Key v. Tyler CA2/2

Filed 8/31/21 Key v. Tyler CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

SARAH PLOTT KEY, B298739

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP131447)
v.
ORDER MODIFYING OPINION
ELIZABETH PLOTT TYLER,
Individually and as Trustee, etc., [NO CHANGE IN JUDGMENT]

Defendant and Respondent.

THE COURT:

It is ordered that the opinion filed herein on August 30,
2021, be modified as follows:

On page 31, first line of the second paragraph under
heading 5, add the word “court,” so the sentence reads:
 After briefing and argument, the probate court ordered
payment of Tyler’s attorney fees from the Trust.

There is no change in the judgment.

NOT TO BE PUBLISHED.

LUI, P. J. ASHMANN-GERST, J. HOFFSTADT, J.

2
Filed 8/30/21 Key v. Tyler CA2/2 (unmodified opinion)
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 TWO

SARAH PLOTT KEY, B298739

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BP131447)
v.

ELIZABETH PLOTT TYLER,
Individually and as Trustee, etc.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of Los
Angeles County. David J. Cowan, Judge. Affirmed.
Grignon Law Firm, Margaret M. Grignon, Anne M.
Grignon; Wershow & Cole and Jonathan A. Wershow for Plaintiff
and Appellant.
Magee & Adler, Eric R. Adler; Murphy Rosen, Paul D.
Murphy and Daniel N. Csillag for Defendant and Respondent.
_________________________________
 Sarah Plott Key (Key) appeals from an order of the probate
court following a trial on Key’s objections to a trust accounting.
The accounting was provided by Key’s sister, respondent
Elizabeth Plott Tyler (Tyler), for the time that Tyler was the
trustee of the trust. Tyler, Key and another sister, Jennifer Plott
Potz (Potz) are the beneficiaries of the trust (Trust), which their
parents (Thomas and Elizabeth Plott) established before they
died.1
We have decided two prior appeals in this case concerning
issues relating to the Trust. In the first, we affirmed a prior
decision of the probate court (Judge Goetz) finding a 2007
amendment to the Trust (2007 Trust Amendment) invalid
because Tyler procured it through undue influence. (Key v. Tyler
(June 27, 2016, B258055) [nonpub. opn. (Key v. Tyler I).) In the
second, we reversed a subsequent order by Judge Cowen granting
Tyler’s motion to strike a petition by Key under the anti-SLAPP
statute (Code Civ. Proc., § 425.16). (Key v. Tyler (2019) 34
Cal.App.5th 505 (Key v. Tyler II).) Key’s petition sought to
enforce the Trust’s no contest provision based on Tyler’s judicial
defense of the invalid amendment.
In the proceeding leading to this appeal, Key claimed in her
objections to Tyler’s accounting that Tyler had engaged in self-
dealing and malfeasance as a trustee during the approximately
two years she actively served in that role. Key challenged
various payments the Trust made to Tyler and to Tyler’s law
firm, claiming those payments were the result of conflicts of
interest and Tyler’s breach of her fiduciary duties. Tyler claimed

1Because of the similarity in family names, we refer to the
parents as Thomas and Elizabeth.

2
that the payments were actually authorized prepayments of legal
fees and other appropriate loans.
Tyler’s debts to the Trust were the subject of an audit by an
accounting firm, BDO Siderman (BDO), that the probate court
ordered. BDO’s report confirmed that Tyler’s accounting was
accurate, and that Tyler owed the Trust over $5 million. Before
the trial on Key’s objections, Tyler agreed to repay that amount,
and then agreed during trial to pay some additional amounts.
Thus, the trial primarily concerned Key’s claim that Tyler was
liable for statutory penalties in addition to the amounts that
Tyler conceded she owed. After an 11-day trial, the probate court
denied Key’s claims that Tyler had breached her fiduciary duties
and ordered Tyler to repay to the Trust only those amounts that
she had already agreed to pay, plus interest.
Key makes a number of arguments on appeal that
challenge the manner in which the probate court conducted the
trial. We find no reversible error.
Key’s primary argument is that the probate court failed to
give collateral estoppel effect to findings that Judge Goetz made
in her ruling finding the 2007 Trust Amendment invalid (the
Invalidity Ruling). Key forfeited that argument by failing to
present it adequately below. The remainder of Key’s arguments
largely concern evidentiary rulings and other discretionary
decisions that the probate court made concerning the conduct of
the trial and the exercise of its equitable powers. For the reasons
discussed below, we conclude that the court acted well within its
discretion with respect to each of these rulings. We therefore
affirm.

3
 BACKGROUND2
1. The Trust
Thomas and Elizabeth owned a successful nursing home
business. That business (the Business) was a major asset of the
Trust, which Thomas and Elizabeth created in 1999.
Thomas died in 2003. After his death, Elizabeth became
the sole trustee of the Trust.
Elizabeth depended upon Tyler for the operation of the
Business. Tyler’s law firm, Tyler & Wilson, provided legal
services to the Business, and Tyler assisted Elizabeth in the
operation of the Business.
Using her influence over her mother, Tyler procured her
mother’s purported consent to the 2007 Trust Amendment, which
left the bulk of the assets of the Trust to Tyler and effectively
disinherited Key.
Elizabeth died on June 27, 2011. After her death, Tyler
became the trustee of the Trust. Tyler remained trustee until
September 2013, when the probate court suspended her from that
role and appointed two third party trustees in her stead (the
Interim Trustees). Tyler retained authority only to manage the
day-to-day affairs of the Business. A year later the probate court
ordered Tyler removed as trustee for all purposes and directed
that she no longer be employed by the Business as of January
2015.
On November 21, 2014, the probate court approved the sale
of the Business. The sale was completed on December 31, 2014.

2 Background facts concerning the parties and the Trust
are summarized in our two prior opinions. We therefore only
briefly discuss them here.

4
2. Prior Proceedings
Key filed a petition to invalidate the 2007 Trust
Amendment on the ground of undue influence, which Judge
Goetz granted on April 25, 2014. Judge Goetz’s Invalidity Ruling
contained a 67-page, detailed summary of the evidence and the
court’s factual findings. Tyler appealed, and we affirmed in Tyler
v. Key I, supra, B258055.
After that ruling, Key filed a petition seeking to enforce the
Trust’s no contest clause against Tyler on the ground that Tyler
defended the validity of the 2007 Trust Amendment against Key’s
petition without probable cause (No Contest Petition). Tyler
responded with a motion to strike under the anti-SLAPP statute.
The probate court granted that motion.
We reversed in Key v. Tyler II, supra, 34 Cal.App.5th 505.
In doing so, we held that Key had demonstrated a probability of
success on her No Contest Petition based upon Judge Goetz’s
findings in the Invalidity Ruling, which are binding under the
doctrine of collateral estoppel. (Id. at pp. 535–540.)
3. Proceedings on Tyler’s Accounting
Tyler filed an initial accounting for the Trust on March 1,
2013. That accounting concerned the period June 27, 2011, to
June 30, 2012. Key objected to the accounting on a number of
grounds, including that Tyler had allegedly breached her duty of
loyalty based upon claimed conflicts of interest.
In light of disputes concerning the accuracy of the
accounting, the probate court ordered an audit by BDO. After its
audit, BDO issued an extensive report on September 22, 2015.
The report noted “no exceptions” to the “validity, accuracy and
completeness” of the financial records in the accounts that it
reviewed.

5
 Tyler and Potz agreed to accept the BDO report in lieu of
any further accounting by Tyler. However, Key did not agree and
requested a further accounting. The probate court therefore
ordered Tyler to file an updated accounting.
In response to the court’s order, Tyler filed an additional
accounting on January 6, 2017, concerning her entire time as
trustee. Key objected.
Among other things, Key’s objections alleged that Tyler
“committed breaches of trust, breached her fiduciary duty,
engaged in self-dealing and wasted Trust assets.” The objections
identified specific conduct that Key claimed was improper,
including (1) prepaid legal fees by the Trust to Tyler & Wilson;
(2) payments to an insurance company, TEP, which Key alleged
Tyler started with Trust funds to insure Tyler & Wilson;
(3) converting bank accounts belonging to Elizabeth to joint
accounts for Tyler’s own use; (4) excessive compensation;
(5) failure to make payments on a mortgage loan to Tyler from
the Trust and failure to foreclose on that loan on behalf of the
Trust; and (6) alleged irregularities in expense reimbursements
and the personal use of a Business American Express card. Key
sought an order surcharging Tyler for the amounts she owed as
well as double damages under Probate Code section 859 and
attorney fees.3
Key also filed a separate petition against Tyler alleging a
broad scheme to “loot the Trust” (Third Amended Petition). The
Third Amended Petition alleged claims based upon Tyler’s
exercise of undue influence over Elizabeth in obtaining the 2007

3Subsequent undesignated statutory references are to the
Probate Code.

6
Trust Amendment, and also alleged breaches of Tyler’s fiduciary
duties as trustee. In addition to allegations that Tyler breached
her duty of loyalty, the Third Amended Petition alleged that
Tyler mismanaged the Business, causing losses. The Third
Amended Petition also sought double damages against Tyler
under section 859.
Because of the overlap in issues raised by the objections to
Tyler’s accounting and in Key’s Third Amended Petition, the
parties stipulated that trial should proceed first on Tyler’s
accounting, followed by a separate trial on “all issues in Key’s
Third Amended Petition and any other currently pending
petition” that was “not otherwise resolved” by the accounting
trial (Accounting Trial). The parties also agreed on a joint
statement identifying the issues for the Accounting Trial.
As part of the joint statement, Tyler agreed that she was
responsible to repay to the Trust all those amounts that the BDO
report identified as her obligations. Those obligations included:
(1) prepaid legal fees and other receivables due from Tyler &
Wilson; (2) amounts due on Tyler’s mortgage loan; (3) amounts
due on various other loans; and (4) Tyler’s American Express
charges. Tyler also agreed to accept some additional obligations,
including an agreement to pay to the Trust the money in the joint
accounts with Elizabeth and to repay costs and interest on
another loan. As a result of this agreement, before the trial Tyler
had already accepted the responsibility to pay the Trust over $5.5
million.
Key disputed some of the amounts of Tyler’s obligations,
and also claimed that Tyler had breached her duties as trustee in
incurring the debts that she owed. She therefore sought double
damages under section 859.

7
4. The Probate Court’s Ruling
Trial took place over 11 days in June 2018. Following
posttrial briefing, including the opportunity to object to the
court’s proposed statement of decision, the probate court issued a
final statement of decision on February 25, 2019 (Statement of
Decision).
In its Statement of Decision, the court overruled Key’s
objections to the accounting and approved the accounting subject
to additional concessions that Tyler made before and during the
trial concerning the amounts that she owed. The additional
concessions consisted of Tyler’s agreement to repay over $400,000
that TEP had paid on the insurance policy for Tyler & Wilson and
to increase the amount that she owed for the joint accounts with
Elizabeth by about $150,000.
The court rejected Key’s breach of fiduciary duty
allegations. The court found that “there was an insufficient
showing that Tyler breached her duty of loyalty to Objectors.
Although Tyler did have various conflicts . . . Objectors failed to
show how those conflicts were impermissible, how Tyler took
wrongful advantage of those conflicts or how those conflicts made
a material difference to Objectors—keeping in mind the
concessions that Tyler made.” The court also rejected Key’s
request for double damages under section 859, finding that “there
was no evidence of improper conduct by Tyler sufficient to
warrant” such damages.
With respect to Key’s specific allegations of misconduct, the
court found that: (1) the prepaid legal fees to Tyler & Wilson (the
Advances) were approved by Elizabeth and Terry Steege (the
financial officer for the Business) and were an appropriate part of
a “larger business plan” through which the Business and the

8
Trust profited;4 (2) Tyler’s compensation was reasonable; and
(3) although there were conflicts associated with the relationship
among the Trust, Tyler & Wilson, and TEP, Tyler provided
satisfactory explanations and there was “appropriate legal,
business and other independent advice relating to establishing
TEP.” The court reserved Key’s allegation that Tyler
mismanaged the Business for subsequent determination along
with other allegations of wrongdoing in Key’s Third Amended
Petition.
The court expressed its frustration with the need for the
trial: “Ultimately . . . the relatively minor issues that either
Tyler acknowledged responsibility for and/or were decided at trial
did not require the huge expense and time involved in preparing
for and then conducting this lengthy trial on what was primarily
Key’s objections to the accounting. . . . [¶] The minimal evidence
Key presented at trial showed that it was unnecessary for Key to
have insisted upon Tyler’s Accounting so as to have justified her
objections.”

4 Key contends that the probate court erred in finding that
Elizabeth approved the prepayment of legal fees because Judge
Goetz found in her Invalidity Ruling that Tyler pressured
Elizabeth into paying Tyler & Wilson’s invoices. As discussed
further below, this issue illustrates the problem with Key’s
failure in the probate court to identify particular findings from
the Invalidity Ruling that she claimed foreclosed specific issues
in the Accounting Trial.

9
 DISCUSSION
1. Key Forfeited Her Collateral Estoppel
Argument
Key argues that the probate court erroneously permitted
issues to be relitigated that had already been decided in
proceedings concerning the 2007 Trust Amendment (Invalidity
Proceedings). Key relies on findings in the Invalidity Ruling in
claiming that collateral estoppel precluded relitigation of
identical issues in the Accounting Trial.
We agree that the doctrine of collateral estoppel may
preclude relitigation of issues that were previously decided in the
Invalidity Proceedings. We so held in Key v. Tyler II. (See Key v.
Tyler II, supra, 34 Cal.App.5th at pp. 534–536.) But the benefits
of that doctrine may be forfeited. (See Franklin Mint Co. v.
Manatt, Phelps & Phillips, LLP (2010) 184 Cal.App.4th 313, 332
(Franklin Mint) [“ ‘[C]ollateral estoppel must be proved [in the
trial court] or it is waived’ ”], quoting Jordan v. Consolidated
Mut. Ins. Co. (1976) 59 Cal.App.3d 26, 45; County of Yolo v.
Francis (1986) 179 Cal.App.3d 647, 655, fn. 11 [“unless properly
raised in the trial court by pleading or evidence, the defense of
collateral estoppel is waived”].) And it is the burden of the party
who seeks to preclude litigation of an issue to show that the
requirements of collateral estoppel have been met. (Lucido v.
Superior Court (1990) 51 Cal.3d 335, 341 (Lucido).)5

5 To establish that collateral estoppel precludes litigation of
a particular issue, the moving party must show that: (1) the
issue the moving party seeks to preclude is identical to that
decided in a former proceeding, (2) the issue was actually
litigated and (3) necessarily decided in that proceeding, and

10
 This is consistent with the general rule that a party may
not raise an issue on appeal that the party did not first raise in
the trial court. That rule is based on fairness to the trial court
and to opposing litigants. (Key v. Tyler II, supra, 34 Cal.App.5th
at p. 533; Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4
Cal.App.5th 982, 997.) “The fundamental rule that a reviewing
court does not consider arguments or theories that could have
been but were not raised below ‘is especially applicable to the
doctrine of estoppel, which includes factual elements that must
be established in the trial court.’ ” (Rogers v. County of Los
Angeles (2011) 198 Cal.App.4th 480, 490, fn. 6, quoting Honig v.
San Francisco Planning Dept. (2005) 127 Cal.App.4th 520, 530.)
a. Arguments in the probate court
Key did not adequately raise the issue of collateral estoppel
in the probate court. Indeed, Key has not cited to anything in the
record showing that she argued the issue at all before the trial
court issued its Statement of Decision.
Key’s pretrial filings did not argue that any issues should
be foreclosed under the doctrine of collateral estoppel. Key’s trial
brief recited a list of findings about Tyler’s conduct from the
Invalidity Proceedings, but suggested only that the conduct
“should be kept in mind in analyzing [Tyler’s] conduct as
trustee.” Key also filed a short request for judicial notice of the
Invalidity Decision and this court’s opinion in Key v. Tyler I. But
Key’s request did not state why Key was requesting judicial
notice, or how she expected the probate court to use these

(4) the decision in the former proceeding is final and was on the
merits. (Lucido v. Superior Court, supra, 51 Cal.3d at p. 341; see
Key v. Tyler II, supra, 34 Cal.App.5th at p. 534.)

11
documents. Tyler’s opposition did not object to judicial notice of
the documents themselves, but correctly pointed out that judicial
notice is not a mechanism to establish the truth of facts asserted
in prior judicial rulings or opinions. (See Kilroy v. State of
California (2004) 119 Cal.App.4th 140, 146–150 (Kilroy).)
Key also did not mention the doctrine of collateral estoppel
when the court and the parties discussed the reason for Key’s
request for judicial notice before trial. On the first day of trial,
the court explained, correctly, “I think that I cannot take judicial
notice of the underlying facts, necessarily, except to the extent
perhaps, that they have been ruled on, and conclusions that were
tried in that case.” Instead of responding with an argument
concerning the collateral estoppel effect of the Invalidity
Decision, Key’s counsel argued the doctrine of law of the case:
“[T]he court, I think, is required to take judicial notice of the
existence of orders. To simply have law of the case, findings of
fact, conclusions of law, those would be part of the record, and it
would not be proper for the court to allow evidence to contradict
those. [¶] . . . [I]t may be that we’ll have to use evidence of some
of this as it applies to matters not directly ruled upon at the time
of the last trial, but as for the findings and conclusions of law, I
believe it, as the law of the case, we’re all bound by them.”
The court then questioned the legal effect of the prior
ruling with respect to factual findings: “I don’t think I’m going to
hear much opposition to my taking judicial notice of conclusions
of law. It’s the findings of fact that it gets a little trickier.” In
response, Key’s counsel suggested that they defer the issue: “We
may have to take them on a question-by-question basis as they
arise, rather than trying to come up with some scheme in
advance to try and control it, because we don’t know until we get

12
into this trial what questions will be asked, what answers we will
get, and what statements we can take from Ms. Tyler’s testimony
in prior proceedings, or Mr. Steege’s testimony in prior
proceedings, and use them in these proceedings.”
Thus, rather than arguing that particular issues in the case
were precluded under collateral estoppel, Key’s counsel suggested
that they might use particular testimony from the prior
proceeding during the trial. After some further discussion of the
significance of taking judicial notice, the court agreed with the
proposal by Key’s counsel to “deal with this, not as a scheme, but
that we deal with this issue by issue, fact by fact, because things
may change, in terms of what the facts are.”
Key cites only one instance in which she then actually
objected during trial on the ground that evidence should not be
introduced based on the Invalidity Decision. Key moved to strike
testimony by Tyler during examination about a reduction in the
interest on her mortgage loan from 6 percent to 3 percent. Tyler’s
testimony concerned a statement by her father when he declined
Tyler’s offer of an interest payment on her mortgage. Tyler
testified that her father handed Tyler’s proffered check back to
her and said, “ ‘You don’t need to do this anymore,’ ” and “ ‘The
house will be yours when I die.’ ” Key objected on the ground
that this was testimony “regarding [Thomas’s and Elizabeth’s]
intent, which was already decided and litigated in the 2007
amendment regarding this particular issue as res judicata and
collateral estoppel and is in the statement of decision that there
was no evidence presented of their intent regarding this loan
during that trial.” The court denied the motion.
Thus, Key’s one objection during trial, while vaguely
referring to “res judicata” and “collateral estoppel,” did not

13
mention any previously decided issue, but instead suggested that
there was no evidence concerning the subject of the testimony
during the prior trial.6
Key cites statements in her posttrial filings that, as in her
trial brief, generally referred to findings in the Invalidity Ruling,
but without any argument that those findings should be given
effect under the doctrine of collateral estoppel. Nor did those
references identify specific rulings from the Invalidity Ruling
that decided the same issues that were at stake in the Accounting
Trial.
It was not until Key’s motion for a new trial that she
identified particular findings from the Invalidity Ruling that she
claimed should have been given preclusive effect under the
doctrine of collateral estoppel.
b. Legal consequences of Key’s failure to
argue the doctrine or its elements
Raising collateral estoppel in a new trial motion is too late
to preserve the issue for appeal. (Dillard v. McKnight (1949) 34
Cal.2d 209, 217.) Key’s general references to the claimed
preclusive effect of findings in the Invalidity Ruling before the
probate court issued its final Statement of Decision also were not
sufficient to preserve the issue.
First, Key never adequately addressed the doctrine itself.
One passing mention of collateral estoppel in a single objection
during trial was not enough to inform the court of how that

6 The objection apparently referred to a comment in Judge
Goetz’s Invalidity Ruling stating that “[Tyler] has an unpaid loan
made to her by her parents in the amount of $1,800,000 with an
original interest rate of 6% that is now 3%. No evidence was
introduced to document the reduction in interest rates.”

14
doctrine might apply to this case. Key’s arguments that findings
from the Invalidity Proceeding could be judicially noticed or were
controlling under the doctrine of law of the case, and arguments
that evidence from the prior proceeding should be considered,
also were not sufficient to apprise the court that it needed to
consider and rule on the issue of collateral estoppel.
Judicial notice, law of the case, and collateral estoppel are
distinct doctrines with different elements. Judicial notice enables
a court to accept facts that are not subject to reasonable dispute.
As discussed above, that doctrine does not extend to factual
findings in judicial opinions. (See Kilroy, supra, 119 Cal.App.4th
at pp. 148–149 [plaintiffs did not preserve the issue of collateral
estoppel for appeal by arguing incorrectly that the trial court
could judicially notice factual findings in a prior judicial
opinion].) And law of the case refers to the principle that “ ‘[t]he
decision of an appellate court, stating a rule of law necessary to
the decision of the case, conclusively establishes that rule and
makes it determinative of the rights of the same parties in any
subsequent retrial or appeal in the same case.’ ” (Morohoshi v.
Pacific Home (2004) 34 Cal.4th 482, 491, quoting 9 Witkin, Cal.
Procedure (4th ed. 1997) Appeal, § 895, p. 928.)
As its name implies, the law of the case doctrine extends
only to principles of law that an appellate court decides. In a
retrial, the established law must then be applied to the evidence
that is introduced during that trial. (People v. Barragan (2004)
32 Cal.4th 236, 246 (Barragan).) “Thus, during subsequent
proceedings in the same case, an appellate court’s binding legal
determination ‘controls the outcome only if the evidence on
retrial or rehearing of an issue is substantially the same as that
upon which the appellate ruling was based.’ ” (Ibid., quoting

15
People v. Mattson (1990) 50 Cal.3d 826, 850.) However, “[w]here,
on remand, ‘there is a substantial difference in the evidence to
which the [announced] principle of law is applied, . . . the
[doctrine] may not be invoked.’ ” (Barragan, at p. 246, quoting
Hoffman v. Southern Pac. Co. (1932) 215 Cal. 454, 457.)
Under the law of the case doctrine, this court’s prior
opinion in Key v. Tyler I established the legal principle that the
evidence in the Invalidity Proceeding was sufficient to support
the probate court’s ruling that Tyler exercised undue influence
over her mother in obtaining the 2007 Trust Amendment. It did
not establish that Tyler necessarily breached her fiduciary duties
when she became a trustee four years later, or that Elizabeth
failed to give valid consent to any prior or subsequent actions
that Tyler took. Key’s failure to apprise the probate court of the
correct legal doctrine to analyze the binding effect of findings in
the Invalidity Proceeding precludes her from arguing that the
trial court erred in considering the evidence that the parties
presented at the Accounting Trial.7

7 In the context of the preclusion doctrines that Key
actually argued, the trial court’s ruling concerning the effect of
factual findings from the Invalidity Proceeding was entirely
correct. The court correctly explained in its Statement of
Decision that “[r]equests for judicial notice are not a substitute
for putting on evidence.” Similarly, the court also correctly noted
that the law of the case doctrine “does not relieve a party from
putting on evidence necessary for its case.” The court’s general
statement that prior findings from the Invalidity Proceeding did
“not establish facts for different purposes at a later trial” was also
correct, as far as it went. (Italics added.) Given Key’s failure to
argue the elements of collateral estoppel, the probate court

16
 Second, even if Key had adequately invoked the collateral
estoppel doctrine, Key never showed how the findings in the
Invalidity Ruling met the elements of the doctrine. It was Key’s
burden to establish each of those elements. (Franklin Mint,
supra, 184 Cal.App.4th at p. 332.) That burden is a heavy one
because “ ‘ “the law does not favor estoppels.” ’ ” (Kemp Bros.
Construction, Inc. v. Titan Electric Corp. (2007) 146 Cal.App.4th
1474, 1482, quoting People v. Garcia (2006) 39 Cal.4th 1070, 1092
(conc. & dis. opn. of Chin, J.).) To adequately preserve the issue
of collateral estoppel for appeal, Key should have identified
particular issues that Judge Goetz decided in the Invalidity
Proceeding and explained how those issues foreclosed
reconsideration of the same issue in the Accounting Trial. (See
Franklin Mint, at p. 332 [finding waiver even though a party
“made references to the collateral estoppel effect” of a prior case
where the party “did not identify the elements of collateral
estoppel, let alone attempt to apply the facts of the case to those
elements”].)8
That showing was particularly important at the Accounting
Trial because, as the probate court repeatedly noted, the issues
involved in that trial were different from the issues in the
Invalidity Proceeding. The Invalidity Proceeding concerned

cannot be faulted for not stating the corollary principle that prior
findings on the same issue should be given binding effect.
8 Key has set forth a number of such arguments in her
reply brief on appeal. Entertaining those detailed arguments for
the first time on appeal would be highly unfair to the probate
court, which never had an opportunity to consider such a showing
before deciding the facts based on the evidence that the parties
presented at trial.

17
specific conduct by Tyler that unduly influenced her mother to
agree to the 2007 Trust Amendment.9 The Accounting Trial

9 In the Invalidity Ruling, Judge Goetz did make some
findings concerning facts that could have been relevant to the
probate court’s decision in the Accounting Trial. For example, in
explaining Tyler’s relationship with her mother, Judge Goetz
found that in 2004 Tyler “used her position to gain [Elizabeth’s]
compliance in certain ways, e.g., not putting a cap on Tyler &
Wilson’s legal fees, and pressuring [Elizabeth] to sign checks for
services provided by Tyler & Wilson when she was in
disagreement with some of the services they were providing
(collecting personnel data).” This finding was based primarily on
an e-mail that Terry Steege, the Business financial officer, sent
in September 2004 describing a conflict between Tyler and
Elizabeth over the amount of Tyler & Wilson’s fees. However,
such factual findings would not necessarily have been binding on
any issue that the probate court actually decided in the
Accounting Trial, much less have changed the outcome of that
decision. That Tyler successfully pressured Elizabeth not to cap
the amount of Tyler & Wilson’s fees in 2004 does not necessarily
mean that Tyler unduly influenced Elizabeth to approve the
Business practice of prepaying the firm’s legal fees for years until
Elizabeth’s death. As the probate court noted, Steege (the author
of the 2004 e-mail) was also aware of the prepayment
arrangement. Steege testified at the Accounting Trial that
Elizabeth never expressed any concern about the “credit balance
outstanding with Tyler & Wilson.” He explained that “we
discussed it and—I mean, [Elizabeth] had definitely a way about
her that she could have made a big stink about that, because
she’s done that in the past, but that was never an issue to her.”
He also testified that Elizabeth never took “any steps to reduce
the prepayments after that process was initiated in 2004.”

18
concerned Tyler’s exercise of her fiduciary duties as trustee years
later, after her mother had died.10

We do not need to decide the precise effect, if any, of Judge
Goetz’s prior findings concerning Tyler & Wilson’s legal fees on
the issues in the Accounting Trial. This example simply
illustrates that details matter. By failing to identify specific
findings from the Invalidity Ruling that she claimed foreclosed
particular issues in the Accounting Trial, Key never gave the
probate court the opportunity to consider these details.
10 In contrast, the issues at stake in Key’s earlier appeal in
Key v. Tyler II were closely related to the issues in the Invalidity
Proceeding. In our opinion in that appeal, we held that Key had
adequately preserved her collateral estoppel argument by
generally arguing in the trial court that Tyler was “estopped”
from denying her exercise of undue influence or claiming that she
had probable cause to defend the 2007 Trust Amendment and by
submitting Judge Goetz’s Invalidity Ruling in support. (Key v.
Tyler II, supra, 34 Cal.App.5th at p. 533 & fn. 14.) In the context
of that appeal, such a showing was sufficient. The appeal
concerned Tyler’s anti-SLAPP motion directed to Key’s No
Contest Petition. The similarity of the issues between the
Invalidity Proceeding and Key’s No Contest Petition meant that
the findings in Judge Goetz’s Invalidity Ruling directly concerned
Tyler’s exercise of undue influence and were highly relevant to
the closely related question of whether Tyler had probable cause
to defend the validity of the 2007 Trust Amendment. And Key’s
task in opposing Tyler’s anti-SLAPP motion was simply to
demonstrate that her No Contest Petition had sufficient merit to
proceed. We, like the trial court, considered that showing
without weighing any evidence or deciding any issues of disputed
fact.
In contrast, here Key argues that the probate court erred in
the evidence it considered and the factual issues that it decided

19
 A specific showing of particular findings from the Invalidity
Ruling that Key claimed determined the same issues in the
Accounting Trial was also particularly important here because of
the nature of Judge Goetz’s ruling. As we noted in Key v. Tyler
II, the Invalidity Ruling consists of a 67-page statement of
decision “containing a detailed collection of findings.” (Key v.
Tyler II, supra, 34 Cal.App.5th at p. 534.) We further explained
that “[n]ot every interpretation of every item of evidence
discussed in Judge Goetz’s description of her findings is
necessarily binding under the doctrine of issue preclusion.”
(Ibid.) Rather, only findings that were “ ‘not . . .
“. . .unnecessary” ’ ” to the court’s decision are binding. (Ibid.,
citing Lucido, supra, 51 Cal.3d at p. 342.) Key could not
reasonably expect the probate court here to sift through the
lengthy and detailed Invalidity Ruling to identify the findings
that might be both binding and relevant to the issues involved in
the Accounting Trial absent specific requests and argument on
the issues by Key.
Third, Key herself proposed a trial procedure that placed
the responsibility on her to identify specific instances in which

at trial based upon a doctrine that Key never explained. To find
that collateral estoppel applied, the probate court would have
needed to consider the similarity between specific issues in the
Invalidity Proceedings and in the Accounting Trial. That would
have required consideration of the facts. In this context, where
Key is seeking retrial on the ground that the probate court
improperly ignored prior factual findings and therefore erred in
ruling on the evidence that it heard, fairness required that Key
do more to bring the doctrine of collateral estoppel to the probate
court’s attention than simply refer generally to the binding effect
of the Invalidity Ruling.

20
the findings from the Invalidity Proceeding arguably precluded
relitigation of issues in the Accounting Trial. As discussed above,
after agreeing to that procedure, during trial she objected only
once on the ground that particular evidence was inconsistent
with issues decided during the Invalidity Proceeding, and on that
occasion her objection actually suggested that the issue at hand
had actually not been decided in the prior proceeding.
The responsibility of a trial court sitting as a trier of fact is
generally to rule based upon the evidence that is presented at
trial. If Key wished the probate court to accept particular issues
as already decided under the doctrine of collateral estoppel, or to
exclude consideration of particular evidence on the ground that it
contradicted a previous finding, fairness to the probate court and
to the other parties required her to do more than simply refer
generally to the prior Invalidity Ruling and expect the court to
apply it to the case at hand. Nor could Key simply assume that
the court’s prior ruling in the Invalidity Proceeding that Tyler
exercised undue influence over her mother in 2007 meant that
Tyler necessarily breached her fiduciary duties years later. Key
failed to bring the doctrine of collateral estoppel to the probate
court’s attention in any meaningful way, and therefore forfeited
the issue.
2. The Trial Court Did Not Err in Considering the
Issue of Tyler’s Good Faith
Key argues that the probate court erred in applying a “bad
faith” standard that was inconsistent with the Trust’s
exculpatory provision and with the Probate Code. Key cites
article 9 of the Trust, which permits trustee liability for “willful
misconduct or gross negligence,” and section 16461, subdivision
(b), which provides that a trust provision may not relieve a

21
trustee of liability for breaches “committed intentionally, with
gross negligence, in bad faith, or with reckless indifference to the
interest of the beneficiary.”
Key’s argument is apparently based on the probate court’s
citation in its Statement of Decision to article 10 of the Trust as
“the standard for the Trustee’s liability for surcharge; bad faith
or willful misconduct.” Key argues that this standard applied
only to decisions made in the operation of the Business and is too
lenient a standard for assessing whether a trustee breached a
duty of loyalty.
We need not consider whether the probate court
misinterpreted the scope of the exculpatory provision in article 10
or misapplied the exculpatory provisions in the Trust. The
court’s Statement of Decision clearly sets forth the probate court’s
finding that “there was no evidence of gross negligence, bad faith
or intentional or willful wrongdoing by Tyler.” Thus, the probate
court found no liability even under the standard that Key urges.
Nor did the probate court err in using a bad faith standard
as a benchmark for analyzing Tyler’s conduct. As the court noted
in discussing Tyler’s agreement to repay the Advances, “the only
reason these [Advances] were still in dispute was due to Key’s
claim that Tyler should also be surcharged for these amounts
over and above already agreeing to pay them; i.e., by way of
double damages, and as to what rate of interest and for what
time period Tyler should pay interest on the Advances.” Key’s
claim for double damages was based on section 859, which
expressly requires a bad faith standard: “If a court finds that a
person has in bad faith wrongfully taken, concealed, or disposed
of property belonging to a . . . trust . . . , the person shall be liable

22
for twice the value of the property recovered by an action under
this part.” (§ 859, italics added.)
As discussed above, before the trial began Tyler had
already agreed to the repayment of almost all the sums that the
court ultimately found Tyler owed to the Trust. Thus, the trial
itself was almost entirely focused on remedy beyond repayment.
In that context, the trial court’s focus on whether Tyler engaged
in bad faith conduct was both logical and appropriate.
We also reject Key’s argument that, in considering the
issue of bad faith, the probate court misapplied the law
concerning breach of the duty of loyalty. Citing Uzyel v. Kadisha
(2010) 188 Cal.App.4th 866 (Uzyel), Key argues that once a
trustee’s self-dealing is shown, the law permits “ ‘no further
inquiry’ ” into the trustee’s good faith to prove a breach of loyalty.
The parties dispute the scope of this “no further inquiry”
standard and whether it precludes consideration of a trustee’s
good faith where the trustee’s conduct is allegedly consistent with
the trustor’s intent. We need not resolve this dispute, as the
probate court was specifically authorized by statute to consider
Tyler’s good faith in deciding what was actually at stake in the
trial—i.e., Tyler’s liability for sums beyond what she had already
agreed to repay.
Section 16440, subdivision (a) sets forth a choice of
remedies “[i]f the trustee commits a breach of trust.”
Subdivision (b) of that section then states that, “[i]f the trustee
has acted reasonably and in good faith under the circumstances
as known to the trustee, the court, in its discretion, may excuse
the trustee in whole or in part from liability under subdivision (a)
if it would be equitable to do so.” (§ 16440, subd. (b), italics

23
added.)11 This section is based on the principle that “ ‘[t]he
remedies of a beneficiary against the trustee are exclusively in
equity.’ ” (Orange Catholic Foundation v. Arvizu (2018) 28
Cal.App.5th 283, 293, quoting section 16421.) “This is
significant, because it means that ‘wide play is reserved to the
court’s conscience in formulating its decrees.’ ” (Orange Catholic
Foundation, at p. 293, quoting Lickiss v. Financial Industry
Regulatory Authority (2012) 208 Cal.App.4th 1125, 1133.)12
The probate court did not mention section 16440,
subdivision (b) in its Statement of Decision. However, the
probate court expressly found that Tyler acted in good faith and
consistent with the settlors’ intent. The probate court also clearly
considered those facts as relevant to whether it should award “a
surcharge against Tyler for assuming roles her parents
contemplated.” Thus, the record shows that the probate court’s
ruling would have been the same whether it considered Tyler’s
good faith as an element of liability or as a factor relating to
remedy.
In addition, as discussed above, section 859 specifically
requires a finding of bad faith to award a statutory penalty,
which was the issue really at stake in the trial. Thus, whether

11 The court in Uzyel acknowledged this provision and
declined to apply it in that case only because the court concluded
it did not apply to “a trustee who acted in bad faith by serving his
own interests.” (Uzyel, supra, 188 Cal.App.4th at p. 906.) Here,
in contrast, the probate court found that Tyler acted in good faith
and not “to the detriment of other beneficiaries.”
12 A similar good faith provision applies to the calculation
of interest on amounts that a trustee owes. (See § 16441, subd.
(b).)

24
the probate court considered Tyler’s good faith as an issue of
liability rather than excuse (and, if so, whether it erred in doing
so) was immaterial to the outcome of the trial. The issue
therefore provides no ground for reversal. (See Cal. Const., art.
VI, § 13; Code Civ. Proc., § 475.)
3. The Probate Court Did Not Abuse Its Discretion
in Excluding Expert Witnesses Concerning the
Applicable Legal Standard
Key argues that the probate court erred in excluding
testimony from several experts concerning the applicable
standard of care. The court excluded that testimony both because
the experts were not prepared to testify about the standard of
care in the Trust itself, which the court concluded was the
applicable standard, and because the experts were not qualified
to offer opinions that would help the court. The court explained
that the experts’ “only tangential qualification was as attorneys
practicing trust litigation. In turn, much of their proposed
testimony pertained to providing an impermissible opinion—on
the ultimate issue which it was solely for the Court to decide in
any event; whether there was a breach of fiduciary duty.”
The probate court’s second stated reason was itself
sufficient to support its decision. Expert testimony is limited to
subjects that are “sufficiently beyond common experience that the
opinion of an expert would assist the trier of fact.” (Evid. Code,
§ 801, subd. (a).) Trial courts have discretion to determine
whether proffered testimony meets this standard, and their
decisions will not be reversed on appeal absent an abuse of that
discretion. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922,
928.)

25
 We find no abuse of discretion here. The proffered experts
would have testified on the proper interpretation and alleged
breach of the standard of care, which was a legal issue for the
court to decide. “ ‘It is thoroughly established that experts may
not give opinions on matters which are essentially within the
province of the court to decide.’ ” (Sheldon Appel Co. v. Albert &
Oliker (1989) 47 Cal.3d 863, 884, quoting Carter v. City of Los
Angeles (1945) 67 Cal.App.2d 524, 528.) Moreover, even if the
experts were qualified to interpret the standard of care, the court
acted well within its discretion in concluding that testimony from
trust litigators would not have been any more helpful to the court
in deciding the legal issues than briefing and argument by the
parties’ counsel.
4. The Probate Court Did Not Abuse its Discretion
in Determining the Scope of the Trial
Key claims that the probate court committed several errors
generally related to its alleged misunderstanding of the scope of
an accounting trial. Specifically, Key argues that the probate
court erroneously: (1) reserved for a later proceeding the issue of
whether Tyler diminished the value of the Business through
alleged mismanagement; (2) limited the relief available to Key;
and (3) limited the evidence concerning Tyler’s alleged
misconduct. We find no prejudicial error with respect to any of
these issues.
a. Bifurcation of issues
The probate court acted well within its discretion in
deciding to reserve for a later hearing Key’s claim that Tyler’s
mismanagement injured the Business. The court based this
decision on the fact that the sale of the Business occurred after
the time period involved in the Accounting Trial. The court

26
reasoned that “any alleged diminution in value of the [Business]
was not something that could be addressed as part of the
Accounting Trial—where this would require comparison to values
during other time periods—and where moreover any proven
diminution in value of this privately held family business would
still not result in an actual loss unless there had been a sale—
which was not during the Accounting Period.” The court did not
preclude Key from pursuing this claim, but simply concluded that
it should be resolved in a future proceeding along with the other
claims asserted in Key’s Third Amended Petition that were not
considered in the Accounting Trial.
Trial courts have wide discretion in deciding the sequence
of issues for trial. (See Code Civ. Proc., § 1048; Evid. Code, § 320;
Grappo v. Coventry Fin. Corp. (1991) 235 Cal.App.3d 496, 504
[“trial courts have broad discretion to determine the order of
proof in the interests of judicial economy”].) Moreover, Key
identifies no prejudice from the trial court’s decision on the order
of proceedings other than the fact that the ruling in the
Accounting Trial might affect or determine some of the issues in
a later trial on the mismanagement claim. As Tyler points out,
that is a complaint that could be made about any bifurcated
proceeding.
Key cites Estate of Howard (1976) 58 Cal.App.3d 250
(Howard) for the proposition that the probate court was required
to resolve all the disputes between Tyler and Key in one
proceeding. The holding in that case does not extend that far.
The probate court in that case entered a final ruling on a trust
accounting after a summary procedure, without taking testimony
and without resolving the beneficiaries’ claims of trustee
misconduct. (Id. at p. 256.) The Court of Appeal reversed,

27
holding the proceeding should have included consideration of all
the controversies between the parties, including the allegations of
misconduct. (Id. at p. 257.)
Howard stands for the proposition that a probate court
must resolve all the disputes raised in objections to an
accounting, including claims of trustee misconduct. But it does
not hold that the probate court must necessarily resolve all those
disputes in one hearing. Such an interpretation would conflict
with the substantial discretion the trial courts enjoy to order
their proceedings.
The probate court’s order here resolved some issues and
specifically reserved others for future determination, including
“Key’s claim that Tyler caused the [Business] to be sold for a
depressed price.” We find no abuse of discretion in the probate
court’s decision to adopt this procedure.
b. Alleged limitation of relief
Key contends that the probate court improperly limited the
relief that she could seek in the Accounting Trial. However, she
does not identify any specific request for relief that the probate
court refused to rule upon.
Key complains that the court declined to consider the loss
in value of the Business. However, as discussed above, the court
did not refuse to consider that claim but simply deferred it for
later determination.
Key also argues that the court erred in its “exclusion of a
section 859 penalty.” But the probate court did not decline to
consider Key’s request for enhanced damages under section 859.
Rather, the court ruled on it. The court’s Statement of Decision
explained that, “[a]lthough the Court questioned whether
damages could be awarded under Probate Code § 859 in this

28
Accounting Trial where liability could not be established under
Probate Code § 850, the Court finds that it does not need to reach
this legal issue. Here, there was no evidence of improper conduct
by Tyler sufficient to warrant double damages under Probate
Code § 859.” Thus, despite its reservations about the procedural
propriety of Key’s section 859 claim, the court decided it. Key has
no basis to object to the ruling, as Key requested in the parties’
pretrial joint statement that the issue be included in the
Accounting Trial. Key may not like the probate court’s ruling,
but the court did not refuse to provide one.
Finally, Key argues that the probate court erred in
“refusing to consider” a statutory penalty for the Advances that
Tyler & Wilson received when Elizabeth was alive and still acting
as trustee. This argument does not concern the probate court’s
failure to consider a particular element of relief, but rather the
court’s decision not to award it.
The probate court explained that “the bulk of the unearned
Advances were made before Tyler became the Trustee” and noted
that “Tyler has never contested her obligation to repay the
unearned Advances, net of credits to [Tyler & Wilson].” The court
also found that the Advances were “known by [Elizabeth] since
2004 or 2005” and were approved by her and financial officer
Terry Steege “for years.” As mentioned, the court concluded that
the Advances were not improper, but were “part of a larger
business plan of [Thomas and Elizabeth], as a result of which the
Plott Trusts and [the Business] profited.” Again, Key may
disagree with these findings, but they do not reflect any improper
limitation on the relief that Key was permitted to pursue at trial.

29
 c. Evidentiary rulings
Key argues that the probate court improperly excluded
expert testimony concerning the loss in value to the Business.
But that ruling was a logical corollary to the probate court’s
decision to leave that issue for later determination. As discussed
above, that ruling was within the court’s discretion.
Key claims that the probate court also prevented her from
introducing evidence concerning events prior to the time period
covered in the Accounting Trial, which improperly limited her
proof of Tyler’s misconduct. Key’s citations to the record do not
support the claim. The probate court was careful to state that it
would not exclude evidence from earlier time periods that was
relevant to the transactions at issue. The court explained that
“we’re going to focus on the acts in the accounting period, not on
what [Tyler] did before, except to the extent it bears on what she
did do during the accounting period.” That was a perfectly
sensible approach to considering whether Tyler breached her
fiduciary duties during the time that she was a trustee. The
court also permitted the introduction of evidence that Key argued
was relevant to bad faith.
Most important, Key does not explain how any particular
items of evidence that she claims the probate court improperly
excluded would have made any difference to the outcome of the
trial. A judgment may be reversed based upon evidentiary
rulings only if those rulings resulted in a “miscarriage of justice.”
(Evid. Code, §§ 353, 354.) This means that erroneous rulings
made a difference in the outcome. (Shaw v. County of Santa Cruz
(2008) 170 Cal.App.4th 229, 282.) Key has not made such a
showing.

30
5. The Probate Court Did Not Abuse Its Discretion
in Awarding Attorney Fees
In its Statement of Decision, the probate court found that
Key “acted subjectively in bad faith” in connection with her
objections to the accounting, and that some of her positions were
“wholly unreasonable.” However, because Tyler made
concessions at trial amounting to more than $500,000, the court
did not find that Key’s objections were “ ‘without reasonable
cause.’ ” The court therefore denied an award of attorney fees
against Key under section 17211, subdivision (a). The court
reserved the issue of allocation of attorney fees against the Trust
and/or the beneficiaries’ respective interests in the Trust for later
determination.
After briefing and argument, the probate ordered payment
of Tyler’s attorney fees from the Trust. The court apportioned
the fees differently for different time periods. For the time period
extending to six months after the issuance of the BDO report, the
court apportioned the fees 15 percent against Tyler’s interest in
the Trust and the remaining 85 percent as an administrative
expense of the Trust. For the remaining time period through the
briefing on Tyler’s fee request, the court apportioned the fees 15
percent against Tyler’s interest, 50 percent of the remaining 85
percent (or about 42 percent of the total) against Key’s interest,
and the remaining 42 percent against the Trust as a whole. The
probate court’s fee order did not explain under what authority the
court ordered the fees.
“Allowance of litigation expenses rests in the sound
discretion of the trial court, whose ruling will not be disturbed on
appeal absent an abuse.” (Whittlesey v. Aiello (2002) 104

31
Cal.App.4th 1221, 1230 (Whittlesey).) We find no abuse of
discretion.
Key argues that, in the absence of any authority for the
attorney fee award in a statute or trust provision, the probate
court’s award is unauthorized and must be reversed. Key claims
that, because the probate court rejected section 17211 as a basis
for the fee award and did not cite any other statutory authority,
the award lacks legal support.
This argument ignores the probate court’s “broad equitable
powers over the trusts within its jurisdiction.” (Hollaway v.
Edwards (1998) 68 Cal.App.4th 94, 99 (Hollaway).) “[W]hen a
trust beneficiary instigates an unfounded proceeding against the
trust in bad faith, a probate court has the equitable power to
charge the reasonable and necessary fees incurred by the trustee
in opposing the proceeding against that beneficiary’s share of the
trust estate.” (Rudnick v. Rudnick (2009) 179 Cal.App.4th 1328,
1335; accord, Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 183.)
The “ ‘underlying principle’ ” that guides the court in deciding
whether to allow payment of attorney fees incident to litigation
out of a trust estate is whether the litigation benefited the trust.
(Whittlesey, supra, 104 Cal.App.4th at p. 1230.)
Key argues that Tyler’s representation in the Accounting
Trial did not benefit the Trust, but benefited only Tyler
personally. Key cites language in Whittlesey stating that
“litigation seeking to remove or surcharge a trustee for
mismanagement of trust assets would not warrant the trustee to
hire counsel at the expense of the trust. Such litigation would be
for the benefit of the trustee, not the trust.” (Whittlesey, supra,
104 Cal.App.4th at p. 1227.)

32
 However, that language in Whittlesey was dicta. Whittlesey
did not concern the defense of a lawsuit seeking to surcharge a
trustee, but rather the unsuccessful defense of a trust
amendment that changed the allocation of trust benefits.
(Whittlesey, supra, 104 Cal.App.4th at p. 1227.) Other cases have
held that the defense of a trustee from charges of malfeasance
may benefit a trust by settling questions about the trustee’s
conduct. (See Hollaway, supra, 68 Cal.App.4th at pp. 99–100
[defense of a trustee benefited the trust as well as the trustee by
“eliminating charges raising serious questions about whether
[the trustee] had and could continue to administer the trust
properly”]; Powell v. Tagami (2018) 26 Cal.App.5th 219, 237
[same].) Settling questions about the propriety of trust
administration can benefit the trust whether or not the
challenged trustee is currently serving in that capacity.
In People ex rel. Harris v. Shine (2017) 16 Cal.App.5th 524,
the court summarized cases that approved or denied attorney
fees charged to a trust. The court noted that courts had awarded
fees to a trustee’s attorneys for successful defense “against a
petition to remove or surcharge the trustee,” and had denied fees
where such a defense was unsuccessful. (Id. at pp. 534–535.)
The court also noted that, where results of a proceeding were
mixed, courts have based a decision to award fees based upon a
trustee’s overall success or have apportioned fees according to the
trustee’s success. (Id. at p. 535.)
Here, Tyler was entirely successful in defending against
Key’s allegations of misconduct and in defeating Key’s requests
for penalties. The probate court also found that, although Key
had reasonable cause to pursue her objections to the accounting,
she “acted subjectively in bad faith in connection with her

33
objections to the Accounting, including in her relentless pursuit
of this litigation both before and at trial.” The court’s
apportionment of the attorney fee award to the various
beneficiary interests in the Trust—including the portions charged
against the separate interests of Tyler and Key—apparently
reflected the probate court’s assessment of individual
responsibility for the litigation that generated the attorney fees.
The court acted within its discretion in apportioning the fees in
this matter.13

13 Key argues that the probate court erred in ordering
immediate payment of the fees despite Key’s appeal pursuant to
its authority to prevent “injury or loss” under section 1310,
subdivision (b). In light of our decision affirming the attorney fee
award, the argument is moot. (See East Bay Regional Park Dist.
v. Griffin (2016) 2 Cal.App.5th 734, 744 [where an order under
section 1310, subdivision (b) grants relief “identical to that of the
underlying order on appeal, the statute effectively deprives an
appellant of his or her right to appeal altogether”].)

34
 DISPOSITION
The probate court’s order is affirmed. Respondent Tyler is
entitled to her costs on appeal.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

35