Filed 6/13/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

LYNNE FRANCIS BRUNO,

Plaintiff and Appellant,

v.

JANE FRANCIS HOPKINS, Individually 

and as Personal Representative, etc., et al.,

Defendants and Respondents.

 H044960

 (Santa Clara County

 Super. Ct. No. 2015-1-PR-176711)

Appellant Lynne Francis Bruno filed suit against her mother, Mildred Francis,

individually and as trustee of a family trust,1as well as two of her sisters, respondents 

Jane Francis Hopkins and Gwen Francis (collectively Respondents), alleging that they 

forged trust instruments purporting to divide her parents’ estate upon the death of her 

father. Following a court trial, the trial court entered judgment in favor of Respondents 

after determining the trust instruments were not forgeries. On Respondents’ motion for 

attorneys’ fees, the trial court ordered Lynne to pay over $829,000, finding there was no 

merit to the position Lynne pursued at the trial, and that Lynne “acted without basis in 

1 Mildred Francis passed away after the initial notice of this appeal was filed. This 

court granted an order substituting Jane Francis Hopkins, Personal Representative of the 

Estate of Mildred Francis and trustee of the Francis Living Trust dated March 22, 1991, 

in this matter for Mildred Francis, individually and as trustee. 
2

filing any of her claims.”

2

In addition, the court ordered Lynne to pay over $96,000 in 

costs.

On appeal, Lynne contends the trial court issued the attorneys’ fees order in error. 

She alleges the trial court lacked jurisdiction to grant a fee award against her because she 

did not own any actual interest in the trust assets. She further contends that because she 

had a reasonable and good faith belief in the merits of her claim, there was insufficient 

evidence to support the issuance of the fee award. Asserting that the record does not 

support a finding that she pursued her claims in bad faith, Lynne also claims that the trial 

court erred when it granted an award of costs to Respondents. Finding no error, we 

affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

The trial court held a 13-day court trial on the bifurcated issue of whether the trust 

instrument at issue was invalid as a forgery. After the trial court found that the trust 

instrument had not been forged, it heard Respondents’ motion for attorneys’ fees, and 

considered the memorandum of costs offered by Respondents, as well as Lynne’s motion 

to strike or tax costs. In ordering Lynne to pay fees and costs, the trial court indicated it 

considered the evidence from the trial proceedings in addition to the parties’ pleadings.

3

We glean the following evidence relevant to the attorneys’ fees and cost orders from the 

record created during the trial regarding the validity of the trust instrument.

2 As several of the parties and lay witnesses share the same last name, we will 

refer to them by their first names. We refer to non-family and expert witnesses by their 

surnames.

3 At the trial, the court heard testimony from Lynne and her husband, William 

Bruno, Jane and her husband, James Hopkins, Gwen, Stephen Wurzburg, an attorney 

who did work for James Francis’s employer, as well as expert witness testimony from 

Lloyd Cunningham, William J. Flynn, David S. Moore, Valery Aginsky, and Albert 

Lyter. In addition, the court viewed the videotaped depositions of Mildred and Gail 

Francis Seig, Mildred’s eldest daughter, in lieu of live testimony. 
3

A. Creation of the Trust

Mildred was married to James Francis for 67 years. Together they had four 

daughters (listed in order from oldest to youngest): Gail, who is not a party to this action, 

Lynne, Jane, and Gwen. Jane and Gwen lived in California and testified that they had a

close relationship with their parents. Lynne and Gail each moved to Pittsburgh, where 

they lived during the time relevant to this appeal. Mildred testified that Lynne’s visits 

after Lynne moved to Pennsylvania were often unpleasant. 

Between 1989 and 1991, James and Mildred created an estate plan, resulting in the 

creation of The Francis Living Trust (the Trust), as well as a last will and testament for 

each of them. James was an attorney and drafted the documents himself. He handwrote 

portions of the documents, while others were prepared by various people James 

employed to type parts of the estate planning documents. The final document consisted 

of 31 pages. The date the Trust was created was handwritten on the first page, and 

Mildred and James signed the last page, as did the notary who witnessed their signatures.

The remainder of the document was typewritten.

Under the terms of the Trust, upon the death of the first spouse, half of the Trust 

assets would be allocated to a revocable surviving spouse’s trust, and the other half of the 

assets would be placed in an irrevocable marital trust and an irrevocable family trust. 

The Trust specified that Lynne and Gail would each receive $200,000 from the revocable 

surviving spouse’s trust, with the remaining assets to be divided equally between Jane 

and Gwen, after other specified distributions were made. In his will, James indicated that 

the residue of his estate would be given to Mildred, as trustee of the Trust, subject to her 

ability to revoke the surviving spouse’s trust. 

Mildred testified that at the time she and James prepared the Trust, the $200,000 

gifts to Lynne and Gail represented about half of the Trust assets. The parents were 

concerned because Lynne and Gail did not have careers and would thus benefit from 

receiving a designated amount of money, while Jane and Gwen could rely on their own 
4

“lucrative careers” for financial stability. Mildred noted that Jane and Gwen would not 

have fared well had she and James passed away shortly after creating the estate plan. As

time passed, James and Mildred took steps that reflected their intent to leave the bulk of 

their estate to Jane and Gwen. In 2003, the parents gifted their shares of James’s 

employer’s stock to the two younger daughters. In the intervening period between the 

creation of the Trust and James’s death, the value of the Trust estate grew, such that the 

$200,000 gifts to Lynne and Gail no longer amounted to half of the Trust assets. At the 

time she commenced her proceedings in the trial court, Lynne estimated the value of the 

Trust assets was $4-5 million.

B. James’s Death and Subsequent Events

James was hospitalized in 2006 after suffering a stroke. Lynne and Gail returned 

to the family home in California upon learning of James’s hospitalization. While staying 

at her parents’ home, Lynne alleged that she found one of her father’s estate planning 

documents in an unlocked metal box in the kitchen. She “perused” the document, but did 

not recall the title of the document, the number of pages, or whether she saw James’s 

signature on the document. Lynne testified that she saw her mother’s and sisters’ names, 

and noted that the document indicated the four children would receive equal shares of 

their father’s estate. 

Lynne testified that Mildred and James had not discussed the details of their estate 

plan with her. She stated that she was purposely trying to find a will or trust because 

Mildred had told her one had been created. She did not ask Mildred or James for 

permission to look through their financial documents. She did not discuss the document 

she saw with her mother or sisters. She testified that she attempted to keep her review of 

the metal box and its contents secret from Mildred and only discussed it with her 

husband. In addition to allegedly seeing estate planning documents, Lynne also testified 

that while she was at her parents’ home she viewed records related to Mildred’s stock 

transactions.
5

Mildred testified that only she and James knew the location of the Trust 

documents—a locked safe or crawlspace—and she denied that Lynne could have seen the 

documents, or any copies of them, in a box in the kitchen. Mildred located the Trust 

instruments in a crawlspace in a guest room closet more than a month after James’s 

death. Mildred and James did not share the location of the documents with their children. 

James passed away shortly after midnight on May 12, 2006. Following the 

funeral, the family returned to Mildred’s home and gathered on the patio. At some point, 

Lynne retreated to a bedroom. When Gail went to check on her, Lynne was angry, and 

stated that her husband would hire an attorney if Lynne did not get “her fair share. . . .” 

Gail and Lynne discussed their parents’ estate plans at least two other times prior 

to 2015. At some point after both women had returned to Pittsburgh, Lynne told Gail 

during a telephone conversation that “she thought [James’s] will should have been read.” 

Gail also testified that in late 2013 or early 2014, Lynne told her that Gail would receive 

only $200,000 from their parents’ estate, with the remainder to be divided between 

Lynne, Jane, and Gwen. Lynne claimed Mildred had told her this. Gail believed Lynne

was trying to create division within the family. Gail claimed Lynne offered to give Gail 

part of Lynne’s share of Mildred’s estate. In her own testimony, Lynne stated that 

Mildred told her in the fall of 2006 that Gail would receive a set amount and the other 

three daughters would split the remainder of the estate. Mildred denied having this 

conversation with Lynne. 

C. Notification of the Trust

Upon James’s death in 2006, Mildred became the sole trustee of the Trust. 

Mildred waited until 2015 to authorize Jane to prepare the notification required when a 

revocable trust becomes irrevocable by the death of one or more settlors of the trust under 
6

Probate Code section 16061.7, subdivisions (a)(1), (b)(2), and (f).4 Lynne received the 

notice in early February 2015. Mildred suffered a stroke shortly after sending the 

required notification. Lynne testified that the timing of Mildred’s stroke relative to the 

sending of the required trust notification, as well as phone calls Lynne had with Mildred 

and with Jane’s husband, raised Lynne’s suspicions, prompting Lynne to request a copy 

of the Trust. 

With Jane’s input, in March 2015 Mildred provided Lynne with the portion of the 

Trust documents containing only the irrevocable provisions of the Trust. In response, 

Lynne asked for a complete copy of the Trust instrument, as well as information about 

the Trust assets. Lynne was informed in a conversation with Jane and in a subsequent 

letter from Mildred that she would receive $200,000 from the estate. When she again 

requested a complete copy of the Trust instrument, she claimed Mildred told her she 

would not receive any additional information. When Lynne retained counsel, Mildred’s 

attorney provided Lynne’s attorney with a copy of the Trust and James’s will. 

D. Trial Court Proceedings

Shortly before receiving the Trust and will from Mildred’s attorney, Lynne filed a 

petition to compel the production of the Trust instrument and James’s will. After 

receiving copies of the estate planning documents, Lynne retained expert David Moore, 

whose review of a copy of the Trust revealed differences between the first and last pages 

and the remaining pages. Moore recommended that Lynne’s attorney obtain the originals 

for him to review.

Before Moore could conduct such a review, Lynne amended her petition, adding 

causes of action to remove Mildred as the trustee, and to declare the Trust instrument a 

4 Relevant to these proceedings, when a revocable trust becomes irrevocable by 

the death of one or more settlors of the trust, the trustee is required to serve notice of the 

settlor’s death on each heir of the deceased settlor not later than 60 days after the settlor’s 

death. (Prob. Code, § 16061.7, subds. (a)(1), (b)(2), & (f).)
7

forgery, among other bases for relief. Lynne alleged that Mildred waited nine years after 

James’s death to comply with Probate Code section 16061.7 to notify Lynne of the 

existence of the Trust. Mildred then resisted Lynne’s attempts to obtain a complete copy 

of the Trust instrument, prompting Lynne to file her petition to compel production. 

Asserting that the provision of the Trust limiting Lynne’s potential receipt of assets to 

$200,000 was inconsistent with her relationship with James and the estate planning 

instrument Lynne alleged she saw shortly before James’s death, she contended that the 

copies of the Trust and James’s will provided to her were forgeries. In seeking to remove 

Mildred as trustee, Lynne alleged Mildred breached numerous fiduciary duties by failing

to timely serve the section 16061.7 notification, failing to provide a complete copy of the 

Trust upon Lynne’s request, and by “forging and producing forged copies of the Trust 

instrument and James’[s] Will.” 

Respondents opposed Lynne’s amended petition, denied the allegations of forgery 

and sought an award of attorneys’ fees. Although not a party to the action, Gail provided 

a declaration in opposition to the amended petition, stating she did not believe that her 

mother or sisters falsified any documents. Gail later testified that all three sisters were

“astonished” by Lynne’s allegations. 

The trial court granted Mildred’s unopposed motion to bifurcate the cause of 

action seeking to invalidate the Trust instrument on the basis that it was a forgery. 

E. Expert Testimony

In addition to lay witnesses, who testified as described above, each party called 

expert witnesses to address whether the Trust documents were forgeries. Lynne called

forensic document examiners Cunningham, Moore, and Flynn, as expert witnesses in her 

case in chief. These experts opined, based on their respective analyses of the Trust 

instrument, that pages 2 to 30 of the 31-page Trust instrument differed from pages 1 and 

31 as follows: they were written on different paper; they had different typography 

characteristics (i.e., font, line spacing, and interparagraph spacing); they had inconsistent
8

numbers of staple holes, suggesting pages had been removed and replaced or inserted at a 

later time; and they had more disturbed paper fibers, including disturbances that would 

not have been caused by accident, storage conditions, or normal wear and tear. Pages 1 

and 31 of the Trust contained “original handwriting,” while the internal pages did not. 

Cunningham and Moore each opined that someone had altered pages 2 through 30 

of the Trust instrument in an attempt to artificially age the pages, by applying an 

unidentified stain or solution and randomly rubbing and scraping the pages. The bases 

for their opinions differed. Cunningham found fiber disturbances on only the back side 

of the contested pages, while Moore found disturbances on the front and back of all 

pages, including the first and last page of the Trust instrument. Cunningham believed 

someone had used an instrument to apply the staining agent, which disturbed the paper 

fibers; Moore said the pages had been submerged in the staining agent, and the 

disturbances occurred when the forger attempted to remove remnants of the agent. 

Neither expert could identify the staining agent. Flynn opined that pages 2 to 30 were 

created at a different time and with a different word processing system than pages 1 and 

31.

In evaluating the original Trust instrument, Cunningham stated that he found 

“microscopic, hard, physical remnants of a solid material that were stuck to some paper 

fibers,” which were “very fragile.” Believing that the substance “could very well have 

been very critical evidence in the case,” Cunningham preserved these pages in plastic 

sheet protectors. He then asked Flynn to examine the typography of the documents, 

cautioning Flynn that there was “very, very fragile evidence affixed to some of the 

pages. . . .” Flynn testified that Cunningham told him he had observed paper fiber 

disruption on the back of the pages, and wanted Flynn to prepare photo micrographs. 

Flynn testified that Cunningham’s statements did not influence his ultimate opinion in the 

case.
9

Respondents called Lyter, a “forensic chemist specializing in the examination of 

questioned documents.” Lyter found that two types of toner were used to print the Trust

documents. However, Lyter opined that both types of toner used on the Trust documents 

were of a size that was commonly used in 1991, rather than the toner used in 2006 or 

2015, which had smaller particles. Lyter did not agree that pages of the Trust had been 

stained; rather, he contended that some of the pages were printed on different paper stock, 

all of which was at least 20 years old. He found no evidence that the documents were 

prepared at a different time than the date indicated on the documents. As for the 

concerns regarding disturbances to the paper fibers, Lyter testified that the majority of the 

pages in the Trust documents were uncoated and made from soft wood pulp; such paper 

is more susceptible to fiber disturbances than coated paper or paper made from hard 

wood pulp. He opined that the disturbances were consistent with normal wear and tear. 

Lynne then called Aginsky, a forensic chemist specializing in forensic document 

examination, as a rebuttal witness. Moore had recommended that Lynne retain Aginsky 

to test stains on the documents to determine the composition of the stains. During his 

testimony, Moore indicated that Lynne’s attorney had told him Aginsky ultimately did 

not do any testing to determine the composition of the stain, because Aginsky “didn’t feel 

qualified to do that testing.” Cunningham similarly testified that Lynne’s attorney 

informed him Aginsky declined to examine the staining because it was “beyond the scope 

of his ability as an ink chemist.” Neither Moore nor Cunningham ever learned if the 

attorney’s statements to them were true. When called to testify, Aginsky indicated he did 

test the Trust documents, using the same method as Lyter, in an effort to identify a 

staining agent, if any, and he did not find the presence of “any extraneous staining agent.” 

F. Ruling on Petition and Motions for Attorneys’ Fees and Costs

The court issued a statement of decision finding that Lynne did not meet her 

burden of proof and that she should take nothing by way of her petition. The trial court 

indicated that it “did not find Lynne to be credible or her contentions . . . to be true,” 
10

noting that Lynne could not recall details about the document she allegedly saw dividing 

her parents’ assets equally amongst the children. The fact that James had gifted stock to 

Jane and Gwen during his lifetime without making similar gifts to his other children 

undermined Lynne’s claim that James would have equally divided his estate amongst his 

four daughters. The court determined Mildred was the “most credible and honest 

witness,” who provided a “reasonable and credible” explanation of why she and James 

planned their estate as they did, and whose testimony that the Trust documents were the 

“true original documents that [James] drafted” was “honest.” The court determined Jane, 

her husband, and Gwen, were also credible witnesses. Based on their testimony, the trial 

court found it “unrealistic” to think Mildred would betray James’s wishes, and noted 

Lynne had not produced credible evidence of nefarious intent on Jane or Gwen’s part. 

With regard to the expert testimony, the trial court found that the fact Cunningham 

placed several of the pages of the Trust into plastic protective sheets and communicated 

to other experts his belief that the evidence contained therein was significant constituted a 

“[veiled] attempt to influence the other experts.” That Aginsky did not find the spots 

worth testing, combined with his inability to conclude that someone applied a staining 

agent to the Trust documents, caused the trial court to question the expertise and 

credibility of both Cunningham and Moore. Because “none of the experts could identify 

with certainty how the staining was accomplished, the type of staining agent that was 

used, or show that a staining agent was actually applied to the paper, the court [found] no 

merit to [Lynne’s] experts’ theory that the pages of the Trust Instrument were replaced, 

artificially aged or otherwise tampered with.” Rather, the trial court found credible 

Mildred’s testimony that James used different typists to assist in preparing the 

documents, and thus found it reasonable that the different typists would use different 

paper, font, and toner. The court believed Mildred’s testimony explained other anomalies 

in the document as well. 
11

The court entered judgment in favor of Respondents against Lynne and adopted its 

final statement of decision. Following the entry of judgment, Respondents filed a motion 

for attorneys’ fees in which Mildred asked for $331,274, and Jane and Gwen asked for 

$497,762.50. Asserting that Lynne had filed her petition to remove Mildred as trustee in 

bad faith, Respondents brought the motion under the court’s “broad” equitable powers, as 

well as Probate Code section 15642, subdivision (d),5and Code of Civil Procedure, 

section 2033.420.6

Lynne argued that the evidence presented at trial did not support an award of 

attorneys’ fees, contending that she made her claims in good faith. She claimed that 

Hicks, an expert retained by Respondents but not called at trial, agreed that portions of 

the Trust instrument may have been altered and she attached portions of his deposition 

testimony to her response. She noted that Probate Code section 15642 permits the 

removal of a trustee “where a trustee is unfit, fails to act, or has committed a breach of 

trust. [Citation.]” She argued that even if the court determined Lynne brought the action 

in bad faith, “legal fees could only be charged against Lynne’s ‘trust share.’ ”

In reply, Respondents contended that the statutory authority they relied on in their 

motion did allow the court to order Lynne to pay fees personally, rather than solely from 

her share of the Trust assets. In support of their contention that the evidence supported a 

5

“If the court finds that the petition for removal of the trustee was filed in bad 

faith and that removal would be contrary to the settlor’s intent, the court may order that 

the person or persons seeking the removal of the trustee bear all or any part of the costs of 

the proceeding, including reasonable attorney’s fees.” (Prob. Code, § 15642, subd. (d).)

6

“If a party fails to admit the genuineness of any document or the truth of any 

matter when requested to do so under [Chapter 16 of the Civil Discovery Act], and if the 

party requesting that admission thereafter proves the genuineness of that document or the 

truth of that matter, the party requesting the admission may move the court for an order 

requiring the party to whom the request was directed to pay the reasonable expenses 

incurred in making that proof, including reasonable attorney’s fees.” (Code Civ. Proc., 

§ 2033.420, subd. (a).)
12

bad faith finding, Respondents argued that Hicks’s opinion had been tainted due to his 

friendship with Lynne’s expert, Cunningham, and “the efforts made by [Cunningham and 

Lynne’s attorney] to interfere with [the expert’s] opinions.” In the portions of the 

deposition testimony cited by Respondents, Hicks indicated that Cunningham 

communicated his opinions to Hicks while the case was pending, an uncommon 

occurrence amongst experts on different sides of a case. Prior to Hicks’s deposition, 

Lynne’s attorney copied Hicks on a letter stating Cunningham and Moore’s opinions that 

the Trust instrument had been tampered with and that evidence had been manufactured.

Jane and Gwen filed a memorandum of costs, claiming $73,238.20 in recoverable 

costs. In response, Lynne filed a motion to strike or tax costs, arguing in relevant part 

that she had a reasonable basis to bring her litigation.

7

Following a hearing at which the attorneys presented argument, the trial court 

granted Respondents’ request for attorneys’ fees, “for the reasons described by the Court 

on the record.” It found that there was “no merit in the position that Petitioner pursued 

throughout the trial. She acted without basis in filing any of her claims. There was no 

support for her claims that the trust declarations had been forged, aged or substituted.” 

Rather, the court determined Lynne’s “litigation was a personal attack on her mother and 

her sisters by filing her lawsuit because she thought she should receive more of her 

parents’ estate upon her mother’s passing.” While the trial court did not specifically 

address Probate Code section 15642, subdivision (d) or Code of Civil Procedure,

section 2033.420, the court stated it found “merit to the position stated in the moving 

papers,” and therefore granted Respondents’ attorneys’ fees motion. 

At the hearing on Lynne’s motion to strike or tax costs, the trial court confirmed 

that it had already found no merit to her claims that the Trust document had been forged 

7 The record on appeal includes only the memorandum of costs filed by Jane and 

Gwen. The motion to tax costs, and the subsequent order, references costs claimed by 

Mildred as well. Mildred’s memorandum of costs is not included in the record.
13

or substituted. It determined that Lynne’s suit “was frivolous and without merit,” and 

that “justice require[d] that costs be awarded.” The court then heard argument and made 

rulings concerning the amount of costs that should be awarded. The trial court thereafter 

issued a written order granting Lynne’s motion to strike costs in part, reducing the 

amounts owed both to Mildred and to Jane and Gwen. The court determined Lynne owed 

Mildred $27,035.89 in costs, and owed Jane and Gwen $69,218.20 in costs.

The trial court issued an amended judgment which included the specific amounts 

Lynne owed to respondents for attorneys’ fees and costs. Lynne timely filed a notice of 

appeal of the amended judgment and the order on the motion to strike costs, appealable 

under Code of Civil Procedure section 904.1, subdivision (a)(1).

II. DISCUSSION8

A. Attorneys’ Fees

Lynne argues that the trial court erred when it ordered her to pay attorneys’ fees in 

excess of the value of her potential share in the Trust assets. She contends the trial 

court’s jurisdiction was limited to the property of the Trust estate, such that she could not 

be personally liable for any amount of attorneys’ fees over and above her interest in the 

Trust. Lynne further asserts the trial court erred when it found that she instigated the 

litigation in bad faith, or that she otherwise lacked reasonable grounds to believe she 

would prevail on her claim that respondents forged the Trust documents. We find no 

merit to these contentions and affirm the trial court’s order.

1. The trial court had jurisdiction to award attorneys’ fees in the amount ordered.

Lynne contends that the trial court’s jurisdiction in an action concerning a trust is 

limited to the assets of the trust. Because Lynne’s potential interest in the Trust was 

8 On appeal, Lynne addresses only the propriety of the attorneys’ fees and costs 

awards, not the trial court’s entry of judgment in Respondents’ favor, or the orders 

denying her motion for new trial and motion to strike related to the motion for new trial. 

As such, we will address only the attorneys’ fees and costs issues.
14

contingent, and could be revoked or amended by Mildred at any time prior to her death, 

Lynne argues that she effectively had no interest in the Trust.9 She thus asserts that the 

trial court erred when it ordered her to pay attorneys’ fees that would be paid from her 

personal assets, rather than her interest in the Trust. Thus, we first consider whether the 

trial court had jurisdiction to order Lynne to pay attorneys’ fees in an amount over and 

above her potential interest in the Trust.

Respondents set forth three grounds for their request for attorneys’ fees, 

specifically, the court’s “broad” equitable powers, Probate Code section 15642, 

subdivision (d), and Code of Civil Procedure, section 2033.420. While the court based its

fee award on its equitable powers, it also indicated that it “finds merit to the position 

stated in [Respondents’] moving papers and, therefore, grants the request.” As 

Respondents briefed all three theories authorizing the attorneys’ fees request and Lynne

addressed all three in her response, if any of these support the court’s jurisdiction to make 

the award, we will affirm the order, assuming it met any other legal requirements 

imposed by the statute or as prerequisites to the exercise of equitable power. “It is a 

settled appellate principle that reviewing courts uphold judgments or orders if correct for 

any reason, regardless of the correctness of its grounds as ‘ “ ‘[i]t is judicial action and 

not judicial reasoning which is the subject of review . . . .’ ” ’ [Citations.]” (Willis v. City 

of Carlsbad (2020) 48 Cal.App.5th 1104, 1128, fn. 12.)

9 Lynne asks this court to take judicial notice of the petition for probate of 

Mildred’s estate, filed in Santa Clara County Superior Court case number 18PR182639, 

based on her claim that it is relevant to establish her actual interest in the Trust based on 

the terms of the last will and testament operative at the time of Mildred’s death. This 

document was not before the trial court at the time it entered any of the orders or 

judgment at issue on appeal. Given our determination that section 15642, subdivision (d) 

authorizes Lynne’s personal liability for attorneys’ fees, her actual interest in the Trust 

following Mildred’s death is not relevant to our evaluation. The request for judicial 

notice is denied.
15

We determine that the trial court’s equitable powers could not justify the 

attorneys’ fees award. As a general matter, probate proceedings are statutory in nature, 

such that the trial court “has no other powers than those given by statute and such 

incidental powers as pertain to it and enabling the court to exercise the jurisdiction 

conferred upon it, and can only determine those questions or matters arising in the estate 

which it is authorized to do.” (Estate of Schloss (1961) 56 Cal.2d 248, 253; accord Estate 

of Ryder (1903) 141 Cal. 366, 368.) However, the court has broad equitable powers to 

protect the trust estate. “ ‘ “Courts having jurisdiction over trust administration have the 

power to allocate the burden of certain trust expenses to the income or principal 

account . . . . Sometimes this authority is stated in statutory form, but it exists as part of 

the inherent jurisdiction of equity to enforce trusts, secure impartial treatment among the 

beneficiaries, and to carry out the express or implied intent of the settlor.” [Citation.] 

“Where the expense of litigation is caused by the unsuccessful attempt of one of the 

beneficiaries to obtain a greater share of the trust property, the expense may properly be 

chargeable to that beneficiary’s share.” [Citations.]’ [Citation.]” (Rudnick v. Rudnick

(2009) 179 Cal.App.4th 1328, 1334.) 

In Pizarro v. Reynoso (2017) 10 Cal.App.5th 172 (Pizzaro), the appellate court

confirmed that “[t]he trial court’s equitable power over trusts gives the court authority to 

charge attorney fees and costs against a beneficiary’s share of the trust estate if the 

beneficiary . . . ‘instigate[d] an unfounded proceeding against the trust in bad faith.’ 

[Citation.]” (Id. at p. 185.) However, it concluded the trial court exceeded its equitable 

powers when it imposed personal liability for attorneys’ fees and costs on a beneficiary

“over and above the funds available from [the beneficiaries’] share of the trust 

proceeds. . . .” (Ibid.) The trial court has the authority “to direct that the share of the 

trust assets that would be distributed to an offending beneficiary would instead be used to 

pay attorney fees and costs to the benefit of the trust,” but “[o]rdering [the beneficiaries] 

to potentially pay attorney fees and costs out of their own pockets is beyond the equitable 
16

power of the court over trusts because the court has no equitable jurisdiction over that 

money.” (Id. at p. 189.) Consistent with Pizarro, we conclude that the trial court here 

had no equitable jurisdiction to award attorneys’ fees in excess of Lynne’s share of the 

trust assets.

Having rejected the assertion that the trial court’s equitable power over trusts 

authorized the fees award, the Pizarro court reversed the portion of the trial court’s order 

making the beneficiaries personally liable for attorneys’ fees and remanded the matter to 

the trial court to consider whether any statutory authority, including Probate Code section 

15642, subdivision (d),10 allowed for imposition of personal liability for attorneys’ fees in 

an action against the trust. The court declined to itself consider whether any statute 

authorized the imposition of fees. “The trial court relied exclusively on its equitable 

power over trusts and did not invoke the statutory power and procedures and make the 

determinations under any statutory means of imposing an award of attorney fees and 

costs.” (Pizzaro, supra, 10 Cal.App.5th at p. 190.) The matter thus was remanded 

without reaching the question of whether statutes such as Probate Code section 15642, 

subdivision (d) authorized an attorneys’ fee award. (Ibid.) 

Based on Pizarro, we agree that the trial court here lacked authority under equity 

to impose attorneys’ fees and costs. Unlike Pizarro, as statutory grounds to award fees 

were addressed in the parties’ papers below and the court indicated that it agreed with 

Respondents’ position, we now consider the question that case deferred, namely, whether 

the language in section 15642, subdivision (d) authorizes an award of fees against a trust 

beneficiary in excess of their share of the trust estate. 

In general we review the trial court’s determinations regarding the propriety or 

amount of statutory attorneys’ fees for abuse of discretion. However, the question here is 

10 Subsequent undesignated statutory references are to the Probate Code unless 

otherwise noted.
17

one of statutory construction, which is a question of law subject to de novo review. (See 

Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 751.) 

“We begin by considering the statute’s language and structure, bearing in mind that ‘our 

primary goal is to determine and give effect to the underlying purpose of the law.’ 

[Citations.] We start by considering the ordinary meaning of the statutory language, the 

language of related provisions, and the structure of the statutory scheme. [Citations.] If 

the language of a statutory provision remains unclear after we consider its terms, 

structure, and related statutory provisions, we may take account of extrinsic sources—

such as legislative history—to assist us in discerning the relevant legislative purpose. 

[Citations.]” (Gund v. County of Trinity (2020) 10 Cal.5th 503, 511.) 

Section 15642 authorizes the removal of a trustee upon the petition of a settlor, 

cotrustee, or beneficiary, where the trustee has committed a breach of a trust, among 

other specified grounds. (§ 15642, subds. (a) & (b)(1).) “If the court finds that the 

petition for removal of the trustee was filed in bad faith and that removal would be 

contrary to the settlor’s intent, the court may order that the person or persons seeking the 

removal of the trustee bear all or any part of the costs of the proceeding, including 

reasonable attorney’s fees.” (§ 15642, subd. (d).) On its face, the ordinary meaning of 

the phrase “all or any part of the costs of the proceeding, including reasonable attorney’s 

fees” suggests that the Legislature intended to authorize attorneys’ fees without limiting 

the amount to the moving party’s interest in the trust at issue. The only limitation 

expressly set forth in section 15642, subdivision (d), is that the attorneys’ fees be 

“reasonable.” 

Lynne argues that such an interpretation is inconsistent with the language of 

related statutory provisions in the Probate Code and the structure of the statutory scheme.

As there are other provisions in the Probate Code which specify that a person could be 

“personally liable” to pay attorneys’ fees, Lynne contends we must apply the “rule of 

statutory construction that ‘the enumeration of things to which a statute applies is 
18

presumed to exclude things not mentioned.’ [(]O’Grady v. Superior Court (2006) 139 

Cal.App.4th 1423, 1443.[)]” Because the Legislature included express provisions 

allowing for personal liability for attorneys’ fees and costs in sections 2622.5, subdivision 

(a), 11003, subdivision (a), and 17211, subdivision (a), Lynne asks us to determine that 

the absence of such a provision in section 15642, subdivision (d) demonstrates that the 

Legislature intended the general jurisdictional rule, allowing the court to direct the 

payment of fees only from the payor’s share in the subject estate, to apply. Each of these 

statutes concerns the award of attorneys’ fees where a specified person objects to or 

contests accountings prepared by an appointed guardian or conservator (§§ 2622, 2622.5, 

subd. (a)), personal representative of a decedent’s estate (§§ 10950, 10951, 11003, subd. 

(a)), or trustee (§ 17211, subd. (a)), upon a finding that the objection was “without 

reasonable cause and in bad faith” (§§ 2622.5, subd. (a), 11033, subd. (a), 17211, subd. 

(a)). Each statute provides that the objector or contestant shall be “personally liable” for 

the amount ordered, although sections 11033, subdivision (a), and 17211, subdivision (a) 

first state that the amount will be charged against the contestant’s share of the estate, 

leaving the contestant personally liable for any unsatisfied remainder. (§§ 2622.5, subd. 

(a), 11033, subd. (a), 17211, subd. (a).) 

Although we respect the enumeration principle of statutory interpretation, we are 

not persuaded by Lynne’s argument because the legislative history of section 15642 

demonstrates that the addition of subdivision (d) was specifically designed to address the 

damage to trust estates resulting from bad faith claims. In evaluating Assembly Bill 

1466, which proposed amending section 15642 to add subdivision (d), the Senate 

Judiciary Committee indicated, “Current law has numerous provisions for payment of 

attorney’s fees and costs throughout the Probate Code. Where a trustee must hire an 

attorney for actions relating to the benefit of the trust, the payment of the fees and costs, 

including the attorney’s fees will be charged against the trust—unless the trustee is at 
19

fault. There is currently, however, no specific provision for ordering payment of fees and 

costs for a bad faith action to remove a trustee. This bill provides a court with the 

authority to order fees and costs, including attorney’s fees, to be paid by a person 

petitioning for the removal of a trustee in bad faith.” (Sen. Com. on Judiciary, Analysis 

of Assem. Bill No. 1466 (1995-1996 Reg. Sess.) July 11, 1995, pp. 12-13.) The 

committee commented, “[W]here a person petitions for removal of a trustee in bad faith, 

it can have a significant negative impact on the trustor, the trustee, the trust and the 

beneficiaries of the trust. Without this additional fee provision, it is the trust, and the 

beneficiaries who will pay for the cost of the bad faith challenge. This could create a 

situation in which one beneficiary can hold up a trust and the interests of other 

beneficiaries by making such a challenge and forcing a settlement, without putting 

anything of his or her own at risk.” (Id. at p. 13.) 

Lynne argues that the Legislature intended only that a person seeking removal of a 

trustee put his or her interest in the trust itself at risk when asserting a claim in bad faith. 

We conclude that this argument is flawed. Such an interpretation could easily contravene 

the purpose of the statute, which is to ameliorate the impact of bad faith claims against 

the trust estate. The facts of this case provide an exemplar of the potential impact of a 

bad faith challenge brought by a person who has no personal financial stake in the 

outcome. Lynne argues that she does not have an actual interest in the estate, by virtue of 

the revocable nature of the $200,000 gift provided for her in the Trust. Thus, she 

effectively contends the trial court had no authority to order her to pay Respondents’ 

attorneys’ fees, even if it determined that she sought Mildred’s removal as trustee in bad 

faith. Were that true, the Trust and its beneficiaries would be responsible to bear the 

costs of her bad faith challenge. As section 15642, subdivision (d) was specifically 

designed to prevent this outcome, we conclude that the only reasonable interpretation of 

the statute is that it was written to include the imposition of personal liability on a person 
20

who seeks to remove a trustee in bad faith by requiring the person to pay “all or any costs 

of the proceeding.” (§ 15642, subd. (d).)

Lynne contends that an interpretation of section 15642, subdivision (d) which

allows the trial court to impose personal liability would violate “constitutional and 

jurisdictional rules established by statute and case law.” She suggests that section 17003, 

subdivision (b) sets forth the limits of the trial court’s jurisdiction, providing, “To the 

extent of their interests in the trust, all beneficiaries of a trust having its principal place of 

administration in this state are subject to the jurisdiction of the court under this division.” 

(Italics added.) But as we have discussed, the Legislature desired to protect the trust and 

its beneficiaries by creating an exception to this section in circumstances where a 

challenge is brought by a beneficiary in bad faith. Consistent with due process, section 

15642, subdivision (d) provides notice to a person seeking to remove a trustee that he or 

she could be liable for all costs of the proceeding, including attorneys’ fees, and thus 

does not violate constitutional principles. 

Lynne relies on numerous cases that do not concern the interpretation of section 

15642, subdivision (d), and do not compel us to interpret the statute differently, as their

holdings do no more than confirm that the trial court’s jurisdiction is limited by statutory 

authority. (Miller v. Campbell, Warburton, Fitzsimmons, Smith, Mendel & Pastore 

(2008) 162 Cal.App.4th 1331, 1340 [in action under section 9820, subdivision (b), the 

trial court does not have power to order an executor to personally compensate any 

attorney who has represented the executor in a personal rather than representative 

capacity]; Estate of Scott (1987) 197 Cal.App.3d 913, 918 [former section 851.5 

(repealed by Stats. 1987, ch. 923, § 41) allowed an executrix of an estate to seek recovery 

only of assets in which the estate had an interest, rather than assets in which the executrix 

held a personal interest]; Estate of Nicholas (1986) 177 Cal.App.3d 1071, 1092 [setting 
21

forth the general authority of the probate court as it pertains to the property of a 

decedent].)

Lynne also cites Estate of Lee (1981) 124 Cal.App.3d 687, 692 (Lee) in support of 

her contention that the imposition of personal liability under section 15642, 

subdivision (d) violates due process. In Lee, the trial court ordered the executor of a will 

to pay attorneys’ fees rendered to the estate by its former attorney by delivery of a deed 

to a real property interest owned by the executor as an individual. (Lee, supra, 124 

Cal.App.3d at p. 691.) Years later, the executor filed a petition to vacate the attorneys’ 

fees order on the grounds of lack of jurisdiction, which the trial court dismissed. (Id. at 

pp. 691-692.) The appellate court determined that the order was void on its face for lack 

of subject matter jurisdiction over the executor’s individual interest in the property, 

finding that “attorneys’ fees in a probate proceeding are strictly statutory and do no arise 

from contract [citation].” (Id. at pp. 692-693.) Former sections 910, subdivision (a), and 

911 (repealed by Stats. 1990, ch. 79, § 13), cited by the appellate court, explicitly 

authorized the payment of attorneys’ fees “out of the estate.”11 (Lee, at p. 693.) The 

Court of Appeal held that the order requiring payment out of the executor’s individual 

property, rather than out of the estate property, was “beyond the jurisdiction of the 

probate court . . . .” (Ibid.) But in Lee, no statute authorized the probate court’s 

attorneys’ fees order. Here, section 15642, subdivision (d) does.

For the reasons stated above, we conclude that under section 15642, 

subdivision (d), the trial court had jurisdiction to impose personal liability on Lynne for 

attorneys’ fees and costs incurred by Respondents, such that it was authorized to order 

11 Former section 911 provided that “[a]n attorney who has rendered services to an 

estate’s representative may obtain compensation by petitioning the superior court sitting 

in probate for an order requiring the representative to make payment to the attorney out 

of the estate. (§ 911.)” (Estate of Trynin (1989) 49 Cal.3d 868, 873.) Former section 

910 set forth the method by which the court calculated the attorney’s compensation. 

(Ibid.)
22

Lynne to pay an amount in excess of her potential interest in the Trust, assuming the 

other requirements of the statute were met. We now turn to Lynne’s contentions in that 

regard.

2. Substantial evidence supports the award under section 15642, subdivision (d). 

To award attorneys’ fees to Respondents under section 15642, subdivision (d), the 

trial court was required to determine that Lynne filed the petition for removal of Mildred 

in bad faith, and that Mildred’s removal as trustee would be contrary to James’s intent. 

(§ 15642, subd. (d).) Lynne does not argue on appeal that the trial court lacked 

substantial evidence to find that removal of Mildred as trustee would be contrary to 

James’s intent. Therefore, our evaluation will rest on whether there was substantial 

evidence to support a finding of bad faith.

Although the trial court based its analysis of Lynne’s intent on her claims of 

forgery, Lynne now alleges the trial court could have granted the petition based on her 

other contentions, specifically, that Mildred failed to serve notice as required by 

section 16061.7 and failed to provide information about the Trust on Lynne’s request. 

Lynne argues that substantial evidence supported these claims, which she set forth in her 

request to remove Mildred as the trustee of the Trust. She thus contends that she brought 

her petition in good faith and the trial court erred in awarding fees and costs under 

section 15642, subdivision (d). The sole issue heard at the court trial was whether the 

Trust instruments had been forged, which is one of the grounds Lynne set forth as a 

breach of fiduciary duty justifying the removal of Mildred as trustee. There is no 

indication in the record that the trial court considered Lynne’s remaining challenges when 

it entered judgment in Respondents’ favor, or that Lynne objected to the entry of 

judgment on the grounds that the trial court had not considered all of the causes of action 

raised in her amended complaint. 

Lynne also did not argue in her appellant’s opening brief that the trial court erred 

in entering judgment in favor of Respondents on her amended petition because she 
23

should have prevailed on her non-forgery contentions. Nor did she claim that the court 

erred in awarding attorneys’ fees based on a finding of bad faith because the court could 

have granted her petition on the non-forgery bases. Lynne focused her opening brief on 

her argument that the evidence did not support a finding that she brought her forgery 

claims in bad faith. It was not until her reply brief that Lynne alleged the trial court erred 

in failing to consider the potential merits of her non-forgery claims in determining that 

she brought her petition in bad faith. We do not consider points raised for the first time 

in the reply brief absent a showing of good cause for the failure to present them before. 

(Julian v. Hartford Underwriters Ins. Co. (2005) 35 Cal.4th 747, 761, fn. 4.) We 

therefore solely consider whether there was substantial evidence to support a finding that 

Lynne acted in bad faith when she sought to remove Mildred as the trustee based on the 

allegation that the trust instruments were forged. 

We review the trial court’s award of fees to Respondents based on a finding of bad 

faith under the substantial evidence standard. (See Powell v. Tagami (2018) 26 

Cal.App.5th 219, 234 (Powell) [considering a bad faith finding under section 17211, 

subd. (a).].) “Under the deferential substantial evidence standard of review, findings of 

fact are liberally construed to support the judgment or order and we consider the evidence 

in the light most favorable to the prevailing party, drawing all reasonable inferences in 

support of the findings. [Citation.] ‘A single witness’s testimony may constitute 

substantial evidence to support a finding. [Citation.] It is not our role as a reviewing 

court to reweigh the evidence or to assess witness credibility. [Citation.] “A judgment or 

order of a lower court is presumed to be correct on appeal, and all intendments and 

presumptions are indulged in favor of its correctness.” ’ [Citation.]” (Id. at p. 231.)

Section 15642, subdivision (d) does not define bad faith. In evaluating the bad 

faith requirement of section 17211, subdivision (a), which authorizes the award of 

attorney fees where a beneficiary objects to a trustee’s account and “the court determines 

the contest was without reasonable cause and in bad faith,” the Powell court offered the 
24

following definition: “Bad faith involves a subjective determination of the contesting 

party’s state of mind—specifically, whether he or she acted with an improper purpose. 

([Uzyel v. Kadisha (2010) 188 Cal.App.4th 866,] 926, fn. 47 . . .; see Gemini Aluminum 

Corp. v. California Custom Shapes, Inc. (2002) 95 Cal.App.4th 1249, 1263 . . . (Gemini) 

[‘ “ ‘bad faith’ means simply that the action or tactic is being pursued for an improper 

motive” ’].) ‘ “A subjective state of mind will rarely be susceptible of direct proof; 

usually the trial court will be required to infer it from circumstantial evidence.” ’ 

(Gemini, at p. 1263. . . .)” (Powell, supra, 26 Cal.App.5th at p. 234.)

While the trial court did not explicitly find that Lynne brought the forgery claim in 

bad faith, an implied finding can be inferred from the trial court’s statement of decision 

following the trial, as well as its statements made on the record at the hearing on the 

attorneys’ fees motion in which it determined Respondents were more credible than 

Lynne. “The trial court sits as trier of fact and it is called upon to determine that a 

witness is to be believed or not believed. This is the nature of fact finding. ‘The trier of 

fact is the sole judge of the credibility and weight of the evidence . . . .’ [Citation.]” (In 

re Marriage of Greenberg (2011) 194 Cal.App.4th 1095, 1099 (Greenberg).) “In that 

role, the judge may reject any evidence as unworthy of credence, even uncontradicted 

testimony. [Citation.]” (In re Marriage of Falcone & Fyke (2012) 203 Cal.App.4th 964, 

979.) “We do not judge credibility on appeal. An adverse factual finding is a poor 

platform upon which to predicate reversible error.” (In re Marriage of Boswell (2014) 

225 Cal.App.4th 1172, 1175, citing Greenberg, supra, at p. 1097.) “[T]he trier of fact 

may disregard all of the testimony of a party, whether contradicted or uncontradicted, if it 

determines that he testified falsely as to some matters covered by his testimony (Nelson v. 

Black, 43 Cal.2d 612 . . .).” (Halagan v. Ohanesian (1967) 257 Cal.App.2d 14, 21; 

accord Christ v. Schwartz (2016) 2 Cal.App.5th 440, 455.)

Lynne claimed that on the day she returned to the family home to see her dying 

father, she saw an alternative estate planning document which stated that her parents’ 
25

estate would be divided equally among the four daughters. She asserted that because the 

Trust instruments before the court did not equally divide the estate between the siblings 

consistent with the document she claimed to see, her mother and sisters had altered the 

contents of the Trust instruments. “The court did not find Lynne to be credible or her 

contentions to be true.” The court’s finding was supported by evidence that Lynne could 

not recall important details regarding the purported document, including whether it was a 

trust or will, whether it had a title, or whether it was signed. The court’s finding was 

further supported by Mildred’s credible testimony explaining that she and James planned 

their estate to provide for their daughters who did not have careers, and the fact that 

James had previously distributed stock to those daughters for that reason. The court 

found that Mildred was not likely to be persuaded to alter the Trust instruments to 

accommodate her daughters, which would have constituted a betrayal of her husband’s 

wishes. Nor was it reasonable to conclude that one of the daughters alleged by Lynne to 

have engaged in the forgery would have done so, as she was an attorney with significant 

financial assets who would not risk her reputation or established personal security.

While the court determined Lynne had not seen an alternative estate planning 

document, Lynne’s conduct at the time of her father’s death supported the inference that 

Lynne had seen the Trust instruments themselves, and was concerned that she might not 

receive an equal share of the estate. Lynne admitted she purposefully attempted to find 

her parents’ estate planning and financial documents while her father was hospitalized. 

The documents were kept in an unlocked box in a crawlspace in the closet of a guest 

room that would have been easily obtained for someone searching for personal 

documents. She displayed extreme anger at the hospital following James’s death. Just 

after his funeral, Lynne mentioned that she was advised by her husband to hire an 

attorney if she did not receive “her fair share.” Although Mildred testified that she had 

not told Lynne about the bequests, Lynne knew Gail would receive a bequest of $200,000 

and attempted to use that knowledge to divide her sisters. When Mildred, through Jane, 
26

ultimately notified Lynne of the terms of the Trust, Lynne did not express any surprise at

the fact that she was receiving less than an equal share of the estate. From this evidence, 

it can be reasonably inferred that Lynne knew the terms of the Trust instruments, and that 

her frustration over the proposed distribution of the estate caused her to fabricate the 

existence of an alternate estate planning document.

A reviewing court does not draw all inferences in support of the trial court’s 

findings, but only those that are reasonable. “An inference is a deduction of fact that 

may logically and reasonably be drawn from another fact or group of facts found or 

otherwise established in the action.” (Evid. Code, § 600, subd. (b).) “However, ‘[a] 

reasonable inference . . . “may not be based on suspicion alone, or on imagination, 

speculation, supposition, surmise, conjecture, or guess work. [¶] . . . A finding of fact 

must be an inference drawn from evidence rather than . . . a mere speculation as to 

probabilities without evidence.” [Citation.]’ [Citations.]” (People v. Davis (2013) 57 

Cal.4th 353, 360 (Davis).) Citing Davis, Lynne contends it is not reasonable to infer 

from these facts that she commenced this litigation for an improper purpose, asserting

that such an inference amounts to “impermissible suspicion, imagination, speculation, 

supposition, surmise, conjecture, or guesswork.” Her reliance on Davis is misplaced. In 

Davis, a jury convicted the defendant of sale and possession of a controlled substance 

based on the chemical name of the substance in question, without evidence showing that 

the substance met the statutory definition of a “controlled” substance. (Id. at p. 357.) 

The Court of Appeal affirmed the conviction, reasoning that the substance’s chemical 

name supported an inference that the pills in question contained a controlled substance. 

(Ibid.) The California Supreme Court held that the Court of Appeal erred in finding that 

the jury could infer from the substance’s chemical name that it was a controlled substance 

without any evidence supporting the inference. (Id. at pp. 359-360.) Unlike Davis, 

which considered an inference without any support in the evidence, here there were many 
27

facts regarding Lynne’s own conduct and statements from which the trial court could 

reasonably determine Lynne’s subjective intent. 

We similarly distinguish other cases Lynne cites that address what constitutes a 

reasonable inference. (Compare Cothran v. Town Council of Los Gatos (1962) 209 

Cal.App.2d 647, 664 [the appellate court found no fact established in the record from 

which the trial court could infer the date of mailing of affidavits]; Marshall v. Parkes

(1960) 181 Cal.App.2d 650, 655 [the appellate court found no evidence from which the 

trial court could have inferred the terms of a rental agreement]; Estate of Braycovich

(1957) 153 Cal.App.2d 505, 512-513 [appellate court found “no evidence . . . by 

inference or otherwise” to support the trial court’s finding that a testator was of unsound 

mind, stating “An inference is more than a surmise, a possibility or a conjecture; it is a 

reasonable deduction from the facts proved and, of course, must be logical.”].) The 

evidence from which the trial court inferred Lynne’s intent was circumstantial, but it was 

ample, and such evidence is appropriately considered in evaluating subjective intent. 

(Powell, supra, 26 Cal.App.5th at p. 234.) 

Lynne contends that any circumstantial evidence of bad faith on her part is 

negated by her delay in filing her petition to remove the trustee. The conduct that 

allegedly demonstrated her bad faith took place in 2006 or 2013 and 2014, yet she waited 

until 2015 to pursue litigation concerning the Trust. Lynne argues that the nine-year

filing delay proves that she could not have initiated the removal lawsuit in bad faith. 

However, the trial court could reasonably infer that Lynne purposefully delayed 

commencing litigation prior to receiving formal notification of the Trust. After James’s 

death, Mildred had the ability to revoke a substantial portion of the Trust, such that she 

could have altered the distribution plan to Lynne’s benefit as well as her detriment. 

Although Mildred testified that Lynne’s visits to California were often unpleasant, Lynne 

testified that she spoke with Mildred for more than an hour every Saturday morning 
28

between 2008 and 2015. The trial court could infer from this evidence that Lynne hoped

to influence Mildred to alter the Trust before she died. 

Citing Orange County Water District v. The Arnold Engineering Co. (2018) 31 

Cal.App.5th 96 (Orange County), Lynne also argues that the trial court could not have 

found bad faith because she relied on her experts’ conclusions. In Orange County, the 

appellate court considered whether a party should be required to pay the costs of 

litigation under Code of Civil Procedure section 2033.420 after failing to admit certain 

fact-specific requests for admission (RFA) during discovery. (Orange County, at p. 102.) 

Under Code of Civil Procedure section 2033.420, subdivision (a), the trial court can order 

a party who failed to admit the truth of any matter in response to a request for admission 

to pay the costs of proof, including attorneys’ fees. (See fn. 6, ante.) Relevant to Orange 

County, the trial court is required to make the order unless it finds that “the party failing 

to make the admission had reasonable ground to believe that that party would prevail on 

the matter.” (Code Civ. Proc., § 2033.420, subd. (b)(3).) “[W]here RFAs require 

sophisticated analyses of technical issues, courts are more willing to credit a party’s 

reasonable belief that it would prevail based on expert opinion evidence. [Citation.] 

Courts in the past have been willing to find a party’s reliance on expert opinion evidence 

unreasonable only where the expert opinion evidence would be inadmissible at trial 

[citation] or where the expert opinion evidence was fatally undermined by facts known to 

the party [citation].” (Orange County, at pp. 120-121, italics added.) The Orange 

County court determined the trial court abused its discretion in determining that the 

sanctioned party unreasonably relied on its expert’s opinions. (Id. at pp. 122-125, 127-

131.)

There is no indication in Orange County that the trial court made a finding that the 

factual contentions of the party who was ordered to pay attorneys’ fees were not credible. 

Here, the trial court determined that Lynne had not seen an estate planning document 

equally dividing the estate amongst the four sisters, despite her testimony to the contrary. 
29

Thus, we can infer that the trial court determined Lynne’s expert opinion evidence was 

“fatally undermined” by Lynne’s knowledge that she had not in fact viewed an alternate 

version of her parents’ estate planning documents. (Orange County, supra, 31 

Cal.App.5th at p. 121.) Lynne filed her amended petition seeking to remove Mildred as 

trustee before any of her experts had viewed the original Trust documents, from which 

the trial court could infer that Lynne had indicated to one or more of them that she had 

seen an alternate version of the Trust. 

“Whether a party has a reasonable ground to believe he or she will prevail, in the 

context of requests for admissions heavily reliant on expert opinion evidence, will depend 

on factors within the reasonable understanding of the party. Such factors may include 

whether the expert has sufficient qualifications and experience to opine on the matter at 

issue, whether the expert’s opinions will likely be admissible at trial, whether the facts 

underlying the expert’s opinions are supported by the evidence, whether the expert’s 

methodology appears reasonable, and whether the expert’s analysis is grounded in logic. 

A party cannot rely on a plainly unqualified expert, or a sham opinion, to avoid cost of 

proof sanctions. [¶] Where a party’s position is supported by a credible opinion from a 

qualified expert, the mere fact that an opposing party also has a credible opinion from a 

qualified expert will not in most cases preclude the party from reasonably believing it 

would prevail. Something about the state of the evidence must make the party’s reliance 

on its own expert’s opinion unreasonable. Whether a party has a reasonable ground to 

believe he or she will prevail necessarily requires consideration of all the evidence, both 

for and against the party’s position, known or reasonably available to the party at the time 

the RFA responses are served. Beyond the expert opinions themselves, a party must 

consider other evidence, both lay and expert, that bears on the matter at issue.” (Orange 

County, supra, 31 Cal.App.5th at pp. 117-118, italics added.)

Here, the trial court determined Lynne had no factual basis for her claim that the 

Trust documents were forged, as it found she had not seen an alternative version of 
30

Mildred and James’s estate planning documents that divided the estate equally among the 

daughters. Simply put, the trial court found Lynne was not credible and had fabricated 

the existence of a trust document with terms more favorable to herself. The existence of 

this document was the underlying premise for the forgery claim. Thus, it is fair to say 

that “something about the state of the evidence” rendered Lynne’s reliance on her 

experts’ opinions unreasonable.

We conclude, based on the trial court’s credibility finding and the circumstantial 

evidence presented at trial, that the trial court did not err in determining that Lynne acted 

with an improper purpose in commencing the litigation. We affirm the attorneys’ fees 

award under section 15642, subdivision (d).12

B. Costs

Lynne argues that the trial court abused its discretion by ordering her to pay 

Respondents’ costs based on its finding that she prosecuted an unmeritorious action. 

Lynne contends the record on appeal compels the conclusion that she “brought and 

maintained a well-founded forgery action in good faith because she was entitled, as a 

matter of law, to rely upon her experts’ opinions.” As explained above, we find these 

contentions are without merit. As Lynne cites no other error on the court’s part in 

ordering her to pay Respondents’ costs, we affirm the order.

III. DISPOSITION

The attorneys’ fees and costs awards set forth in the January 24, 2017 amended 

judgment are affirmed. 

12 As we affirm the order on this basis, we will not address the parties’ contentions 

regarding the trial court’s authority to award fees under Code of Civil Procedure section 

2033.420.
_______________________________

Greenwood, P. J.

WE CONCUR:

______________________________________

 Danner, J.

______________________________________

 Lie, J.

Bruno v. Hopkins

No. H044960
Trial Court: Santa Clara County Superior Court

Superior Court No.: 20151PR176711

Trial Judge: The Honorable Carrie A. Zepeda

Attorneys for Plaintiff and Appellant,

LYNNE FRANCIS BRUNO:

Russell James Hanlon 

Law Offices of Russell J. Hanlon

Ryan Joseph Szczepanik 

Hartog Baer & Hand

Attorneys for Defendant and Respondent,

JANE FRANCIS HOPKINS, Individually 

and as Personal Representative, etc., et al.:

Raymond A. Cardozo 

Reed Smith LLP 

Steven A. Ellenberg 

Hopkins & Carley

James P. Cilley 

Temmerman, Cilley & Kohlmann, LLP

H044960

Bruno v. Hopkins et al.