Filed 8/20/20 Petty v. The Corcoran Gallery of Art CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SUSANNE JILL PETTY

, TRUSTEE,

Plaintiff and Respo ndent

,

v.

THE CORCORAN GALLERY OF

ART

, et al.,

Defendants and Appellants

. B2 93796

(Los Angeles County

Super. Ct. No. 18STPB03226 )

APPEAL from a judgment of the Superior Court of Los

Angeles County, Daniel Juarez , Judge. Affirmed

. Sheppard, Mullin, Richter & Hampton LLP, James M.

Burgess, Karin Dougan Vogel, and Julie A. Bauman for Plaintiff

and Respondent.

Paul Hastings LLP, Valerie Marek, and Kamila LaBerge

for Defendants and Appellants

.

__________________________2 INTRODUCTION

T he Corcoran Gallery of Art and the Trustees of the

Corcoran Gallery of Art appeal from a judgment granting

Susanne Jill Petty’s petition r equiring Corcoran to return

a rtwork and a cash gift to the Alice C. Tyler Art Trust. Corcoran

argues that

, because it did not ge nerally appear in this action

,

the probate court lacked jurisdiction and the judgment is void.

Corcoran also asserts that the probate court erred in entering

judgment because Petty failed to properly serve the petition;

Petty untimely se r ved its response to the probate court’s notes;

and the court failed to rule on Corcoran’s motion for

reconsideration. Corcoran also contends that a Distr i ct of

Columbia court order restricted its ability to comply with the

probate court’s judgment.

We conclude that the tr ial court properly entered judgment

.

B y making a general appear ance through a motion for

reconsideration

, Corcoran waiv ed its objections to any defects in

service or to lack of personal jurisdiction

. Further, because

Corcoran did not oppose the petition and only asserted its

arguments in a defective motion for reconsideration, Corcoran

forfeited those arguments. E ven if Corcoran’s arguments are

considered, they lack merit. Therefore, w e affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. Corcoran and th e Tyler Trust

1. Corcoran

The Trustees of the Corcoran Gallery of Art is a nonprofit

corporation that own s and operates the Corcoran Gallery of Art

, a

private art museum in the District of Columbia (collectively,

Corcoran)

. In 1 8 69

, through a deed of tr ust, William Wilson3

Corcoran established the Corcoran as “‘an institution in

W ashington City, to be ‘dedicated to Art,’ and used solely for the

purpose of encouraging the American Genius, in the production

and preservation of works pertaining to the ‘Fine Arts,’ and

kindred objects.’” Several years later Corcoran established

Corcoran College of Art & Design, devoted to the teaching of art

and design

. Corcoran College was integrated into Corcoran

, becoming an accredited school of art and design

.

2. Tyler Trust

In Oc tober 1974 Alice C. Tyler

, a resident of Los Angeles,

established a revocable trust to hold certain of her assets. In

April 1988

, pursuant to California law , Tyler revoked and

amended certain provisions of this trust, re naming it the Alice C.

Tyler Art Trust

. The trust held over 100 works by artist Suzanne

Regan Pascal (the Pascal c ollection) 1 and provided that, upon

Tyler’s death, the Pascal collection shall be transferred to a

museum for exhibition. The trust’s terms provided that the

muse um would receive a cash gift “to assist with the cost of

securing and otherwise maintaining the collection . . . .”

According to the terms of the trust, the museum would

receive the Pascal collection subject to specified conditions

regarding its display. T he trust ’s terms further provide d that

, should the museum, in the trustees ’ “sole discretion,” fail to

comply with these conditions, the trustees may terminate the

1 The Pascal collection contain ed glass sculptures

, paintings,

and other forms of art. Pascal’s glass sculptures were described

as unique because she wa s the only sculptor who carved glass

using only a hammer and chisel, “bringing into form realistic

sculptures.”4

museum’s rights in “any property” received

, and the museum

shall return “forthwith” all p roperty to the trust.

3. Tyler Trust’s Conditional Gift to Corcoran

After Tyler’s death in 1993 , pursuant to t h e terms of the

trust and a written agreement

, the t rust transferred the Pascal

collection to Corcoran

. Based on the Tyler trust’s requirement s,

a s condition s of receiving the Pascal collection

, Corcoran agreed

to establish a permanent gallery known as the “Alice and John

Tyler Gallery

, ” display part of the Pascal c ollectio n at least two

months each year, and keep at least one work from the Pasc al

c ollection in the Alice and John Tyler Gallery “ at times when

guest or other collections are on display

. ” Under t he agreement

,

Corcoran received $1 million in cash “ to assist with the cost of

securing and otherwise maintaining” the Pascal c ollection in its

permanent gallery at Corcoran

.

As also required by the Tyler trust, t he agreement further

provided that “[t]he determination from time to time of whether

any or all of the conditions herein set forth have been fulfilled

shall be made by and within t he sole discretion of the [Tyler

trust ] Trustees. [¶] In the event the [Tyler trust ] Trustees shall

determine that [Corcoran] has not complied with the conditions

set forth in this Agreement, the [Tyler trust ] Trustees may

terminate all rights of [Corcora n] in the [Pascal collection]” and

Corcoran “shall return to the [Tyler trust ] Trustees forthwith”

the Pascal collection and the $1 million cash gift. The agreement

further provided, in the event of termination, “All expenses of

packaging, shipping, insur ance, delivery and other expenses

related to returning the work of art shall be borne by [Corcoran].”

The agreement prohibited Corcoran from selling the Pascal

collection, and Corcoran agreed that “all rights for copies o r5

derivative works remain with the artist and [ Corcoran] agrees

that nothing may be reproduced without the express permission

of the artist.” The agreement provided , “In the event of any suit

or proceeding the prevailing party therein shall be entitled to

recover its attorneys fees and oth er expenses.” The agreement

further stated that it “shall be governed by and construed in

accordance with the laws of the State of California.”

B. Corcoran Effectively Dissolves As an Independent Entity

1. Corcoran’s Transfer Agreement with the National

Ga llery of Art

Corcoran honored the terms of the a greement with the

Tyler trust for 20 years. After struggling financially for over a

decade, Corcoran considered a potential acquisition by the

National Gallery of Art, a quasi

- governmental institution in t he

District of Columbia. Because of these financial difficulties, o n

May 15, 2014 Corcoran and the National Gallery e xecuted an Art

Accession and Custodial Transfer Agreement ( transfer

a greement)

. 2 Under the t ransfer a greement, Corcoran agreed to

“ transf er and deliver into the custody, care and possession” of the

National Gallery the collection of “art works owned or controlled

by the Corcoran.” Corcoran’s art works would “ be held by [t h e

National Gallery] for the benefit of Corcoran.” Pursuant to th e

t ransfer a greement, the National Gallery had the right to decide

which of Corcoran’s art works to accession 3 into its art collection

.

A related side letter dated June 19, 2014 directed that, once

2 The transfer agreement provided that “ Corcoran will

continue as a legal entity committed to its original mission.”

3 To “accession” means to formally make something part of

one’s c ollection.6

the National Gallery determined which of Corcoran’s artwork s it

would and would not accession, after discussion with the

National Gallery, Corcoran will distribute works not accessioned

to museums or other institutions within the District of Columbia.

However, Corcoran retained the right, after consultation with the

National Gallery, to designate “a non

- DC institution [as] the most

suitable candidate for a particular work” without the work “first

[being] offered to DC institutions.” The side letter further

provided that, before any artwork wa s distributed to an

i nstitution located outside of the District of Columbia, “either the

Office of the Attorney General shall state in writing that it does

not object, . . . or the proposed deaccessioning or distribution shall

be subject to a further cy pr e s proceeding in the District of

Columbia Superior Court.” Finally, t he transfer agreement

obligated Corcoran and the National Gallery to “agree on an

appropriate policy and program for distribution of [art works not

accessioned by National Gallery] to other art museums . . .

, which shall include appropriate provision for any then

- existing

liabilities, commitments and obligations relating to, associated

with or arising from” these art works. 4

2. Corcoran’s Discussions with T yler Trust

In July 2014 Corcoran’s interim director

, Peggy Loar

,

informed Susanne Jill Petty, a Tyler t rust trustee

, 5 that

4 Concurrently with the executi on of the transfer agreement,

Corcoran entered into agreements with George Washington

University pursuant to which the Corcoran agreed to transfer its

building and Corcoran College to George Washington University.

5 Petty was a trustee of the Tyler trust when it contracted

with C orcoran. At the time she filed the p etition in this action

,7

“Corcoran is completing an agreement” with the National Gallery

pursuant to which “[a] ll works owned or controlled by the

Corcoran will go to [the National Gallery].” A fter stating that

Corcoran “has honored the terms” of the Pascal agreement, Loar

further advised that the Pascal collection “while controlled by the

Corcoran [ w as] never accessioned and this provides some

flexibility in ho w the works are now treated.” Loar also told

Petty that t he National Gallery would not be accessioning the

Pascal c ollection. Loar requested that Petty advise Corcoran

whether “ there are any museums or venues you are aware of that

would be interested in the [Pascal collection]

. ” Loa r further

stated that Corcoran would “ only transfer the works if the

receiving party agrees to any current or modified conditions.

. . .

If we cannot find any venue that will accept the current or

modified conditions, then we would propose the most appropriate

step would be t o return the works to the family. ” Corcoran

offered to “pack and ship [the Pascal collection] at [its] expense.”

3. The District of Columbia Cy Pr e s Proceeding

O n June 17, 2014 Corcoran filed a cy pr e s proceeding in the

District of Columbia Superior Co urt to obtain approval of its

proposed transaction with National Gallery and George

Washington University’s propos al to acquire Corcoran College

and Corcoran ’s building

. Corcoran did not give the Tyler trust

notice of the cy pres proceeding

, and the Tyler trust did not

participate in the proceeding. The District of Columbia court

summarized the issues to be adjudicated : “ 1) [has Corcoran]

established that it is impracticable to carry out the Deed of Trust

Petty wa s the Tyler t rust’s sole remaining trustee. Petty is

Pascal ’s daughter

.8

that created the Corcoran given the Corcoran’s cu rrent financial

condition; and 2) if so, is the plan proposed by the Trustees as

near as possible to the intent of William Wilson Corcoran when

he established the Trust. ”

On August 18, 2014, 6 finding “it painful to issue an O rder

that effectively dissol ves the Corcoran as an independent entity,”

the District of Columbia c ourt ruled, “this Court believes that

approval of [Corcoran’s] proposal is necessary, give n the

Corcoran’s financial circumstances, and further believes that the

proposal properly effect uates Mr. Corcoran’s original intent ” in

establishing Corcoran

. 7 Because it was “impracticable to carry

out the [Corcoran’s] existing Deed of Trust,” the c ourt

, under the

cy pr e s doctrine

, approved Corco r an’s entry into the various

agreement s with the Nat ional Gallery , including the transfer

agreement and the side letter

. 8 The c ourt’s order provided that

“the Corco r an Deed of Trust and any other applicable instrument

is deemed to be revised to the extent necessary to permit

6 T he District of Columbia court issued a 49 page

“memorandum opinion” and a four page “order.”

7 The District of Columbia Code provides, “if a particular

charitable purpose is or becomes . . . impracticable . . . (3) The

court may apply cy pres to modify or terminate the trust by

directing that the trust property be applied or distribute d, in

whole or in part, in a manner consistent with the settlor’s

charitable purposes.” (D.C. Code

, § 19

- 1304.13.)

8 The August 18, 2014 order also approved the agreements

necessary to transfer Corcoran College and the Corcoran’s

building to George Wash ington University and permit the

college’s continued operation as a part of George Washington

University.9

[Corcoran] to perform and imple ment ” the transfer agreement

and related agreements “according to their terms

. ” T h e o r der

further stated , “ The National Gallery of Art shall take and hold

the Corcoran’s collection of art, in the manner and for the

purposes described in the [transfer agre ement], and shall adhere

to the restrictions as otherwise applicable to the collection

, as

those restrictions have been understood and implemented

previously by [Corcoran] .” 9

4. Tyler Trust’s Termination of the Pascal Agreement

On October 16, 2014 the Tyler t rust notified Corcoran that

,

due to Corcoran’s noncompliance with the Pascal a greement’s

conditions, the “T rustees w ish to terminat e all the rights of

[ Corcoran ] in the [ Pascal c ollection ]

. ” The Tyler trust demanded

the return of both the Pascal c ollecti on and the $1 million cash

gift. After receipt of this termination notice, Corcoran did not

contest it failed to comply with the Pascal agreement or the Tyler

trust’s right to terminate the Pascal agreement

.

5. Corcoran’s Retention of the Conditional Gift

The Tyler t rust had identified two institutions outside the

District of Columbia that wished to display all or part of the

Pascal c ollection

. Declining to comply with the Tyler trust’s

request to transfer the Pascal collection

, on January 30, 2015

9 I n its August 18, 2014 decision , w hen summarizing the

National Gallery and George Washington University proposals,

the court no ted that

, “ ‘ [a]s part of the transfers of art to the

[ N ational G allery] and the College

. . . to [ G eorge W ashington

University] , any existing donor restrictions that are applicable to

the particular assets ’ will remain in place and be fulfilled by [the

National Gallery] or [ G eorge W ashington University]. ”10

Corcora n advised Petty that the District of Columbia order

“modified any restrictions on works donated to the Corcoran to

the extent necessary to permit the consummation of the [National

Gallery] and [George Washington University] transactions by

providing, in re levant part, that ‘any other applicable instrument

is deemed to be revised to the extent necessary to permit

[Corcoran] to perform and implement the Agreements according

to their terms. ’ ” Corcoran further state d that the National

Gallery “ is considering w hether it will accession any of the

[Pascal collection] into their collection ” and that art works that

the National Gallery “ determines not to accession will be

considered for distribution to other qualified institutions .”

Corcoran also stated, “ w orks not accessioned by the [National

Gallery] must stay in DC unless we get the permission of the

District’s Attorney General or the court to send the work to a

location outside of the District.”

Corcoran retained the Tyler t rust’s cash gift

, and the

National Gallery holds the Pascal c ollection in storage.

C

. California Probate Proceedings

1. Petty’s Petition

On April 5, 2018 Petty filed a petition in Los Angeles

Superior Court seeking an order directing Corcoran to return the

Tyler t rust assets under Probate Code section 850 and confirming

the existence of the Tyler t rust under Probate Code section

17200

, subdivision (a). 10 Because the Pascal collection was

10 Probate Code section 8 5 0, subdivision (a)(3)(B) , provides a trustee “may file a petition requesting that the court make an

order . . . [w]here the trustee has a claim to real or personal

property, title to or possessi on of which is held by another.”11

“hidden away” in storage, which violated the express terms of the

“ conditional gift, ” Petty sought “ an order of this Court requiring

conditional gift beneficiary, the Corcoran, to return the [Pascal

c ollection ] and its associated $1 million cash gift, to [Petty] as

Trustee of the Trust. ”

2. Initial Hearing on the Petition

The probate court held a hearing o n the p etition on

June 14, 2018. At this hearing counsel for Corcoran appeared

without making a jurisdictional objection. Because t he probate

notes highlighted that Petty had not served the p etition and

notice of hearing in compliance with Probate Code s ection 851

, Petty request ed a continuance to properly serve the documents

.

T he court set another hearing for July 30, 2018. Counsel for

Corcoran did not object to the continued hearing date, but

indicated that Corcoran intended to file written objection s

. T he

probate court confirmed Corcoran could file written objections in

advance of the continued hearing.

On July 23, 2018 Petty filed a further proof of service in

connection with the July 30 hearing. On July 26, 2018

Corcoran’s counsel emailed a lett er to Petty’s counsel contesting

Petty’s service of the p etition and notice of hearing on Corcoran

. Corcoran’s counsel stated Petty’s “purported proof of service

cannot cure [Petty’s] under l ying failure to satisfy the notice

requirements prior to the July 30, 2018 hearing.”

Section 17200, subdivision (a), provides “a trustee or beneficiary

of a trust may petition the court under this chapter concerning

the internal affairs of the trust or to determine the existence of

the trust

. ”12 3. T he Probate Court Post s Updated Notes

Stating the notes were last changed on the afternoon of

July 25, 2018, the court posted on its website updated probate

notes. T he probate notes contained a section entitled, “Matters to

Clear, ” which included “new [notes] after further review”

regarding Petty’s service of the petition and the proof of service

filed on July 23, 2018

. The notes also stated t hat a description of

the property and a right to answer legend were not included in

the n otice of hearing.

On Friday, July 27, 2018 at 4:12 p.m. Petty filed a

s upplement to the p etition addressing the probate notes. The

s upplement responded to each issue in the pr obate notes

detail ing Petty’s efforts to serve Corcoran with the p etition and

notice of hearing and attaching amended proofs of service and

related documents. Petty also pointed out that, at t h e June 14,

2018 hearing, the probate court allowed her to serve an amended

notice of hearing, which Petty accomplished. According to Petty,

she served t he amended notice of hearing on June 22, 2018

contain ing the required description of the property and right to

answer legend.

4. July 30, 2018 Hearing

Corcoran did not file any objections or appear at the July

30

, 2018 hearing. A fter revie wing the s upplement and hearing

from Petty’s counsel, t he probate court found that notice was

proper and that Petty cleared the probate notes. At the hearing

the probate court ruled, “With no appearance by [Corcoran], and

I’m finding that notice is prope r, and I’m clearing the notes in

total on this matter. The court is going to grant the petition as

requested.”13 Petty’s counsel notified Corcoran’s counsel of the probate

court’s order that same day. On August 8, 2018 Petty served and

lodged a proposed judgment. Corcoran did not file objections to

the proposed judgment.

5. Corcoran ’s Mo tion for Reconsideration

Two weeks later, o n August 13, 2018 Corcoran filed a

motion for r econsideration seeking to “modify, amend, or revoke”

the probate court’s July 30

, 2018 order

. Corcoran set the hearing

for September 14, 2018. Corcoran did not apprise the probate

court of the motion. Although it did not file a motion to quash

service of the petition, Corcoran argued the probate court’s o rder

violated Corcoran’s du e process rights “because [Corcoran] was

not served with process

. . . and never submitted to this Court’s

jurisdiction.” Corcoran also argued that Petty had failed to

timely serve Corcoran with her comments to the probate notes

before the July 30

, 2018 h earing. Moreover, Corcoran asserted

the probate court’s o rder imposed obligations on Corcoran that

conflicted with the District of Columbia o rder because that order

“prohibits” removal of the Pascal collection from the District of

Columbia “absent the exp ress authorization of the Attorney

General of the District of Columbia

. . . or an order from the

District of Columbia Superior Court.”

Corcoran also stated it relied on representations that the

Tyler trust was no longer in existence and requested discov ery

“relating to the trust’s existence

. ” Finally, Corcoran asserted

that it ha d “other good defenses to the allegations of the Petition”

and “ [was] entitled to a fair opportunity to present those

defenses. ” David Julyan

, Corcoran’s general counsel

, filed a

declaration addressing the substantive terms of the Pasca l

a greement, the t ransfer a greement with the National Gallery

,14

and the District of Columbia cy pres proceeding

. Julyan stated,

“on information and belief, [the $1 million gift was] exhausted

over the period since 1994

. . . .” Julyan attached to his

declaration the District of Columbia decision and order,

Corcoran ’s transfer agreement with the National Gallery, and

Corcoran’s correspondence with the Tyler trust.

6. Judgment on the Petition

On Aug ust 15, 2018 the probate court

, apparently unaware

of the motion for reconsideration

, entered judgment on the

p etition. 11 The judgment confirmed the existe nce of the Tyler

trust, ordered Corcoran to return the Pascal collection and its

accompanying cash gi ft to Petty in her capacity as trustee of the

Tyler trust

. The judgment also provide d that “[Corcoran] shall

pay [Petty’s] attorneys’ fees and costs.” The judgement also

stated , “Notice of the hearing on the petition has been given as

required by law.” Petty served notice of entry of judgment on

August 17, 2018.

7. Corcoran’s Further Support of Reconsideration

On August 31

, 2018 Petty opposed Corcoran’s

reconsideration motion, arguing that the probate court lacked

jurisdiction to hear the motion because “an appealab le judgment

has been entered.” Petty also argued that Corcoran had waived

any jurisdiction al challenge by generally appearing at the June

14, 2018 hearing

, and that the Pascal c ollection was not subject

to the District of Columbia order

. In its reply memorandum

Corcoran argued the court erred by entering judgment while

11 The prob ate court entered judgment against the Trustees of

the Corcoran Gallery of Art and the Corcoran Gallery of Art.15

Corcoran’s motion for reconsideration was pending. Corcoran

argued, “had the Court properly considered the merits of that

Motion, the Corcoran believes the Court would have fo und that it

was not appropriate to sign the Judgment.”

The probate court did not rule on Corcoran’s motion for

reconsideration. 12

Corcoran timely appeal ed.

DISCUSSION

A. Standards of Review

Whether a judgment is void due to improper service or lack

of jurisd iction is a question of law that we review de novo.

( Sakaguchi v. Sakaguchi (2009) 173 Cal.App.4th 852, 858 ;

Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 568.)

‘ “ When the facts giving rise to jurisdiction are conflicting, the

trial court ’ s factual determinations are reviewed for substantial

evidence. [Citation.] Even then, we review independently the

trial court ’ s conclusions as to the legal significance of the facts. ’”

( Ibid. ) We likewise review de novo the meaning and intent of an

unam biguous written agreement. ( Gray v. McCormick (2008) 167

Cal.App.4th 1019, 1024.)

“It is the appellant’s burden to demonstrate the existence of

reversible error.” ( Del Real v. City of Riverside (2002) 95

Cal.App.4th 761, 766.) When a matter is left to t he court’s

12 The probate court later explained its failure to rule on the

motion for reconsideration before entering judgment, “ F rankly at

that moment s ince the court doesn’t retroactively or prospectively

look into the calendar for other matters, frankly I didn’t even see

your motion for reconsideration that was there at that point. You

had filed it, I saw, but it was not on the court’s radar.”16

discretion, we review the court’s exercise of that discretion under

the abuse of discretion standard and will not reverse if the court’s

decision “falls within the permissible range of options set by the

applicable legal criteria.” ( Cahill v. S an Diego Gas & Electric Co.

(2011) 194 Cal.App.4th 939, 957.)

We will affirm a correct judgment even if the trial court’s

reasoning was faulty. “‘If right upon any theory of the law

applicable to the case, it must be sustained regardless of the

considera tions which may have moved the trial court to its

conclusion.’” ( City of National City v. Wiener (1992) 3 Cal.4th

832, 850.)

B. The Probate Court Did Not Err in Granting the Petition

on July 30, 2018

1. Corcoran Did Not Oppose P etty’s Petition

At the June 14, 2018 initial hearing Corcoran’s counsel

confirmed its ability and intention to file objections to the petition

before the continued hearing on July 30. After failing to file

objections, Corcoran did not appear at the July 30 hearing. At

the July 30 hearing, after reviewing Petty’s response addressing

the probate notes, and, finding no objections to the petition, the

probate court cleared the probate notes and granted Petty’s

petition. 13 In its motion for reconsideration

, Corcoran did not

contest that Petty lawfully terminated the Pascal agreement

because of Corcoran’s breach of that agreement. Corcoran

13 At a subsequent hearing the probate court explained that,

at the July 30 hearing, “ I don’t know that I had any other option

but to grant the petition at that point. There was no reason not

to at that point. I assumed very much so that any objections

were wai ved to the petition, at least were not being brought forth

to the court.”17

forfeited its ability to argue that Petty’s petition lacked merit

because Corcoran never made that argument in the probate

court. (See Quiles v. Pare nt (2018) 28 Cal.App.5th 1000, 1013

[“‘ [f] ailure to raise specific challenges in the trial court forfeits the

claim on appeal’”]; Mundy v. Len c (2012) 203 Cal.App.4th 1401,

1406 [‘“[a]s a general rule, failure to raise a point in the trial

court constitute s [a] waiver and appellant is estopped to raise

that objection on appeal”’]; Premier Medical Management

Systems, Inc. v. California Ins. Guarantee Assn. (2008) 16 3

Cal.App.4th 550, 564 [same].)

Here, o ther than asserting that the District of Columbia

ord er revised the Pascal agreement , which prevents Corcoran

from returning the Pascal collection to Petty in California

,

Corcoran doe s not contest the enforceability of the termination

provisions in the Pascal agreement

. Corcoran also forfeited its

right to contest the petition’s merits by failing to raise arguments

in its brief on appeal. ( See Tiernan v. Trustees of Cal. State

University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 (issue not

raised on appeal “may therefore be deemed waived”]; Cox v.

Bonni (2018) 30 Cal.App.5th 287, 311 [plaintiff forfeited

arguments not addressed in her opening brief]; Sierra Palms

Homeowners Assn. v. Metro Gold Line Foothill E x tension

Construction Authority (2018) 19 Cal.App.5th 1127, 1136

[appellant forfeited challenge to issue not raised on appeal].)

2. The Probate Court Properly Enforced the Conditions

Subsequent in the Pascal Agreement

Even if Corcoran had not forfeited its arguments regarding

the petition’s merits, the probate court did not err in enforcing

the Pascal a greement’s termination provisions. As set forth in

the petition, Corcoran accepted the Pascal collection subject to18

the conditions set forth in the Pascal agreement. Although

Corcoran adhered to the Pascal agreement’s terms for 20 years,

there is no disp ute that Corcoran breached those conditions when

it stopped displaying the Pascal collection. Petty then exercised

its right to terminate the agreement.

The Pascal agreement provided the Tyler trust, based on a

“determination” made in its “sole discret ion,” “may terminate all

rights of [Corcoran] in the works of art, ” and that “upon

termination of [Corcoran’s] rights, [Corcoran] shall return to the

Trustees forthwith all of the works of art . . . tog ether with the

cash gift

. . . . ” These conditions, g iven this specific language in

the Pascal agreement, were enforceable under California law as a

gift made subject to a condition subsequent. In L.B. Research &

Education Foundation v. UCLA Foundation (2005) 130

Cal.App.4th 171, the court held that , “if th e donor clearly

manifests an intention to make a conditional gift, that intention

will be honored

. [Citation.] The gift will be construed as one of a

fee simple subject to a condition subsequent if ‘

. . . it is expressly

provided in the instrument that the transferee shall forfeit it or

that the transferor or his heir or a third person may enter for

breach of the condition.’” ( Id. at p. 178; accord, City of Palm

Springs v. Living Desert Reserve (1999) 70 Cal.App.4th 613, 621

[“the owner of property may transfer it to another on the

condition that if the latter should fail to perform a specified act

the transferee’s interest shall be forfeited either to the transferor

or to a designated third party ”]; see Walton v. City of Red Bluff

(1991) 2 Cal.App.4th 1 17, 125 [“The owner of property may

transfer it, inter vivos or by will, to another person and provide

that if the latter should fail to perform a specified act his interest19

should be forfeited. In such a case the interest of the transferee

is subject to a condition subsequent and is not h eld in trust ”].)

Accordingly, the probate court did not err in enforcing the

conditions subsequent in the Pascal agreement. ( Wind Dancer

Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th

56, 68

- 69 [“ ‘ [i] f c ontractual language is clear and explicit and does

not involve an absurdity, the plain meaning governs ’” ] ; Marzec v.

Public Employees’ Retirement System (2015) 236 Cal.App.4th 889,

910 [‘“ [w] hen the contract is clear and explicit, the parties’ intent

is de termined solely by reference t o the language of the

agreement ”’]; see Civ. Code

, § 1638 [“language of a contract is to

govern its interpretation, if the language is clear and explicit, and

does not involve an absurdity”].)

C. The Probate Court Did Not Err in Entering Judgment on

August 15, 2018

, Even Though Corcoran Had Filed a

Motion for Reconsideration

Two weeks after the probate court granted the petition,

Corcoran filed a motion for reconsideration of the court’s order.

However, although Petty had su bmitted a proposed judgment,

Corcoran did not advise the probate court of the motion, even

though it was set for hearing on September 14, 2018. T he

probate court, not knowing Corcoran’s motion was filed, entered

judgment without ruling on the motion.

Onc e a court enters judgment, it loses jurisdiction to rule

on a motion for reconsideration. ( See APRI Ins. Co. v. Superior

Court (1999) 76 Cal.App.4th 17 6 , 180 ( APRI ) [“we conclude that

the trial court may not grant reconsideration after judgment has

been e ntered]; Magallanes v. Superior Court (1985) 167

Cal.App.3d 878, 882 [“ [t] he trial court had power to reconsider

the ruling so long as no final judgment had been entered and the20

case was still pending before the c ourt ”]; see also Kasper v.

Cedars

- Sinai Med ical Ctr. (1998) 62 Cal.App.4th 780, 782 [“the

trial court’s entry of judgment . . . operated as an implied denial

of the pending reconsideration motion”]; Ramon v. Aerospace

Corp. (199 6) 50 Cal.App.4th 1233, 1237 [“[a] final judgment

terminates the litiga tion between the parties and leaves nothing

in the nature of judicial action to be done other than questio ns of

enforcement or compliance ”].) “ T he issue is jurisdictional. Once

the trial court has entered judgment, it is without power to grant

reconsider ation. The fact that a motion for reconsideration may

have been pending when judgment was entered does not restore

this power to the trial court.” ( APRI, at p. 182.)

Corcoran argues the probate court committed “error” by

entering judgment on Petty’s p etition “without addressing” its

pending motion for reconsideration. In support, Corcoran relies

on the court’s comment in APRI that the “court should have

considered the merits of the motion for reconsideration.” In the

next sentence, however, the court in APRI held, “But, once the

trial court entered judgment, it could not reconsider the ruling on

the motion to quash.” ( APRI , supra, 76 Cal.App.4th at p. 182.)

Although Petty served Corcoran with a proposed judgment,

Corcoran did not object to the pro posed judgment or apprise the

probate court of the motion for reconsideration. B ecause the

probate court entered the judgment that Petty submitted

, as the

court in APRI held, the probate court was without jurisdiction to

adjudicate the motion for reconsid eration. ( Betz v. Pankow (1993)

16 Cal.App.4th 931, 937.) Corcoran has not cited any authority

to support its contention that the probate court’s entry of

judgment prior to ruling on Corcoran’s motion requires reversal

of the judgment

.21 D. Any Error in En tering Judgment While Corcoran’s

Motion for Reconsideration Was Pending Was Harmless

Even if the probate court erred in entering judgment while

the motion for reconsideration was pending, any error was

harmless because t he motion was not a proper motion f or

reconsideration and, in any event, lacked merit.

1

. Corcoran’s Motion for Rec onsideration Was Improper

Under Code of Civil Procedure Section 1008

Code of Civil Procedure section 1008, subdivision (a),

provides that, within 10 days after service of a wr itten notice of

entry of an order, a party may make a motion to reconsider the

order “based upon new or different facts, circumstances, or law.”

“The moving party also must provide a satisfactory explanation

for the failure to make the showing at or befor e the time the

challenged order was issued.” ( New York Times Co. v. Superior

Court (2005) 135 Cal.App.4th 206, 208.) Section 1008,

subdivision (e), further provides, “No application to reconsider

any order or for the renewal of a previous motion may be

c onsidered by any judge or court unless made according to this

section .” Under section Code of Civil Procedure 1008, subdivision

(e), the trial court generally has no jurisdiction to hear a motion

for reconsideration that does not comply with the requireme nts of

the section. (

Kinda v. Carpenter (2016) 247 Cal.App.4th 1268,

1278; Kerns v. CSE Ins. Group (2003) 106 Cal.App.4th 368, 391.)

Corcoran’s motion for reconsideration failed to set forth in

an affidavit (or otherwise) “what new or different facts,

circumstances or law are claimed to be shown.” I n its

reconsideration motion, Corcoran set forth grounds for relief

based on information available before the July 30, 2018 hearing.

Under these circumstances, Corcoran’s motion was defective as a22

matter of law. (See Even Zohar Construction & Remodeling, Inc.

v. Bellaire Townhouses, LLC (2015 ) 61 Cal.4th 830, 839 [“[c]ourts

have construed section 1008 to require a party filing an

application for reconsideration or a renewed application to show

diligence wit h a satisfactory explanation for not having presented

the new or different information earlier”]; Hennigan v. White

(20 11) 199 Cal.App.4th 395, 406 [“ trial court correctly denied

Hennigan ’ s motion for reconsideration to admit her doctor ’ s

supplemental decl arations and her own declaration, as the

testimony did not constitute ‘new or different facts’ for purpo ses

of granting reconsideration ”]. )

Thus, any error in not hearing the motion for

reconsideration was harmless because the motion could not have

been p roperly granted. Corcoran cannot demonstrate prejudice.

( In re Marriage of G o ddard (2004) 33 Cal.4th 49, 57 [“ the

presumption in the California Constitution is that

. . . any error

as to any matter of procedure,’ is subject to harmless error

analysis and must have resulted in a ‘ miscarriage of justice ’ in

order for the judgment to be set aside. (Cal. Const., art. VI,

§ 13.) ”]; Bed, Bath & Beyond of La Jolla, Inc. v. La Jolla Village

Square Venture Partners (1 997) 52 Cal.App.4th 867, 884

[“[p] rocedural de fects which do not affect the substantial rights of

the parties do not constitute reversible error”]; see also Code Civ.

Pro c

. , § 475 [“ [t] he court must, in every stage of an action,

disregard any error, improper ruling, instruction, or defect, in the

plea dings or proceedings which, in the opinion of the court, does

not affect the sub stantial rights of the parties”].)

E

. Corcoran’s Motion for Reconsideration Also Lacked Merit

A rgu ing the same grounds it asserted in its defective

motion for reconsideration

, Corcoran contends that the probate23

court erred in granting the petition because the court lacked

jurisdiction over Corcoran, Petty did not timely serve its response

to the court’s probate notes, and the District of Columbia order

revised the Pascal agreem ent

, restrict ing Corcoran’s ability to

return the Pascal collection to California . Even if Corcoran’ s

motion for reconsideration had been legitimate and these issues

were reviewable, each ground asserted lacks merit.

1

. Rather than Properly Contesting Jur isdiction,

Corcoran’s Motion for Reconsideration Constituted a

General Appearance

Because Corcoran’s motion for reconsideration sought

substantive merits relief, Corcoran waived its objections to

personal jurisdiction and any alleged service defects, and

Corcoran submitted to the probate court’s jurisdiction.

a. Applicable law

“[D]efective service is not fatal to personal jurisdiction if

the defendant consents to jurisdiction over him or her by making

a general appearance in the action.” ( In re Vanessa Q

. (2010) 187

Cal.App.4th 128, 135.) “A general appearance by a party is

equivalent to personal service of summons on such party.” (Code

Civ. Proc., § 410.50, subd. (a) .) “‘ A general appearance operates

as a consent to jurisdiction of the person, dispensi ng with the

requirement of service of process, and curing defects in service

. ’”

( Fireman ’

s Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114

Cal.App.4th 1135

, 1145 ; accord, In re Jennifer O. ( 2010) 184

Cal.App.4th 539, 548 [a “general appearance by a party is

equivalent to personal service of summons on such party”]; Titus

v. Superior Court (1972) 23 Cal.App.3d 792, 800

- 801 ( Titus ) [a

general appearance “operates as a consent to jurisdiction”].)24 “A general appearance occurs when the defendant takes

p art in the action or in some manner recognizes the authority of

the court to proceed. [Citations.] If the defendant confines its

participation in the action to objecting to lack of jurisdiction over

the person, there is no general appearance.” ( Dial 800 v.

Fesbinder (2004) 118 Cal.App.4th 32, 52 ( Dial 800 ); accord,

Hamilton v. Asbestos Corp. (2000) 22 Cal.4th 1127, 1147).) “A

party whose participation in an action is limited to challenging

the court ’ s personal jurisdiction does not make a general

appear ance. Other forms of participation, however, such as

seeking affirmative relief or opposing a motion on the merits,

ordinarily constitute a general appearance.” ( Serrano v. Stefan

Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1028);

accord, T

it us

, supra

, 23 Cal.App.3d at pp. 800

- 801 [ a n

appearance solely to contest jurisdiction is a special appearance,

through which defendant “does not thereby consent to

jurisdiction over his person ”].)

“A California defendant can preserve objections to personal

jurisdiction only by making a special appearance, i.e., an

appearance for the sole purpose of objecting to the court ’ s

jurisdiction.” ( In re Marriage of Obrecht (2016) 245 Cal.App.4th

1, 8.) However, a party who “‘raises any other question, or asks

for any relief which can only be granted upon the hypothesis that

the court has jurisdiction of his person

. ” ( Cal. Overseas Bank v.

French Am. Banking Corp. (1984) 154 Cal.App.3d 179, 184) will

be deemed to have “made a general appearance and waived all

objec tions to defects in service, process, or personal jurisdiction. ”

( Dial 800

, supra

, 118 Cal.App.4th at p. 52 [filing an attorney’s

fees request constituted a general appearance, waiving

appellants’ jurisdictional challenges]; City of Riverside v.25

Horspool (2014) 223 Cal.App.4th 670, 679

- 680 [request for

continuance constituted general appearance]; accord, Mansour v.

Superior Court (1995) 38 Cal.App.4th 1750, 1756

- 1757

[defendants’ active participation in preparation of joint case

management statement and in an evaluation conference

constituted general appearance]; Estate of Pailhe (1952) 114

Cal.App.2d 658, 661 [attorney’s appearance and participation in a

hearing on the merits constituted party’s general appearance;

“the attorney’s act in appearing for [par ty] carried with it a

presumption of due authority upon his part to do so”].)

“‘“Whether an appearance is general or special is

determined by the character of the relief sought and not by the

intention of the party that it shall or shall not operate as a

general or special appearance. The statement of a defendant or

party that he is making a special appearance is not necessarily

conclusive.

. . .”’ ” ( Slaybaugh v. Superior Court (1977) 70

Cal.App.3d 216, 221

- 222.)

b. Corcoran forfeited all objectio ns based on lack of

personal jurisdiction and improper service by

making a general appearance

Corcoran’s appearance at the June 14, 2018 hearing may

have constituted a general appearance because Corcoran’s

counsel did not state Corcoran was objecting to se rvice of the

petition or the court’s jurisdiction. 14 (See City of Riverside v.

14 At the June 14, 2018 hearing Corcoran’s counsel stated:

“Good morning, Your Honor. Valerie Marek here on behalf of

respondents, the Corcoran Gallery of Art and the Board of

T rustees for the Corcoran Gallery of Art. . . . Respondents don’t

object to that timeline as we, too, would prefer to file a written

objection

. . . . Yes, we would like to file our written objections by26

Horspool , supra, 223 Cal.App.4th at p. 679 [“ [a] general

appearance occurs when a defendant takes part in the action or

in some manner recognizes the authority of the court to p roceed ”];

In re Vanessa Q

. , supra, 187 Cal.App.4th at p. 135 [counsel’s

request for continuance constituted general appearance];

Mansour v. Superior Court , supra, 38 Cal.App.4th at p. 1757

[“ [a] n attorney’s appearance for a party at a hearing can also

resu lt in a general appearance”].)

However, there is no question that Corcoran generally

appeared by filing its motion for reconsideration because the

motion was not limited to challenging jurisdictional or service

issues. 15 I n addition to challenging service and personal

jurisdiction, Corcoran’s motion for reconsideration requested that

the probate court “modify, amend, or revoke” its July 30, 2018

order because : (1) Petty failed to timely serve comments to the

court’s probate notes; (2) the District of Columb ia order restricted

the Pascal collection’s removal from the District of Columbia; (3)

the Tyler trust may no longer exist and discovery was required;

and (4) Corcoran possessed “other good defenses to the

allegations of the Petition” and requested a “fair opportunity to

present those defenses.” Julyan’s declaration submitted evidence

supporting Corcoran’s merits

- related requests for relief.

that time.” Corcoran’s counsel also inquired, “And did Your

Honor have any preferences to the date with which we should file

our objections by?”

15 On April 28, 2020, in response to this court’s order, the

parties submitted further briefing regarding : “did [ Corcoran ]

generally appear in the action throu gh their August 13, 2020

Motion for Reconsideration of the Court’s July 30, 2018 Order?”27 Corc oran challenged the substance underlying the July 30,

2018 order and the merits of the petition. For example,

questioning the existence of the Tyler trust, Corcoran sought

“discovery relat ing to tax filings, meetings since 1994, and other

documents . . . .” Corcoran also urged the probate court to “deny”

Petty’s petition because Corcoran cannot “remove the [Pasc al

collection] from the District . . . without running afoul [the

District of Columbia order]. ” As discussed, Corcoran also

contended the probate court issued the July 30, 2018 order in

violation of the court’s local rules because “[c]ounsel for [Petty]

f ailed timely to serve on [Corcoran] his comments to the [probate

court’s] identified probate notes.”

By affirmatively seeking relief, introducing supporting

evidence, and arguing the merits, Corcoran participated in this

action and recognized the probate court’s jurisdiction. Corcoran

sought “relief available only if the court has jurisdiction over [it].”

( Factor Health Management v. Superior Court (2005) 132

Cal.App.4th 246, 250.) Corcoran therefore submitted to the

probate court’s jurisdiction and gen erally appeared. ( Serrano v.

Stefan Merli Plastering Co., Inc. , supra, 162 Cal.App.4th at

p. 1029 [ “seeking affirmative relief or opposing a motion on the

merits, ordinarily constitute a general appearance . . . and

became subject to the court’s personal jurisdiction”]; People v.

Ciancio (2003) 109 Cal.App.4th 175, 192 [“DMH filed a response

to the OSC in which it argued the merits of the motions,

challenged the relief sought by the alleged SVP ’ s, and expressly

requested that the mo tions be denied on their merits ”]; Kallman

v. Henderson (1965) 234 Cal.App.2d 91, 99 [“ [t] he general

appearance was made by Mr. Henderson when he filed the

present motion, based not only on his contention that there had28

been no personal appearance by him but also on the subject

m atter of the complaint and the existence of alleged fraud ”].)

Given its general appearance, Corcoran “relinquish[ed] all

objections based on lack of personal jurisdiction or defective

process or service of process.” ( In re Marriage of Obrecht , supra,

245 Cal.App. 4th at p. 7.) Further, because Corcoran failed to

make a motion to quash before it generally appeared, “none of the

issues relating to notice or due process were preserved for review

by a timely motion to quash prior to making a general

appearance

. ” ( City of Riverside v Horspool , supra, 223

Cal.App.4th at pp. 680

- 681 [ “ William’s failure to make a proper

challenge to jurisdiction in the trial court (as by a motion to

quash service prior to any general appearance) forfei ts any such

challenge on appe al ”].) 16

16 Corcoran did not argue in the trial court and it does not

argue in its briefing that a general appearance operated as

consent to jurisdiction only for subsequent pr oceedings . Corcoran

therefore doubly forfeited this argument. (See Children’s

Hospital and Medical Center v. Bonta (2002) 97 Cal.App.4th 740,

776 [ p arty “‘doubly waived’” an argument by failing to make the

argument in the trial court and also failing to raise the argument

in its briefing on appeal]; Sweetwater Union High School Dist. v.

Julian Union Elementary School Dis t

. (2019) 36 Cal.App.5th 970,

987 [arguments not raised in opening brief are forfeited]; Quiles

v. Paren t , supra, 28 Cal.App.5th at p. 10 13 [“ [f]ailure to raise

specific challenges in the trial court forfeits the claim on

appeal”] .) At oral argument Corcoran asserted, based on In re

Marriage of Smith (1982) 135 Cal.App.3d 543, that the effect of

any general appearance would operate only pr ospectively.

However, In r e Marriage of Smith is distinguishable because it

concerned a “general appearance after judgment was entered.”

( Id . at p. 545.) (See In re Marriage of Obrecht, supra, 24529 Citing Josephson v. Superior Court of Los Angeles County

(1963) 219 Cal.App.2d 354 ( Josephson ) and Varra v. Superior

Court of Humboldt County (1960) 181 Cal.App.2d 12 ( Varra ),

Corcoran argues that the motion for reconsideration, following its

couns el’s “specific appearance” at the June 14, 2018 hearing “for

the sole purpose of opposing Petty’s ineffective service

, ” was not a

general appearance. Corcoran contends its motion merely

renewed the “ineffective service” objections made at the June 14,

201 8 hearing. However, as stated, Corcoran’s counsel did not

object to service at the June 14 hearing

, and Corcoran’s motion

for reconsideration went beyond jurisdictional issues by seeking

to vacate the July 30, 2018 order on grounds other than

jurisdiction . Moreover, neither Josephson nor Varra supports

Corcoran. The courts in these cases affirmed the settled principle

that a motion for reconsideration following, and restricted to

, the

same limited jurisdictional grounds as a motion to quash, did not

conf er jurisdiction by converting a movant’s prior special

appearance into a general one. In doing so, the courts pointed

out that where, as here , if the party moving for reconsideration

asks for any relief other than lack of jurisdiction, the party will

be d eemed to have made a general appearance. ( Josephson

, at

p. 361 ; Varra, at p. 14 .)

Cal.App.4th at p. 11 [holding that In re Marriage of Smi th was “inapposite” for “at least two reasons: the claim here is not

defective service, but want of a constitutional basis of

jurisdiction, and [the defendant ’s] general appearance was not

made after judgment, but much earlier in the action, at a time

whe n [defendant] could have moved to quash, but instead

appeared on the merits ”].)30 In Josephson petitioner filed a timely notice of motion to

quash service of summons for lack of jurisdiction. ( Josephson

,

supra , 219 Cal.App.2d at p. 356.) When the tria l court denied

petitioner’s motion, petitioner moved for reconsideration of the

motion to quash on the same limited grounds; that the court

lacked personal jurisdiction over petitioner, and petitioner sought

“‘only to quash service of summons upon him.’ H e sought no

other or further relief.” ( Id . at p. 362.) Likewise, in Varra

, rejecting “the contention that petitioner’s motion to reconsider

the denial of her motion to quash constituted a general

appearance, the court held that “[p]etitioner sought in he r first

motion to have service of summons quashed for lack of

jurisdiction of her person and in her second motion [for

reconsideration] sought the same relief and nothing more.”

( Varra

, supra , 181 Cal.App.2d at p. 14.)

2

. T he Probate Court Did Not Abuse I ts Discretion by

Granting the Petition Despite Petty Filing I ts

Supplement One Day Late

Corcoran’s defective motion for reconsideration also argued

that Petty served its response to the court’s probate notes one day

late in violation of the court’s local r ules. That argument, even if

properly raised, was also meritless.

On the afternoon of July 25 the probate court posted

updated notes in connection with the July 30 hearing. 17 Los

Angeles Superior Court Local Rule 4.4 , subdivision (b), required

17 Los Angeles Superior Court Local Rule 4.4, subdivision (a),

provides that probate notes “are available in advance of a

hearing” on the court’s website. The record does not disclose

when the probate court first posted notes for this hearing, or if

the updated notes were the only notes posted for this hearing.31

Petty’s cou nsel to “clear” the probate notes “ no later than 3:30

p.m. of the second court day preceding the hearing date. ” Given

the July 30 (Monday) hearing date, Petty’s deadline was 3:30

p.m. on July 26, 2018 (Thursday). Petty filed her response to the

notes on July 27, 2018 (Friday) at 4:12 p.m., one day late. Petty’s

counsel emailed the “supplement” to Corcoran’s counsel at 5:07

p.m. the same day. 18

Corcoran argues Los Angeles Superior Court Local Rule

4.4, subdivision (c), required the probate court, given P etty’s one

day delay in filing its response, to “continue the hearing, place

the matter off calendar, deny the matter without prejudice, or

take other action it deems necessary.” According to Corcoran,

although there was no opposition to the petition and it did not

attend the hearing, the probate court could not grant the petition;

rather, the court’s discretion was restricted to corrective actions

similar to those expressed in subdivision (c).

In Adam v. Sharp (1964) 61 Cal.2d 775, 777, the California

S upreme Court, in holding a probate court properly disregarded a

local rule, stated, “ Rules of court are but a means to accomplish

the ends of justice, and it is always in the power of the court to

suspend its own rules, or to except a particular case from their

operation, whenever the purposes of justice require. ” Thus, “[i] n

absence of any showing to the contrary, it will be presumed that

the court disregarded its rules for sufficient cause and to

subserve the ends of justice, as it had the power to do. ” ( Johnson

v. Sun Realty Co. (1934) 138 Cal.App. 296, 299 ; s ee also Los

Angeles Superior Court Local Rule, subd. 4.2 [“ [t] he court for

18 Corcoran’s counsel stated that she “accessed” the probate

notes on July 27, 2018.32

good cause may waive the application of the Probate Divis ion

Rules in an individual case ”].)

Here, with Corcoran absent and no objections, the probate

court had the discretion to grant the petition, despite Petty’s one

day delay in filing her response to the notes. The updated

probate notes largely concerned service issues. On July 26

Corcoran raised service objections in a letter to Petty’s counsel.

However, Corcoran chose not to assert those objections in the

probate court through a motion to quash or otherwise. Because it

had decided not to participate in the July 30 hearing, Corcoran

could not have been prejudiced be cause there was nothing it

would have done differently if Petty timely served its response.

Further, the court updated the probate notes on July 25, leaving

Petty with one day to timely respond. Petty filed a 64

- page

response on July 27. Under these cir cumstances, the probate

court was well within its discretion to hear the petition on its

merits. See In re Marriage of Rosevear (1998) 65 Cal.App.4th

673, 682 [“ Generally, where a trial court has discretionary power

to decide an issue, an appellate court is not authorized to

substitute its judgment of the proper decision for that of the trial

judge. The trial court ’ s exercise of discretion will not be

disturbed on appeal in the absence of a clear showing of abuse,

resulting in injury sufficiently grave as to amount to a manifest

miscarriage of justice. . . . The burden is on the complaining

party to establish abuse of discretion”].)

3

. T he Probate Court’s Order Does Not Conflict with the

District of Columbia Order

Corcoran’s defective motion for recon sideration also argued

that the District of Columbia order revised the Pascal agreement

,

restrict ing its ability to remov e the Pascal collection from the33

District of Columbia. Referring to the Full Fa ith and C redit

C lause of the United States Constitution

, 19 Corcoran makes the

argument again on appeal. That argument, even if properly

raised, was also meritless.

Corcoran argues that, because the transfer agreement with

National Gallery applied to “art works owned or controlled by the

Corcoran,” it therefore applied to the Pascal collection. According

to Corcoran, “[i]t follows” that the Pascal agreement was “an

‘other applicable instrument’” subject to revision to the extent

necessary under the District of Columbia order. 20 Because the

side letter supplemen ted the transfer agreement by adding

geographic distribution restrictions for art works, Corcoran

maintains that the District of Columbia order “revised the Pascal

Agreement to the extent necessary to incorporate” the side letter.

The side letter required the Attorney General’s permission or a

19 “Under the full faith and credit clause of the United States

Constitution a valid judgment of a sister state must be

enforced by the courts of every other state.” ( Paul v. Miller

(1943) 61 Cal.App.2d 73, 77; Code Civ. Proc., § 1913, subd. (a)

[“ t he effect of a judicial record of a sister state is the same in this

state as in the state where it was made”].) California recognizes

a District of Columbia judgment as a sister state judgment.

( Richard A. Viguerire Co. v. Noble (1980) 101 Cal.App.3d 62, 64.)

20 The District of Columbia order provides, “The actions

necessary by [Corcoran] to perform and implement the

[agreements with National Gallery and George Washington

University], according to their terms, are hereby approved and

the Corcoran Deed of Trust and any other applicable ins trument

is deemed revised to the extent necessary to permit [Corcoran] to

perform and implement the [agreements with National Gallery

and George Washington University] according to their terms.”34

further cy pres order before Corcoran can distribute art works

outside of the District of Columbia. Corcoran concludes, the “full

faith and credit clause obligates California to enforce” the District

of Columbia ord er. Petty, on the other hand, argues that the full

faith and credit clause is not implicated because the Pascal

collection was not subject to the District of Columbia order.

Because there wa s no conflict between the District of

Columbia order and the pr obate court’s judgment

, w e do not

reach Corcoran’s argument under the f ull f aith and c redit c lause.

Corcoran’s argument is premised on classifying the Pascal

agreement as an “other applicable instrument” under the District

of Columbia order. As an “other applicable agreement,” according

to Corcoran, the Pascal agreement was deemed revised to allow

Corcoran to consummate the transaction with the National

Gallery. Both premises are faulty.

After considering Mr. Corcoran’s original intent when

establish ing Corcoran, the District of Columbia court under the

cy pres doctrine “deemed revised” the 1869 deed of trust to allow

consummation of the National Gallery and George Washington

University transactions. Because District of Columbia court

found “it [was] impracticable to carry out the existing D eed of

T rust” and its order “effectively dissolve[d] the Corcoran as an

independent entity,” instruments, such as Corcoran’s original

deed of trust, required revision

. T hese instruments had governed

the manner in which Corcoran operated as an independent

nonprofit entity. Transferring Corcoran’s assets to other

institutions conflicted with Mr. Corcoran’s intent expressed in the

deed of trust. Similarly, “any other applicable instrument”

necessary to have permit te d implementation and performance of

the National Gallery and George Washington University35

transactions w as also deemed revised. Missing from Corcoran’s

argument is why “it follows” that the Pascal agreement was in

this category of “any other applicable in strument,” akin t o

Corcoran’s 1869 deed of trust. Corcoran does not explain why it

was “necessary” for implementation and performance of its

agreements with the National Gallery to have deem ed the Pascal

agreement revised to “incorporate” the side letter’ s geographic

distribution provisions. It was not.

To be sure, Corcoran, the National Gallery, and George

Washington University performed and implemented their

agreements without the need to incorporate new terms into the

Pascal agreement. In other word s, without implicating the

Pascal agreement, George Washington University assumed

ownership and operation of Corcoran’s building and Corcoran

College, and Corcoran transferred the art works to the National

Gallery for accession or distribution. Without th e Tyler trust

before it, the District of Columbia court did not render any

adjudications regarding the Pascal agreement. Moreover, during

the 20 years it performed the Pascal agreement, Corcoran did not

accession the Pascal collection, and the National Ga llery declined

to accession the Pascal collection. Accordingly, the National

Gallery is holding the Pascal collection “for the benefit of

Corcoran” awaiting distribution.

Far from incorporating terms to diminish third part ies ’

rights, the transfer agree ment contemplated maintaining “ then

existing liabilities, commitments and obligations” for art works to

be distributed. The District of Columbia order also provided that

the National Gallery “shall adhere to the restrictions as

otherwise applicable to the [art works]

, as those restrictions have

been understood and implemented previously by [Corcoran].”36

Moreover, the court in its decision stated that “‘any existing

donor restrictions that are applicable to the particular assets’ will

remain in place.

. . . ” Consistent with these provisions, after

execution of the transfer agreement and the side letter, Corcoran

offered to return the Pascal collection to Petty in California.

Corcoran has not shown that the District of Columbia order

impact ed the Pascal agr eement or its ability to comply with the

probate court’s order by return ing the Pascal collection to

California. 21

21 Corcoran has not contested the enforceability of the

cond itions subsequent in the Pascal agreement requiring, in the

event of breach, the return of the Pascal collection and the $1

million gift. Nor has Corcoran denied it breached the Pascal

agreement, entitling the Tyler trust to terminate the Pascal

agreement . Corcoran only argues that it cannot comply with the

probate court’s judgment because it requires permission to

remove the Pascal collection from the District of Columbia. But,

under the side letter, on which Corcoran relies so heavily, it could

have de signated in the first instance a “non

- DC institution [as]

the most suitable candidate” for non

- accessioned art works such

as the Pascal collection. Thus, Corcoran could have designated

the Pascal collection for return to Petty in California and sought

the Attorney General’s permission to transfer the collection.37 DISPOSITION

The judgment is affirmed. Petty shall recover her costs on

appeal.

DILLON, J. *

We concur:

SEGAL, Acting P. J.

FEUER, J.

* Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.