Andersen v. Profita CA2/4

Filed 2/8/21 Andersen v. Profita CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR

STEPHEN ANDERSEN et al., B306044

Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No.BP099392)
v.

TAYLOR PROFITA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, William P. Barry, Judge. Affirmed.
Evan D. Marshall, for Defendant and Appellant.
No appearance for Plaintiffs and Respondents.
 Appellant Taylor Profita’s grandmother, Pauline Hunt, was
a named beneficiary of the Andersen Family Trust Dated July 16,
1992, as amended (Andersen Family Trust or the Trust). Hunt
died in February 2018. Both before and after Hunt’s death,
Profita participated in ongoing litigation concerning the Trust
purportedly on Hunt’s behalf. After years of disputes regarding
his standing and authority to act for Hunt, Profita filed a motion
to substitute into the litigation as Hunt’s successor in interest in
January 2020. The probate court denied the motion. Profita
contends this was error.
We affirm. Profita has not demonstrated that the probate
court abused its discretion in denying the motion.
BACKGROUND
After nearly 15 years of ongoing litigation, we presume the
parties are well-acquainted with the facts and labyrinthine
procedural history of this case. We recite below only the
background most relevant to the instant appeal. More detailed
summaries can be found in our five previous appellate opinions in
this case: Andersen v. Hunt (2011) 196 Cal.App.4th 722
(Andersen I), In re Andersen Family Trust (Dec. 1, 2015, No.
B255546) [nonpub. opn.] (Andersen II), In re Andersen Family
Trust (May 24, 2019, No. B290175) [nonpub. opn.] (Andersen III),
In re Andersen Family Trust (June 5, 2019, Nos. B286565 &
B286867) [nonpub. opn.] (Andersen IV), and Profita v. Andersen
(Nov. 26, 2019, No. B288078) [nonpub. opn.] (Andersen V).
After years of litigation, the probate court issued an order
on September 25, 2017 distributing the Trust assets to Hunt and
respondents Stephen Andersen and Kathleen Brandt. (See
Andersen IV.) Hunt appealed the order, which did not allocate
interest accrued on certain assets in accordance with the 60-40

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split prescribed in the Trust amendments. (See ibid.) Hunt died
on February 2, 2018, while the appeal was pending.
On February 7, 2018, Profita requested that the probate
court take judicial notice of a “Grant and Assignment” dated
August 7, 2008, that he claimed was “located after being misfiled
and subsequently lost several years ago.” (Andersen IV.) The
Grant and Assignment, notarized and signed by Hunt and
Profita, by its terms “grants, assigns, transfers, deeds and
conveys all of the Settlor’s right, title, and interest in and to any
and all interests in certain property . . . to Taylor Profita as the
Trustee of the Pauline Strong Hunt Family Trust. . . .” The
property rights purportedly transferred to Profita in the Grant
and Assignment include Hunt’s interests in the Trust, as well as
her rights to any and all causes of action against respondents
Andersen and Brandt.
In the Grant and Assignment, Profita acknowledged his
receipt of Hunt’s trust estate and agreed to serve as its trustee.
The record on appeal contains no further information about the
Grant and Assignment, the Pauline Strong Hunt Family Trust,
or Hunt’s estate. It is unclear from the record whether the
probate court took judicial notice of the Grant and Assignment.
Profita did not at that time take any other steps to substitute into
the case or otherwise formally establish himself as Hunt’s
successor in interest.1

1According to a declaration Profita filed on January 6, 2020
in conjunction with the motion for substitution at issue here, “In
September 2018, [he] sent a Motion for Substitution to the Court,
advising of Pauline Hunt’s death. . . . The motion does not seem
to have been formally filed or acted upon.”

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 On June 5, 2019, we issued Andersen IV, reversing the
distribution order and remanding the matter to the probate court
for further proceedings. (Andersen IV.) We permitted the
litigation to continue in Hunt’s name, holding that Code of Civil
Procedure section 368.5 vested the probate court with discretion
to allow the litigation to proceed in the name of the original party
and noting that no abuse appeared in the record.2 (See id.) The
applicability of this provision is now the law of the case (See
Leider v. Lewis (2017) 2 Cal.5th 1121, 1127.)
On November 26, 2019, we issued Andersen V, which
concerned two probate court orders imposing sanctions on Profita
for two motions challenging the distribution order that he filed
“ostensibly as a ‘real party in interest’ and ‘as representative for
Pauline Hunt,’” who was alive and represented by counsel at the
time. (Andersen V.) In that opinion, we rejected Profita’s
argument that sanctions were unwarranted because he was
Hunt’s successor in interest. (Ibid.)
We held that the trial court did not abuse its discretion in
concluding that Profita lacked standing and acted in bad faith:
“Nothing in the record supports either of Profita’s standing
arguments. He is not a trust beneficiary, and the record does not
demonstrate that he is Hunt's successor in interest. It is unclear
whether Hunt died intestate or had a will, or whether she may
have other surviving family members or heirs; her brother was
mentioned in her power of attorney paperwork. Similarly, the

2 Code of Civil Procedure section 368.5 provides: “An action
or proceeding does not abate by transfer of an interest in the
action or proceeding or by any other transfer of an interest. The
action or proceeding may be continued in the name of the original
party, or the court may allow the person to whom the transfer is
made to be substituted in the action or proceeding.”

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record alludes to a ‘Pauline Strong Hunt Family Trust,’ but
provides no information about the terms of that trust or the
rights Profita or others may have under it. The ‘Grant and
Assignment’ purportedly transferring Hunt's rights in the
litigation to Profita (in his capacity as trustee of the Pauline
Strong Hunt Family Trust) as of August 7, 2008 was not
produced until nearly a decade later, after litigation proceeding
in Hunt’s name with no objection from Profita resulted in
decisions that are now the law of the case. Moreover, as we
previously observed, Profita ‘has never properly intervened or
substituted into this case,’ either in his capacity as Hunt's alleged
successor or as trustee of the Pauline Strong Hunt Trust.
[Andersen III.] Even if we were to assume Profita is now Hunt’s
sole successor and heir, he was not her survivor at the time he
filed the motions for which he was sanctioned. Nor had he
produced the ‘Grant and Assignment,’ or otherwise argued any
basis for standing aside from his alleged beneficiary status.”
(Ibid.)
In or about early December 2019, Profita filed in the
probate court a memorandum concerning the proceedings on
remand. The appellate record furnished by Profita does not
contain the memorandum, but it does contain a responsive
opposition prepared and presumably filed by Andersen and
Brandt in early January 2020. In the opposition, Andersen and
Brandt argued that Profita’s memorandum “should be dismissed”
because “[h]e has no standing to intervene on Pauline Hunt’s
behalf.” In the alternative, they requested that previously
disbursed Trust assets which Andersen IV required them to
disgorge “should be directed to be returned to Pauline Hunt and

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not Taylor Profita, as he cannot demonstrate that he is her
successor in interest.”
On January 6, 2020, apparently in response to Andersen
and Brandt’s opposition, Profita filed a motion to substitute
himself, “as trustee of the Pauline Hunt Strong [sic] Trust, as
successor in interest to Pauline Hunt.” In the motion, brought
pursuant to Code of Civil Procedure sections 368.5 and 377.32,
Profita asserted that substituting him was “an option,”
presumably under Code of Civil Procedure section 368.5, and “not
a requirement” under Code of Civil Procedure section 377.31
because he “is successor in interest by the 2008 [Grant and
Assignment] rather than by descent.”3 He also asserted that
“assignment and substitution have no effect on prior proceedings,
or on this court’s duty on remand, or on the petitioner’s [sic]
liability.” He nevertheless argued that the probate court should
substitute him as Hunt’s successor in interest. The numerous
attachments to the motion included declarations from Profita and
his attorney, Hunt’s death certificate, the Grant and Assignment,
Profita’s February 7, 2018 request for judicial notice of the Grant
and Assignment, and a previous motion for substitution dated
September 7, 2018 that Profita states he submitted to the probate
court in September 2018.

3Code of Civil Procedure section 377.31 provides, “On
motion after the death of a person who commenced an action or
proceeding, the court shall allow a pending action or proceeding
that does not abate to be continued by the decedent’s personal
representative or, if none, by the decedent’s successor in
interest.” Code of Civil Procedure section 377.32 sets forth the
requirements for such a motion.

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 On February 10, 2020, the probate court made a ruling
concerning the distribution order. It directed Profita to prepare
the order and judgment.
On February 13, 2020, Andersen and Brandt filed an
opposition to the motion to substitute. In addition to quoting
excerpts from Andersen IV allowing the litigation to continue in
Hunt’s name and Andersen V concerning Profita’s lack of
standing, they argued that Profita “fails to demonstrate that he is
Hunt’s beneficiary,” and that his “refusal to produce any trust
executed by Hunt casts doubt on his status as her beneficiary.” In
a reply filed February 21, 2020, Profita asserted that Andersen
and Brandt raised the question of his succession “for purely
obstructive purposes, to gain further delay in correcting the trust
distribution.” He also argued that “[t]here is no ‘Hunt estate,’”
and that the terms of the Pauline Strong Hunt Trust “are
immaterial to the fact that Profita is the trustee, which is
established by” the Grant and Assignment.
The probate court heard the substitution motion on
February 27, 2020. The minute order documenting the hearing
indicates that a court reporter was present, but the record on
appeal does not include a reporter’s transcript of the hearing.
The minute order states in relevant part: “The Motion filed on
January 6, 2020 by Taylor Profita is denied. [¶] The Court
exercises its discretion to allow litigation in the name of the
original party rather than substitute Taylor Profita as the alleged
transferee. Accordingly, this motion is denied.”4

4Profita filed a petition for writ of mandate, prohibition, or
other relief in this court on March 20, 2020. In the petition, he
requested that we vacate the probate court’s order denying his
motion for substitution as well as another order concerning

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 On March 20, 2020, the probate court entered an order and
judgment modifying the Trust distribution order in conformance
with our ruling in Andersen IV. Profita filed a notice of appeal
from that ruling on May 19, 2020, which he stated was “for the
purpose of challenging” the probate court’s ruling on the motion
for substitution.
DISCUSSION
I. Appealability
“It is well established that ‘[a]ppeals which may be taken
from orders in probate proceedings are set forth in . . . the
Probate Code, and its provisions are exclusive.’” (In re Estate of
Stoddart (2004) 115 Cal.App.4th 1118, 1125-1126; see also
Kalenian v. Insen (2014) 225 Cal.App.4th 569, 575.) “‘There is no
right to appeal from any orders in probate except those specified
in the Probate Code.’ [Citation.]” (In re Estate of Stoddart,
supra, 115 Cal.App.4th at p. 1126.)
Section 904.1, subdivision (a)(10) of the Code of Civil
Procedure permits the appeal of orders “made appealable by the
Probate Code.” Probate Code sections 1300 and 1304 govern
appealability in trust cases. Probate Code section 1300
authorizes appeals from orders “[d]irecting, authorizing,
approving, or confirming the . . . conveyance or exchange of
property” and those “[d]irecting or allowing payment of a debt,

discovery issues. After obtaining further briefing from the
parties, we issued on May 21, 2020 an alternative writ ordering
the probate court to either vacate the discovery order or show
cause why a peremptory writ of mandate should not issue. We
denied Profita’s writ petition “[w]ith respect to the challenge to
the February 27, 2020 order denying petitioner’s motion to
substitute as a party in the case” for “failure to establish
entitlement to extraordinary relief

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claim, or cost.” (Prob. Code, § 1300, subds. (a), (d).) Probate Code
section 1304 authorizes appeals from most final orders made
under section 17200 of the Probate Code, including those
“determining to whom property shall pass or be delivered upon
final or partial termination of the trust.” (Prob. Code, §§ 1304,
17200, subd. (b)(2).) The distribution order from which Profita
filed his notice of appeal is appealable under these provisions.
Profita challenges only the order denying his motion to
substitute, however; he represents that the March 20, 2020
distribution order itself is “satisfactory” to him. He represents,
and we agree, that he may challenge the order denying
substitution in this fashion. Where the Probate Code lacks a
specific rule on a procedural issue, “the rules of practice
applicable to civil actions, . . . apply to, and constitute the rules of
practice in, proceedings under” the Probate Code. (Probate Code,
§ 1000, subd. (a).) The rules of practice applicable to civil appeals
generally state that “[u]pon an appeal pursuant to [Code of Civil
Procedure] Section 904.1 or 904.2, the reviewing court may
review the verdict or decision and any intermediate ruling,
proceeding, order or decision which involves the merits or
necessarily affects the judgment or order appealed from or which
substantially affects the rights of a party,” if the intermediate
ruling at issue was not one “from which an appeal might have
been taken.” (Code Civ. Proc., § 906.) The order denying
substitution is an intermediate ruling that necessarily affects the
final distribution order from which Profita appealed. It also is
not listed as an appealable order under Probate Code sections
1300 or 1304; although it has the effect of determining to whom
property shall pass, it is not a final order under Probate Code
section 17200. We accordingly conclude that Profita may

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challenge the order denying the substitution motion via his
appeal of the distribution order.
II. Merits
Profita argues that the probate court “erroneously denied
Profita’s right to proceed in his own name as real party in
interest.” He contends the probate court abused the discretion
provided by Code of Civil Procedure section 368.5 in two ways.
First, it ruled arbitrarily by denying the motion “with no
rationale and only the vague assertion of ‘discretion’ under” Code
of Civil Procedure section 368.5. Profita asserts that the court
“offered no explanation for denying the motion except that [it]
‘didn’t see the need’ and had ‘discretion’ to allow the action to
proceed in Hunt’s name.”
Profita has not provided a sufficient record for us to
determine whether the probate court exercised its discretion
arbitrarily. “‘A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to
support it on matters as to which the record is silent, and error
must be affirmatively shown.’” (Denham v. Superior Court (1970)
2 Cal.3d 557, 564, italics omitted.) We thus presume that the
probate court articulated appropriate reasons for denying the
motion at the hearing, for which Profita has failed to provide a
reporter’s transcript. “The absence of a record concerning what
actually occurred at the hearing precludes a determination that
the court abused its discretion.” (Wagner v. Wagner (2008) 162
Cal.App.4th 249, 259.)
Second, Profita contends the probate court erred because it
misunderstood the scope of its discretion. In his view, the
discretion afforded trial courts by Code of Civil Procedure section
368.5 runs in only one direction: it vests the court with discretion

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to allow the litigation to continue in the name of the original
plaintiff, but not the discretion to deny a real party the ability to
proceed in his or her own name. He thus asserts that he has an
“absolute right to proceed in his own name” as a matter of law.
We disagree.
As we stated in Andersen IV, Code of Civil Procedure
section 368.5 “gives trial courts the discretion to allow litigation
to continue in the name of the original party rather than
substitute the transferee.” (Andersen IV). Nothing in the statute
suggests that the discretion it affords runs in only one direction.
To the contrary, it states that the action “may be continued in the
name of the original party, or the court may allow the person to
whom the transfer is made to be substituted in the action or
proceeding.” (Code Civ. Proc., § 368.5.) We are not persuaded
otherwise by the authority Profita cites.
In Hearn Pacifica Corp. v. Second Generation Roofing, Inc.
(2016) 247 Cal.Ap.4th 117, 134-135, the appellate court held that
a trial court abused its discretion in denying a request for
substitution when the effect of doing so was to permit an insurer
to avoid liability on a judgment. The court explained that Code of
Civil Procedure section 368.5 “was not meant to be used as a
shield,” and, moreover, that the trial court “gave no reason to
continue the action solely in Hearn’s name.” (Id. at p. 134.) We
presume the court gave an appropriate reason for denying the
motion here, and nothing in the record suggests that Andersen
and Brandt may avoid the liability imposed upon them by the
distribution order by virtue of the substitution order. Profita
recognized this below: “assignment and substitution have no
effect on prior proceedings, or on this court’s duty on remand, or
on the petitioner’s [sic] liability.”

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 Pepper v. Superior Court (1977) 76 Cal.App.3d 252 (Pepper)
is also distinguishable. Pepper, a country club member, filed a
class action against the club, alleging that its membership
transfer fees were illegal. Pepper’s counsel also belonged to the
country club, and the club successfully moved to disqualify him
from the action. (Pepper, supra, 76 Cal.App.3d at pp. 257-258.)
Pepper died during the course of the litigation, and his will
named the previously disqualified attorney as his executor. (Id.
at p. 258.) When the attorney, acting in the capacity of executor,
filed a request for default, the country club filed an order to show
cause seeking to hold the attorney in contempt for violating the
order that he not participate in the proceedings. (Ibid.) The trial
court dismissed the order to show cause but also struck the
request for default and prohibited the attorney from appearing in
his capacity as executor. (Ibid.) The attorney sought writ relief,
which the appellate court granted. It held that former Code of
Civil Procedure section 385, though “phrased in permissive
terms,” gave the personal representative of a deceased party the
absolute right to be substituted into an action. (Id. at pp. 260-
261.)
Former Code of Civil Procedure section 385 does not control
here. Its provisions have been “restated in Sections 368.5
(transfer of interest in pending action), 375 (effect of disability on
pending action), 377.21 (continuation of pending action), 377.31
(continuation of pending action commenced by decedent), and
377.41 (continuation of pending action against decedent).” (22
Cal. L. Rev. Comm. Reports 895 (1992).) Section 368.5, which is
the relevant provision here because Profita sought substitution
pursuant to the Grant and Assignment, retains the permissive
language of former Code of Civil Procedure section 385. Profita

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points to Code of Civil Procedure section 377.31, which states
that “the court shall allow a pending action or proceeding that
does not abate to be continued by the decedent’s personal
representative,” but he ignores the statute’s introductory
language restricting its application to motions made “after the
death of a person who commenced an action or proceeding.” (Code
Civ. Proc., § 377.31.) Hunt was named as a respondent when the
instant proceedings began nearly 15 years ago; she did not
commence them. Neither section 377.31 nor Adams v. Superior
Court (2011) 196 Cal.App.4th 71, 79, which concerns it, is
applicable.
DISPOSITION
Affirmed. Because respondents did not appear in this
appeal, no costs are awarded.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

MANELLA, P. J.

CURREY, J.

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