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

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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 Respondent,

v.

THE CORCORAN GALLERY OF 

ART, et al.,

 Defendants and Appellants.

B293796

(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

The Corcoran Gallery of Art and the Trustees of the

Corcoran Gallery of Art appeal from a judgment granting

Susanne Jill Petty’s petition requiring Corcoran to return

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

argues that, because it did not generally 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 served 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 District of

Columbia court order restricted its ability to comply with the

probate court’s judgment.

We conclude that the trial court properly entered judgment. 

By making a general appearance through a motion for

reconsideration, Corcoran waived 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. Even if Corcoran’s arguments are

considered, they lack merit. Therefore, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. Corcoran and the Tyler Trust

1. Corcoran

The Trustees of the Corcoran Gallery of Art is a nonprofit 

corporation that owns and operates the Corcoran Gallery of Art, a 

private art museum in the District of Columbia (collectively, 

Corcoran). In 1869, through a deed of trust, William Wilson 
3

Corcoran established the Corcoran as “‘an institution in 

Washington 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 October 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, renaming it the Alice C.

Tyler Art Trust. The trust held over 100 works by artist Suzanne 

Regan Pascal (the Pascal collection)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 

museum 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. The trust’s terms further provided that,

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

comply with these conditions, the trustees may terminate the 

1 The Pascal collection contained glass sculptures, paintings, 

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

as unique because she was 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 property to the trust. 

3. Tyler Trust’s Conditional Gift to Corcoran

After Tyler’s death in 1993, pursuant to the terms of the 

trust and a written agreement, the trust transferred the Pascal 

collection to Corcoran. Based on the Tyler trust’s requirements, 

as conditions 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 collection at least two 

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

collection in the Alice and John Tyler Gallery “at times when 

guest or other collections are on display.” Under the agreement,

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

securing and otherwise maintaining” the Pascal collection in its 

permanent gallery at Corcoran.

As also required by the Tyler trust, the 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 the 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 [Corcoran] 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, insurance, 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 or
5

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 other 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

Gallery of Art

Corcoran honored the terms of the agreement 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 the

District of Columbia. Because of these financial difficulties, on

May 15, 2014 Corcoran and the National Gallery executed an Art

Accession and Custodial Transfer Agreement (transfer

agreement).

2 Under the transfer agreement, Corcoran agreed to

“transfer 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 [the

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

transfer agreement, the National Gallery had the right to decide

which of Corcoran’s artworks to accession3 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 collection.
6

the National Gallery determined which of Corcoran’s artworks 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 was distributed to an 

institution 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 pres proceeding in the District of 

Columbia Superior Court.” Finally, the 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 Tyler Trust

In July 2014 Corcoran’s interim director, Peggy Loar,

informed Susanne Jill Petty, a Tyler trust trustee,

5 that

4 Concurrently with the execution 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 Corcoran. At the time she filed the petition 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].” After stating that

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

further advised that the Pascal collection “while controlled by the

Corcoran [was] never accessioned and this provides some

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

Petty that the National Gallery would not be accessioning the

Pascal collection. 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].” Loar 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 to return the works to the family.” Corcoran

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

3. The District of Columbia Cy Pres Proceeding

On June 17, 2014 Corcoran filed a cy pres proceeding in the

District of Columbia Superior Court to obtain approval of its

proposed transaction with National Gallery and George 

Washington University’s proposal 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 was the Tyler trust’s sole remaining trustee. Petty is 

Pascal’s daughter.
8

that created the Corcoran given the Corcoran’s current 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 Order 

that effectively dissolves the Corcoran as an independent entity,” 

the District of Columbia court ruled, “this Court believes that 

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

Corcoran’s financial circumstances, and further believes that the 

proposal properly effectuates Mr. Corcoran’s original intent” in 

establishing Corcoran.

7 Because it was “impracticable to carry 

out the [Corcoran’s] existing Deed of Trust,” the court, under the 

cy pres doctrine, approved Corcoran’s entry into the various 

agreements with the National Gallery, including the transfer 

agreement and the side letter.

8 The court’s order provided that 

“the Corcoran Deed of Trust and any other applicable instrument 

is deemed to be revised to the extent necessary to permit 

6 The 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 distributed, 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 Washington University and permit the 

college’s continued operation as a part of George Washington 

University. 
9

[Corcoran] to perform and implement” the transfer agreement 

and related agreements “according to their terms.” The order 

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 agreement], 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 trust notified Corcoran that,

due to Corcoran’s noncompliance with the Pascal agreement’s

conditions, the “Trustees wish to terminate all the rights of

[Corcoran] in the [Pascal collection].” The Tyler trust demanded

the return of both the Pascal collection 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 trust had identified two institutions outside the

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

Pascal collection. Declining to comply with the Tyler trust’s

request to transfer the Pascal collection, on January 30, 2015

9 In its August 18, 2014 decision, when summarizing the 

National Gallery and George Washington University proposals, 

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

[National Gallery] and the College . . . to [George Washington 

University], any existing donor restrictions that are applicable to 

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

National Gallery] or [George Washington University].” 
10

Corcoran 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 relevant 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 stated that the National

Gallery “is considering whether 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, “works 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 trust’s cash gift, and the

National Gallery holds the Pascal collection 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 trust assets under Probate Code section 850 and confirming

the existence of the Tyler trust under Probate Code section

17200, subdivision (a).10 Because the Pascal collection was

10 Probate Code section 850, 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 possession 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

collection] 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 on the petition on

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

without making a jurisdictional objection. Because the probate

notes highlighted that Petty had not served the petition and

notice of hearing in compliance with Probate Code section 851,

Petty requested a continuance to properly serve the documents.

The 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 objections. The

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 letter to Petty’s counsel contesting 

Petty’s service of the petition and notice of hearing on Corcoran.

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

cannot cure [Petty’s] underlying 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. The Probate Court Posts Updated Notes

Stating the notes were last changed on the afternoon of 

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

notes. The 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 that a description of 

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

the notice of hearing. 

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

supplement to the petition addressing the probate notes. The 

supplement responded to each issue in the probate notes 

detailing Petty’s efforts to serve Corcoran with the petition and 

notice of hearing and attaching amended proofs of service and 

related documents. Petty also pointed out that, at the June 14, 

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

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

she served the amended notice of hearing on June 22, 2018 

containing 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. After reviewing the supplement and hearing

from Petty’s counsel, the 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 proper, 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 Motion for Reconsideration

Two weeks later, on August 13, 2018 Corcoran filed a

motion for reconsideration 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 order

violated Corcoran’s due 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 hearing. Moreover, Corcoran asserted

the probate court’s order imposed obligations on Corcoran that

conflicted with the District of Columbia order because that order

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

Columbia “absent the express 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 discovery

“relating to the trust’s existence.” Finally, Corcoran asserted

that it had “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 Pascal

agreement, the transfer agreement 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 August 15, 2018 the probate court, apparently unaware

of the motion for reconsideration, entered judgment on the

petition.11 The judgment confirmed the existence of the Tyler

trust, ordered Corcoran to return the Pascal collection and its

accompanying cash gift to Petty in her capacity as trustee of the

Tyler trust. The judgment also provided 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 appealable judgment

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

any jurisdictional challenge by generally appearing at the June

14, 2018 hearing, and that the Pascal collection was not subject

to the District of Columbia order. In its reply memorandum

Corcoran argued the court erred by entering judgment while

11 The probate 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 found that it

was not appropriate to sign the Judgment.”

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

reconsideration.12

Corcoran timely appealed.

DISCUSSION

A. Standards of Review

Whether a judgment is void due to improper service or lack 

of jurisdiction 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

unambiguous 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 the court’s 

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

motion for reconsideration before entering judgment, “Frankly at 

that moment since 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. San 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

considerations 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 Petty’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 waived 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. Parent (2018) 28 Cal.App.5th 1000, 1013

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

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

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

court constitutes [a] waiver and appellant is estopped to raise

that objection on appeal”’]; Premier Medical Management

Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163

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

Here, other than asserting that the District of Columbia 

order revised the Pascal agreement, which prevents Corcoran

from returning the Pascal collection to Petty in California, 

Corcoran does 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 Extension 

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 agreement’s termination provisions. As set forth in

the petition, Corcoran accepted the Pascal collection subject to 
18

the conditions set forth in the Pascal agreement. Although 

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

there is no dispute 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 discretion,” “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 . . . together with the 

cash gift . . . .” These conditions, given 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 the 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 117, 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 interest 
19

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

is subject to a condition subsequent and is not held 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 contractual 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 determined solely by reference to 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 submitted a proposed judgment, 

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

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

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

judgment without ruling on the motion.

Once 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 176, 180 (APRI) [“we conclude that 

the trial court may not grant reconsideration after judgment has 

been entered]; 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 the 
20

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

Cedars-Sinai Medical 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. (1996) 50 Cal.App.4th 1233, 1237 [“[a] final judgment 

terminates the litigation between the parties and leaves nothing 

in the nature of judicial action to be done other than questions of 

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

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

reconsideration. 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 petition “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 proposed judgment or apprise the 

probate court of the motion for reconsideration. Because 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 reconsideration. (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 Entering 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 the motion was not a proper motion for 

reconsideration and, in any event, lacked merit.

1. Corcoran’s Motion for Reconsideration 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 written 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 before 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 

considered 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 requirements 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.” In 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 a 
22

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 with a satisfactory explanation for not having presented 

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

(2011) 199 Cal.App.4th 395, 406 [“trial court correctly denied 

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

supplemental declarations and her own declaration, as the 

testimony did not constitute ‘new or different facts’ for purposes 

of granting reconsideration”].)

Thus, any error in not hearing the motion for 

reconsideration was harmless because the motion could not have 

been properly granted. Corcoran cannot demonstrate prejudice. 

(In re Marriage of Goddard (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 (1997) 52 Cal.App.4th 867, 884 

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

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

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

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

pleadings or proceedings which, in the opinion of the court, does 

not affect the substantial rights of the parties”].)

E. Corcoran’s Motion for Reconsideration Also Lacked Merit

Arguing the same grounds it asserted in its defective 

motion for reconsideration, Corcoran contends that the probate 
23

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 agreement, restricting 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 Jurisdiction,

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, dispensing 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

part 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

appearance. 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, Titus, supra, 23 Cal.App.3d at pp. 800-801 [an

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

objections 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 [party] 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 objections 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 service 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 

Trustees 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 by 
26

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 proceed”]; 

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 

result 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 In 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 Columbia 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 through their August 13, 2020 

Motion for Reconsideration of the Court’s July 30, 2018 Order?”
27

Corcoran 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 relating 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 [Pascal 

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] 

failed 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 generally 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 motions 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 had 
28

been no personal appearance by him but also on the subject 

matter 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) forfeits any such 

challenge on appeal”].)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 proceedings. Corcoran 

therefore doubly forfeited this argument. (See Children’s 

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

776 [party “‘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 Dist. (2019) 36 Cal.App.5th 970, 

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

v. Parent, supra, 28 Cal.App.5th at p. 1013 [“[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 prospectively. 

However, In re 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, 245 
29

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 

counsel’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, 

2018 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 

confer 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 deemed 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 Smith 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 

when [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 trial 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.’ He 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 her 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. The Probate Court Did Not Abuse Its Discretion by

Granting the Petition Despite Petty Filing Its

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 rules. 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 counsel 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 Petty’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 

Supreme 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; see 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 Division 

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 oneday 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 because 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 circumstances, 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. The Probate Court’s Order Does Not Conflict with the

District of Columbia Order

Corcoran’s defective motion for reconsideration also argued 

that the District of Columbia order revised the Pascal agreement,

restricting its ability to remove the Pascal collection from the 
33

District of Columbia. Referring to the Full Faith and Credit 

Clause 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 supplemented 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) 

[“the 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 instrument 

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 order. 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 was no conflict between the District of 

Columbia order and the probate court’s judgment, we do not 

reach Corcoran’s argument under the full faith and credit clause. 

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 

establishing 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 Deed of 

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

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

deed of trust, required revision. These 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 permitted implementation and performance of 

the National Gallery and George Washington University 
35

transactions was also deemed revised. Missing from Corcoran’s 

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

this category of “any other applicable instrument,” akin to 

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 deemed 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 words, 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 the 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 Gallery 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 parties’

rights, the transfer agreement contemplated maintaining “thenexisting 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 

impacted the Pascal agreement or its ability to comply with the 

probate court’s order by returning the Pascal collection to 

California.21 

 

21 Corcoran has not contested the enforceability of the 

conditions 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 designated 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.