the absence of an attached exhibit A. Breslin served each 

of the listed charities, including the Pacific parties. Only three of 

the listed charities filed formal responses. The Pacific parties did 

not.

The probate court confirmed Breslin as successor trustee

and ordered mediation among interested parties, including 

Kirchner’s intestate heirs and the listed charities. The 

mediator’s fees were to be paid from the trust. One of the listed 

charities, the Thomas More Law Center (TMLC), sent notices of 

the mediation to all the interested parties, including the Pacific

parties. Approximately four notices of continuances were sent to 

all the parties, including the Pacific parties, before the mediation 

took place. 

The mediation notice included the following:

“Mediation may result in a settlement of the matter that is 

the subject of the above-referenced cases and of any and all 

interested·persons' and parties' interests therein. Settlement of 

the matter may result in an agreement for the distribution of 

assets of the above-referenced Trust and of the estate of Don F. 

Kirchner, Deceased, however those assets may be held. 

Settlement of the matter may also result in an award of 

attorneys' fees to one or more parties under Smith v. Szeyller 

(2019) 31 Cal.App.5th 450. Interested persons or parties who do 

not have counsel may attend the mediation and participate.

“Non-participating persons or parties who receive notice of 

the date, time and place of the mediation may be bound by the 

terms of any agreement reached at mediation without further 

action by the Court or further hearing. Smith v. Szeyller (2019) 

31 Cal.App.5th 450. Rights of trust beneficiaries or prospective 
5.

beneficiaries may be lost by the failure to participate in 

mediation.

“All represented parties (or his, her or their counsel) and all 

unrepresented parties that intend to participate in the mediation 

are requested to advise the undersigned of his, her or their 

intention to be present and participate by making contact via 

either email . . . or U.S. Mail. Notice to participate in mediation 

will not be accepted via telephone.”

Only five of the listed charities appeared at the mediation, 

including TMLC. The intestate heirs also appeared. The Pacific 

parties did not appear. The appearing parties reached a 

settlement. The settlement agreement awarded specific amounts 

to various parties, including the appearing charities, and 

attorney fees with the residue to the intestate heirs. The 

agreement did not include the Pacific parties. 

TMLC filed a petition to approve the settlement. When the 

Pacific parties received notice of this petition, they filed 

objections.

Prior to the hearing on the petition, Breslin filed a 

supplemental declaration stating that he found the original trust 

document. The restated trust had no exhibit A attached, but he 

found attached to the original trust an exhibit A listing the same 

charities as were found on the document in the binder with the 

restated trust.

The probate court granted Breslin’s petition to approve the 

settlement. The court denied the Pacific parties’ objections on the 

grounds that they did not file a response to Breslin’s petition to 

determine the beneficiaries and did not appear at the mediation.

The Pacific parties appeal.
6.

DISCUSSION

I

Standard of Review

The Pacific parties contend that because the issues here do 

not involve findings of fact, the standard of review is de novo. 

The standard of review for the probate court’s approval of a 

settlement is abuse of discretion. (Estate of Green (1956) 145 

Cal.App.2d 25, 28.) The dispute is academic, however. The 

result is the same under either standard.

II

Forfeiture of Rights

The probate court has the power to order the parties into 

mediation. (See Prob. Code,4 § 17206 [“The 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”].) The 

court did so here. The Pacific parties received notice of the 

mediation, but chose not to participate.

In Smith v. Szeyller, supra, 31 Cal.App.5th 450, 458, we 

held that a party who chooses not to participate in the trial of a 

probate matter cannot thereafter complain about a settlement 

reached by the participating parties. The Pacific parties point

out that there was no trial here. True, but the mediation ordered 

by the probate court, like the trial in Smith, was an essential part 

of the probate proceedings. The Pacific parties may not ignore 

the probate court’s order to participate in the proceedings and 

then challenge the result. The probate court’s mediation order 

would be useless if a party could skip mediation and challenge 

the resulting settlement agreement.

4 All statutory references are to the Probate Code.
7.

The Pacific parties complain they were denied an 

evidentiary hearing. But the probate court has the power to 

establish the procedure. (§ 17206.) It made participation in 

mediation a prerequisite to an evidentiary hearing. By failing to 

participate in the mediation, the Pacific parties waived their

right to an evidentiary hearing. It follows that the Pacific parties 

were not entitled to a determination of factual issues, such as 

Kirchner’s intent, and cannot raise such issues for the first time 

on appeal. (Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 

865, fn. 4 [court will not address issues raised for the first time on 

appeal].)

Estate of Bennett (2008) 163 Cal.App.4th 1303, 1310, is of 

no help to the Pacific parties. There the Court of Appeal held 

that estate beneficiaries who petitioned to set aside a settlement 

agreement were entitled to an evidentiary hearing. But Bennett

did not involve a party’s failure to respond to a mediation order.

The Pacific parties argue the only way they can forfeit their 

interest is by filing a written disclaimer. They rely on section 

275. That section provides, “A beneficiary may disclaim any 

interest, in whole or in part, by filing a disclaimer as provided in 

this part.” (Ibid.) The disclaimer must be in writing signed by 

the disclaimant. (§ 278.) We agree the Pacific parties did not 

disclaim their interest. Instead, they forfeited their interest 

when they failed to participate in mediation as ordered by the 

court.

Had the Pacific parties appeared at the initial probate 

hearing, for which they received notice, they would have had the 

opportunity to object to mediation. Instead, they waited until 

after the mediation, for which they also received notice, in 

addition to notices of continuances, to finally object to the result. 
8.

The dissent expresses concern for the due process rights of 

parties who ignored these multiple notices, and apparently no

concern for the parties who responded to the notices and spent 

time and effort complying with the probate court's order for 

mediation.

III

Trustee’s Duties

(a) Impartiality

The Pacific parties contend the trustee failed in his duty to 

deal impartially with all beneficiaries. (§ 16003 [“If a trust has 

two or more beneficiaries, the trustee has a duty to deal 

impartially with them”].) 

But all interested parties received notice of the mediation 

and had an opportunity to participate. The Pacific parties’

failure to participate was not the fault of the trustee.

(b) Trustee’s Personal Profit

The Pacific parties contend the trustee breached fiduciary

duties by approving large gifts to Kirchner family members, 

including himself, who stood to gain little or nothing under the 

trust.

But all parties who participated in the mediation approved 

the settlement, not just the trustee. And the probate court 

approved the settlement. The Pacific parties may not refuse to 

participate and then complain that they received nothing.

Moreover, the Pacific parties’ argument assumes the 

beneficiaries of the trust are known. The court did not determine 

the identity of the beneficiaries. The Pacific parties may have 

requested an evidentiary hearing on the matter had they abided 

by the probate court’s order and participated in the mediation. 

They chose not to do so.
9.

(c) Notice

The Pacific parties contend that the trustee failed to keep 

them reasonably informed about the mediation and his intent to 

execute the settlement agreement.

The Pacific parties do not claim they lacked notice of the 

mediation. Had they participated, they would have been 

informed of all the developments, including the trustee’s 

willingness to sign the settlement agreement.

The Pacific parties apparently believe that after the trustee 

and participating parties have gone through mediation and 

reached a settlement, they should have been notified before the 

settlement was signed. Then they could have registered their 

objection. But that would defeat the purpose of the court-ordered 

mediation. 

The Pacific parties cite section 16060 for the proposition 

that the trustee has a duty to keep the beneficiaries of the trust 

reasonably informed of the trust and its administration. The 

information provided pursuant to section 16060 must be the 

information reasonably necessary to enable the beneficiary to 

enforce the beneficiary’s rights under the trust or prevent or 

redress a breach of trust. (Salter v. Lerner (2009) 176 

Cal.App.4th 1184, 1187.)

First, the probate court did not determine that the Pacific

parties were beneficiaries of the trust. Second, assuming they 

were or could have been beneficiaries, the notice of mediation was 

all the information necessary for them to protect their interest.

The Pacific parties argue that the mediation notice failed to 

inform them that they could forfeit their interest if they did not 

participate. But the notice stated that nonparticipating persons 

or parties may be bound by the terms of any agreement reached 
10.

at the mediation, and the rights of trust beneficiaries or 

prospective beneficiaries may be lost by the failure to participate 

in the mediation. Synonym for lost is forfeiture.

The Pacific parties argue that the loss of rights referred to 

in the notice may be read as only referring to procedural rights. 

But the notice says that nonparticipating parties may be bound 

by any agreement reached during mediation. The notice 

obviously refers to substantive rights.

IV

Extrinsic Fraud

The Pacific parties contend the probate court’s order 

approving the settlement should be set aside for extrinsic fraud.

The Pacific parties’ contention is based on TMLC’s response 

to the trustee’s petition to determine trust beneficiaries. TMLC 

urged the probate court to find that the charities listed on the 

paper found with the restated trust are the beneficiaries. TMLC 

also requested attorney fees if successful because all the charities 

listed would benefit by its success.

TMLC was not claiming to be the legal representative for 

all the charities on the list. It was only claiming that by 

representing its own interest other parties will benefit and 

should share in the burden of attorney fees under the substantial 

benefit doctrine. (See Smith v. Szeyller, supra, 31 Cal.App.5th at 

p. 460.) There was no extrinsic fraud.
11.

V

Attorney Fees

The intestate beneficiaries contend they should be awarded 

attorney fees under the substantial benefit doctrine. That is a 

matter to be decided by the probate court.

DISPOSITION

The judgment (order) is affirmed. Costs are awarded to 

respondents.

CERTIFIED FOR PUBLICATION.

GILBERT, P. J.

I concur:

YEGAN, J.
TANGEMAN, J., dissenting:

I respectfully dissent. A trust must be administered 

according to the testator’s intent. (Prob. Code,1 § 21102, subd. 

(a).) Administration consistent with that intent is the 

“paramount rule . . . to which all other rules must yield.” 

(Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134.) That 

means honoring Don Kirchner’s final wishes above all else. 

Here, however, the probate court exalted principles of 

forfeiture over Kirchner’s express wishes, concluding that the 

Pacific parties forfeited their rights to the gifts Kirchner wanted 

them to have because they did not satisfy a requirement Kirchner 

did not impose: participation in mediation at their expense. In 

effect, the court imposed a terminating sanction against the 

nonappearing beneficiaries. The majority countenances this 

result. I would not.

Equity abhors a forfeiture. (Hand v. Cleese (1927) 202 Cal. 

36, 46.) And forfeiture is an especially harsh result here: It 

elevates the probate court’s power to order mediation (§ 17206) 

over myriad provisions of the Probate Code, including those 

related to notice requirements (§ 17203), hearings and objections 

(§ 1040 et seq.), and the approval of settlements (§ 9837), as well 

as their constitutional counterparts (Skelly v. State Personnel

Board (1975) 15 Cal.3d 194, 208 [due process requires a notice 

and hearing in “every significant deprivation” of an interest in 

property]). It forces potential beneficiaries to participate in costly 

mediation (legal entities cannot appear except through counsel), 

something “antithetical to the entire concept” thereof. (Jeld-Wen, 

Inc. v. Superior Court (2007) 146 Cal.App.4th 536, 543.) It 

permits a trustee to favor some beneficiaries over others—in 

1 Unlabeled statutory references are to the Probate Code.
2.

breach of the duty of impartiality (§ 16003)—simply because the 

latter did not participate in mediation. And perhaps most 

significantly, by permitting some beneficiaries to cut other 

beneficiaries out of trusts altogether, it defeats the express 

intentions of testators and negates the expectations testators 

hold knowing that their final wishes will be fulfilled without 

regard for the wishes of others. 

Smith v. Szeyller (2019) 31 Cal.App.5th 450 (Smith) does 

not support the result the majority reaches here. In Smith, we 

held that a beneficiary who did not participate in trial forfeited 

her objections to the settlement reached by the litigants who did 

participate because that settlement did not impact her 

inheritance (ibid. at p. 458) and “preserved a common fund for 

the benefit of [her and] the [other] nonparticipating beneficiaries” 

(id. at p. 461). We also concluded that the nonparticipating 

beneficiary forfeited her objections because she did not submit 

them until after the probate court had approved the settlement. 

(Id. at p. 456.) 

In contrast, the settlement here disinherited the Pacific 

parties and redistributed their gifts to other parties contrary to 

the testator’s express directions. And the Pacific parties filed 

their objections before the probate court approved the settlement. 

Moreover, the “notice” that required the Pacific parties to attend 

the mediation at which the settlement was reached came from a 

party that unilaterally decreed that it could settle the case on 

their behalf. And unlike the situation in Smith, the facts here 

changed dramatically after mediation, when Breslin found a 

document—Exhibit A—that confirmed the Pacific parties’ 

unqualified right to inherit funds from Kirchner.
3.

A charitable gift must be carried into effect if it “can 

possibly be made good.” (Estate of Tarrant (1951) 38 Cal.2d 42, 

46.) The majority’s newfound requirement that a party

participate in mediation before it can inherit ignores this 

command. It will reduce the number of gifts that “can possibly be 

made good” by encouraging parties to send out mediation notices 

whenever they desire to eliminate gifts to beneficiaries that don’t 

appear—for whatever reason. That will not advance the interests 

of testators, but will instead introduce uncertainty into probate 

proceedings, defeat express testamentary wishes, and lead to 

inequitable results. I would reverse the judgment of the probate 

court.

CERTIFIED FOR PUBLICATION.

TANGEMAN, J.
Robert L. Lund, Judge

Superior Court County of Ventura

______________________________

Ferguson Case Orr Paterson, Joshua S. Hopstone and 

David B. Shea for Defendants and Appellants Pacific Legal 

Foundation, Judicial Watch, Save the Redwoods League, 

Concerned Women of America, Catholics United for Life, Catholic 

League, Sacred Heart Auto League, National Prolife Action 

Center, doing business as Liberty Counsel, and Orbis 

International.

Staker Law Tax and Estate Planning Law Corporation, 

Kevin G. Staker and Brandon P. Johnson for Plaintiff and 

Respondent David Breslin, Trustee.

Jones, Lester, Schuck, Becker & Dehesa, Mark A. Lester, 

Katherine H. Becker and Eric A. Hirschberg, for Defendants and 

Respondents Paul G. Breslin and Kathleen Breslin LaForgia.