Filed 1/19/23 Johanson v. Johanson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DONNA JOHANSON,

 Plaintiff and Respondent,

v.

JOHN ERIC JOHANSON et 

al.,

 Defendants and Appellants;

DAVID A. ESQUIBIAS, as 

Trustee, etc., 

 

 Respondent.

2d Civ. No. B317107

(Super. Ct. No. 56-2021-

00559092-PR-OP-OXN)

(Ventura County)

A mother is the sole life beneficiary of a family trust. Her 

four adult children are the cotrustees and remainder 

beneficiaries. Mother petitioned the probate court pursuant to 

Probate Code1 section 17200 to compel the trustees to fulfill their 

1 All statutory references are to the Probate Code unless 

otherwise indicated.
2

duties under the trust. She requested that the trustees be 

suspended and that a neutral interim trustee be appointed in 

their place. The court granted her petition and granted the 

petition of interim trustee to administer the trust as if no appeal 

were pending. We affirm both orders.

FACTS

The Trust

N. Eric Johanson (Settlor) executed a living trust in 

September 1997. Settlor was married to Donna Johanson. They

have four adult children, John, 2 Kurt, Lauren, and Neil (the 

Children). During his life, Settlor was the sole trustee. He died 

on May 20, 2020. Donna and the Children became successor 

cotrustees.

During her life, Donna is the sole beneficiary of the trust. 

Under the terms of the trust, 100 percent interest in the family 

residence is to be conveyed to Donna; the trust is to pay 50 

percent of the taxes and maintenance on the residence; Settlor’s 

tangible personal property is to be transferred to Donna; and 

income distributions are to be made for her health, maintenance, 

and support. After Donna’s death, the Children are the 

remainder beneficiaries.

Donna’s Petition

On October 20, 2021, Donna petitioned the probate court to 

compel the trustees to provide information (§ 17200, subd.

(b)(7)(B)), to compel the trustees to account (id., subd. (b)(7)(C))

and to instruct the trustees to follow the terms of the trust. (Id.,

subd. (b)(12).)

2 For the sake of clarity, we sometimes refer to the parties 

by their first names. No disrespect is intended. 
3

Donna alleged that the Children, as controlling trustees,

have failed to transfer the residence to her; have failed to pay for 

50 percent of the taxes and maintenance on the residence; have 

failed to transfer Settlor’s tangible personal property to her; and 

have failed to keep her reasonably informed about the trust by 

withholding information from her.

Donna also alleged that the root of the problem is that the 

Children have abdicated their responsibilities as controlling 

trustees to an unrelated third party, Justin Greene. Greene is

chief financial officer of the family business, Johanson 

Dielectrics, Inc. Donna alleged that Greene acts as the de facto 

sole trustee, making all material decisions about the trust and its 

assets without her consent or approval. The Children refuse to 

communicate with her about the trust and do not include her in 

any meetings about trust issues. In fact, she received a letter 

from the Children’s counsel demanding that she not speak to 

them about the trust.

Donna through her counsel wrote letters demanding that 

she receive the income to which she is entitled; that the residence 

be transferred to her; that she be provided information and 

documents including a list of trust assets, valuations, annual 

income, financial statements, and tax findings; and that the 

Children provide a formal accounting pursuant to section 16000. 

The Children’s counsel replied that the trust had retained an 

accounting firm to prepare tax filings, identify assets of the trust,

and obtain values for those assets. But Donna and her 

accountant were refused access to the accounting firm.

Donna prayed that the Children as controlling trustees be 

ordered to provide a list of trust assets and evaluations; file a 

complete accounting with the court; pay her the income and 
4

principal to which she is entitled; transfer title to the residence; 

pay 50 percent of the residence taxes and maintenance; distribute 

Settlor’s personal property to her; terminate the role of Greene in 

the administration of the trust; and to cooperate and 

communicate with her in the administration of the trust.

A hearing on Donna’s petition was set for December 9, 

2021.

Children’s Objections and Responses

The Children responded that they had removed Donna as 

cotrustee and installed Greene in her place. Thus, Donna has no 

right to demand information as a cotrustee. The Children have 

provided Donna all the information to which she is entitled. The 

Children stated that the trust waived the requirement of a formal 

accounting. In addition, Settlor kept abysmal records and the 

Children are currently attempting to determine what assets and 

liabilities are in the trust.

As to support payments from the trust, the Children state 

that the trust is divided into two sub-trusts, a credit shelter 

trust, and a marital trust. The credit shelter trust is funded first 

to the extent of the federal estate tax exemption. Any amount 

over that, which would be subject to estate tax, would go into the 

marital trust. Because the amount in the credit shelter trust 

does not exceed the estate tax exemption, the marital trust is not 

funded. Disbursements from the marital trust are mandatory, 

but disbursements from the credit shelter trust are discretionary. 

Donna has not provided the Children any evidence of need.

As to transfer of the residence to Donna, the Children state 

they have already taken steps to do so.

As to the transfer of Settlor’s tangible personal property to 

Donna, the Children state that Settlor made substantial gifts of 
5

his personal property to others during his lifetime. In addition, 

Settlor purchased personal property for entities with funds that 

belonged to those entities. The Children are currently trying to 

identify what personal property belonged to Settlor at the time of 

his death. Donna is refusing to cooperate and is preventing the 

Children from identifying and valuing the personal property 

Settlor owned at his death.

As to the role of Greene, he is the manager and officer in 

numerous entities that are independent of the trust and cannot 

be challenged by a petition to administer the trust. The Children 

denied they have ceded control over the trust to Greene. Greene 

has acted as their agent under specific instructions to perform 

ministerial duties for the trust.

Finally, as to Donna’s demand that the Children be ordered 

to cooperate and communicate with her in all matters relating to 

the trust, Donna is no longer a trustee. The trustees are required 

to keep a beneficiary informed only as to matters relating to her 

interest in the trust. The trustees have answered all of Donna’s 

requests for information.

Donna’s First Supplemental Petition

On December 2, 2021, Donna filed what she characterized 

as a first supplemental petition (Supplement). She accused the 

Children as cotrustees of self-dealing designed to minimize the 

value of the trust for their own benefit. She also accused them of

retaliating for filing her petition by removing her as trustee and 

terminating her employment with a Johanson entity. She 

requested that the Children be suspended as cotrustees and a 

professional fiduciary be appointed in their place.
6

Response to Supplement

The Children denied any self-dealing. They said that 

Donna was properly removed as trustee under the terms of the 

trust. They said Donna’s employment was terminated by a 

Johanson entity not under control of the trust because she did not

work. Donna has not shown cause to suspend them as trustees.

Ruling

The Children did not request an evidentiary hearing in 

their opposing papers. As the hearing on the petition was 

ending, the Children for the first time requested an evidentiary 

hearing. The probate court denied the Children’s request. The 

court stated that it already had extensive paperwork and that the 

matter should be resolved without delay.

The probate court granted Donna’s petition and ordered the 

relief she sought, including the suspension of the Children as 

trustees. The court appointed attorney David Esquibias, who 

happened to be in court that day, as interim trustee.

The Children appealed the order which was entered on 

December 16, 2021.

Section 1310, Subdivision (b) Petition

Esquibias filed an ex parte petition pursuant to section 

1310, subdivision (b), to allow him to exercise the powers of 

trustee as if no appeal were pending. The Children opposed the 

petition on the grounds that there was no imminent risk of loss or 

other emergency that would justify granting the petition.

At the hearing on the ex parte petition, the Children 

complained that Donna’s original petition did not request a 

suspension of the trustees and they did not have an adequate 

amount of time to respond to her Supplement. The probate court 

replied, “The order I made was more of a sua sponte order given 
7

the facts of the case as I understood them at the time of the 

hearing.”

The probate court granted Esquibias’s petition.

DISCUSSION

I.

Appealability

Donna3 contends that the probate court’s order of December 

10, 2021, granting her petition, is not appealable, and the order 

granting the section 1310, subdivision (b) petition was not 

appealed.

December 10, 2021, Order

Donna’s petition was brought under section 17200, allowing 

a trustee or beneficiary of a trust to petition the court concerning 

the internal affairs of the trust. Section 1304, subdivision (a)(1) 

provides that a final order under section 17200 is appealable 

except, “[c]ompelling the trustee to submit an account or report 

acts as trustee.” 

Donna argues that the order of December 10, 2021, 

requires the trustees to submit an account, and is not final in 

that it only suspends, does not terminate, the trustees. But other 

aspects of the order are final, such as the transfer of the 

residence, the payment of taxes and maintenance on the 

residence, and the removal of Greene from the trust.

Donna and the Children have fully briefed all of the issues 

on appeal. Given the mixed nature of the order’s appealability, 

the best solution is to exercise our discretion to treat the 

3 Except as the context indicates otherwise, hereafter,

“Donna” includes Esquibias, who are co-respondents in this 

appeal.
8

attempted appeal of the unappealable portions of the order as a 

writ petition. (See Olson v. Cory (1983) 35 Cal.3d 390, 400-401.)

Section 1310, Subdivision (b) Petition

Donna concedes that the order granting the petition under 

section 1310, subdivision (b), allowing the interim trustee to act 

as if there were no appeal, is appealable. But she points out that 

the Children did not appeal that order. The nature of the appeal 

refers only to the December 10, 2021, order granting Donna’s

petition.

But courts have liberally construed notices of appeal to 

include closely related orders where there is no prejudice to the 

respondent. (See In re Madison W. (2006) 141 Cal.App.4th 1447, 

1450 [notice of appeal from order terminating parental rights 

construed to include order denying Welf. & Inst. Code, § 388 

petition]; Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 

[notice of appeal from judgment construed to include an appeal 

from a later award of attorney fees].)

Here the section 1310, subdivision (b) order is a constituent 

part of the December 10, 2021, order. Someone must administer

the trust while the appeal is pending. In addition, there is no 

prejudice to Donna. Her brief fully responds to the substantive 

issues raised by the Children on appeal. In fact, Donna prevails. 

We liberally construe the notice of appeal to include the section 

1310, subdivision (b) order.

II.

Due Process

The Children contend that the December 10, 2021, order 

granting Donna’s petition in full denied them due process.
9

Notice

The Children point out that due process applies to a 

proceeding to suspend a trustee. (Citing Schwartz v. Labow

(2008) 164 Cal.App.4th 417, 429.) The Children also point out 

that a petition made under section 17200 requires at least 30 

days’ notice to all trustees prior to the hearing. (§ 17203, subd. 

(a).)

The Children’s argument is based on the claim that 

Donna’s Supplement was not supplemental to her original 

petition but was in fact an amended petition. An amended 

petition requires the same notice as the pleading it amends. (Cal. 

Rules of Court, rule 7.53(a).) A supplement to a pleading does 

not require additional notice. (Id. at rule 7.53(b).)

“‘Amendment to a pleading’ means a pleading that 

. . . alleges facts or requests relief materially different from the 

facts alleged or the relief requested in the modified pleading. An 

amendment to a pleading does not restate or supersede the 

modified pleading but must be read together with that pleading.

“‘Supplement to a pleading’ and ‘supplement’ mean a 

pleading that . . . does not allege facts or request relief materially

different from the facts alleged or the relief requested in the 

supplemented pleading. A supplement to a pleading may add 

information to or may correct omissions in the modified 

pleading.” (Cal. Rules of Court, rule 7.3(4) & (5).)

The Children argue that because Donna’s Supplement 

requests different relief, the suspension of the trustees, it is in 

fact an amended petition for which they did not receive adequate 

notice.

But the Children fully responded to Donna’s original

petition and what she characterized as her supplemental 
10

petition. The Children raised no objection to a lack of notice

either in their responding papers or at the hearing on the 

petition. Had the Children done so in a timely manner, it is 

entirely possible that the probate court would have granted a 

continuance. The Children have waived the issue. (Hepner v. 

Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486 [even a 

constitutional right must be raised in the trial court to preserve 

the issue on appeal].)

Moreover, the Children fail to show prejudice. In order to 

obtain a reversal, appellant must show it is reasonably probable 

they would have obtained a more favorable result absent the 

error. (Coastside Fishing Club v. California Fish & Game Com.

(2013) 215 Cal.App.4th 397, 428.) 

The Children fully responded to Donna’s petitions. They 

point to nothing that more notice would have done to aid their 

cause. The facts call out for a neutral third party to step in as 

trustee.

Donna, as the life beneficiary, and the Children, as the 

remainder beneficiaries, have an obvious conflict of interest. The 

conflict was heightened when the Children removed Donna as 

trustee, excluding her from any voice in the management of the 

trust, leaving the Children in charge. There is a conflict between 

Donna and the Children as to what property belongs in the trust,

what property belongs to others outside the trust, and what 

property should be distributed to Donna free of the trust. The 

Children have been unwilling or unable to provide an accounting. 

They even denied that Donna is entitled to an accounting. Even 

such a simple, straight-forward matter as transferring title to the 

residence to Donna is enmeshed in delay and controversy. 

Whether the acrimony that exists between Donna and the 
11

Children is Donna’s fault, the Children’s fault, or a combination 

of both, a solution was necessary. The suspension of the Children 

as trustees and the appointment of a neutral interim trustee is 

the obvious answer. The Children point to nothing in the record 

to show they would have achieved a more favorable result had 

they more notice.

Opportunity To Be Heard

The Children contend they were deprived of a meaningful 

opportunity to be heard.

The Children complain that the trial court issued its 

tentative decision suspending them as trustees based solely on 

Donna’s moving papers, without giving them time to respond. At 

the hearing, the probate court initially stated there is no 

response. Then the court immediately corrected itself and stated 

there is a response. Before the final ruling, the court stated that

it reviewed the objections and responses.

The probate court’s tentative decision is just that, 

tentative. The parties are not prejudiced. The court can change 

its mind. Before the final ruling, the court stated it reviewed the 

Children’s objections and responses. The Children point to 

nothing in the record to show the court did not. The Children 

were not deprived of a meaningful opportunity to be heard.

The Children’s reliance on Cleveland Board of Education v. 

Loudermill (1985) 470 U.S. 532 is misplaced. In the first of two 

consolidated cases, a school security guard was dismissed on the 

ground that he failed to disclose a prior felony conviction on his 

job application. In the second case, a school bus mechanic was

dismissed because he failed an eye examination. Both employees 

were civil servants who could only be terminated for cause and 

were entitled to post-termination hearings. The court held that 
12

the state’s civil service law made the parties’ employment a 

property interest. The due process clause requires a hearing 

before a person is deprived of property. (Id. at p. 542.) Here the 

Children received a hearing before they were suspended as 

trustees.

No Abuse of Discretion

The Children contend the trial court abused its discretion 

in suspending them as trustees and appointing a stranger as sole 

trustee. 

The Children point out that they were made trustees under 

the provisions of the trust. They cite Estate of Bothwell (1944) 65 

Cal.App.2d 598, 604, for the proposition that the plan of the 

settlor must be followed and may not be departed from merely 

because it is considered unwise.

But the plan of the Settlor was not being followed. The 

plan was not to remove Donna as trustee. The plan was not to 

have conflict over what property belonged in the trust. The plan 

was not to delay the filing of an accounting and a complete estate 

tax return. The plan was not to have such chaos that the simple 

matter of the transfer of the residence could not be accomplished 

without delay and rancor. It is precisely because the Children as 

trustees were unwilling or unable to follow Settlor’s plan that the 

probate court suspended them and appointed a neutral trustee. 

There was no abuse of discretion.

The Children argue that the probate court abused its 

discretion by refusing to hold an evidentiary hearing. But the 

court explained that it already had extensive paperwork, and it 

was concerned that the matter should be resolved without delay.

The Children’s opposition to Donna’s petition included 

documentary evidence and affidavits. They did not request an 
13

evidentiary hearing in their opposing papers. In addition, they 

made no offer of proof as to what other evidence they would have 

presented at an evidentiary hearing. The Children cite no 

authority allowing them to elect to proceed by affidavits and then 

make a belated demand for an evidentiary hearing when it 

appears the probate court is about to rule against them. In any 

event, the Children’s failure to make an offer of proof in the 

probate court precludes consideration on appeal of an allegedly 

erroneous exclusion of evidence. (Shaw v. County of Santa Cruz

(2008) 170 Cal.App.4th 229, 282.)

III.

The Probate Court Properly Granted Powers to Interim Trustee

The Children contend the probate court improperly granted 

the interim trustee the power to act as if no appeal was pending.

Section 1310, subdivision (b) provides in part:

“Notwithstanding that an appeal is taken from the judgment or 

order, for the purpose of preventing injury or loss to a person or 

property, the trial court may . . . appoint a . . . temporary trustee, 

to exercise the powers, from time to time, as if no appeal were 

pending.”

The Children cite Sterling v. Sterling (2015) 242 

Cal.App.4th 185, 199 (Sterling), for the proposition that section 

1310, subdivision (b) requires a “‘showing of risk of imminent 

injury or loss.’” The Children argue that Esquibias has failed to 

make such a showing.

Section 1310, subdivision (b) does not expressly require a 

showing of “imminent” injury or loss. That requirement comes 

from Gold v. Superior Court (1970) 3 Cal.3d 275. In Gold, a 

conservator was ordered to pay attorney fees. Instead of paying, 

the conservator appealed the order. The probate court held him 
14

in contempt. The conservator argued that the appeal terminated 

the probate court’s jurisdiction. The attorney real party in 

interest argued that a statute similar to section 1310, subdivision 

(b) applied to allow the court to proceed as if no appeal was 

pending. Our Supreme Court rejected the argument holding that 

the statute must be narrowly construed to apply “only to the 

exceptional case involving a risk of imminent injury or loss.” (Id. 

at p. 281.) The court concluded that the case does not fall within 

the statutory exception to the rule that an appeal deprives the 

probate court of jurisdiction.

In Sterling, the Court of Appeal determined that the 

trustee had made the required showing where the trustee showed 

a risk of a substantial loss if the trustee could not timely

complete the sale of a trust asset. (Sterling, supra, 242 

Cal.App.4th at p. 199.)

The Children cite no case that discusses the application of 

section 1310, subdivision (b) to the circumstances here, where all 

trustees have been suspended. Nevertheless, we conclude the 

circumstances show a risk of imminent injury or loss. As the 

probate court stated: “So let’s assume that there is an appeal and 

for the next year and a half it’s in process. Who pays the bills on 

the house? [W]ho pays the property taxes? [W]ho pays the 

utilities on the real estate assets? [A]nd your client is suspended 

and Ms. – – Mr. Esquibias is unable to do anything.”

An interim trustee needs the power to act while the appeal 

is pending. The probate court did not err in granting Esquibias 

that power.
15

DISPOSITION

The orders of the probate court are affirmed. Costs are 

awarded to respondents.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J. 

BALTODANO, J.
16

Roger L. Lund, Judge

Superior Court County of Ventura

______________________________

Enenstein Pham & Glass, Teri T. Pham, Matthew Rosene, 

attorneys for Defendants and Appellants.

Law Offices of Mary P. Kulvinskas and Mary P. 

Kulvinskas; Nevers, Palazzo, Packard, Wildermuth & Wynner

and Michael S. Wildermuth for Plaintiff and Respondent Donna 

Johanson.

Law Office of David A. Esquibias and David A. Esquibias

for Respondent David A. Esquibias.