No.

S159183

IN THE SUPREME COURT OF CALIFORNIA

JERRY DE MILLE,

Defendant and Appellant

vs.

CITIZENS BUSINESS BANK, as Trustee, etc.,

Plaintiff and Respondent

EVA GROVES, et al.,

Plaintiffs and Respondents.

______________________________________________________

After A Decision By The Court Of Appeal,

Second Appellate District, Division Two
Case No. B190412
_______________________________

ANSWER TO PETITION FOR REVIEW

_______________________________

STINDT & PERSOFF

Thomas E. Stindt, SBN 48749
Dan Persoff, SBN 08525
333 South Grand Avenue, Suite 1580
Los Angeles, California 90071
(213) 626-8541 / Fax (213) 626-8537

GREINES, MARTIN, STEIN & RICHLAND LLP

Marc J. Poster, SBN 48493
Alana B. Hoffman, SBN 236666
5700 Wilshire Boulevard, Suite 375
Los Angeles, California 90036-3626
(310) 859-7811 / Fax (310) 276-5261

Attorneys for Respondent

CITIZENS BUSINESS BANK, Successor Trustee
 TABLE OF CONTENTS

Page

INTRODUCTION 1

STATEMENT OF FACTS 3

ARGUMENT 6

I. THE PETITION SHOULD BE DENIED BECAUSE IT

MISREPRESENTS THE FACTS AS FOUND BY THE
PROBATE COURT AND ACCEPTED BY THE COURT
OF APPEAL. 6

II. THE PETITION SHOULD BE DENIED BECAUSE NO

ISSUE RAISED PRESENTS A RECOGNIZED GROUND
FOR SUPREME COURT REVIEW. 8

A. There Is No Question For Review Regarding Factual

Inferences Permissible Under Code Of Civil Procedure
Section 634. 8

1. The issue described in Jerry’s Petition is not

presented by the facts of this case because the
Court of Appeal did not rely on any inferences
from the probate court’s order denying Jerry’s
new trial motion. 8

2. Without regard to its order denying Jerry’s new

trial motion, the probate court’s statement of
decision encompasses a finding that Jerry’s
access to the joint accounts was a product of
undue influence. 10

3. In any event, offering Jerry an additional

opportunity to object to an undue influence
finding would not have changed the outcome. 12

i
 TABLE OF CONTENTS (Continued)

Page

B. There Is No Question For Review Regarding The

Right To Brief Issues Provided By Government Code
Section 68081. 14

1. Jerry does not explain why the proposed issue

presents a ground for review. 14

2. In any event, the Court of Appeal did not violate

section 68081; the parties had full opportunity
to brief the issue that the Court decided. 16

C. There Is No Question For Review Regarding Probate

Code Section 859’s Double Damages Provision. 19

1. As the Court of Appeal recognized,

section 859’s plain language provides for
double damages in addition to any other
remedy, not instead of any other remedy. 20

2. Furthermore, Jerry fails to demonstrate that the

lower courts’ application of section 859 presents
an important question of law or otherwise
merits review. 23

CONCLUSION 24

CERTIFICATE OF COMPLIANCE 25

ii
 TABLE OF AUTHORITIES

Cases Page

Estate of Ferrall
(1948) 33 Cal.2d 202 4

In re Lucas
(2004) 33 Cal.4th 682 12

Levy v. Superior Court

(1895) 105 Cal. 600 21, 22

Montenegro v. Diaz
(2001) 26 Cal.4th 249 10

People v. Alice
(2007) 41 Cal.4th 668 16, 18, 19

People v. Capps
(1989) 215 Cal.App.3d 1112 18

People v. Davis
(1905) 147 Cal. 346 15

Reidy v. City and County of San Francisco

(2004) 123 Cal.App.4th 580 22

Renee J. v. Superior Court

(2001) 26 Cal.4th 735 21

White v. White
(1936) 11 Cal.App.2d 570 12

iii
 TABLE OF AUTHORITIES (Continued)

Statutes Page

Code of Civil Procedure sections:

475 12
634 8, 9, 12

Government Code section:

68081 2, 14, 15-16, 18-19

Probate Code sections:

850 17-19
856 2, 18-20
859 2-4, 9, 16-17, 19-23
16011 4

Rules

California Rules of Court, rules:

8.500(b) 7, 14
8.500(b)(1) 2, 15, 23
8.500(b)(2) 15
8.500(b)(3) 15
8.500(b)(4) 15
8.500(c)(2) 1, 6, 7
8.504(b)(2) 15
8.1115(a) 14

Constitutions

California Constitution, article VI, § 13 12

iv
 INTRODUCTION

The Court of Appeal’s unpublished opinion affirms a judgment that

requires former trustee Jerry De Mille (“Jerry”) to return Trust assets he
took for his own benefit through forgery and deception, and that awards
additional damages as authorized by the Probate Code for Jerry’s bad faith
conduct.
In this Answer to Jerry’s Petition for Review, successor trustee
Citizens Business Bank (“Citizens”) will explain why Jerry fails to establish
any recognized basis for this Court to revisit the Court of Appeal’s
thorough, well-reasoned opinion. For the most part, Jerry does not even try.
Among other things, Citizens will show:
• Jerry’s Petition, like his briefing in the Court of Appeal,
improperly sets forth a version of events that was expressly rejected by the
probate court. Jerry’s statement of facts also contradicts the Court of
Appeal’s opinion, whose statement of facts this Court generally accepts
where, as here, there is no challenge to relevant portions of the statement in
a rehearing petition. (Cal. Rules of Court, rule 8.500(c)(2).)
• Jerry claims the Court of Appeal improperly relies on an
inferred finding regarding his undue influence over joint bank accounts,
when in actuality the Court of Appeal does nothing of the sort. In truth, the
Court of Appeal finds that “the joint account issue is moot.” (Slip Op. 19.)
It doesn’t matter whether Jerry exercised undue influence over the joint
accounts (although he obviously did) because, regardless of how he
obtained access to the joint account funds, the evidence demonstrated that
the items Jerry purchased with the funds ended up in the Trust before Jerry,
as trustee, purloined them for himself.
• Jerry claims the Court of Appeal errs in citing a statute,
Probate Code section 856, without permitting supplemental briefing on its

1
applicability. But that statute was not the crux of the Court’s decision, and,
in any event, Government Code section 68081 does not create the right to
brief every authority cited in an appellate court’s decision.
• Jerry claims the probate court’s double damages award
exceeds that allowed by Probate Code section 859, but he cites only
inapposite authority and ignores plain language in the statute authorizing
such an award “in addition to any other remedies available in law . . . .”
In short, Jerry raises no important questions of law meriting this
Court’s attention. (Cal. Rules of Court, rule 8.500(b)(1).) This is
particularly true given that the Court of Appeal’s fact-based opinion is
unpublished and so even if the opinion did contain an error (which it does
not), that error would have no ramifications beyond this case. Jerry’s self-
dealing, deception, forgery, and perjury have already delayed Trust
distributions to the rightful beneficiaries, including aging relatives and
numerous charities, far too long. It is past time to bring these delays to an
end. Review should be denied.

2
 STATEMENT OF FACTS

Jerry De Mille forged his uncle David De Mille’s signature on a

document that would have given Jerry at least $1.3 million from David’s
Trust. (Slip Op. 12; 2 AA 352-355.) Jerry forged David’s signature on
another document that would have allowed Jerry to keep an additional
$656,000 worth of personal property from the Trust, much of which
property Jerry purchased while David was on his deathbed. (Slip Op. 12;
2 AA 363-364.) After David died, Jerry attempted to persuade David’s son
and grandchildren to join him in a secret division of the $10 million trust.
(Slip Op. 7, 12; 2 AA 363.) When they refused to go along, Jerry petitioned
the probate court to approve an estate plan document he knew was a
forgery. (2 AA 363.) Jerry then testified under oath to a false version of
events not corroborated by the evidence and affirmatively contradicted by
his own verified reports. (Slip Op. 12.)
Seeing through Jerry’s schemes, the probate court concluded, after a
seven-day bench trial, that events had transpired as described above –
namely, that from the beginning, Jerry was a devious and unworthy trustee
who exploited his relationship with his elderly and ailing uncle David for
his personal benefit at the expense of the rightful Trust beneficiaries; that
Jerry breached his fiduciary duties to David and the Trust; that Jerry in bad
faith wrongfully took $656,000 in cash and/or property from the Trust; that
Jerry sought to have the forged document confirmed in bad faith; and that
Jerry’s testimony at trial was not credible. (2 AA 349-351, 362.) The court
ordered Jerry to reimburse the Trust for $656,000 worth of collectibles that
he had purchased with Trust assets and kept for himself, and to pay double
damages in the amount of $1,312,000 pursuant to Probate Code section 859.

3
(Slip Op. 12; 2 AA 369-370; 3 AA 421.) The court also appointed Citizens
Business Bank as the successor trustee. (3 AA 422; see also 2 AA 370.)1
The Court of Appeal affirmed the probate court’s judgment in a
24-page unpublished opinion. After a lengthy analysis of the evidence, the
Court agreed that Jerry had exercised undue influence over David, that he
violated his fiduciary duties to the Trust, that he acted in bad faith with
regard to Trust assets, and that the probate court’s damages award was
proper. (Slip Op. 13-23.) Relevant to this Petition, the Court of Appeal
also held that:
• whether Jerry ever owned the funds in accounts that David
funded but to which Jerry had access (the “joint accounts”) was
moot in light of evidence that the $656,000 in collectibles that
Jerry purchased with those funds belonged to the Trust
(Slip Op. 19);
• Jerry’s claim regarding the probate court’s finding of undue
influence in connection with the joint accounts was “directed at a
red herring” because “[h]e had a duty to account [for the funds]
based on multiple reasons not rebutted at trial” (Slip Op. 20); and
• the damages award was consistent with the plain language of
Probate Code section 859, which permits an award of double

1
As successor trustee, Citizens has a direct interest in maintaining the
assets of the Trust and in protecting the Trust beneficiaries’s rights. That
interest includes defending the judgment. (Prob. Code, § 16011 [trustee has
duty to “take reasonable steps to defend actions that may result in a loss to
the trust”]; Estate of Ferrall (1948) 33 Cal.2d 202, 205 [“a trustee may
appeal in his representative capacity if it is necessary to protect the interests
of those whom he represents”].) Any challenge to Citizens’ standing to file
this Answer – as Jerry has challenged its standing before – therefore would
be meritless.

4
 damages in addition to recovery of the wrongfully-taken trust
property pursuant to a separate statute (Slip Op. 20-22).

Jerry subsequently petitioned for rehearing in the Court of Appeal.

His petition raised substantially the same issues presented in his present
Petition for Review, as well as several others, but it did not challenge the
Court of Appeal’s statement of the facts described above. The Court of
Appeal denied rehearing on December 7, 2007.

5
 ARGUMENT

I. THE PETITION SHOULD BE DENIED BECAUSE IT

MISREPRESENTS THE FACTS AS FOUND BY THE
PROBATE COURT AND ACCEPTED BY THE COURT OF
APPEAL.

The rules governing petitions for review provide that the Supreme
Court “will accept the Court of Appeal opinion’s statement of the issues and
facts,” aside from any alleged omissions or misstatements raised in a
petition for rehearing. (Cal. Rules of Court, rule 8.500(c)(2).) Jerry’s
Petition for Review effectively ignores this rule. Instead of relating facts as
found by the probate court and affirmed by the Court of Appeal, the Petition
recites the facts as asserted by Jerry – a version of events that the trial court
found not credible and preposterous (a finding left undisturbed on appeal).
(Slip Op. 12, 23; 2 AA 350-351.)
The lower courts’ opinions belie Jerry’s factual assertions. For
example:
• Jerry asserts that David said he wanted to reduce or eliminate
gifts to various beneficiaries and dictated to Jerry instructions on
how to change the estate. (Petition 7.) The only testimony
corroborating these conversations was Jerry’s, which the probate
court found not credible. The lower courts concluded Jerry had
in fact forged the notes that he claimed were dictated by David.
(Slip Op. 12; 2 AA 355.)
• Jerry asserts that David added Jerry to a joint checking account
so Jerry could spend money on whatever he wanted and reduce
the size of David’s taxable estate. (Petition 8.) The lower courts
found this to be untrue. (Slip Op. 12, 23; 2 AA 369; 7 RT 998.)

6
 • Jerry asserts that David gave Jerry a specific gift directive that
left property to Jerry’s father, Horace. (Petition 9.) The lower
courts found that David did not write the gift directive and, in
fact, that Jerry had forged David’s signature on it. (Slip Op. 12;
2 AA 363-364.)

Jerry challenged none of these lower court findings in his Petition for
Rehearing.2 There was thus no basis for omitting them, and including a
contrary version of events, in his Petition for Review. (Cal. Rules of Court,
rule 8.500(c)(2).)
Although Citizens will show that the Petition raises no substantive
issue meriting review (see Cal. Rules of Court, rule 8.500(b)), Jerry’s
misrepresentations of fact are an independent ground for denying review,
for they compromise this Court’s ability to adequately consider the issues
presented and they indicate he would be unable to offer this Court
meaningful assistance if review were granted. As Citizens now explains,
however, there is no basis for review.

2
Jerry’s Petition for Rehearing did assert that the Court of Appeal
improperly assumed that the joint account funds were Trust funds and that
Jerry was the trustee when the accounts were opened. (Petition for
Rehearing 12.) There is no merit to this claim. The Court of Appeal’s
opinion does not state, or imply, that Jerry was the trustee when the
accounts were opened. And, as explained below, the appellate court did not
rely on an assumption that the joint account funds belonged to the Trust. In
any event, the fact remains that the Petition for Rehearing did not challenge
the vast majority of the facts stated by the Court of Appeal, and therefore
there was no ground for omitting those facts from the Petition for Review.
(Cal. Rules of Court, rule 8.500(c)(2).)

7
II. THE PETITION SHOULD BE DENIED BECAUSE NO ISSUE
RAISED PRESENTS A RECOGNIZED GROUND FOR
SUPREME COURT REVIEW.

A. There Is No Question For Review Regarding Factual

Inferences Permissible Under Code Of Civil Procedure
Section 634.

Jerry’s Petition posits as a question for review whether Code of Civil

Procedure section 634 permits an appellate court to rely on an inference that
the probate court made findings adverse to Jerry based on the probate
court’s determination in its order denying Jerry’s new trial motion rather
than in its statement of decision. (Petition 2-3, 22.) That question is not
presented by the facts of this case, and even if it were, there still would be
no basis for review.

1. The issue described in Jerry’s Petition is not

presented by the facts of this case because the Court
of Appeal did not rely on any inferences from the
probate court’s order denying Jerry’s new trial
motion.

Jerry’s Petition asks

whether the court of appeal properly relied upon the rule that
allows it to infer that the trial court made all factual findings
necessary to support a determination that the joint bank
accounts were the product of undue influence, when the
finding of undue influence was included in a minute order
denying Jerry’s motion for new trial, and was not part of any
statement of decision . . . . (Petition 5, emphasis added, citing
Code Civ. Proc., § 634.)

8
 That question is not actually presented by the Court of Appeal’s
decision. Jerry focuses on the probate court’s determination, in its order
denying a new trial motion, that he obtained access to the joint account
funds through undue influence. However, the Court of Appeal’s opinion
does not depend on that finding nor does it rely on an inference that the
probate court made all findings necessary to support an undue influence
determination. In fact, it does not rely on an undue influence determination
at all. Although the opinion notes in passing that the evidence establishes
undue influence vis-à-vis the joint accounts, it specifically finds that “the
joint account issue is moot” and that the joint accounts “are not turning
points.” (Slip Op. 19, 20.)3 Regardless of how Jerry obtained access to the
joint account funds, the evidence demonstrated that the items he purchased
with the funds ended up in the Trust. (Slip Op. 10, 19-20 [discussing
evidence that included documents that Jerry signed under penalty of perjury
and Jerry’s own testimony].) The probate court’s statement of decision
included an explicit finding to that effect. (2 AA 359 [property purchased
with joint account funds “was received by the Trust”].)
The Court of Appeal holds that because the property belonged to the
Trust but had been taken by Jerry wrongfully and in bad faith, the probate
court properly awarded double damages under Probate Code section 859.
(Slip Op. 20-22; 2 AA 368.) That determination, not the undue influence
finding, was the basis for the Court of Appeal’s decision. Whether the

3
The Court of Appeal elaborates that, “According to Jerry, it was
improper for the probate court to make a finding of undue influence in
connection with the joint accounts when ruling on his motion to set aside or
grant a new trial. He says he was denied an opportunity to present counter
evidence regarding undue influence. We do not take due process claims
lightly, but this one is directed at a red herring. He had a duty to account
[for the property bought with joint account funds] based on multiple reasons
not rebutted at trial.” (Slip Op. 20.)

9
Court of Appeal could have relied on the undue influence finding and could
have inferred findings in support of it is merely an academic question. This
Court has refrained in the past from reviewing questions not squarely
presented by the case at hand. (Montenegro v. Diaz (2001) 26 Cal.4th 249,
259 [“Although we agree that the changed circumstance rule should be
flexible . . . we need not reach this issue today because we conclude that the
changed circumstance rule does not apply”].) It should refrain from doing
so in this case as well.

2. Without regard to its order denying Jerry’s new

trial motion, the probate court’s statement of
decision encompasses a finding that Jerry’s access
to the joint accounts was a product of undue
influence.

Even if the Court of Appeal’s decision had turned on an inference

that Jerry obtained access to the joint account funds through undue
influence, there still would be no issue meriting review. Without reference
to the new trial order, the probate court’s statement of decision clearly
signals that it believed that the joint accounts were tainted by Jerry’s undue
influence.
There was overwhelming evidence of undue influence generally.
David placed his trust and confidence in Jerry from early October 2002
until he died. (Slip Op. 12; 2 AA 349.) During that time, David was
“forgetful and frail.” (Slip Op. 12; 2 AA 349.) “From the beginning, Jerry
sought to exploit his relationship with David for Jerry’s personal benefit.”
(Slip Op. 12; 2 AA 349.) Jerry admitted to participation in transactions
“that can only be construed as self-serving exploitation of [his] position[] of
influence.” (Slip Op. 12; 2 AA 351.) Within two weeks of obtaining

10
David’s trust and confidence, Jerry went from receiving no part of David’s
estate to purportedly being entitled to a gift of at least $1.3 million in
addition to joint account funds of $700,000-$800,000 dollars. (2 AA 359.)
In light of this evidence, the probate court expressly found that Jerry had
“failed to rebut the presumption that the [altered estate plan] was procured
by him through undue influence.” (2 AA 357; see also Slip Op. 12.)
In effect, Jerry asks this Court to intervene based on the fact that
although the probate court found that Jerry sought to exploit his relationship
with David for his personal benefit and that he exercised undue influence
with regard to David’s estate plan, the court did not specifically find that
Jerry used undue influence to obtain access to the joint trust accounts. That
is nonsense.
The probate court found that Jerry was in a confidential relationship
with David from October 8, 2002 onward. (2 AA 349.) Jerry gained access
to the accounts beginning on October 18, 2002 (AOB 53 [Appendix A,
Washington Mutual Bank Master Account Agreement]) – i.e., at a time
when David was under Jerry’s influence. David deposited $700,000-
$800,000 into the accounts, while Jerry contributed nothing. (2 AA 369.)
The court found that David did not intend to gift the account funds to Jerry,
noting that any such gift would reflect undue profit by Jerry. (2 AA 358-
359, 369.) Rather, the trial court found that the funds were Trust property
and that Jerry took the funds in bad faith while serving as trustee of the
Trust. (2 AA 348 [Jerry appointed trustee on November 21, 2002], 363-364
[Jerry spent $400,000 of Trust funds in the last days of David’s life, i.e., in
April 2003], 369.)
Together, these findings leave no doubt that the probate court
believed that Jerry obtained access to the joint accounts through undue
influence. The express finding to that effect in the order denying Jerry’s
motion for a new trial (3 AA 467) was simply a reaffirmation of the obvious

11
implication of the statement of decision. The Court of Appeal did not err
by alluding to the finding in its opinion and did not prejudice Jerry’s rights
under Code of Civil procedure section 634.

3. In any event, offering Jerry an additional

opportunity to object to an undue influence finding
would not have changed the outcome.

This Court has denied review where “the result undoubtedly would
have been the same” if the claimed error had not occurred. (White v. White
(1936) 11 Cal.App.2d 570, 575; see also In re Lucas (2004) 33 Cal.4th 682,
736, fn. 7 [“We do not reach the issue of the referee’s asserted abuse of
discretion because, even assuming an abuse of discretion, respondent has
failed to establish prejudice”]; cf. Code. Civ. Proc., § 475 [an error is not
reversible unless “a different result would have been probable” in its
absence]; Cal. Const., art. VI, § 13 [error must have resulted in miscarriage
of justice].) Jerry does not even attempt to demonstrate that the result in
this case would have been different absent the claimed error, nor could it
have done so successfully.
As explained above, the Court of Appeal affirmed without regard to
whether Jerry used undue influence to obtain access to the joint accounts.
(See Slip Op. 19-20.) Given that the Court of Appeal did not rely on the
undue influence finding, the result on appeal “undoubtedly would have
been the same” regardless of any error in either the probate court’s original
undue influence finding or the Court of Appeal’s discussion of that finding.
Nor would the probate court have reached a different result if Jerry
had been given the opportunity to challenge the undue influence finding
before the court made it, as he asserts he was entitled to do. (Petition 5.)
Jerry claimed throughout the trial that David intended the joint account

12
funds to be an inter vivos gift to him. (Slip Op. 9-10; 2 AA 359, 364.) The
probate court flatly rejected this claim. (2 AA 351, 369.) It concluded that
the joint account funds belonged to the Trust and that Jerry acted in bad
faith when he withdrew the funds and spent them on collectibles. (2 AA
350, 363-364.) Having reached these conclusions, and having stated that
Jerry’s testimony was “not credible” and his explanations were
“preposterous” (2 AA 351), it is not probable – it is indeed inconceivable –
that the probate court would suddenly have reversed its undue influence
finding based on Jerry’s allegation that the finding was unsupported by the
evidence.4 Moreover, even if the probate court had revisited its undue
influence finding, however improbable that would be, the Court of Appeal’s
opinion demonstrates that the probate court could have reached the same
outcome even without the undue influence finding.
Because any alleged errors in the lower courts’ decisions regarding a
finding of undue influence vis-à-vis the joint accounts had no bearing on the
outcome of the case, this Court need not intervene. That is especially true
given that the Court of Appeal’s opinion in this case is unpublished and
thus has no precedential effect for other courts. (Cal. Rules of Court,
rule 8.1115(a).)

4
There is further evidence that any additional opportunity for Jerry to
challenge the undue influence finding in the probate court would not have
affected the outcome. The court’s tentative statement of decision found that
Jerry exercised undue influence in the creation of the forged estate plan.
(2 AA 269-270, 277-279.) Jerry objected that this undue influence finding
was unsupported by the evidence. (2 AA 305-310.) The court did not alter
its finding in response to the objection. (2 AA 344.) It is highly likely that
the court would have treated an objection to the joint account-undue
influence finding any differently.

13
 B. There Is No Question For Review Regarding The Right
To Brief Issues Provided By Government Code
Section 68081.

Government Code section 68081 provides that before a reviewing

court decides a case based upon an issue not proposed or briefed by the
parties, “the court shall afford the parties an opportunity to present their
views on the matter through supplemental briefing.” (Gov. Code, § 68081.)
Jerry’s Petition asserts that the Court of Appeal violated this requirement
when, in addressing an issue that indisputably was addressed by the parties’
briefs, it cited a statute that was not specifically discussed in the briefs. As
described below, that assertion is contrary to the established case law,
including a recent decision of this Court. Moreover, even if the Court of
Appeal’s opinion did implicate section 68081, the Petition does not
establish that this error in an unpublished opinion would merit this Court’s
review.

1. Jerry does not explain why the proposed issue

presents a ground for review.

The California Rules of Court set forth four specific grounds on

which the Supreme Court may order review of a Court of Appeal decision.
(Cal. Rules of Court, rule 8.500(b).) The Rules further require that a
“petition must explain how the case presents a ground for review under
rule 8.500(b).” (Cal. Rules of Court, rule 8.504(b)(2), emphasis added.)
Jerry’s Petition violates this requirement. It does not even attempt to show
that the claimed violation of section 68081 presents one of the specific
grounds for review.

14
 Jerry asserts only that the Court of Appeal’s opinion contravened
section 68081 and that “[t]his Court is the last means by which that error
can be rectified.” (Petition 5, 19.) Similar claims are likely following any
Court of Appeal decision. If this were the only requirement for seeking
Supreme Court review, virtually every appellate decision would result in a
petition for review, since this Court is the last means by which error can be
rectified. This Court could not possibly review such a high volume of
cases, nor is it in the business of correcting every perceived error in lower
court decisions. (See People v. Davis (1905) 147 Cal. 346, 348-349.)
It is not surprising that Jerry fails to specify the ground on which the
section 68081 issue qualifies for review. It does not meet any of the
grounds for review. There is no allegation that the Court of Appeal lacked
jurisdiction or a sufficient number of qualified justices. (Cal. Rules of
Court, rule 8.500(b)(2), (3).) Jerry does not request that the case be
transferred back to the Court of Appeal for further proceedings. (Cal. Rules
of Court, rule 8.500(b)(4).) Nor does Jerry explain why review might be
“necessary to secure uniformity of decision or to settle an important
question of law.” (Cal. Rules of Court, rule 8.500(b)(1).) Given that the
unpublished opinion in this case is consistent with recent California
Supreme Court authority on point, this would be a difficult explanation
indeed.

2. In any event, the Court of Appeal did not violate

section 68081; the parties had full opportunity to
brief the issue that the Court decided.

This Court considered the meaning of Government Code

section 68081 just a few months ago in People v. Alice (2007)
41 Cal.4th 668. In Alice, this Court held that where an issue “ha[s] not been

15
raised or briefed by the parties, and was not fairly included within the issues
raised,” section 68081 requires that the parties be given an opportunity for
supplemental briefing. (Id. at p. 655.) The Court stressed, however, that
this ruling should not be read broadly:
We do not suggest, of course, that the parties have a
right under section 68081 to submit supplemental briefs or be
granted a rehearing each time an appellate court relies upon
authority or employs a mode of analysis that was not briefed
by the parties. The parties need only have been given an
opportunity to brief the issue decided by the court and the fact
that a party does not address an issue, mode of analysis, or
authority that is raised or fairly included within the issues
raised does not implicate the protections of section 68081.
(Id. at p. 656.)
This case falls squarely within the Alice caveat, for the parties did have a
full and fair opportunity to brief the issue decided by the Court of Appeal.
Jerry’s section 68081 claim relates to the Court of Appeal’s review
of the damages award entered against him. Based on beneficiary Eva
Groves’s “Petition for Recovery of Property Taken in Bad Faith And
Double Damages,” the probate court (1) ordered Jerry to sell the collectibles
purchased with joint account funds and return the $656,000 that he spent on
them to the Trust, and (2) adjudged Jerry liable for twice the value of the
property recovered, i.e., $1,312,000, pursuant to Probate Code section 859.
(3 AA 421.) Probate Code section 859 provides that if a court finds that a
person has “in bad faith wrongfully taken” trust property, “the person shall
be liable for twice the value of the property recovered by an action under
this part.” (Prob. Code, § 859.) Section 859 is not an exclusive remedy.
(Ibid. [this remedy “shall be in addition to any other remedies available in
law”].)
Jerry challenged the award on appeal, arguing that section 859 only
allows an award of double the value of the property recoverable and that it
precludes a court from also ordering, on another statutory ground, that the

16
property be returned. (AOB 39-43.) Citizens disputed that claim, arguing
that the probate court had properly ordered Jerry to restore the value of the
property wrongfully taken under Probate Code section 850 and to pay
double damages under section 859. (RB 23-26.) Jerry’s reply brief asserted
that the Groves petition did not state a claim for the return of property under
section 850 and that, in any event, section 859 does not permit double
damages in addition to the recovery of property. (Reply 19-23.)
The Court of Appeal agreed with Citizens that Probate Code
section 859 allows the imposition of double damages in addition to an order
for recovery of the property based on a separate statutory provision. (Slip
Op. 22.) That was the “issue” upon which the court’s decision was based,
and it was one which the parties had thoroughly briefed. (Slip Op. 20-22;
AOB 37-43; RB 23-26; Reply 20-25.)
The only difference between the appellate court’s opinion and the
parties’ briefing was the description of the statutory basis for the trial
court’s order that Jerry return the wrongfully-taken $656,000 to the Trust.
Citizens had described the order as being pursuant to Probate Code
section 850, which allows an interested party to petition for an order under
Part 19 of the Probate Code when a trustee possesses property that is
claimed to belong to another. (RB 24-25; Prob. Code, § 850,
subd. (a)(3)(A).) The appellate court described the order as being pursuant
to Probate Code section 856. (Slip Op. 21.) Section 856 permits the court
to order that property be returned or to grant “other appropriate relief”
where it determines that a conveyance should be made. (Prob. Code,
§ 856.) A section 856 order is an order under Part 19. (Ibid.) It therefore is
one of the orders contemplated by section 850. In short, section 850
permits the petition for an order, and section 856 permits the order itself.
Any discussion of section 850 necessarily includes section 856.

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 That the parties’ briefs addressed section 850 but not specifically
section 856 (AOB 26-27; RB 20-21, 23-26; Reply 19-20) does not require
that this matter be reheard. This Court has made clear that “the fact that a
party does not address an issue, mode of analysis, or authority that is raised
or fairly included within the issues raised does not implicate the protections
of section 68081.” (People v. Alice, supra, 41 Cal.4th at p. 656; see also
People v. Capps (1989) 215 Cal.App.3d 1112, 1123 fn. 6 [fact that parties
had not briefed the particular approach to analyzing an issue that was used
by the appellate court did not implicate section 68081].) That is the
situation here.
Although the guidance provided by Alice is useful, Jerry’s attempt to
draw an analogy between the facts of this case and the facts of Alice is
unavailing. The underlying issue in Alice was whether the People could
appeal trial court orders dismissing a driving-under-the-influence charge
and granting the defendant drug treatment probation. (People v. Alice,
supra, 41 Cal.4th at p. 650.) The parties’ briefs addressed appealability of
the orders if they were characterized in certain ways. (Ibid.) The Court of
Appeal permitted the appeal to go forward by characterizing the orders in a
way that neither party had considered: It treated them as an illegal
sentence. (Id. at pp. 650-651.) The Supreme Court held that this outcome
violated Government Code section 68081. (Id. at p. 655.) The “[d]efendant
had no reason to anticipate” that the appellate court would consider the
appeals as involving an illegal sentence when the People had not made that
assertion and in fact, the defendant had never actually been sentenced.
(Ibid.) The issue on which the appellate decision was based – whether the
People had a right to appeal on the ground that the sentence was illegal –
therefore was not fairly raised by the issues briefed. (Id. at pp. 655-656.)
Here, in contrast to Alice, the issue decided by the appellate court
was one that the parties did address: whether section 859 double damages

18
preclude an additional order that the wrongfully-taken property be returned
pursuant to another section of Part 19. The Court of Appeal also decided
the related issue, briefed by the parties, of whether the Groves petition
properly invoked section 850. (Slip Op. 13-16; AOB 26-27, 38-40; RB 13-
15, 20-21.) The availability of an order under section 856 was
unquestionably included within this briefing, given the relationship between
the two statutes. Moreover, whether the Part 19 order was properly made
pursuant to section 850 or section 856 was merely a component of the Court
of Appeal’s analysis of whether the total award violated section 859. That
was not a separate “issue” upon which the Court of Appeal’s opinion was
based. There was no need for supplemental briefing.

C. There Is No Question For Review Regarding Probate

Code Section 859’s Double Damages Provision.

The probate court ordered Jerry to sell the “the purported

collectibles, now in [his] possession or control that [he] purchased for
$656,000 using cash of the trust estate” and to turn the proceeds over to the
successor trustee. (3 AA 421.) Based on its finding that “Jerry De Mille
wrongfully and in bad faith has taken, concealed, and disposed of such trust
cash,” the court then awarded damages “in the amount of twice the value of
such property so recovered, to wit: $1,312,000.00 pursuant to Prob. Code
§ 859.” (3 AA 421.) The Court of Appeal affirmed this award, rejecting
Jerry’s argument that it amounted to treble damages rather than double
damages. (Slip Op. 22.) Jerry has demonstrated no error in the lower
courts’ rulings, much less an error meriting this Court’s review.

1. As the Court of Appeal recognized, section 859’s

plain language provides for double damages in

19
 addition to any other remedy, not instead of any
other remedy.

The Court of Appeal flatly rejected Jerry’s argument that section 859
precludes the probate court from awarding double damages in addition to a
separate order for the return of wrongfully-taken property. (Slip Op. 22.) It
explained that Jerry’s position “seeks to avoid the language of section 859.”
(Ibid.) Specifically, section 859 permits an award for “twice the value of
the property recovered . . . under this part,” that is, under Part 19 of the
Probate Code. (Ibid.) The phrase “property recovered under this part”
indicates that an award of double damages under section 859 “comes only
after the property is recovered” pursuant to another section of Part 19.
(Ibid.) That means there can be an order that the property be restored to the
Trust under section 856 in addition to damages amounting to twice the
value of the recovered property under section 859. That’s exactly what
happened in this case. (Id. at pp. 21-22.)
Jerry’s position ignores the plain language of section 859 in another
way: The final sentence of section 859 provides that “[t]he [double
damages] remedy provided in this section shall be in addition to any other
remedies available in law . . . .” (Prob. Code, § 859, emphasis added.)
Jerry’s interpretation of section 859 would render this provision
meaningless by limiting a court to awarding either double damages or
another remedy (i.e., the return of property) but not both. That result would
contravene the basic rule of statutory interpretation that “‘significance
should be given to every word, phrase, sentence and part of an act in
pursuance of the legislative purpose.’” (Renee J. v. Superior Court (2001)
26 Cal.4th 735, 743.)
Section 859’s non-exclusivity provision indicates that, contrary to
Jerry’s unfounded assertions, the Legislature did not intend to preclude the

20
type of recovery awarded in this case. Rather, it wanted courts to use a full
range of remedies to ensure a just result. Here, the probate court
determined that the just result in light of Jerry’s reprehensible conduct was
to order Jerry to return the property that he took in bad faith from his
uncle’s estate and also to pay double the amount he had taken. That result
was consistent with the plain text of section 859.
Rather than addressing the actual text of section 859, Jerry focuses
on the text of earlier versions of the statute and on a case involving one of
those early versions. Neither approach is helpful.
The sole case cited, Levy v. Superior Court (1895) 105 Cal. 600
(Petition 4, 15), has no bearing whatsoever here. The issue in Levy was
whether a predecessor statute to section 859 was remedial or penal. (Levy
v. Superior Court, supra, 105 Cal. at p. 606.) The majority held that the
statute was remedial; the dissent believed that it was penal. (Id. at pp. 608,
618-619.) Neither opinion addressed whether the statute permitted double
damages in addition to the recovery of property wrongfully taken.
But Levy would offer no guidance even if the Court had interpreted
the statute then in effect, because that statute used entirely different
language than section 859. Levy involved former Code of Civil Procedure
section 1460, which provided for a judgment of “‘double the value of the
property . . . or for return of the property and damages in addition thereto,
equal to the value of such property.’” (Levy v. Superior Court, supra,
105 Cal. at p. 606.) That language may have limited recovery along the
lines that the Petition seeks. But unlike the Levy statute, section 859 does
not specify different levels of damages depending on whether the property
is recovered. There is no basis for reading such a limitation into the statute.
Jerry’s emphasis on other superseded versions of section 859 is
equally unhelpful. We know, for example, that former Probate Code
section 9869, enacted in 1994, imposed liability for “twice the value of the

21
property, recoverable in an action by the personal representative for the
benefit of the estate.” (Petition 14.) It is not clear whether this phrasing
would have supported an award of double damages in addition to recovery
of the wrongfully-taken property. But the proper interpretation of
section 9869, or the statutes that came before it, does not matter for our
purposes. Section 859, which governs this case, does not refer to property
“recoverable.” It refers to the property “recovered” by an action under
Part 19. As the Court of Appeal recognized, this phrasing permits an award
of double damages in addition to an order for recovery of the property.
(Slip Op. 22.)
Prior versions of section 859 are inapposite for another reason as
well. None of those earlier iterations includes the provision, discussed
above, that section 859 damages are in addition to other remedies available
at law. That addition is significant. (Reidy v. City and County of San
Francisco (2004) 123 Cal.App.4th 580, 592 [“[a]n amendment that makes a
material change to a statute bespeaks a legislative intent to change the
meaning of the statute”].) In light of that change, even if prior versions of
the statute may have restricted recovery as Jerry proposes, a plain reading
of the current statute includes no such restriction. The probate court’s
award therefore is consistent with section 859. The Court of Appeal
properly affirmed. There is no need for this Court to review the award.

2. Furthermore, Jerry fails to demonstrate that the

lower courts’ application of section 859 presents an
important question of law or otherwise merits
review.

Although Jerry claims that the availability of double damages under

section 859 is increasingly being litigated in California’s courts (Petition 3),

22
he offers no evidence to back up the claim. The dearth of case law on this
issue suggests just the opposite. Indeed, the availability of double damages
under section 859 in addition to an order that wrongfully-taken property be
returned has not come up in any published appellate decision. The specific
issue does not appear to have arisen in any unpublished decision before this
case either. Given the infrequency with which this issue seems to arise, it
can hardly be considered an important question of law meriting this busy
Court’s attention. (Cal. Rules of Court, rule 8.500(b)(1).) Nor, given the
absence of published case law on point, is this Court’s review necessary to
secure uniformity of decision. (Ibid.) Even if this were an issue that might
someday be appropriate for review (it is not, in light of the plain language
of the statute), that day is not yet here.

23
 CONCLUSION

The probate court crafted a remedy consistent with its factual

findings that Jerry took and concealed Trust property wrongfully and in bad
faith. The Court of Appeal’s unpublished opinion affirmed based on those
findings – which Jerry does not challenge – and on issues that were
thoroughly briefed by the parties. Jerry’s Petition for Review does not
reveal any error in that opinion, much less any error that would merit this
Court’s review. Review should be denied, permitting the rightful Trust
beneficiaries at long last to receive their distributions as Trustors Lois and
David De Mille intended.

Dated: January ___, 2008

Respectfully submitted,

STINDT & PERSOFF

Thomas E. Stindt
Dan Persoff

GREINES, MARTIN, STEIN & RICHLAND LLP

Marc J. Poster
Alana B. Hoffman

By____________________________________
Alana B. Hoffman

Attorneys for Respondent CITIZENS

BUSINESS BANK, Successor Trustee

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 CERTIFICATE OF COMPLIANCE

Pursuant to California Rules of Court, rule 8.504(d)(1), the attached

Answer To Petition For Review was produced using 13-point Times New
Roman type style and contains 6,525 words not including the tables of
contents and authorities, caption page, or this Certification page, as counted
by the word processing program used to generate it.

Dated: January ___, 2008

STINDT & PERSOFF

GREINES, MARTIN, STEIN & RICHLAND LLP

By___________________________________
Alana B. Hoffman

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