Filed 1 / 26 / 21 CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

DAVID BRESLIN, as Trustee,
etc.
,
Plaintiff and Respondent,

v.

PAUL G. BRESLIN et al.,

Defendants and Responde nts;

PACIFIC LEGAL FOUNDATION et al.,

Defendants and Appellants. 2d Civ. No. B301382 (Super. Ct. No. 56

- 2018

- 00521839

- PR

- TR

- OXN) (Ventura County)

The trustee of a decedent’s trust petitioned the probate
court to determine the trust beneficiaries . The probate court
ordered the matter to mediation. The potential beneficiaries received notice of the mediation, but some did not participate. The participating parties reached a settlement that excluded the

non participating parties as beneficiaries. The probate court

appr oved the settlement. The nonparticipating parties Pacific2

.

Legal Foundation et al. 1 (collectively “ the Pacific parties ”) appeal.
We affirm. A party receiving notice who fails to participate in

court

- ordered mediation is bound by th e result.
FACTS Don Kirchner died in 2018 leaving an estate valued at between $3 and $4 million. Kirchner had no surviving wife or children, but he was survived by a number of nieces and nephews.
Kirchner ’s estate was held in a living trust dated July 2 0,
2017. The trust was amended and restated on November 1, 2017 (restated t rust). David Breslin (Breslin) was named the
successor trustee in the restated trust.
Breslin found the restated trust, but initially could not find the original trust. The rest ated trust makes four $10,000 specific gifts and directs that the remainder be distributed to the persons and charitable organizations listed on exhibit A in the percentages set forth. The restated trust did not have an exhibit A attached to it,
and no su ch exhibit A has ever been found. But in a pocket of the estate planning binder containing the restated trust, Breslin
found a document titled “ Estates C harities (6/30/2017)

. ” The
document listed 24 charities with handwritten notations that appear to be percentages. Breslin filed a petition in the probate court to confirm him

as successor trustee and to determine the beneficiaries of the

1 The nonparticipating parties are: Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacred Heart Auto League, National Prolife Acti on Center d ba Liberty Counsel, and Orbis International.3

.

trust in the absence of an attached exhibit A. Breslin served each of the listed charities. Only three of the listed cha rities filed formal responses. The Pacific parties did not. The probate court confirm ed Breslin as successor trustee and ordered mediation among interested parties

, including
Kirchner’s intestate heirs and the listed charities. One of the
listed cha rities, the Thomas More Law Center (TMLC)

, sent notices of the m ediation to all the interested parties

, including
the Pacific parties

. The mediation notices inc l uded the following:

“ Mediation may result in a settlement of the matter that is
the subject o f the above

- referenced cases and of any and all
interested

· persons' and parties' interests therein. Settlement of the matter may result in an agreement for the distribution of

assets of the above

- referenced Tru st and of the estate of Don F. Kirchner, Dece ased, however those assets may be held. Settlement of the matter may also result in an award of

attorne ys' fees to one or more parties under Smith v

. Szeyller (2019) 31 Cal.App

. 5th 450. Interested persons or parties who do not have counsel may attend the mediati on and participate.

“ Non

- participating persons or parties who rece i ve notice of the date, time and p l ace of the mediation may be bound by the terms of any agreement reached at media tion without further
action by the Court or further hearing. Smit h v. Szeyller (2019) 31 Cal.App.5th 450. Rights of trust beneficiaries or prospective
beneficiaries may be l ost by the failure to participate in
med i ation.

“ All represented part i es (or his, her or their counsel) and all unrepresented parties that in ten d to participate in the mediation are requested to adv i se the undersigned of his, her o r their4

.

int ention to be present and participate by making conta ct via
either ema il .

. . or U.S. Mail. Notice to participate in med iation will not be accepted via telepho ne. ” Only five o f the listed charities appeared at the mediation, including TMLC. The intestate heirs also appeared. The Pacific parties did not appear. The appearing parties reached a settlement. The settlement agreement awarded specific amounts

to v arious parties

, including the appearing charities, and attorney fees with the residue to the intestate heirs. The agreement excluded the Pacific parties. Breslin filed a petition to confirm the settlement. When the
Pacific parties received notice of th e petition, they filed objections. Prior to the hearing on the peti tion, Breslin filed a supplemental declaration stating that he found the original trust
document. The restated trust had no exhibit A attached, but he
found a ttached to the original trust an exh i bit A listing the same
charities as were found on the document in the binder with the
restated trust. The probate court granted Breslin’s petition to ap prove the
settlement. The court denied the Pacific parties ’ objections on the ground that the y neither filed a response to Breslin’s petition to determine the beneficiaries nor appeared at the mediation.
The Pacif

ic parties appeal

.

DISCUSSION
I Standard of Review
The Pacific parties contend that because the issues here do not involve findings of fact, the standard of review is de novo.
The standard of review for the probate court’s approval of a5

.

settlement is abuse of discretion. ( Estate of Green (1956) 145 Cal.App.2d 25, 28.) The dispute is academic, however. The
result is the same under eit her standard.
II Forfeiture of Rights The probate court has the power to order the parties into
mediation

. (See Prob. Code, 2 § 17206 [“The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition ”].) The

court did so here. The Pacific parties received notice of the
mediation , but chose not to participate.
In Smith v. Szeyller

, supra , 31 Cal.App.5th 450, 458, we held that a party who chooses not to participate in the tr ial of a probate matter cannot thereafter complain about a settlement reached by the participating parties. The Pacific parties point
out th at there was no trial here. True, b ut the mediation ordered by the probate court, like the trial in Smith , was an essential part of the probate proceedings. The Pacific parties may not ignore the probate court’s order to participate in the proceedings and
then challenge the result. The probate court’s mediation order would be useless if a party could skip mediation and challenge the resulting settlement agreement.
The Pacific parties complain they were denied an evidentiary hearing. But the probate court has the power to
establish the procedure. ( § 17206.) It made participation in
medi ation a prerequisite to an e videntiary hearing. By failing to participate in the mediation, the Pacific parties waived their right to an evidentiary hearing. It follows that the Pacific parties

were not entitled to a determination of factual issues, such as

2 All statutory references are to the Probate Code.6

.

Kirchner’s intent, and c annot raise such issues for the first time on appeal. ( Ehrlich v. City of Culver City (1996) 12 Cal.4th 854, 865, fn. 4 [court will not address issues raised for the first time on appeal].) Estate of Bennett (2008) 163 Cal.App.4th 1303, 1310, is of
no he lp to the Pacific parties. There the Court of Appeal held that estate beneficiaries who petitioned to set aside a settlement agreement were entitled to an evidentiary hearing . But Bennett did not involve a party’s failure to respond to a mediation order. The Pacific parties argue the only way they can forfeit their interest is by filing a written disclaimer. They rely on section 275. That section provides, “A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer as provided in this part.” ( Ibid. ) The disclaimer must be in writing signed by the disclaimant. (§ 278.) But no one contends or even suggests the Pacific parties disclaimed their interest. Instead, they forfeited their interest when they failed to participate in mediation as ordered by the court.
III
Trustee’s Duties (a) Impartiality
The Pacific parties contend the trustee failed in his duty to deal impartially with all b eneficiaries. (§ 16003 [“If a t rust has two or more beneficiaries, the trustee has a dut y to deal impartially with them ”].) But all interested parties received notice of the mediation
and had an opportunity to participate. The Pacific parties’ failure to participate was not the fault of the trustee.7

. (b) Trustee’s Personal Profit
The Pacif

ic parties contend the trustee breached fiduciary duties by approving large gifts to Kirchner family members, including himself, who stood to gain little or nothing under the

trust. But all parties who participated in the mediation approved
the settlement , not just the trustee. The Pacific parties may not refuse to participate and then complain that they received nothing. Moreover, the Pacific parties’ argument assumes the
beneficiaries of the trust are known. The court did not determine

t he identity of the beneficiaries

. The Pacific parties may have requested an evidentiary hearing on the matter had they abided by the probate court’s order and participated in the mediation

. They chose not to do so. (c) Notice
The Pacific parties contend th at the tru stee failed to keep
them reasonably informed about the mediation and his intent to execute the settlement agreement.
The Pacific parties do not claim they had no notic e of the mediation. Had they participated , they would have been fully
informed of all t he developments, including the trustee’s willingness to sign the settlement agreement.
The Pacific parties apparen tly believe the trustee and participating parties should have gone through mediation,
reached a settlement, and

, before the settlement was si gned,
notified the Pacific parties so that they could come in and object. That would have made the mediation a waste of time, money, and
effort.8

. The Pacif

i c parties cite section 16060 for the proposition that the trustee has a duty to keep the beneficiar ies of the trust reasonably informed of the trust and its administration. The information provided pursuant to section 16060 must be the
information r easonably necessary to enable the beneficiary to
enforce the beneficiary’s rights under the trust or prev ent or redress a breach of trust. ( Salter v. Lern er (2009) 176 Cal.App

. 4th 1184, 1187.)
First

, the probate code did not determine that the Pacific parties were beneficiaries of the trust. Second, assuming they
were beneficiaries , the notice of mediation was all the information necessary for them to protect their interest

. The Pacific parties argue that the medi ation notice failed to inform them that they could fo rfeit their interest if they did not participate. But the notice stated that nonparticipati ng persons or parties may be bound by the terms of any agreement reached at the mediation, and the rights of trust beneficiaries or prospective beneficiaries may be lost by the fai lure to participate
in the medi ation.
The Pacific parties argue that the lo ss of rights referred to
in the notice may be read as only referring to procedural rights. But the notice says that nonparticipating parties may be bound by any agreement reached during mediation . The notice obviously refers to substantive rights.
IV
Ext rinsic Fraud
The Pacific parties contend the probate court’s order approving the settlement should be set aside for extrinsic fraud.
The Pacific parties ’ contention is based on TMLC’s response
to the trustee’s petition to determine trust beneficiaries

. TMLC9

.

urged the probate court to find that the charities listed on the paper found with the restated trust are the beneficiaries . TMLC
also requested attorney fees if successful because all the charities listed would benefit by its success.
TMLC was not c laiming to be the legal representative for
all the charities on the list

. It was only claiming that by representing its own interest other parties will benefit and
should share in the burden of attor ne y fees under the substantial
benefit doctrine . (See S mith v. Szeyller

, supra , 31 Cal.App.5th at

p. 460.) There was no extrinsic fraud

. V Attorney Fees The intestate beneficiaries contend they should be awarded attorney fees under the substantial benefit doctrine. That is a

matter to be decided by the prob ate court. DISPOSITION The judgment (order) is affirmed. Costs are awarded to respondents.
CERTIFIED FOR PUBLICATION.

GILBERT, P. J.
We concur:

YEGAN, J. TANGEMAN, J.10

. Robert L. Lund, Judge

Superior Court County of Ventura

_________________

_____________

Ferguson Case Orr Paterson, Joshua S. Hopstone and
David B. Shea for Defendants and Appellants Pacific Legal Foundation, Judicial Watch, Save the Redwoods League, Concerned Women of America, Catholics United for Life, Catholic League, Sacre d Heart Auto League, National Prolife Acti on Center and Orbis International.

Staker Law Tax and Estate Planning Law Corporation,
Kevin G. Staker and Brandon P. Johnson for Plaintiff and Respondent David Breslin, Trustee.

Jones, Les ter, Schuck, Becker & Dehesa, Mark A. Lester,
Katherine H. Becker and E ric A. Hirschberg, for Defendants and Respondents Paul G. Breslin and Kathleen Breslin LaF orgia.