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 

Respondents;

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 

nonparticipating parties as beneficiaries. The probate court 

approved the settlement. The nonparticipating parties Pacific 
2.

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 the 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 20, 

2017. The trust was amended and restated on November 1, 2017 

(restated trust). 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 restated 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 such 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 Charities (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 Action 

Center dba 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 charities filed 

formal responses. The Pacific parties did not.

The probate court confirmed Breslin as successor trustee

and ordered mediation among interested parties, including 

Kirchner’s intestate heirs and the listed charities. One of the 

listed charities, the Thomas More Law Center (TMLC), sent 

notices of the mediation to all the interested parties, including 

the Pacific parties.

The mediation notices included the following:

“Mediation may result in a settlement of the matter that is 

the subject of 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 Trust and of the estate of Don F. 

Kirchner, Deceased, however those assets may be held. 

Settlement of the matter may also result in an award of 

attorneys' 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 mediation and participate.

“Non-participating persons or parties who receive notice of 

the date, time and place of the mediation may be bound by the 

terms of any agreement reached at mediation without further 

action by the Court or further hearing. Smith v. Szeyller (2019) 

31 Cal.App.5th 450. Rights of trust beneficiaries or prospective 

beneficiaries may be lost by the failure to participate in 

mediation.

“All represented parties (or his, her or their counsel) and all 

unrepresented parties that intend to participate in the mediation 

are requested to advise the undersigned of his, her or their 
4.

intention to be present and participate by making contact via 

either email . . . or U.S. Mail. Notice to participate in mediation 

will not be accepted via telephone.”

Only five of 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 various 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 the petition, they filed 

objections.

Prior to the hearing on the petition, Breslin filed a 

supplemental declaration stating that he found the original trust 

document. The restated trust had no exhibit A attached, but he 

found attached to the original trust an exhibit 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 approve the 

settlement. The court denied the Pacific parties’ objections on the 

ground that they neither filed a response to Breslin’s petition to 

determine the beneficiaries nor appeared at the mediation.

The Pacific 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 a 
5.

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 either 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 trial of a 

probate matter cannot thereafter complain about a settlement 

reached by the participating parties. The Pacific parties point

out that there was no trial here. True, but 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 

mediation a prerequisite to an evidentiary 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 cannot 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 help 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 beneficiaries. (§ 16003 [“If a trust has 

two or more beneficiaries, the trustee has a duty 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 Pacific 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 

the 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 that the trustee 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 notice of the 

mediation. Had they participated, they would have been fully 

informed of all the developments, including the trustee’s 

willingness to sign the settlement agreement.

The Pacific parties apparently believe the trustee and 

participating parties should have gone through mediation, 

reached a settlement, and, before the settlement was signed, 

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 Pacific parties cite section 16060 for the proposition 

that the trustee has a duty to keep the beneficiaries of the trust 

reasonably informed of the trust and its administration. The 

information provided pursuant to section 16060 must be the 

information reasonably necessary to enable the beneficiary to 

enforce the beneficiary’s rights under the trust or prevent or 

redress a breach of trust. (Salter v. Lerner (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 mediation notice failed to 

inform them that they could forfeit their interest if they did not 

participate. But the notice stated that nonparticipating 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 failure to participate 

in the mediation.

The Pacific parties argue that the loss 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

Extrinsic 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. TMLC 
9.

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 claiming 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 attorney fees under the substantial 

benefit doctrine. (See Smith 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 probate 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, Sacred Heart Auto League, National Prolife Action 

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, Lester, Schuck, Becker & Dehesa, Mark A. Lester, 

Katherine H. Becker and Eric A. Hirschberg, for Defendants and 

Respondents Paul G. Breslin and Kathleen Breslin LaForgia.