[00:00:00] Speaker 03:
And we will move on to the second case on the calendar for argument today, and that is Waller versus Rogers, case number 23-16152.

[00:01:18] Speaker 01:
You may proceed.

[00:01:33] Speaker 00:
Good morning, Your Honors.

[00:01:35] Speaker 00:
Taylor Getman on behalf of Appellants.

[00:01:37] Speaker 00:
Danielle Waller.

[00:01:38] Speaker 00:
uh, Susan Spencer and Margaret Harvey.

[00:01:41] Speaker 00:
I'm appearing, uh, on the, in, from Winger, Grabbing, Brubaker, and Jeske, and the partner on this case who's been working it with me is Steve Grabbing.

[00:01:51] Speaker 00:
So I believe and I believe our briefing has thoroughly shown that this case comes down to a lack of fairness.

[00:01:59] Speaker 00:
The court has the district court throughout the process when it granted the motion to dismiss against my clients, overextended several different doctrines and other policies in a manner that just isn't permissible.

[00:02:14] Speaker 03:
Well, counsel, can I, can I just tell you where the heart of my question is here?

[00:02:19] Speaker 03:
isn't so much what the district court did, but how can any federal court step into these issues that were already decided in the probate court?

[00:02:33] Speaker 03:
So maybe you could focus your argument on that because my overarching concern is that

[00:02:40] Speaker 03:
I don't know how we can grant you relief that wouldn't open up the floodgates to collateral challenges to probate decisions.

[00:02:48] Speaker 03:
And that would be a disaster under the law and is not permissible.

[00:02:53] Speaker 03:
So how do we get around that?

[00:02:54] Speaker 01:
And while you're answering Judge Nelson's question, would you also explain why didn't you appeal this question to the District Court of Appeal in California?

[00:03:05] Speaker 00:
Yes.

[00:03:06] Speaker 00:
So first off,

[00:03:10] Speaker 00:
My clients didn't believe that they were going to be

[00:03:14] Speaker 00:
precluded from these claims through that process.

[00:03:18] Speaker 00:
So that process was purely a trustee asking for instructions under probate code 17,200.

[00:03:25] Speaker 00:
And that provision specifically under subsection 20 refuses their standing.

[00:03:31] Speaker 00:
It says that they, acting as creditors, don't have standing.

[00:03:34] Speaker 03:
That can't be correct, because at least some of the beneficiaries here did participate in that action.

[00:03:43] Speaker 00:
Yes, they did earlier in the action.

[00:03:45] Speaker 00:
And at the time when the instructions were being sought, they had already been distributed there.

[00:03:50] Speaker 00:
So two of them were beneficiaries under the spousal trust.

[00:03:55] Speaker 00:
And all three of them were beneficiaries under the family trust.

[00:03:59] Speaker 00:
So the two who were given notice of the instructions under the spousal trust, they

[00:04:08] Speaker 00:
They they had already been given their distribution so arguably they had already lost their standing as beneficiaries in that.

[00:04:16] Speaker 01:
But but aren't they arguing that the funds were coming gold from the spousal trust into the family trust.

[00:04:23] Speaker 00:
Yes, that was their belief.

[00:04:24] Speaker 00:
They had just found out about the Family Trust and they believed and had gone to Ms.

[00:04:28] Speaker 00:
Rogers saying that the funds were commingled and they believed that she hadn't done sufficient that she should have knew or should have known that those funds were commingled, but she didn't adequately.

[00:04:40] Speaker 01:
I take it they're not lawyers, so they were trying to figure this out as lay people.

[00:04:45] Speaker 00:
Yes, and in fact, that's another issue that was going on, which goes to we don't believe that this issue was actually litigated by the probate court.

[00:04:52] Speaker 01:
Let's talk, before you get to that, let's talk about, I mean, they were representing themselves, but nobody was legally trained.

[00:05:01] Speaker 01:
Is that the case?

[00:05:02] Speaker 00:
So Miss Waller had filed an ex-party seeking to continue the hearing so that she had obtained counsel and named him.

[00:05:11] Speaker 00:
And she was seeking to continue that trial and hearing so that her counsel could appear.

[00:05:17] Speaker 00:
But because she had failed to pay the proper filing fees, it was rejected.

[00:05:22] Speaker 00:
And so the court went forward without granting her that counsel.

[00:05:25] Speaker 01:
But hadn't she had like four or five months in order to get counsel before the hearing occurred?

[00:05:31] Speaker 00:
I don't think she had noticed four or five months beforehand.

[00:05:34] Speaker 00:
I may have misread the record.

[00:05:35] Speaker 00:
She wasn't able to get her attorney before that point.

[00:05:38] Speaker 00:
That I understand.

[00:05:39] Speaker 01:
Yeah.

[00:05:40] Speaker 01:
Okay.

[00:05:41] Speaker 01:
All right.

[00:05:42] Speaker 01:
But I'm still not sure you've answered our question about why did your clients not exhaust their appellate remedies before the California Courts of Appeal before coming to federal court?

[00:05:57] Speaker 00:
So their belief was that these issues are completely separate.

[00:06:00] Speaker 00:
So that kind of goes into the Rooker Feldman and issue preclusion.

[00:06:03] Speaker 00:
So the issue in the probate court was instruction saying they don't have to continue looking into the reimbursements and that they could make those reimbursements.

[00:06:12] Speaker 01:
But counsel, if they're wrong under their view of the law, that doesn't save them, does it?

[00:06:18] Speaker 01:
If as laypeople they just didn't understand.

[00:06:22] Speaker 00:
I mean, it would because so

[00:06:28] Speaker 00:
In this case, they're bringing different claims.

[00:06:30] Speaker 00:
This is a breach of fiduciary duty.

[00:06:32] Speaker 00:
This is an adversarial claim.

[00:06:33] Speaker 00:
This is not an identical claim to what those claims were.

[00:06:37] Speaker 00:
So the court did grant permission to disperse those funds and all of that.

[00:06:41] Speaker 00:
That's not what we're, we're not trying to unwind that.

[00:06:46] Speaker 00:
We're saying that there was a breach of fiduciary duty and that Ms.

[00:06:49] Speaker 00:
Rogers should not have even asked the court to

[00:06:54] Speaker 00:
to grant those disbursements because she had not done her proper duties by making sure.

[00:06:59] Speaker 03:
But she asked the probate court to determine whether she had done her proper duties, and the probate court said you had.

[00:07:07] Speaker 03:
So how can we grant you relief without undermining the probate court's decision on that point?

[00:07:12] Speaker 00:
So the probate court found that Miss Waller, my client, had not provided sufficient evidence to find that she hadn't done her due diligence.

[00:07:22] Speaker 00:
hadn't done the proper procedure.

[00:07:24] Speaker 03:
Right, because that was the forum for that evidence to be brought.

[00:07:31] Speaker 00:
Yes, Your Honor.

[00:07:34] Speaker 03:
But that's exactly the problem I'm having is you don't get two bites of the apple where you get to go into probate court and submit some evidence.

[00:07:43] Speaker 03:
And then when you lose, then come back and say, well, now I'm going to challenge it in federal court.

[00:07:49] Speaker 03:
That's the whole concern that we have here.

[00:07:52] Speaker 00:
Well, the issue here is exactly that.

[00:07:55] Speaker 00:
In that case, they didn't have standing as parties to it.

[00:07:58] Speaker 00:
They were just objectors.

[00:07:59] Speaker 00:
So they didn't have the opportunity to conduct any discovery to support their claims.

[00:08:03] Speaker 00:
Wait a second.

[00:08:03] Speaker 01:
Under California law, aren't the beneficiaries of the trust or of an estate are entitled to appear and lodge objections?

[00:08:13] Speaker 01:
Are they not?

[00:08:13] Speaker 00:
They are, but they were not appearing as the beneficiaries of the spousal trust.

[00:08:18] Speaker 00:
They were appearing as beneficiaries, creditors from the family trust.

[00:08:25] Speaker 01:
But does it matter if they're asking essentially the court to disgorge or enter orders of disgorgement returning the funds that have already been distributed to the charities?

[00:08:39] Speaker 01:
So that they can increase the race of the family trust?

[00:08:44] Speaker 00:
So they are permitted to bring that.

[00:08:47] Speaker 00:
In fact, one of the cases that the district court cited to, Osborne versus Griffin, expressly says that any disgorgement claims, so even if there are issues with asking for the funds to be returned, which I understand that that would seem to unwind that, they're allowed to ask for disgorgement in an equal value or the value of what those profits would be today.

[00:09:10] Speaker 01:
But under California law, once the trustee asks for instructions, doesn't the probate court have the jurisdiction, the power to enter all those types of orders that you've just described for us that you're now asking us to enter?

[00:09:29] Speaker 00:
So the court does have all of that power in regards to asking for instructions, but the court did not have the power to refuse the kinds of claims that we're bringing now saying, well,

[00:09:40] Speaker 00:
What about the like this is an adversarial proceeding that they're bringing that was not an adversarial proceeding.

[00:09:46] Speaker 00:
They did not have the opportunity to do discovery.

[00:09:48] Speaker 00:
So though it was proper for miss Rogers to request and stuff instructions.

[00:09:54] Speaker 00:
It was imp.

[00:09:55] Speaker 00:
We're claiming it was improper for her to ask in the first place because she hadn't done her duty.

[00:09:59] Speaker 00:
to the beneficiaries of making sure that there was no family trust commingling.

[00:10:06] Speaker 01:
But now we're getting back to the rulings that the court actually made.

[00:10:08] Speaker 01:
As I understand it, the court made two rulings.

[00:10:10] Speaker 01:
One was that there was no commingling and secondly that she had

[00:10:16] Speaker 01:
sufficiently discharged her duties of investigation in order to resolve the question of whether or not there were other assets.

[00:10:25] Speaker 00:
Yes, your honor, but it made those decisions on the basis that insufficient evidence had been provided otherwise.

[00:10:30] Speaker 00:
So in other words... Proof problem.

[00:10:32] Speaker 01:
That's not a jurisdictional problem.

[00:10:33] Speaker 00:
But they didn't have the standing to do the discovery and other processes that they should, in fairness, have been given the opportunity to bring.

[00:10:41] Speaker 00:
Is it your position that had they asked for discovery, the Superior Court was either without... They wouldn't have had standing to even ask because they were asking as creditors, not as beneficiaries.

[00:10:50] Speaker 01:
So they didn't have... It's both, isn't it?

[00:10:53] Speaker 01:
No, because... I mean, they are beneficiaries of both estates or both tribes.

[00:10:58] Speaker 00:
Yes, but they weren't...

[00:11:02] Speaker 00:
their objections were being made as creditors.

[00:11:04] Speaker 00:
They weren't taking issue with the distributions that were made to them as beneficiaries.

[00:11:08] Speaker 00:
And also I keep, I've this whole time been saying them, this is all two of the three.

[00:11:13] Speaker 00:
The third one was not given any opportunity, any notice, had no involvement whatsoever in the probate and is now being tried, now

[00:11:20] Speaker 00:
being held in privity, merely.

[00:11:23] Speaker 01:
So your position is that she never knew that any of this was going on?

[00:11:27] Speaker 00:
She was not given any notice, she did not have any, none of the documents were sent to her, none of the notice was sent to her, she had no opportunity to object.

[00:11:36] Speaker 00:
Did she not talk to her siblings?

[00:11:40] Speaker 00:
She lives in Ireland, and they're from- We are telephoned to Ireland.

[00:11:44] Speaker 00:
Yes, I mean, but privity cannot be decided based on your relation to the other person.

[00:11:51] Speaker 01:
That's exactly what privity is.

[00:11:53] Speaker 01:
We look at how the individuals stand in relation to one another, and if they all have the same standing as beneficiaries of the trust, then there's privity.

[00:12:07] Speaker 00:
So, based on Manning versus South Carolina Department of Highway and Public Transportation, for registered CADA purposes and privity, it is not about what the relationship between the persons are, but whether their interests are so identical that you are their virtual representative.

[00:12:23] Speaker 01:
How is it different here?

[00:12:23] Speaker 00:
Because she was not, she didn't even know, she had, Ms.

[00:12:28] Speaker 00:
Harvey from Ireland had no reason to believe that she would be bound to decisions based on the Spousal Family Trust when she had no ties to it.

[00:12:36] Speaker 03:
Okay, but how would her interests, the rule you just read, how would her interests be any different?

[00:12:45] Speaker 03:
They're exactly the same.

[00:12:47] Speaker 03:
Are all three of these individuals in the exact same position via the trust?

[00:12:54] Speaker 00:
Well, they're not quite in the exact same position because whereas I do agree that

[00:13:00] Speaker 00:
Ms.

[00:13:00] Speaker 00:
Waller and Ms.

[00:13:01] Speaker 00:
Spencer did not have any reason to believe that they were going to be unable to claim that Ms.

[00:13:05] Speaker 00:
Rogers' actions were improper in a separate proceeding.

[00:13:09] Speaker 00:
Ms.

[00:13:10] Speaker 00:
Harvey had no reason to believe she would be bound by decisions made in the family.

[00:13:14] Speaker 03:
That's not the question I'm asking.

[00:13:17] Speaker 03:
When we look at this, the question is usually whether the party who wasn't there was in privity.

[00:13:25] Speaker 03:
What that means is her interests,

[00:13:29] Speaker 03:
The arguments that she would have made had she been there would have been the same as everybody else What arguments would she have made differently?

[00:13:37] Speaker 03:
I don't see them because they all had the same rights via via the trust I mean that goes back to the issue.

[00:13:44] Speaker 00:
I mean I see I see your point I think that goes back to the issue of were they given the opportunity to properly I understand this discovery I know you have yeah, so that that's what this comes down to is you

[00:13:55] Speaker 03:
You think discovery was denied and therefore, but the problem is if you're right about that, then everyone could be bringing challenging probate decisions here.

[00:14:08] Speaker 03:
What is your limiting principle here?

[00:14:10] Speaker 00:
Well, in this case, the probate court should have done a constructive trust and let them decide the adversarial issues and then come back and make the decisions.

[00:14:19] Speaker 01:
What additional evidence would they have offered if they'd had the opportunity?

[00:14:24] Speaker 00:
I don't know what, they didn't, they weren't able to conduct discovery, so they weren't able to get that evidence.

[00:14:29] Speaker 00:
Your Honor, I'm sorry, may I reserve the rest of my time?

[00:14:32] Speaker 03:
Sure.

[00:14:32] Speaker 03:
Yeah, thank you.

[00:14:33] Speaker 00:
Thank you.

[00:14:56] Speaker 02:
Mr. Gause, go ahead.

[00:14:58] Speaker 02:
Yes, may it please the court, Arthur Gause from Kauffman-Dolowich with me at council table is Angela Killian.

[00:15:03] Speaker 02:
And we represent all appellees in this matter, including Pamela Rogers, the trustee of the Barbara Watson George Revocable Trust, which in the papers we've referred to colloquially as the Barbara Trust and to draw the distinction between.

[00:15:20] Speaker 01:
Total amount of money that was dispersed to the charities.

[00:15:25] Speaker 02:
Your Honor, I don't know the amount that was disbursed to the charities because we represent, we represented at the trial court level only Pamela Rogers, the trustee.

[00:15:36] Speaker 01:
And I think that the amount of money that was... Your client doesn't know how many checks she wrote and for what amount.

[00:15:45] Speaker 02:
It's in the millions.

[00:15:46] Speaker 01:
It's a significant amount of money.

[00:15:50] Speaker 01:
That was not clear to me.

[00:15:51] Speaker 01:
Sometimes you guys argue all these things, and we have absolutely no idea what the fight is about.

[00:15:55] Speaker 01:
How much money is involved?

[00:15:58] Speaker 02:
I take that under advisement, Your Honor.

[00:16:00] Speaker 02:
And I think that the amount of money is, and the focus was not on the amount of money, because the focus is the jurisdictional power of the two courts at issue.

[00:16:09] Speaker 02:
And there's a distinction to be drawn here between the expansive power of the probate court

[00:16:15] Speaker 02:
to decide these issues that arise under the auspices of a trust or in another case a will and the limitations of the federal court with their ability to examine these issues.

[00:16:26] Speaker 01:
I understand that and maybe it's just idle curiosity on my part but we do like to have some feel for whether or not this is a big case or a small case or

[00:16:37] Speaker 02:
Well, I think framed in that way, Your Honor, I think we can say that this is a big case.

[00:16:40] Speaker 01:
OK.

[00:16:41] Speaker 02:
All right.

[00:16:42] Speaker 02:
Thank you.

[00:16:43] Speaker 02:
Given the setting, I think we can assume that this is a big case.

[00:16:45] Speaker 01:
All right.

[00:16:46] Speaker 02:
And I think that but just drawing it back to the jurisdiction.

[00:16:49] Speaker 03:
I think that just walking through the state courts jurisdiction here is Worthwhile what about this they did that they couldn't get discovery that that seems to be I don't know if it's their strongest argument But it's the one that they're focusing on is this idea that they were only there in a limited purpose They weren't really they're representing the full panoply of the interest that they have

[00:17:09] Speaker 02:
And I think that that's a valid point to raise.

[00:17:14] Speaker 02:
The issue is that under probate code 17201.1, discovery is permitted in the objection procedure.

[00:17:23] Speaker 02:
17200 sort of.

[00:17:25] Speaker 02:
So they just didn't ask for it?

[00:17:28] Speaker 02:
It wasn't conducted.

[00:17:29] Speaker 02:
They didn't ask for it.

[00:17:30] Speaker 03:
But they could have.

[00:17:30] Speaker 03:
Your position is they could have, but they didn't do it.

[00:17:32] Speaker 03:
They could have.

[00:17:34] Speaker 03:
They didn't have to ask for an adversarial proceeding, even in

[00:17:37] Speaker 03:
When the questions were asked by Rod, when Rogers asked the questions, they could have asked for discovery even in that limited proceeding.

[00:17:46] Speaker 02:
Under 17-201.1, probate code California, there is an express statutory permission for discovery in questions relating to the administration of trusts under 17-200.

[00:18:01] Speaker 03:
So then what about one of the siblings in Ireland?

[00:18:07] Speaker 03:
You agree that she didn't get notice of this?

[00:18:09] Speaker 02:
Notice was mailed to Ireland.

[00:18:11] Speaker 03:
To the country?

[00:18:14] Speaker 03:
To the... I don't know why they didn't show up.

[00:18:22] Speaker 03:
The government officials didn't come in.

[00:18:23] Speaker 02:
I know.

[00:18:24] Speaker 02:
We put it in a green envelope.

[00:18:25] Speaker 02:
This is a big case.

[00:18:26] Speaker 03:
I think they would have liked the money.

[00:18:29] Speaker 02:
We did mail it to... The best information was to the proper address in Ireland and we assumed that the Irish Postal Service took it from there.

[00:18:38] Speaker 03:
Right, okay.

[00:18:41] Speaker 03:
But I guess if she didn't get noticed, does that put her in a different position?

[00:18:46] Speaker 03:
Because her claim then could perhaps be, I'm smarter than my siblings.

[00:18:51] Speaker 03:
I would have known that I couldn't have gotten discovery.

[00:18:53] Speaker 03:
I would have been able to flesh these out.

[00:18:54] Speaker 03:
They didn't do it.

[00:18:55] Speaker 03:
I should have had a seat at the table.

[00:18:57] Speaker 02:
Well, and I think to the extent that you can draw that distinction, I think that draws back to the privity point is that

[00:19:02] Speaker 02:
these three siblings, despite their different situations and maybe different orientations towards discovery, theoretically, are still holding the same interest in the disbursement of the trust.

[00:19:15] Speaker 02:
They're holding it at slightly different percentages, but they're still, their interest is the same.

[00:19:20] Speaker 02:
Residual beneficiaries of the, or they're beneficiaries of the David Watson and Barbara George Trust, which we refer to colloquially in the papers as the Family Trust,

[00:19:30] Speaker 02:
She is a beneficiary not in the same amount, but in the same order of distribution, which is to say that her interest is identical.

[00:19:42] Speaker 02:
And that is, in drawing it back to the discovery issue, the fact that she could have, if she had received notice, get discovery doesn't change her position because her privies had the opportunity to conduct discovery and didn't.

[00:20:03] Speaker 02:
And then, again, drawing into the question of the state court's jurisdiction, there's the broad general jurisdiction of the probate court, which allows the probate court to, in matters where it's appropriate, they can appeal to the state court or they can ask for transfer to the state court.

[00:20:21] Speaker 02:
There was recourse in that regard.

[00:20:23] Speaker 02:
There was, as we mentioned earlier, there was the California state appellate route for recourse here.

[00:20:29] Speaker 02:
None of those options were taken, leaving

[00:20:33] Speaker 02:
leaving us with this complaint that was filed four years and ten days after the order on distribution in the probate court.

[00:20:43] Speaker 01:
Isn't the probate court just an arm of the superior court?

[00:20:46] Speaker 01:
I mean, it was the superior court judge who signed the order.

[00:20:49] Speaker 02:
Yes, that's exactly what it is.

[00:20:52] Speaker 01:
But what it is, it is just a superior court.

[00:20:55] Speaker 01:
It's like when federal courts sit in admiralty.

[00:20:58] Speaker 01:
We don't have any silver oars anymore that we display on the bench, but that's how you knew that the federal court was hearing an admiralty matter.

[00:21:06] Speaker 02:
Well, I mean, to the extent that we should have some similar token in California state court denoting a probate court matter, I think that would be very, very helpful.

[00:21:15] Speaker 02:
But what it doesn't take away is from the statutory clarity of the probate court to administer both wills and specifically trusts.

[00:21:23] Speaker 02:
which is at 17200 at SAC, and that includes discovery, that includes a notice provision under 17203, that includes an opportunity to be heard, which is at probate code 1043A.

[00:21:41] Speaker 02:
And there was a hearing.

[00:21:42] Speaker 02:
There were two hearings on this.

[00:21:44] Speaker 02:
The evidence was presented and the matter was heard.

[00:21:47] Speaker 03:
So they have some claims appear not to be completely covered by decisions in the probate court.

[00:21:55] Speaker 03:
For example, I believe the plaintiffs here are arguing that the charities tortiously interfered.

[00:22:05] Speaker 03:
I'm not exactly sure the theory, but by, I guess, pressuring

[00:22:11] Speaker 03:
Your client Rogers to disperse the funds to them.

[00:22:17] Speaker 03:
Why couldn't those claims go forward?

[00:22:21] Speaker 02:
Well, I think there's a couple reasons.

[00:22:23] Speaker 02:
Number one is, and I think it shows up in the way that you posed the question, is that what they would be asking to do, what the claims in essence, well not in essence, in actual fact,

[00:22:35] Speaker 02:
uh... ask the federal court to do is unwind the administration of the trust that it is inescapable to to to seek to seek a reapportionment of funds based on the distribution uh... even if there was fraud even if the even if the agreement said look only ten percent of the remaining funds are supposed to be dispersed to the charities

[00:23:00] Speaker 03:
and Rogers just didn't do that and the probate court didn't pick up on that, your position would be, their only form of relief would be to appeal that through the state court system.

[00:23:12] Speaker 03:
Let's take a hypothetical where the charities, you know, burn the original documents and send over fake documents and everybody looked at the fake documents and were like, oh, this seems okay.

[00:23:24] Speaker 03:
And they find out later

[00:23:26] Speaker 03:
Whoa, there's this huge fraud.

[00:23:28] Speaker 03:
We didn't know about your point would still be federal court has no jurisdictional.

[00:23:33] Speaker 02:
That would be a matter for the state court.

[00:23:35] Speaker 02:
And, and that, and that is where Rooker Feldman, I think is really important here because we have as a limitation on the capacity of the federal court to, uh, to,

[00:23:46] Speaker 02:
to unwind the decisions in favor of state court losers.

[00:23:50] Speaker 01:
And I think also... Wouldn't we first have to decide there was commingling before we could order disgorgement?

[00:23:57] Speaker 01:
the probate court would have to... Whichever court is going to decide it is going to have to revisit the issue of co-mingling.

[00:24:05] Speaker 01:
Otherwise, you never reach the question of whether or not the distributions to the charities were appropriate.

[00:24:11] Speaker 02:
Precisely, Your Honor.

[00:24:12] Speaker 02:
And I think that in this particular case, that's extremely relevant because within the ambit of the state court jurisdiction are the questions of the duties of the trustee specifically

[00:24:26] Speaker 02:
And that's at probate code 1600 at SEC.

[00:24:29] Speaker 02:
And specifically, the trustee's standard of care at probate code 16040, which is to say that questions about the trustees' obligations and the trustees' standard of care in fulfilling those obligations are necessarily folded into the probate court's jurisdiction and into their rulings.

[00:24:52] Speaker 02:
Part of the evidence that was presented here was precisely Pamela Rogers' efforts in determining the source of the race of the trust and whether or not there was commingling.

[00:25:06] Speaker 02:
Not to put a too fine of a point on it, but in the second petition, and this is at ER 373, Pamela Rogers represented that she reviewed all available records related to Barbara Watson's accounts.

[00:25:20] Speaker 02:
She attempted to contact Transamerica regarding the issues related to Transamerica stocks.

[00:25:25] Speaker 02:
She contacted AGON to answer questions about the AGON stock.

[00:25:30] Speaker 02:
She even looked at unclaimed property records in Hawaii in order to do a full and comprehensive evaluation of where trust race could possibly be

[00:25:45] Speaker 02:
She did a comprehensive look.

[00:25:47] Speaker 02:
She asked the probate court to ratify that comprehensive look.

[00:25:50] Speaker 02:
And the probate court said yes, which is to say that questions about specifically Pamela Rogers' diligence in fulfilling her obligations as trustee of this trust were asked and answered by the probate court.

[00:26:04] Speaker 02:
I do want to address very briefly, because we're here on de novo review, the statute of limitations issue.

[00:26:11] Speaker 02:
The issue, the ruling that set this out

[00:26:15] Speaker 02:
or that set this into motion came on February 13th, 2019.

[00:26:24] Speaker 02:
Under the probate code, a challenge to a probate court ruling is a three-year statute.

[00:26:36] Speaker 02:
The filing here is February 13th, 2023, which is four years and 10 days after that ruling.

[00:26:44] Speaker 02:
and it wasn't addressed.

[00:26:45] Speaker 03:
Wouldn't there... I don't remember this being... This was in the briefs?

[00:26:52] Speaker 02:
It was raised at the trial court level.

[00:26:59] Speaker 02:
Thereafter, the parties more or less forgot about it.

[00:27:03] Speaker 03:
Oh, so it wasn't argued before us?

[00:27:06] Speaker 02:
No, it wasn't before us.

[00:27:07] Speaker 03:
Well, then isn't that been wa... I mean, okay.

[00:27:11] Speaker 02:
I am taking an expansive view of de novo review, Your Honor.

[00:27:15] Speaker 01:
No, you're taking advantage of the fact that you have the podium.

[00:27:19] Speaker 01:
Well, I do have the podium.

[00:27:21] Speaker 01:
So you can make the argument, but our rules are pretty clear that if you don't raise them in the briefs... It was raised...

[00:27:29] Speaker 02:
Very briefly in the brief.

[00:27:30] Speaker 02:
I do.

[00:27:31] Speaker 02:
I think we dedicated.

[00:27:32] Speaker 02:
I mean, I will go read it again.

[00:27:35] Speaker 03:
I mean, sometimes I miss things, but I didn't remember it at all.

[00:27:38] Speaker 03:
So that doesn't bode particularly well for you, but we'll go read them again.

[00:27:41] Speaker 03:
Some things I sometimes I miss things to you.

[00:27:43] Speaker 03:
I might.

[00:27:43] Speaker 03:
My gut on this would be that

[00:27:46] Speaker 03:
I'm not entirely sure that that statute of limitation would apply here.

[00:27:51] Speaker 03:
I mean, that seems to be the statute of limitations to challenge in state court, right?

[00:27:57] Speaker 03:
Which maybe it would apply.

[00:27:58] Speaker 03:
Anyway, we'll go look at it and see.

[00:28:00] Speaker 02:
Well, with my last two minutes, I do also want to address the question a bit about the inter vivos trust that the lower court asked us to specifically address because I think it's relevant here.

[00:28:10] Speaker 02:
What we have here is a question about whether or not the probate exception applies here.

[00:28:14] Speaker 02:
And there's this sort of open question about whether or not the probate exception applies to intervivos trusts.

[00:28:20] Speaker 02:
And I think that that's a valid question, and I think that's one that warrants consideration.

[00:28:24] Speaker 02:
The problem here is that we don't have an intervivos trust because we have an absence of vivos with respect to the settler of that trust.

[00:28:34] Speaker 02:
And so what we have here is not an inter vivos trust, but really a will substitute.

[00:28:38] Speaker 02:
And the trial court, I think their reasoning was really right on the mark here, is that what we have here is a trust that, in very real terms, set aside the rules of distribution of property after the decedent's death.

[00:28:53] Speaker 02:
And the fact that it was set up as a trust rather than a last will and testament

[00:28:58] Speaker 02:
doesn't change the analysis.

[00:29:01] Speaker 02:
This is about distribution of property after a trust has become irrevocable, and therefore the probate exception is sort of neatly applied here, and to the extent that what we're trying to do is resolve that open question.

[00:29:15] Speaker 02:
I think in this case, we have facts that can provide sort of a very neat answer.

[00:29:19] Speaker 01:
But we wouldn't reach that issue if we decided that race judicata and collateral estoppel apply.

[00:29:24] Speaker 02:
no no no you wouldn't but I'm trying to be comprehensive here while I have the podium and with that if the court has no further questions I can relinquish it.

[00:29:32] Speaker 03:
Judge Gould do you have any questions?

[00:29:36] Speaker 02:
No.

[00:29:37] Speaker 03:
Okay thank you counsel.

[00:29:38] Speaker 03:
Thank you.

[00:29:49] Speaker 00:
So I want to go back to issue preclusion it doesn't apply because

[00:29:54] Speaker 00:
there was not sufficient fairness.

[00:29:56] Speaker 00:
So in this case, if you are looking at the two rulings, the two instructions that the probate code made, they did not decide that there was no commingling.

[00:30:06] Speaker 00:
They found that Ms.

[00:30:07] Speaker 00:
Rogers had done enough work that they didn't need to continue looking into that issue.

[00:30:11] Speaker 00:
So that's not a preclusion.

[00:30:13] Speaker 00:
That's not something that, it wouldn't be overturned here.

[00:30:15] Speaker 03:
But you could have raised it.

[00:30:16] Speaker 03:
So what about, do you disagree with their interpretation?

[00:30:18] Speaker 03:
They read a provision, which we'll go back and look at,

[00:30:21] Speaker 03:
It apparently says that you could have sought discovery.

[00:30:25] Speaker 03:
Your clients could have sought discovery.

[00:30:26] Speaker 00:
That again would be in their standing as beneficiaries, not as creditors.

[00:30:30] Speaker 00:
So as creditors, that's the claim they were bringing.

[00:30:32] Speaker 00:
They were not taking issue with their disbursements.

[00:30:35] Speaker 00:
They were taking issue as creditors.

[00:30:37] Speaker 00:
So no, they did not have discovery as creditors.

[00:30:40] Speaker 00:
I don't understand.

[00:30:40] Speaker 03:
They weren't as creditors.

[00:30:42] Speaker 03:
I don't even understand.

[00:30:43] Speaker 00:
what that means why were they creditors they though they happened to be beneficiaries under the first under the spousal trust their claims that they were raising their objections they were raising the reason they take issue with these situations were all in the capacity to

[00:30:58] Speaker 00:
as third parties that were separate and saying, no, you still have our money, our funds, our stock, and you can't disperse that to those people because you owe us still.

[00:31:10] Speaker 00:
So in that extent, they're creditors.

[00:31:13] Speaker 00:
And as far as being in privity, if you look only the first opportunity to object, Ms.

[00:31:20] Speaker 00:
Waller, she tried to get that ex-party.

[00:31:22] Speaker 00:
She was denied the opportunity to continue to get counsel.

[00:31:25] Speaker 00:
After she wasn't given the opportunity to have counsel at the second hearing, her mother, Ms.

[00:31:32] Speaker 00:
Spencer,

[00:31:33] Speaker 00:
came in and tried to make her own objections, and the court said, we already decided these, which was before counsel had ever gotten involved, and without counsel.

[00:31:42] Speaker 00:
So she was bound to that decision that was made pre-counsel, and then there's no reason that Ms.

[00:31:48] Speaker 00:
Harvey would then come step in and be told, you are also given res judicata effect.

[00:31:53] Speaker 00:
So for that reason, I mean, I don't think that they were given a proper full actual hearing.

[00:31:58] Speaker 01:
Council, in the Contra Costa Superior Court Order of May 23rd, 2018, at the very end, the court rules the petition is granted without prejudice by Ms.

[00:32:13] Speaker 01:
Waller to file a motion.

[00:32:15] Speaker 01:
Did she ever file such a post-ruling motion?

[00:32:18] Speaker 00:
They just did the objections when the second instruction was brought.

[00:32:22] Speaker 00:
And those were denied on res judicata grounds.

[00:32:26] Speaker 01:
So even though she had counsel, she didn't file a formal motion.

[00:32:30] Speaker 00:
That's right, Your Honor.

[00:32:32] Speaker 00:
OK.

[00:32:32] Speaker 00:
And then also, as far as disgorgement is permitted, but seeking.

[00:32:36] Speaker 03:
You're over time, though.

[00:32:38] Speaker 03:
You're over time.

[00:32:39] Speaker 03:
So thank you so much.

[00:32:41] Speaker 03:
Thank you for your arguments.

[00:32:42] Speaker 03:
And we do have the briefs.

[00:32:45] Speaker 03:
The case is now submitted.