Opinion
G059139
12-29-2021
W. SHEPARDSON MCCOOK, Plaintiff and Respondent, v. CHERIE SMITH et al., Defendants and Appellants.
Murtaugh Treglia Stern & Deily and Devin Murtaugh for Defendants and Appellants. Law Offices of Steven E. Briggs, Steven E. Briggs and Adam P. Sostrin for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Edward W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Reversed with instructions.
Murtaugh Treglia Stern & Deily and Devin Murtaugh for Defendants and Appellants.
Law Offices of Steven E. Briggs, Steven E. Briggs and Adam P. Sostrin for Plaintiff and Respondent.
OPINION
MARKS, J. [*] 1
This appeal arises from a petition to recover property belonging to a trust. During the marriage of E. Thomas (Tom) and Patricia Evans, Tom concealed the purchase of a certain condominium (the condo) from Patricia. Patricia passed away in 2011, triggering a split in the parties' community property trust into two subtrusts: an irrevocable subtrust with Patricia's half of the community property, and a revocable subtrust with Tom's half of the community property. W. Shepardson McCook (McCook), Patricia's son and beneficiary of the community property trust, brought this action to recover the condo on behalf of the trust. The court found that Tom had engaged in a decades-long pattern of deception and had fraudulently concealed the condominium from Patricia. Relying on Family Code section 1101, the court awarded 100 percent of the condo, as well as the rent derived from the condo, to Patricia's separate property trust (which was an entirely different trust, not the subtrust). It also reformed the community property trust to strip out the right of revocation, with the result that Tom could no longer bequeath his 50 percent of the community property to his current wife, Cherie Smith. Tom and Cherie appealed.
Substantial evidence supports the court's conclusion that Tom acquired the condo as community property and fraudulently concealed it from Patricia. However, we agree with Tom that McCook did not have standing under Family Code section 1101, which was the only basis for awarding 100 percent of the condo as Patricia's separate property. McCook was not suing as the personal representative of Patricia-he was suing as the beneficiary of the community property trust. We also agree that awarding property to Patricia's separate trust, which was not even in evidence, must less the subject of the petition, was error. The award should have been in favor of the community property trust under which McCook filed his petition. Finally, we agree with Tom that the court's reformation of the trust rested on a speculative assessment about what Patricia would have done had she known of the fraud. The court surmised that Patricia would not have agreed to a revocable survivor's subtrust and thus stripped that provision. But trying to 2 recreate the trust according to what the court thought Patricia would have agreed to was not only beyond its authority, but an impossible task. Accordingly, we will reverse the judgment and instruct the court to enter a new judgment awarding the condo, and the rent proceeds therefrom, to the community property trust.
FACTS
Tom and Patricia were married in 1961. This was the second marriage for each of them, and they had a combined total of five children from their prior marriages (who we refer to generally as the children). Respondent McCook is Patricia's biological son. During their marriage, Tom and Patricia lived at a residence in Newport Beach which the parties refer to as the house to distinguish it from the later acquired condo.
During the marriage, Tom owned and operated a business called Datavault, which stored computer disks containing data for companies. The record does not reveal when Datavault was started, but Tom and Patricia both acknowledged it was a community asset.
Tom first met Cherie at an industry seminar in 1987 or 1988. She was 25 years old at the time and living in Atlanta, Georgia. She was presenting a seminar on disaster recovery planning for data center managers. Tom approached her, handed her his business card and said, "If you're out in California, then we'll see if we can scratch each other's back in order to increase business."
A few months later she was transferred to California and the two developed a professional relationship with Tom eventually hiring Cherie to work at Datavault. That relationship soon became sexual, though Cherie claimed the sex was never consensual and she would, several years later, level sexual harassment allegations against Tom. Cherie married an individual unrelated to this litigation in 1991 and had two children. 3 Soon after she began working at Datavault, Cherie became a 40 percent owner of the company.
In 1992, the condo at the heart of this dispute was acquired. The circumstances of its acquisition were subject to dispute at trial. Tom testified that he acquired the condo on behalf of Datavault on the advice of his attorney, who suggested it would be a good investment. He testified that he used Datavault funds to acquire it. Cherie testified that she was the one who acquired the condo making the down payment from money received from her grandparents and a bonus of $20,000 paid to her by Datavault, though she could produce no documents to corroborate her claim. The mortgage was paid by Datavault directly to the lender, which Cherie testified was a "housing allowance" that was part of her compensation package. Title to the condo was in Cherie's name. The trial court found that neither Tom nor Cherie were credible witnesses.
Cherie and her family moved out of the condo in 1994.
In 1995, Patricia filed for divorce. Once the divorce action was filed, Tom moved into the condo, which he stayed in rent free.
In 1996, according to Cherie's testimony, she was fired from Datavault after sending a letter describing an ongoing pattern of sexual harassment by Tom. She testified that the sexual harassment had been ongoing since she started at the company. She claimed the sexual harassment had been occurring every single day in that time frame, either at the office or at her home. Her accusations resulted in a settlement in 1997. The terms of the settlement included Datavault buying out her ownership interest for $480,000. Pursuant to the settlement, Cherie "sold" the condo back to Datavault for $60,000, which was the amount of her down payment on the condo. As to why she essentially gave the condo away, she testified it was because Tom wanted it "very badly." Title to the condo, however, was not placed in the name of Datavault or Tom, but instead in the name of Tom's son, Kirk Evans. As Tom admitted in various e- 4 mails discussed below, this was done at Tom's direction with the explicit aim of hiding the condo from Patricia.
Later in 1997, Tom and Patricia reconciled and dismissed the divorce petition. As part of the reconciliation, the two entered into a postmarital agreement to characterize their various properties as community or separate property. The agreement attached three exhibits with property lists: one for each of Tom's and Patricia's separate property, and a third for their community property. The agreement acknowledged that Patricia had a community property interest in Datavault, but transmuted that interest into Tom's separate property. Patricia's business was made her separate property. The family residence was deemed community property. The condo, however, was not listed.
The agreement contained two other provisions of note. First, it stated all nonlisted assets of the parties are community property "except assets . . . acquired by either of them since August 8, 1995, which assets shall constitute the separate property of the acquiring party." Second, "PATRICIA and TOM shall establish a trust to be entitled 'Community Property Trust' into which they shall contribute all assets that comprise their community property as defined herein. [¶] Concurrent with the signing of this Agreement PATRICIA and TOM shall execute appropriate estate planning documents to carry out the intent of this paragraph. PATRICIA and TOM agree that the trust shall provide that upon the death of the second of them, the assets of the community property trust shall be divided equally among [the children]."
Tom and Patricia implemented that provision in 2000 when they amended and restated their existing community property trust (CP Trust). The house was included among the CP Trust assets. However, the amended CP Trust did not guarantee that the assets would go in equal shares to the five children upon the death of the second spouse. Instead, the amended CP Trust was set up to split upon the death of the first spouse into an irrevocable exemption trust, and a revocable survivor's trust. This allowed whichever 5 spouse survived, Tom or Patricia, to amend their survivor's half of the CP Trust in any manner they chose.
The attorney who prepared the amended trust testified about meeting jointly with Tom and Patricia, which the attorney described as the most "unusual" meeting of his 50-year career. When the attorney explained the revocable nature of the survivor's trust, "Patricia just blew up sky-high, started swearing at Tom and accusing him of infidelity and how could she trust him. And I thought they were going to get divorced right there on the spot. [¶] And after the meeting, I had to apologize to the neighboring offices for the loud noise and the vulgarity of the language that was used in the meeting. And it was most unusual. It left an indelible impression." Afterwards, Patricia obtained independent counsel. Nevertheless, the revocability clause stayed in the final amended trust.
In 1998, Cherie divorced her husband, and shortly afterward she resumed a working relationship with Tom.
Around the year 2000, an individual named George Sarmiento became a tenant at the condo. He testified that he would pay his rent to Tom, in cash, sometimes in the kitchen of Tom and Patricia's house. He testified Tom was usually alone when he did so, but that Patricia was present when he paid rent on at least 10 occasions (and possibly many more). Patricia never asked why he was paying rent.
In 2006, Kirk executed a quitclaim deed of the condo to Tom, though that deed was never recorded.
Patricia died in 2011. In 2012, Tom executed an asset allocation placing half of the house in the exemption trust, and the other half in the survivor's trust.
Tom had maintained a close relationship with Cherie, even despite her moving to Yucaipa, California, to be a schoolteacher. They spoke on the phone every day. In 2015, Cherie moved back to Orange County to be with Tom, who, according to Cherie, was in poor health and whose financial situation had deteriorated. Cherie 6 testified at trial that she agreed to be his caretaker in exchange for Tom bequeathing her the condo.
Around that same time, in 2015, Kirk (Tom's son, in whose name the condo was placed) passed away. Prior to his death, Kirk had transferred the condo to his and his wife's family trust. Afterwards, in 2016, Tom cajoled Kirk's widow to transfer the condo to Tom using threats of litigation. In the process of doing so, Tom admitted in e-mails to Kirk's widow that he had paid for the condo with his own money, and that the only reason it was in Kirk's name was to hide the condo from Patricia.
Shortly after receiving the deed from Kirk's widow, Tom transferred the condo to himself and Cherie as joint tenants with the right of survivorship. In January 2017, Tom and Cherie married. Afterward, he amended the survivor trust to add Cherie as a cotrustee (the third amendment). Shortly thereafter, he amended the trust again to add Cherie as the sole beneficiary of his interest in the house (i.e., the house Tom and Patricia had lived in, not the condo).
In June 2018, McCook filed a probate petition to recover assets on behalf of the CP Trust, of which McCook is a beneficiary. McCook also claimed standing as a third party beneficiary of the postmarital agreement between Tom and Patricia. The relief McCook sought was, in general, a return of the condo to the community property trust and statutory penalty damages under Probate Code section 859.
That section provides, "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 for twice the value of the property recovered by an action under this part." (Prob. Code, § 859.)
After a bench trial, the court found in favor of McCook. The court made a series of written findings, including the following: "The court did not believe the testimony of Thomas or his current wife, Cherie, regarding the purchase and ownership of the condominium. The court did not find Cherie's uncorroborated testimony that she 7 purchased the condominium with her own funds to be true." "Thomas fraudulently concealed the ownership of the condominium from his wife Patricia by placing title to the condominium or having other persons such as Cherie Gail Smith and Kirk Evans place title to the condominium in their names . . . to conceal the condominium from Patricia in violation of Thomas' fiduciary duties to Patricia." The court went on to order the condo conveyed to the community property trust and imposed a constructive trust on the condo to that effect. The court also ordered Tom to pay all of the rent he collected over the years to the community property trust. The court went on to find that the provision in the community property trust allowing the survivor to amend the survivor trust was void as it was infected by Tom's fraudulent concealment of the condo. Accordingly, the court voided the third and fourth amendments to the trust (which had named Cherie as a trustee and made her the sole beneficiary of Tom's share of the family residence).
Later, in response to objections from Tom and Cherie, the court issued a supplement to the statement of decision with additional findings. The court found that, but for Tom's fraudulent concealment of the condo, Patricia would not have entered into the postmarital agreement, nor executed the second amendment to the community trust. The court also found that McCook was the successor in interest to Patricia under Code of Civil Procedure section 377.30, and thus entitled to bring the petition.
Afterward, the court entered judgment as follows: (1) it imposed a constructive trust on the condo; (2) it voided the transfer of the condo to Tom and Cherie as joint tenants with right of survivorship; (3) it enjoined Tom from encumbering the condo; (4) it awarded past rent in the amount of $276,000 to Patricia's personal trust; (5) it voided the right of revocation and amendment in the survivor trust; (6) it voided the third and fourth amendments to the CP Trust; (7) it awarded 100 percent of the condo to Patricia as her separate property; (8) it ordered Tom and Cherie to transfer the condo to Patricia's personal trust; and (9) ordered that the disposition of the condo be consistent 8 with the postmarital agreement (i.e., split equally among all of the children). Tom and Cherie appealed.
The rent was calculated based on Sarmiento's testimony as follows: "$500 per month [for 18 years] ($24,000); $800 per month for 4 years ($38,400); $1,200 per month for 6 years ($86,400); $2,300 for 2 years ($55,200); and $3,000 per month for two years ($72,000) totaling $276,000."
DISCUSSION
Tom and Cherie level a number of challenges to the judgment, which we broadly categorize as, first, a substantial evidence challenge to the court's judgment awarding the condo and its associated rent, and second, various challenges to the remedies the court employed. Below, we conclude that the evidence supports the court's factual findings supporting the judgment based on fraud and breach of fiduciary duty, but that the remedies the court employed were in various respects erroneous.
1. The Evidence Supports the Fraud Judgment
Tom and Cherie's challenge to the evidence comes in the form of their argument that McCook failed to overcome the presumption of title found in Evidence Code section 662, which states, "The owner of the legal title to property is presumed to be the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof." Title to the condo was in Cherie's, and later Kirk's, name. Normally, we would review the court's finding that the presumption of title was rebutted under a heightened substantial evidence standard. (In re Marriage of Broderick (1989) 209 Cal.App.3d 489, 496 [substantial evidence review]; Conservatorship of O.B. (2020) 9 Cal.5th 989, 1005 ["when presented with a challenge to the sufficiency of the evidence associated with a finding requiring clear and convincing evidence, the court must 9 determine whether the record, viewed as a whole, contains substantial evidence from which a reasonable trier of fact could have made the finding of high probability demanded by this standard of proof"].) McCook contends the evidence supports the court's finding under the clear and convincing evidence standard.
What neither party seems to have recognized, however, is that we do not even reach the presumption of title where that presumption conflicts with the presumption that property acquired with community funds is community property. (In re Brace (2020) 9 Cal.5th 903, 912 ["we hold that Evidence Code section 662 does not apply when it conflicts with the Family Code section 760 community property presumption"].) Here, the court found that the community acquired the property in 1992. That is a factual finding that we review under an ordinary substantial evidence standard.
Family Code section 760 provides, "Except as otherwise provided by statute, all property, real or personal, wherever situated, acquired by a married person during the marriage while domiciled in this state is community property."
The evidence supports that finding. Tom testified that he acquired the condo on the advice of his attorney who suggested it would be a good investment property. There was evidence to corroborate this claim. When Tom was having marital troubles, he moved into the condo and did not pay any rent to Cherie. Moreover, when Cherie settled her sexual harassment claims, she essentially gave away title to the condo to her alleged harasser and was given back the $60,000 down payment. Her only explanation was that Tom-her alleged harasser-wanted it "really bad." She did not benefit from any appreciation (or suffer any depreciation), as we would expect of a true owner. All of this is consistent with the notion that Tom, vis-a-vis Datavault, was the true owner of the condo.
While Cherie testified that she used her own funds to acquire the condo, the trial court made an explicit finding that Tom and Cherie were not credible witnesses in 10 their claims of how the condo was acquired. We, obviously, must defer to the court's credibility findings. Given the suspicious disposition of the property described above, and Tom's explicit confession that he recorded title in other individuals' names in order to hide the condo from Patricia, the court's credibility findings rest on solid ground. Accordingly, substantial evidence supports the court's finding that the condo was community property that Tom fraudulently concealed from Patricia in violation of his fiduciary duty.
2. The Court Properly Awarded Rent from the Condo
Tom and Cherie next contend that there is no substantial evidence to trace the rental payments from the condo, and thus no basis for the court to conclude that the rental payments were withheld from the community. Tom and Cherie argue that the burden of proof was on McCook, and having failed to furnish any evidence, the court's award of rental payments cannot stand. As the trial court explicitly stated, "No evidence was presented as to what Thomas did with the rent money that he received from [Sarmiento]."
McCook counters that the burden of proof shifted to Tom under In re Marriage of Prentis-Margulis &Margulis (2011) 198 Cal.App.4th 1252, 1267 (Margulis), which held, "We conclude that once a nonmanaging spouse makes a prima facie showing concerning the existence and value of community assets in the control of the other spouse postseparation, the burden of proof shifts to the managing spouse to rebut the showing or prove the proper disposition or lesser value of these assets. If the managing spouse fails to meet this burden, the court should charge the managing spouse with the assets according to the prima facie showing. As we explain in detail below, we find support for this rule in general case law explaining the circumstances and equitable principles that justify shifting the burden of proof, Family Code provisions that impose 11 fiduciary duties of disclosure and accounting on spouses, and family law cases addressing the problem of missing community assets."
We agree with McCook that the rationale of Margulis applies here as well. In Margulis, the husband had been in control of certain investment accounts that, shortly after separation, held in excess of $1 million. (Margulis, supra, 198 Cal.App.4th at pp. 1257-1258.) Eleven years after separation (when the trial finally went forward), they had largely dissipated. The wife had some evidence that the accounts had existed and their balances nine years earlier, but the trial court refused to credit the evidence. (Id. at p. 1257.) The Court of Appeal reversed, finding that the evidence was sufficient to shift the burden of proof to the husband to prove their proper disposition. (Id. at pp. 1257-1258.)
The court reasoned, "The factors relevant to the burden-shifting analysis are well established: '"In determining whether the normal allocation of the burden of proof should be altered, the courts consider a number of factors: the knowledge of the parties concerning the particular fact, the availability of the evidence to the parties, the most desirable result in terms of public policy in the absence of proof of the particular fact, and the probability of the existence or nonexistence of the fact."'" (Margulis, supra, 198 Cal.App.4th at p. 1268.) "Concerns over 'unequal access to evidence' [citation] are particularly pressing in the context of a marital dissolution where financial records can be crucial to ensuring the equal division of property required by Family Code section 2550." (Ibid.) Moreover, "Family Code provisions detailing the fiduciary obligations between spouses provide strong support for shifting the burden of proof to the managing spouse when determining the value and disposition of missing assets." (Id. at p. 1269.)
The Margulis court's thorough and persuasive rationale applies equally well-perhaps even more forcefully-in the present case. Unlike in Margulis, where the assets were simply missing, here Tom confessed to fraudulently concealing the condo from Patricia during their marriage. While there was some evidence that Patricia was aware of Sarmiento making rent payments, there was no evidence that Patricia was aware 12 those rent payments were springing from a community asset. What we know for certain is that Tom fraudulently concealed a community asset and, over approximately 20 years, collected $276,000 in rent. Tom never accounted for the disposition of those funds.
Under these circumstances, Tom bore the burden of proving the proper disposition of the rent. Having failed to submit such evidence, the rent was properly charged against him.
3. The Court Acted Within its Discretion in Refusing to Apply Laches
Next, Tom and Cherie contend the court was compelled to apply the doctrine of laches and enter judgment in their favor. They contend that due to the significant passage of time, Cherie was unable to gather documents to support her purchase of the condo, and Patricia, having died, could not be cross-examined. As an equitable doctrine, we review a court's ruling on laches for abuse of discretion. (Straley v. Gamble (2013) 217 Cal.App.4th 533, 537.)
Tom and Cherie's contention is easily met. We can think of a time when the evidence about the condo was quite fresh: when Tom decided to fraudulently conceal it! If he wanted a prompt resolution of his claim to the condo, he simply had to avoid committing fraud.
4. Certain Remedies Exceeded the Court's Authority
In various respects, however, the court's remedies exceeded its authority.
a. The House
In the end, the court effectively awarded the house to all of the children. It did so by finding that, but for Tom's fraudulent concealment of the condo, Patricia would not have agreed to a trust that contained a survivor's revocable subtrust. The court thus stripped the trust of the provision empowering the survivor to revoke or amend the subtrust. Tom had already amended the survivor's subtrust to bequeath his half of the 13 house to Cherie. The court thus invalidated those amendments, with the effect that the children would be beneficiaries of the entire house, rather than just Patricia's 50 percent interest.
The court did not cite any authority for reforming the trust, but presumably it was relying on the power of reformation found in Civil Code section 3399, which provides, "When, through fraud or a mutual mistake of the parties, or a mistake of one party, which the other at the time knew or suspected, a written contract does not truly express the intention of the parties, it may be revised on the application of a party aggrieved, so as to express that intention, so far as it can be done without prejudice to rights acquired by third persons, in good faith and for value." "Civil Code section 3399 recognizes the equitable common law power of a trial court to reform a trust agreement based on mistake, but not to create a new trust agreement under the theory of reformation. (Ike v. Doolittle (1998) 61 Cal.App.4th 51, 85, italics added.)
The fundamental error of the court in this regard was that it did not attempt to implement the actual intent of the parties (Tom and Patricia), but instead what it believed Patricia would have done. The fact of the matter is, Patricia did not have an intention regarding the condo because she never knew about it. Relying on Patricia's memorable outburst at the attorney's office in 2000, the court found Patricia would not have agreed to a revocable subtrust, but would have agreed to the remainder of the trust exactly as it was drafted in 2000. The court thus stripped the revocability provision in the survivor's trust. However, as a practical matter, it is impossible to know what Patricia would have done had she discovered the condo prior to executing the trust. It is entirely possible that she would have abandoned the entire enterprise and resumed the divorce proceeding. It is equally possible that she would have concluded that the tax benefits of the trust as it currently existed outweighed any alternatives. Perhaps she would have negotiated for some additional property to be deemed her separate property or required Tom to submit to an audit of his holdings. The point is the possibilities are legion. Even 14 if we were to condone such an inquiry in principle, there is no reliable way of determining what she would have done in an alternate universe. It is purely speculative. Accordingly, the court erred in reforming the trust to strip out the revocability provision.
As an alternative basis, McCook contends the revocability provision in the trust violates the postmarital agreement, of which McCook is a third-party beneficiary. The postmarital agreement contains a provision in which Tom and Patricia agreed to create a community property trust. "PATRICIA and TOM agree that the trust shall provide that upon the death of the second of them, the assets of the community property trust shall be divided equally among [the children]." The court did not rule on this ground, though McCook did raise it in his petition.
The argument, fails, however, because Tom and Patricia both agreed to the terms of the trust. "A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." (Civ. Code, § 1559, italics added.) "A contract may be rescinded if all the parties thereto consent." (Civ. Code, § 1689, subd. (a).) The principal limitation on the parties ability to rescind a contract with a third party beneficiary is "where the '"beneficiary has accepted the benefit or has detrimentally acted in reliance thereon"' ...." (Spinks v. Equity
Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1025.)
The parties dispute whether the trust, with its revocability provision, violated the postmarital agreement. Initially, the trust did name the children as the beneficiaries and thus satisfied the letter of the postmarital agreement. When Tom amended the survivor's subtrust, Cherie became the beneficiary of his estate. Arguably, therefore, the revocability provision violated the postmarital agreement. Whether it did or did not, however, is of no moment. If the revocability provision in the trust violated the postmarital agreement, we would imply a recission as a matter of law since both parties agreed to it. There is no evidence that the beneficiaries of the postmarital agreement had in any way relied on the postmarital agreement when the trust was 15 executed in 2000, and thus Tom and Patricia were free to rescind any portion of the postmarital agreement. Accordingly, the postmarital agreement did not furnish a basis to award the entirety of the house to the trust beneficiaries.
The court awarded 100 percent of the condo to Patricia's separate property trust. The court's basis for doing so was Family Code section 1101. That section provides, "A spouse has a claim against the other spouse for any breach of the fiduciary duty that results in impairment to the claimant spouse's present undivided one-half interest in the community estate ...." (Id., subd. (a), italics added.) In general, the remedies for a violation of Family Code section 1101 is an award of 50 percent of the property to the aggrieved spouse, plus attorney fees and costs. (Id., subd. (g).) However, the court may award 100 percent of the property to the aggrieved spouse "when the breach falls within the ambit of Section 3294 of the Civil Code ...." (Id. subd. (h).) Civil Code section 3294 sets forth the standard for awarding punitive damages, which requires proof of "oppression, fraud, or malice ...." (Id., subd. (a).)
Tom contends McCook did not have standing to raise a claim under Family Code section 1101 and we agree. Family Code section 1101, subdivision (a), states "[a] spouse" has a claim for violation of a fiduciary duty. (Italics added.) McCook relies on subdivision (d)(2), which provides that "[a]n action may be commenced under this section upon the death of a spouse" without regard to the otherwise applicable statute of limitations. Both he and the court interpreted this to mean that a survivor action may be brought under this statute. (See Code Civ. Proc., § 377.20, subd. (a) ["Except as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period"].) 16
McCook has not cited any cases, nor have we found any, that permit a survival action under Family Code section 1101. But even assuming, without deciding, that Family Code section 1101 would permit a survival action, McCook brought no such action here. He petitioned as the beneficiary of the CP Trust, and as a third party beneficiary of the postmarital agreement, not as the personal representative or successor in interest to Patricia. Moreover, as Tom and Cherie point out, had McCook sought to file suit as Patricia's successor in interest, he would have been required to file the declaration prescribed by Code of Civil Procedure section 377.32, which requires the declarant to affirm, among other things, that "[n]o proceeding is now pending in California for administration of the decedent's estate" (id., subd. (a)(3)), and "[n]o other person has a superior right to commence the action or proceeding or to be substituted for the decedent in the pending action or proceeding" (id., subd. (a)(6)). No such declaration or affidavit was attached to the petition. Thus, McCook's failure to have brought such an action leaves him without standing under Family Code section 1101. It follows that the court's reliance on Family Code section 1101 to award 100 percent of the condo to Patricia's separate property trust was error.
c. Patricia's Separate Property Trust
That brings up yet another procedural defect. The court awarded the condo to Patricia's separate property trust, but McCook did not bring this petition as a beneficiary of that trust. To make matters worse, Patricia's separate property trust was not in evidence. We could make an educated guess about who the beneficiaries of that trust are, but it would be nothing more than that: a guess. We have no idea what actual provisions are contained in that trust. Instead, the court should have made the award in favor of the CP Trust, which is the trust under which McCook filed the underlying petition. 17
DISPOSITION
The judgment is reversed. The court is instructed to enter a new judgment awarding the condo and the $276,000 in rental income to the CP Trust, subject to the provisions that divide the estate between the survivor's revocable trust and the exemption trust, if applicable. The judgment shall include a constructive trust on the condo in favor of the CP Trust. Tom and Cherie shall recover their costs on appeal.
WE CONCUR: O'LEARY, P. J., GOETHALS, J. 18
[*]Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.