Ostrosky v. Permann CA1/1

Filed 9/14/20 Ostrosky v. Permann CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

EILEEN OSTROSKY,
Plaintiff and Appellant,
A158057
v.
VERLA D. PERMANN, as Trustee, (Contra Costa County
etc., et al., Super. Ct. No. P14-00302)
Defendants;
LOUISE K. MORRIS,
Defendant and Respondent.

Following remand from this court in Schwan v. Permann (2018)
28 Cal.App.5th 678 (Schwan), the probate court determined plaintiff Eileen
Ostrosky did not qualify for a trust distribution because she failed to satisfy
an employment condition. Ostrosky appeals from that decision, arguing her
later employment for a model train business met the required condition. We
disagree and affirm.
I. BACKGROUND
As described in more detail in Schwan, Walter C. Permann (Permann)
created The Walter C. Permann Separate Property Trust (Trust), which
entitled Donna Schwan, Alexis Johnson, and Ostrosky to certain
distributions if each was employed by Control Master Products, Inc. (Control
Master Products), a wire and cable distribution business, at the death of
Permann and his wife, Verla D. Permann. (Schwan, supra, 28 Cal.App.5th at
pp. 681–682.) If this condition was not met, the Trust provided those
distributions “ ‘shall lapse.’ ” (Id. at p. 682.) “Following a bench trial, the
probate court excused Schwan’s and Johnson’s noncompliance with the
employment condition because the assets of the company were sold in 2008,
rendering satisfaction of the condition impossible.” (Id. at pp. 681–682.)
However, the probate court did not excuse Ostrosky’s noncompliance. (Id. at
p. 682.) “[T]he probate court concluded ‘her compliance [with the condition]
was not rendered impossible by the sale of the company, but by her
retirement. While she was suffering from myriad health problems, she did
not show that it was impossible for her to continue to work.’ The court held
Ostrosky failed to meet the condition of the gift and her performance was not
excused.” (Id. at p. 695.)
On appeal, this court affirmed the probate court’s holding as to the
doctrine of impossibility. (Schwan, supra, 28 Cal.App.5th at p. 695.) We
concluded “the probate court properly considered whether the doctrine of
impossibility of performance applied,” and substantial evidence supported the
probate court’s application of the doctrine of impossibility as to Schwan and
Johnson. (Ibid.) As to Ostrosky, we held “substantial evidence supports the
probate court’s conclusion that Ostrosky’s noncompliance was caused by her
own conduct, i.e., her decision to retire.” (Ibid.)
However, Ostrosky raised a second issue on appeal. She also argued
she met the employment condition in the Trust because she occasionally
worked for Permann’s subsequent business, Custom Model Products, Inc.
(Custom Model Products), which sold model trains. (Schwan, supra,
28 Cal.App.5th at p. 696.) We noted for Ostrosky’s claim to succeed, she must

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demonstrate such work “gave rise to an employee-employer relationship and
that relationship existed at the time of [Permann’s] death” and “satisfies the
Trust’s condition requiring her to be employed by ‘Control Master Products,
Inc.’ ” (Ibid.) Because the statement of decision was silent on these issues,
we remanded to the probate court “to decide in the first instance.” (Ibid.)
On remand, Ostrosky filed a motion with the probate court asserting
her employment by Custom Model Products satisfied the Trust’s employment
condition. She argued her availability and sporadic work for Custom Model
Products fell within the employment condition, and Permann would have
intended such employment to satisfy the Trust’s employment condition.
A trust beneficiary, Louise Morris, opposed the motion. She argued
Ostrosky’s work for Custom Model Products did not give rise to an employer-
employee relationship because it was “odd job work” for a few days over three
years assisting “a dear friend at his hobby shop.” She also asserted Custom
Model Products was distinct from Control Master Products, based on the
different names, different employees, and vastly different businesses
operated by each company.
The probate court rejected Ostrosky’s position. The court noted it “is
inclined not to view the phrase ‘Control Master Products, Inc’ as ambiguous”
because when Permann executed his Trust “there was only one corporation
involved, it had this name, and it was a wire and cable business.” The
probate court further stated even if the phrase was ambiguous, extrinsic
evidence demonstrates the phrase “Control Master Products, Inc.” referenced
only the wire and cable business owned by Permann. The court noted the
name change accompanied Permann’s sale of the wire and cable business, the
purpose of the condition was to contribute to the financial success of the wire

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and cable business, and Permann and his spouse had no financial stake in
the wire and cable business after its sale.
The court amended its prior statement of decision to incorporate its
additional analysis, and final judgment was entered. Ostrosky timely
appealed.1
II. DISCUSSION
Ostrosky argues the probate court erred in failing to consider
Permann’s intent after he sold Control Master Products. She also asserts her
work at Custom Model Products satisfied the employment condition “ ‘so far
as was possible.’ ” We disagree.
A. Doctrine of Impossibility
Ostrosky contends the probate court “applied the wrong test” because it
did not consider the doctrine of impossibility as an exception to the general
rule enforcing conditions precedent. Ostrosky argues the probate court was
required to determine Permann’s subjective intent after he sold Control
Master Products, and whether he intended Ostrosky’s work for Custom
Model Products to satisfy the Trust’s employment condition. As to this issue,
Ostrosky argues Permann did not intend to impose the employment condition
after the sale of his company, he continued to state after the sale that
Ostrosky was “taken care of” in his Trust, and his re-employment of Ostrosky
evidenced his desire for her to be “ ‘covered’ ” by the Trust. She notes
employment with Custom Model Products was the only employment available
following the sale of Control Master Products.

1 On February 26, 2020, Morris filed a motion to dismiss this appeal on
the grounds it was untimely. However, by separate order dated June 23,
2020, this court denied that motion and concluded Ostrosky’s appeal was
timely.

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 As an initial matter, we disagree with Ostrosky’s assertion that the
probate court was required to make findings on remand regarding
impossibility. The issue on remand was limited to whether she satisfied the
employment provision of the Trust by working for Custom Model Products.
(Schwan, supra, 28 Cal.App.5th at p. 696.) Accordingly, application of the
doctrine of impossibility was not at issue on remand.
Regardless, Ostrosky’s argument fails for the same reason it was
previously rejected. In Schwan, this court addressed the question of
impossibility and concluded “the ‘modern rule’ recognized impossibility as an
exception to the general rule enforcing conditions precedent.” (Schwan,
supra, 28 Cal.App.5th at p. 691.) This court then identified various factors
courts have considered in assessing a testator’s intent when imposing the
gift, including “whether (1) the will showed the testator anticipated the
impossibility and nonetheless made the gift contingent on the performance of
the condition; (2) the testator provided for a gift over to other beneficiaries in
the event of a failure to perform the condition; (3) performance of the
condition was the testator’s controlling motive in making the bequest; (4) the
testator knew of the impossibility of performing the condition prior to his or
her death; (5) the testator, the donee, or a third person caused the
impossibility and whether (a) that person’s act was volitional or
nonvolitional, or (b) that person was the intended beneficiary of the
performance of the condition; (6) the testator or the intended beneficiary of
the performance of the condition waived its performance; (7) there was
substantial compliance with the terms of the condition; and (8) the testator’s
purpose in making the gift would more likely be fulfilled by requiring or by
not requiring literal compliance with the condition.” (Id. at pp. 692–693.) In
applying this analysis to Ostrosky, we noted the probate court “found

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Ostrosky could work despite her health problems” and “ ‘her compliance [with
the condition] was not rendered impossible by the sale of the company, but by
her retirement.’ ” (Id. at p. 695.) We found substantial evidence supported
the probate court’s holding. (Ibid.)
Ostrosky now reargues impossibility, asserting the doctrine should
apply because she could not return to work at Control Master Products after
her retirement because Permann sold the company. We disagree. As we
affirmed in our prior opinion, substantial evidence supported the probate
court’s holding that Ostrosky failed to meet the employment condition in the
Trust because she retired prior to the company’s sale, not because of
impossibility.2 The subsequent sale and Ostrosky’s new argument that she
could not return to Control Master Products does not alter that analysis.
Nothing in the record indicates Ostrosky ever sought to be re-employed at
Control Master Products. Nor does the record reflect Ostrosky’s work at
Custom Model Products was offered by Permann because she could not
return to her prior position at Control Master Products. To the contrary,
Ostrosky acknowledges she agreed to work on Permann’s model train
business while Control Master Products still existed, and the scope of that
work—i.e., approximately 30 hours over a few years that was “off the
books”—did not change after Permann sold Control Master Products.
Accordingly, nothing in the record indicates Ostrosky’s work for Custom
Model Products was intended to be a substitute for employment with Control
Master Products.

2Statements by Permann that Ostrosky was “taken care of” or “in” the
Trust were considered by the probate court and found insufficient to support
application of the doctrine of impossibility. We affirmed that holding. (See
Schwann, supra, 28 Cal.App.5th at p. 695.)

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B. The Employment Condition
The Trust provided Ostrosky would receive a percentage of the Trust if
she was “employed by Control Master Products, Inc. at the death of Trustor
and his spouse and if not, this gift shall lapse and augment the share of the
remaining beneficiaries under this paragraph.” In Schwan, we noted the
probate court’s statement of decision was silent as to whether Ostrosky’s
work for Custom Model Products satisfied the Trust’s employment condition.
(Schwan, supra, 28 Cal.App.5th at p. 696.) On remand, the probate court
found the phrase “Control Master Products” to be unambiguous and only
refer to Permann’s wire and cable business. It thus concluded Ostrosky’s
work for Custom Model Products did not satisfy the employment condition.
We agree.
“ ‘[T]he primary rule in construction of trusts is that the court must, if
possible, ascertain and effectuate the intention of the trustor or settlor.’
[Citation.] ‘The intention of the transferor as expressed in the [trust]
instrument controls the legal effect of the dispositions made in the
instrument.’ (Prob. Code, §§ 21101, 21102.)” (Crook v. Contreras (2002)
95 Cal.App.4th 1194, 1206.) “An ambiguity in a written instrument exists
when, in light of the circumstances surrounding the execution of the
instrument, ‘ “the written language is fairly susceptible of two or more
constructions.” ’ ” (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 74.) Whether an
instrument is ambiguous presents a question of law, and an appellate court
independently reviews the instrument to determine whether ambiguity
exists. (See Colonial Ins. Co. v. Montoya (1986) 184 Cal.App.3d 74, 82.)
As noted by the probate court, at the time the Trust was drafted
Custom Model Products did not exist. The only company owned by Permann
was Control Master Products, which operated a wire and cable business. The

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Trust does not state Ostrosky must be working for Permann, but rather
specifies employment with Control Master Products. In light of these facts,
the phrase “Control Master Products” is not “ ‘ “fairly susceptible of two or
more constructions.” ’ ” (Ike v. Doolittle, supra, 61 Cal.App.4th at p. 74.)
Alternative employment for Permann thus cannot satisfy the condition.
However, even if we were to consider the phrase “Control Master
Products” ambiguous, we affirm the probate court’s interpretation. Ostrosky
argues she satisfies the employment condition because (1) she was re-
employed with the same corporate entity, albeit under a new name and
business model, (2) she remained “ ‘on call’ ” for Custom Model Products until
Permann’s death, and (3) her work for Custom Model Products was controlled
by Permann. In rejecting these arguments, the probate court made certain
factual findings, including: (1) “[t]he purpose of the [employment] condition
. . . was to reward Ostrosky for continuing to contribute to the financial
success of the wire and cable business as long as it benefited [Permann and
his wife]”; (2) the financial success of the wire and cable business was
“unrelated to any work for the model train business”; and (3) the corporate
name change accompanied the sale of the wire and cable business, which
“marked the end” of Permann and his wife’s financial stake in that business.
The probate court thus concluded employment with Custom Model Products
could not satisfy the Trust’s employment condition.
In considering whether these factual findings by the probate court
support its conclusion regarding the employment condition, we are bound by
the substantial evidence standard of review. “ ‘[W]e must consider all of the
evidence in the light most favorable to the prevailing party, giving it the
benefit of every reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.] [¶] It is not our task to weigh conflicts and disputes in

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the evidence; that is the province of the trier of fact. Our authority begins
and ends with a determination as to whether, on the entire record, there is
any substantial evidence, contradicted or uncontradicted, in support of the
judgment.’ ” (ASP Properties Group, L.P. v. Fard, Inc. (2005) 133 Cal.App.4th
1257, 1266.) The probate court’s findings regarding the purpose of the
employment condition, the impact of the sale, and the timing of Permann’s
creation of the model train business, support its conclusion that employment
with Custom Model Products could not satisfy the Trust’s employment
condition. While, as previously noted in Schwann, the record contains
contradictory evidence, “ ‘this court is without power to substitute its own
inferences or deductions for those of the trier of fact.’ ” (ASP Properties
Group, at p. 1266; Schwann, supra, 28 Cal.App.5th at p. 696.)
III. DISPOSITION
The judgment is affirmed. Respondent Louise Morris may recover her
costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).)

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 MARGULIES, ACTING P. J.

WE CONCUR:

BANKE, J.

SANCHEZ, J.

A158057
Ostrosky v. Permann; Morris

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