Filed 4/22/15 Lawrence v. Lawrence CA4/3 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

FOURTH APPELLATE DISTRICT 

DIVISION THREE 

SUSAN L. LAWRENCE, 

 Plaintiff and Appellant, 

 v. 

ZAHIDE A. LAWRENCE, 

 Defendant and Respondent. 

 G049531 

 (Super. Ct. No. 30-2012-00590309) 

 O P I N I O N 

 Appeal from a judgment of the Superior Court of Orange County, Randall 

J. Sherman, Judge. Affirmed. 

 Thomas J. O’Keefe; and Everett L. Skillman for Plaintiff and Appellant. 

 Hart | King, William R. Hart, Andrew C. Kienle, and Rhonda H. Mehlman 

for Defendant and Respondent. 

* * * 

 
2

 This is a trust dispute. The appellant is Susan Lawrence (Susan). Her 

mother, Maxine Lawrence (Maxine) died in 1993 and disposed of certain property 

through a will; other property through a trust. By the terms of the trust, at Maxine’s 

death the trust was subdivided into “Trust A,” “Trust B,” and “Trust C.” Susan’s father, 

Harry Lawrence (Harry), was entitled to the income of Trusts B and C for life, and Susan 

was the remainder beneficiary of Trusts B and C. Susan’s parents owned significant art 

holdings. Susan contends these holdings should have been in Trusts B and C, and Harry, 

as trustee, misappropriated them. Respondent Zahide Lawrence (Zahide) married Harry 

after Susan’s mother died. Harry died in 2012 and Zahide is the executor of Harry’s 

estate. Zahide is also the successor trustee of Trust A. Zahide contends the art was never 

trust property because it passed directly to Harry by Maxine’s will. The trial court 

entered judgment in favor of Zahide. 

 We affirm. The issue with respect to the art holdings is whether the art was 

encompassed by the phrase “tangible property of a personal nature,” as used in Maxine’s 

will. We conclude this phrase simply means tangible personal property, which includes 

the art. The result is that it passed directly to Harry, without passing into the Trust as part 

of the residue of Maxine’s estate, and thus Susan has no claim to it. 

 Susan also contends Harry violated his fiduciary duties in taking out a loan 

on real property in Trust C and investing the proceeds in a bond fund and in purchasing a 

home in Dana Point. We deem these claims waived because Susan has not cited evidence 

in the record to support these claims and, to the contrary, ignored adverse facts in the 

record. Moreover, a settlement agreement Susan previously signed specifically 

authorized some of the uses of the funds Susan complains of, and thus, even if her claims 

had not been waived, there was no breach of duty. 

 Finally, Susan claims the court abused its discretion in denying her lastminute motion to amend her pleadings to add a cause of action for an accounting. We 

disagree and affirm. 
3

FACTS 

 

 The Lawrence Family Trust dated January 28, 1976, as amended and 

restated in its entirety on January 8, 1993 (the trust) was established by Susan’s parents, 

Maxine and Harry. Maxine died on May 17, 1993. Following Maxine’s death, Harry, as 

the sole surviving trustee, subdivided the assets of the trust into Trust A, Trust B, and 

Trust C. Trust A was a revocable “survivor’s trust.” Trust B became an “irrevocable 

unified credit ‘bypass trust.’” And Trust C became an irrevocable “QTIP marital trust.”

1

 

Harry was the sole trustee of all three subtrusts. He was entitled to the entire net income 

from all three subtrusts for life. Susan was the remainder beneficiary of Trusts B and C 

and had been the remainder beneficiary of Trust A until Harry amended and restated 

Trust A to make his new wife, Zahide, the remainder beneficiary of Trust A. 

 Maxine also created a will on January 8, 1993. In it, she left all of her 

clothing and jewelry to Susan. To Harry she left “household furniture, and furnishings, 

personal automobiles, and other tangible articles of a personal nature, . . . not otherwise 

specifically disposed of by this will or in any other manner . . . .” Harry and Maxine had 

a valuable collection of oriental art. Some of the art was owned by Harry and Maxine 

personally, and the remainder was owned by their business, Warren Imports, which 

specialized in selling oriental art. The will did not specifically bequeath the art. The will 

contained a pour-over provision granting the residue of Maxine’s estate to the trust. 

 In 2004, Susan sued Harry, alleging he was threatening to encumber real 

property in Trust C and to use the proceeds for his own benefit. She also alleged that 

Harry had removed valuable art objects and artifacts from his residence that she claimed 

 

1

 A QTIP marital trust is a mechanism for avoiding federal estate taxes. 

(Estate of Ellingson v. C.I.R. (9th Cir. 1992) 964 F.2d 959, 960.) The inner workings of 

these trusts are not relevant on appeal. 
4

was Trust C property. Later that year, Susan and Harry signed an “interim agreement,” 

which permitted Harry to borrow $3.5 million against the real property in Trust C. It 

specified that the loan would be an adjustable-rate mortgage, starting at 2.25 percent for 

the first year, with annual payment increases not to exceed 7.5 percent of the previous 

year’s payments. The agreement specified where the proceeds of the loan were to be 

spent. Nine hundred thousand dollars would be invested in an interest bearing account 

(called the “sinking fund”), with the interest to be paid directly to Harry. The principal of 

that fund would be used to pay the principal and interest on the mortgage. Eighty-five 

thousand dollars would be used to pay off an existing loan on the property. The 

remainder would be invested in a bond account, with the interest and income on that 

account to be paid directly to Harry. The principal of the bond account could not be 

withdrawn unless for a purpose permitted by Trust C. Susan was entitled to monthly 

account statements on both the cash account and the bond account, and she was entitled 

to a 30-day written notice of a withdrawal of the principal of either account. The 

agreement concluded with the following: “by executing this interim agreement, it is 

neither Harry’s intent . . . nor Susan’s intent to waive or release any claims that they have 

against each other . . . .” 

 In 2007, Harry sued Susan for violating the “no contest” clause of the trust, 

seeking to disinherit her. 

 In December 2010, Harry and Susan signed a “General Release and 

Settlement Agreement” to resolve all of the litigation between them. The consideration 

included the following. Harry was to receive $1,040,000 from Trust C, payable, if 

necessary, from the bond account. Susan was to receive $500,000. The sinking fund 

would continue to pay “the existing . . . mortgage, or any refinanced or replacement 

mortgage.” Harry would continue to receive all income generated by Trust C 

investments, including the sinking fund and the bond account. And the parties dismissed 
5

their existing litigation with prejudice. Both parties were represented by counsel in 

negotiating the agreement. 

 All of the art from Warren Imports was sold at auction when the business 

closed in 2006, and the proceeds distributed to the owners, Susan, Michael May, and 

Harry. 

 Harry died in March 2012. In August 2012, Susan filed the present 

petition. In May 2013, Zahide’s counsel signed a stipulation to permit Susan to file a first 

amended petition. Zahide’s counsel agreed to sign the stipulation only after receiving 

Susan’s counsel’s assurance that he would not add a prayer for an accounting, to which 

Susan’s counsel agreed. 

 In the petition, although there is a vague reference to the improper 

withdrawal of principal from Trusts B and C, almost the entire focus is on the allegedly 

misappropriated pieces of art. The petition claims Harry misappropriated the art and/or 

undervalued the art for purposes of establishing the trust values, which devalued her 

vested rights. The prayer in the petition seeks only the restitution of “misappropriated 

tangible personal property” and damages for “the fraudulent undervaluation of tangible 

personal property on the 706 estate tax return of Maxine Lawrence.” 

 In August 2013, Susan filed a motion to amend her petition to add a prayer 

for an accounting. She set the hearing for September 13, 2013, just 10 days before the 

scheduled trial date. The motion was based on vague claims that Harry had improperly 

invaded the principal of Trusts B and C, and it was also based on claims that he had taken 

out a $3.6 million loan encumbering real property in Trust C. As Zahide’s opposition 

pointed out, however, the loan was authorized by the previous settlement agreement. The 

court denied the motion, stating, “Such a request adds a new cause of action, not simply a 

prayer for relief . . . . With trial only 10 days away, granting this motion would be 

prejudicial to Respondent.” “[S]uch an accounting could cover several years and take 
6

significant effort to assemble. Finally, . . . counsel for [appellant] stated in writing on 

May 24, 2013 that he would forbear adding a cause of action for an accounting.” 

 The matter proceeded to a bench trial. During trial testimony, Susan 

acknowledged that the art objects at issue in the present case are the same objects that 

were at issue in the 2004 lawsuit. Also, Susan called as a witness Michael May, who was 

employed by Warren Imports for approximately 40 years, ultimately holding the title vice 

president. He testified that the art owned by Warren Imports was frequently on display in 

Harry’s home. He also testified that of the list of art objects in Exhibit 5, which purports 

to appraise several dozen items that were on display in Harry and Maxine’s home, 75 

percent were owned personally by Harry and Maxine. 

 After trial concluded, the court entered judgment in favor of Zahide. With 

respect to the art, the court found Susan had “no claim to these assets since: (1) they 

were the personal property of [Susan’s] parents, Harry and Maxine Lawrence, and passed 

to her father, Harry Lawrence, individually pursuant to the terms of Maxine Lawrence’s 

will and outside of the Lawrence Family Trust; (2) any such claim was released by way 

of the December 2010 general release and settlement agreement signed by [Susan] and 

her father, Harry Lawrence and (3) any such claim is barred by the three-year statute of 

limitations codified in Probate Code §§ 16460 and 10382.” The court also addressed the 

loan Harry had taken out secured by real property in Trust C. It held, “the Court finds 

that there has been no breach of fiduciary duty since: (1) the money obtained from the 

loans remained in Trust C; (2) the money obtained from the loans was used to generate 

income to support Harry Lawrence, a legitimate use of Trust C funds during Harry 

Lawrence’s lifetime; (3) any such claim was released by way of the December 2010 

general release and settlement agreement signed by [Susan] and her father, Harry 
7

Lawrence and (4) any such claim is barred by the three-year statute of limitations 

codified in Probate Code §§ 16460 and 10382.”

2

 Susan timely appealed. 

DISCUSSION 

 We begin by addressing Maxine’s interest in the art collection, which Susan 

claims passed into the trust as part of the residue of Maxine’s estate. The issue turns on 

whether the art was bequeathed to Harry outside of the trust pursuant to the following 

provision in Maxine’s will: “I give all my household furniture, and furnishings, personal 

automobiles, and other tangible articles of a personal nature, . . . not otherwise 

specifically disposed of by this will or in any other manner . . . to my husband . . . .” 

Susan’s counsel made the following concession at trial: “[F]irst, hypothetical 

concessions: . . . if Maxine Lawrence’s will had simply said — as many wills do — ‘I 

leave all my tangible personal property to my husband, the remainder of my estate to my 

trust,’ Susan would have no claim to the oriental art collection . . . .” Susan argues it does 

not mean that, but contends instead that the phrase refers to physical items to which 

Maxine had an emotional connection. There was no extrinsic evidence introduced 

regarding Maxine’s intent. And the parties have not cited any cases using the phrase 

“tangible property of a personal nature,” nor have we found any. 

 We conclude there is no difference between the phrases “tangible personal 

property” and “tangible property of a personal nature.” Grammatically, they mean 

exactly the same thing. Moreover, this is a testamentary document. It would be strange 

to ask heirs to determine, post-mortem, which items the decedent had an emotional 

connection to and which ones she did not. It would be far more common to refer to 

 

2

 The court also rejected Susan’s claim that the 2010 settlement agreement is 

unenforceable on the grounds of duress, finding “inconsistency in her testimony” and 

“lack of credibility.” Susan does not raise the duress argument on appeal. 
8

personal property in the legal sense. And, indeed, the term “tangible personal property” 

is specifically defined in the Probate Code as “articles of personal or household use or 

ornament, including, but not limited to, furniture, furnishings, automobiles, boats, and 

jewelry, as well as precious metals in any tangible form, such as bullion or coins and 

articles held for investment purposes.” (Prob. Code, § 6132, subd. (h)(1).) We think it 

far more likely Maxine intended to convey this legal concept rather than some vague 

concept of emotional attachment. Consistent with Susan’s concession, therefore, the art 

work passed directly to Harry as tangible personal property, either as “household . . . 

ornament” or “articles held for investment purposes,” and thus was not part of the residue 

of the state that went into the trust.3

 

 Susan also claims the court erred by failing to find Harry breached his 

fiduciary duty by refinancing the loan on the real property in Trust C and using 

$1 million of the proceeds to purchase a house in Dana Point for himself and Zahide. We 

conclude this issue is waived for two reasons. First, Susan did not include a single 

citation to evidence in the record to support this allegation. And in our independent 

review of the record, we found no support for this claim. Second, Zahide testified that 

the Dana Point property was purchased with the proceeds of the sale of Warren Imports, 

not the loan proceeds, a fact Susan conspicuously omits mentioning. (Foreman & Clark 

Corp. v. Fallon (1971) 3 Cal.3d 875, 881 [“if, as defendants here contend, ‘some 

particular issue of fact is not sustained, they are required to set forth in their brief all the 

material evidence on the point and not merely their own evidence. Unless this is done the 

error is deemed to be waived’”]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 

[“‘The appellate court is not required to search the record on its own seeking error.’ 

 

3

 Given our resolution of this issue, we need not address whether Susan’s 

claim to the art was barred either by the 2010 settlement agreement or by the statute of 

limitations. 
9

[Citation.] Thus, ‘[i]f a party fails to support an argument with the necessary citations to 

the record, . . . the argument [will be] deemed to have been waived’”].) 

 Susan also claims Harry breached his fiduciary duty by, in December 2010, 

selling off over $1 million of bonds in the bond fund from Trust C. Again, she has 

waived the issue by failing to present us with all relevant facts. She omits mentioning 

that the settlement agreement, signed in December of 2010, entitled Harry to a payment 

of $1,040,000 from Trust C. That agreement, moreover, specifically permitted Harry to 

take that money from the bond fund. The omission of this crucial fact is inexcusable and 

results in a waiver. 

 Rather than present us with the relevant facts, Susan simply argues that the 

settlement agreement was unenforceable pursuant to Probate Code section 16464, 

subdivision (b)(2), which states, “A release or contract is not effective to discharge the 

trustee’s liability for a breach of trust in any of the following circumstances,” including, 

“Where the beneficiary did not know of his or her rights and of the material facts (A) that 

the trustee knew or reasonably should have known and (B) that the trustee did not 

reasonably believe that the beneficiary knew.” The trial court never made findings on 

this issue because Susan never presented it to the court. Her theory at trial was that the 

settlement agreement was unenforceable because it was the product of duress (the court 

rejected this contention). Although a party may raise new purely legal issues on appeal, 

we will not consider a new theory that, as this one does, requires factual findings on 

disputed evidence. (Cal Sierra Construction, Inc. v. Comerica Bank (2012) 206 

Cal.App.4th 841, 850.) 

 Moreover, with respect to the loans, Susan does not specify what facts were 

concealed. The interim settlement agreement specified quite clearly the amount and 

disposition of the loan proceeds. Susan was entitled to receive regular account statements 

on the sinking fund and the bond account, and the one statement we have in the record 

indicates she was receiving copies. Thus from our review of the record, at least with 
10

respect to the loans, the relevant facts were revealed and the settlement agreement is 

valid. 

 Next, Susan claims some of the art should be characterized as a “later 

discovered asset,” and thus part of Trust C. In Maxine’s estate tax return, it was stated, 

“A protective election is made for the decedent’s interest in any later discovered assets to 

be allocated to Trust ‘C.’” Susan contends, “The evidence was not disputed that art was 

shuffled back and forth between the Lawrence residence and the Warren Imports 

building, and Harry could have thought (albeit mistakenly) at the time he signed 

Maxine’s estate tax return that the art belonged to Warren Imports and was therefore not 

part of the trust or of Maxine’s estate. One could say that the ownership of that art and 

the characterization of that art as privately-owned investment property was ‘discovered’ 

after Maxine’s estate tax return was sent to the IRS.” But whatever “could” be said or 

“could” have happened, Susan offers no evidence that it actually happened. We will not 

reverse a judgment on the basis of speculation. 

 Lastly, Susan claims the court abused its discretion in denying her motion 

to amend her petition to add a prayer for an accounting. Although motions to amend are 

generally granted liberally (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 944-945), 

eleventh hour requests are not automatic, particularly where there is no excuse for the 

delay and the opposing party will suffer prejudice. (Id. at p. 945; City of Stanton v. Cox

(1989) 207 Cal.App.3d 1557, 1564.) 

 We conclude any error was harmless. Susan’s request was based on her 

contention that Harry had encumbered the real property in Trust C, purchased a bond 

account, and paid himself the income from the bond account while using other Trust C 

funds to service the loan. But this is precisely what the interim settlement agreement, 

signed in 2004, permitted. All income from the bond account was to be paid directly to 

Harry. And the mortgage was to be serviced with the sinking fund. Consequently, even 
11

if Susan had been permitted to add a request for an accounting to her prayer, there was no 

evidence to support any claimed damages.

4

DISPOSITION 

 The judgment is affirmed. Zahide shall recover her costs incurred on 

appeal.5

 IKOLA, J. 

WE CONCUR: 

O’LEARY, P. J. 

BEDSWORTH, J. 

 

4

 Notably, Susan does not claim any evidence at trial was excluded as a result 

of the denial of her motion to amend. 

5

 Susan’s motion for judicial notice is denied on the ground that the proffered 

exhibits, two recorded deeds, were not in evidence before the trial court. (Vons 

Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3 [“Reviewing 

courts generally do not take judicial notice of evidence not presented to the trial court”].)