Filed 8/26/26 Kirkland v. Beeck CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or or dered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
KENNETH GORDON KIRKLAND, F090251
Plaintiff and Respondent, (Super. Ct. No. S1501PB61725)
v.
SUE ANN BEECK, Individually and as Trustee, etc., OPINION Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Brett V. Myers, Commissioner.
Darling & Wilson and Joshua G. Wilson for Defendant and Appellant. Anthony Bentivegna for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
This appeal stems from a long-running trust matter, which was first initiated in March 2012. The instant appeal arises out of a dispute between appellant Sue Ann Beeck and her cousin, respondent Kenneth Gordon Kirkland. Beeck, both the trustee and a beneficiary of the In re: Nita K. Evans Irrevocable Trust, dated November 13, 2000 (the
“Trust”), filed a petition to settle the account of the trust, report on its administration, and approve the payment of fees to her as trustee and to her counsel in 2022. Kirkland, also a beneficiary, filed a competing petition, calling for the removal of Beeck as trustee, his own appointment as trustee, and the payment of money damages by Beeck to the trust. The matter proceeded to court trial, following which the court found in favor of Kirkland, awarding substantial monetary damages against both Beeck and her attorney to the trust. The court also awarded attorney fees to Kirkland.
The question on appeal is whether and to what extent Beeck is liable for these attorney fees. The attorney fee award here was purportedly based on the parties’ partial settlement agreement; Beeck claims this cannot serve as the basis for an award of fees because Kirkland’s motion to enforce the settlement was denied, and the ultimate claims on which he prevailed at trial were statutory, not contractual.
We find Beeck is liable for these attorney fees. The partial settlement agreement was apparently drafted and executed in haste following the first day of trial, which we deduce from the fact that it was handwritten and far from a model of clarity. This settlement agreement contained the following provision: “Any prevailing party is entitled to attorney fees and costs for any action arising from this trust administration.” This language is far broader than is commonly found in fee-shifting provisions of settlement agreements, and is not limited to awarding fees to the prevailing party in any effort to enforce “this settlement agreement,” which is a more common provision. Instead, it awards attorney fees to the prevailing party “for any action arising from this trust administration.” Therefore, by the plain terms of the settlement agreement, the prevailing party in the litigation is entitled to all attorney fees “arising” from “this trust administration.”
There is no doubt Kirkland is the prevailing party in this litigation. It is immaterial Kirkland did not prevail on his motion to enforce the settlement agreement, because the attorney fees clause is not limited to fees related to enforcement of the agreement, but rather pertains to “any action arising from this trust administration.” Further, Beeck makes no showing that the attorney fees awarded by the trial court incurred did not “arise” from “this trust administration.” We therefore find no error in the award of attorney fees.
While there are other bases for awarding attorney fees in trust disputes, both statutorily and at common law, and these have further restrictions, they are not implicated here. The basis for fee-shifting in this case is contractual, not statutory or equitable. Accordingly, we affirm the trial court’s judgment.
BACKGROUND
This trust matter was initially filed on March 23, 2012, following the death of the original trustor on May 18, 2010. The parties here are cousins, and the niece and nephew of the original trustor. Beeck, the trustee, filed a petition for settlement of the first and final accounts and report of the administration of the trust, as well as approval of fees, in November 2022. In April 2023, Kirkland, a beneficiary of the trust, filed a competing petition for distribution of trust assets and removal of Beeck as trustee, as well as payment of money damages.
A court trial was held on this matter on multiple scattered days, including March 25, July 26, and possibly October 1, 2, and 4, 2024.1 Following the first day of trial, the parties reached a partial settlement agreement of the matter, apparently to narrow the issues at trial. The partial settlement was approved by the court.
Thereafter, on July 19, Kirkland filed a motion to remove Beeck as trustee, claiming she had violated this partial settlement, which was ultimately denied on July 23. Since the motion had been filed mid-trial, the court bifurcated the motion from the trial
1 Although documents filed in the trial court suggest the trial proceedings were transcribed by a court reporter, no reporter’s transcript has been provided to us, and we thus proceed in its absence.
Subsequent references to dates are to dates in 2024 unless otherwise stated.
and construed it as a motion to enforce the terms of the partial settlement pursuant to Code of Civil Procedure section 664.6.2 The court found Beeck had substantially complied with the agreement, but did breach the agreement in one respect. Specifically, the court found one of the provisions required all disbursements and tax liabilities after a certain date to be restored to the trust or charged against Beeck’s share of the trust, and gave her until April 12 to make that election and communicate it to Kirkland’s counsel. The court found there was no evidence such a communication had occurred by the date in question, and thus concluded Beeck had breached the settlement. The court also found, however, this breach did not allow for automatic removal of Beeck as trustee, pursuant to the settlement, whereas a breach of other terms would have allowed for such removal. The court therefore denied the motion to enforce the settlement, which sought only Beeck’s removal.
A judgment was entered following the close of trial and post-trial briefing on June 2, 2025, finding Beeck had breached her fiduciary duties as trustee. The judgment reflected the parties had been given a proposed amended statement of decision to which neither party objected. Specifically, the trial court found Beeck, in her position as trustee, had failed to distribute the trust estate to the beneficiaries, failed to adequately account to the beneficiaries as to the administration of the trust, failed to “produce documents as agreed,” and had disbursed funds from the trust for her own benefit as a beneficiary “when she was prohibited from making such payments.” The court found Beeck’s defense—a provision of the trust giving her power over the property of the trust—was “misapplied in this case” because the discretion to use that power was “subject to the prudent person rule,” and Beeck had not acted as a reasonably prudent person under the circumstances.
2 Subsequent statutory references are to the Code of Civil Procedure unless otherwise stated.
Despite finding against Beeck, however, the judgment noted, “[t]he court finds that the breaches of fiduciary duty were not undertaken with the intent to defraud the beneficiaries of the [trust], but were sufficiently negligent without regard to the rights of such beneficiaries to result in her not being entitled to receive compensation as trustee for her services.” The court found Beeck had been previously removed as trustee by majority vote of the beneficiaries in June 2013, and therefore appointed Kirkland as successor trustee. The court also ordered Beeck to disgorge approximately $89,600 in previously paid amounts received by her as a beneficiary, as well as pay restitution of approximately $20,600, and $12,600 in interest. Further, the court directed that Beeck disgorge approximately $113,700 in fees paid to her as trustee, and pay approximately $119,700 in interest on the same. The total money judgment against Beeck was for approximately $356,000. The court also entered a money judgment against the trust’s attorney in the amount of approximately $327,000.
Additionally, the judgment stated, “Ms. Beeck will be personally responsible for payment of all of Petitioner Kirkland’s attorneys fees (Petitioner’s Closing Brief, page 10, item 11) and costs in the matter, according to proof under the Rules of Civil Procedure. Petitioner may also recover reasonable fees and costs from the Trust.”
The trial court also specifically granted “the requested relief set forth in the final Closing Brief of Petitioner on pages 9 and 10, as items 1-12.” This included an item requiring that Beeck “be ordered to pay such attorneys’ fees and costs as may [be] allowable by law and according to proof, or by motion following trial.”
A notice of appeal was timely filed.
DISCUSSION
This Court Has Jurisdiction Over The Appeal Kirkland argues this court lacks jurisdiction to resolve this appeal because Beeck did not file a separate notice of appeal after the ruling on the post-trial motion setting the amount of attorney fees owed. We must address jurisdictional issues before reaching any other arguments. (See Ziller Electronics Lab GmbH v. Superior Court (1988) 206 Cal.App.3d 1222, 1229.) Generally speaking, judgments and orders made after a judgment are separately appealable. (§ 904.1, subd. (a)(1)–(2).) “ ‘[W]here several judgments and/or orders occurring close in time are separately appealable (e.g., judgment and order awarding attorney fees), each appealable judgment and order must be expressly specified—in either a single notice of appeal or multiple notices of appeal—in order to be reviewable on appeal.’ ” (DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43 (DeZerega); accord Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 1007– 1008; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 154, 173.) “ ‘When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals: one from the final judgment, and a second from the postjudgment order.’ ” (Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222.) “A postjudgment order which awards or denies costs or attorney’s fees is separately appealable [citations] and if no appeal is taken from such an order, the appellate court has no jurisdiction to review it.” (Silver v. Pacific American Fish Co., Inc. (2010) 190 Cal.App.4th 688, 693 (Silver).)
However, this court has previously held that “when a judgment awards costs and fees to a prevailing party and provides for the later determination of the amounts, the notice of appeal subsumes any later order setting the amounts of the award.” (Grant v. List & Lathrop (1992) 2 Cal.App.4th 993, 998 (Grant).) Requiring a separate appeal would serve no apparent purpose: the fact that fees are being awarded is known to all parties as of the judgment, and the notice of appeal from the judgment therefore gives the respondent adequate notice that the fact of attorney fees being awarded may be appealed. (Id. at p. 997.) The question for determining the applicability of this exception is “whether the entitlement to fees was adjudicated by the original judgment, leaving only the issue of amount for further adjudication.” (DeZerega, supra, 83 Cal.App.4th at p. 44.)
In determining whether the entitlement to fees was adjudicated in the original judgment, a perfunctory recital that attorney fees and costs shall be awarded is not necessarily sufficient. Courts have found that language in the judgment stating that one party “ ‘shall recover ... attorney fees and costs of suit,’ but [leaving] a blank space for the amount” was insufficient to trigger the Grant exception, at least where the parties subsequently litigated or questioned the entitlement to fees. (Silver, supra, 190 Cal.App.4th 688, 692.) In Silver, notwithstanding the above language, the parties litigated in a post judgment proceeding “not only the reasonableness of the amount of the attorney fees [respondent] was claiming, but also the threshold issue of [respondent’s] entitlement to such fees.” (Ibid.)
Here, however, it is clear that entitlement to attorney fees was considered and decided in the judgment. The post-judgment litigation in this case about attorney fees specifically noted all parties believed the court had previously determined Kirkland’s entitlement to attorney fees in its judgment, and the post-judgment motions concerned solely the amount of fees. This accords with the language of the judgment that Beeck “will be personally responsible for payment of all of Petitioner Kirkland’s attorneys fees,” which clearly establishes Kirkland’s right to attorney fees. We therefore conclude this falls within the Grant exception, and we have jurisdiction to consider this challenge to the award of attorney fees.3
3 Kirkland also invokes the doctrine of forfeiture, apparently because Beeck did not file an objection to the statement of decision, which Beeck concedes she did not do. However, the statutes related to the issuing of statements of decision do not require a party to object to them or lose their ability to appeal. Rather, they state that, after one party has requested the court issue such a statement, “any party may make proposals as to the content of the statement of decision.” (§ 632, subd. (a).) Further, “[w]hen a statement of decision does not resolve a controverted issue,” or is ambiguous and the ambiguity is brought to the attention of the court, “it shall not be inferred on appeal … that the trial court decided in favor of the prevailing party as to those facts or on that issue.” (§ 634.) In other words, by failing to object to a statement of decision, a party loses the statutory protection of section 634, thus allowing the prevailing common-law
The Settlement Agreement Allows for an Award of Attorney Fees Against Beeck The substantive part of this appeal is whether there is a legal basis for an award of attorney fees against Beeck. Beeck contends that there is not, because the award is not authorized by statute, contract, or in equity. Kirkland asserts that the award of attorney fees against Beeck occurred pursuant to the parties’ settlement agreement. However, Beeck argues the petition on which Kirkland prevailed did not bring contract claims and that he in fact lost his motion to enforce the settlement and have her summarily removed as trustee. Therefore, according to Beeck, Kirkland cannot recover attorney fees through the settlement agreement.
Settlement agreements are contracts like any other, and are governed by the general rules of interpretation for such documents. (Coral Farms, L.P. v. Mahony (2021) 63 Cal.App.5th 719, 726. The goal of contract interpretation is to “give effect to the mutual intention of the parties as it existed at the time of contracting[.]” (Civ. Code, § 1636.) We infer this intent, if possible, “ ‘ “ ‘solely from the written provisions of the contract. ’ ” ’ ” (Subaru of America, Inc. v. Putnam Automotive, Inc. (2021) 60 Cal.App.5th 829, 838; Versaci v. Superior Court (2005) 127 Cal.App.4th 805, 814
rule that all inferences will be drawn in favor of the judgment to operate in full force. (United Services Automobile Assn. v. Dalrymple (1991) 232 Cal.App.3d 182, 185–186; accord Sanchez-Corea v. Bank of America (1985) 38 Cal.3d 892, 907.) Thus, because Beeck did not object to the statement of decision here, we will draw all reasonable inferences in favor of the judgment in relation to any ambiguities or controverted issues.
There is no indication Beeck conceded her personal responsibility to pay attorney fees at any point during this litigation, and many points at which she contested the relief sought by Kirkland, including any relief awarding him attorney fees. !(CT 331–333 [contesting ex parte order seeking to remove Beeck as trustee]; CT 343–351 [trial brief requesting that Beeck be awarded attorney fees and all relief sought by Kirkland be denied]; CT 379–388 [post-trial brief requesting that Beeck’s accounting be approved, that she be awarded attorney fees, and all damages sought by Kirkland be denied]; CT 485–487 [opposition to motion to attorney fees noting that judgment awarded attorney fees and was being appealed and Beeck would argue award of attorney fees was in error])! We find no forfeiture under these circumstances.
[“The parties’ intent must, in the first instance, be ascertained objectively from the contract language.”].) “ ‘When no extrinsic evidence is introduced, or when the competent extrinsic evidence is not in conflict, the appellate court independently construes the contract.’ ” (Coral Farms, L.P., supra, 63 Cal.App.5th at p. 726.) Neither party here points to any extrinsic evidence the trial court relied on in interpreting the settlement agreement, and we assume there was none. Thus, we review the contract terms de novo. (Id. at p. 727.)
The parties entered into a handwritten contract captioned “SETTLEMENT AGREEMENT” on March 26, i.e., the day after the first day of trial. For clarity’s sake and because it is brief, we recount the entire agreement here:
Kenneth Gordon Kirkland and Sue Ann Beeck, Trustee agree to settle the pending petition and competing petition as follows:
1. Trial is suspended an[d] reset to resume on the [c]ourt’s first available date after June 15, 2024, to be vacated if the parties agree that the petitions are moot by that time.
2. Sue Ann Beeck to pay Gordon’s attorney fees of approximately $40,000 from trust funds, ½ from each, without waiver of claim against Beeck for surcharge.
3. Sue Ann Beeck to pay beneficiaries a preliminary distribution of $260,000 cash pro rata, both trusts.
4. Sue Ann Beeck to distribute Edward Jones stock in its entirety to all beneficiaries in kind by May 1, 2024.
5. Failure to perform 2, 3 or 4 by the due dates for any reason shall result in automatic removal of Sue Ann Beeck as trustee of both trusts and appointment of Kenneth Gordon Kirkland as successor trustee, at Kirkland’s election, which may be ordered by ex parte application.
6. The parties agree to a status conference on June 3, 2024 to address the status of the foregoing, and any need to remove Sue Ann Beeck for failures may be ordered then.
7. By April 12, 2024, Sue Ann Beeck shall provide to Kirkland’s counsel all Mission bank and any other trust account statements, and all Edward Jones statements, all check images, for both trusts, since 1/1/2016. This does not limit any other information requests that Kirkland may make. Failure to provide by this date shall also be cause for automatic removal.
8. Resolution of pleadings is withheld for the status conference with court.
9. The parties agree that the reasonable date of distribution of both trusts was 5/1/19. All disbursements and tax liabilities from 5/1/19 are to be restored to the respective trust or charged against Sue Ann Beeck’s share as beneficiary, at her election, by April 12, and the election shall be communicated to Kirkland’s counsel by that date, excepting therefrom attorney Field’s fees of $9,450 in Nita and 1800 in Evans. All fee retainer balances to be returned to the trusts.
10. All parties agree to perform all acts and refrain from all acts necessary to further [sic]
11. Sue Ann Beeck and her attorney are not to receive any fees or costs for these proceedings or any further acts.
12. This agreement is enforceable under CCP 664.6. Any prevailing party is entitled to attorney fees and costs for any action arising from this trust administration. (Emphasis added.)
13. The Evans Trust shall pay the sum of $28,587 to the Trustee of the trust for Kirkland’s father.
14. The court retains jurisdiction over both trusts, the parties and all beneficiaries.
Clearly, this settlement agreement is not a model of drafting clarity. Further, neither party provides any real discussion or argument about the terms of the contract: Beeck simply asserts attorney fees are not available because Kirkland did not prevail on a contract claim, while Kirkland argues, “[c]learly, [Kirkland] is the prevailing party following this Court’s [sic] order and judgment that Ms. Beeck breached her duties,”
suggesting this argument was copied from the trial court briefing. We conclude, however, that Kirkland’s implicit interpretation of the contract—that paragraph 12 is broadly construed to include all attorney fees incurred in relation to the current litigation, not merely those needed to enforce the settlement, and that the “prevailing party” is determined by reference to the case, not the motion to enforce the settlement—is correct.
We arrive at this conclusion for several reasons. Notably, this settlement agreement clearly intends to settle disputes related to multiple trusts: it refers to the “Nita” and “Evans” trusts separately in paragraph 9, and refers to “trusts” or “both trusts” multiple times, including in paragraphs 3, 5, 7, 9 and 14. While the exact nature of these two trusts has not been made clear to this court, it is clear the original petition to settle the trust account contemplated only one trust: the Nita K. Evans Irrevocable Trust No. 1, dated November 13, 2000. Similarly, the competing petition filed by Kirkland to remove Beeck as trustee and install himself related only to one trust, again, the Nita K. Evans Irrevocable Trust, dated November 13, 2000. From this, we conclude the settlement agreement was intended to resolve claims between the parties more broadly than simply those brought in the instant competing petitions, since it clearly related to an additional trust not formally at issue in the current litigation.
Having concluded the breadth of the settlement is larger than the instant case, we therefore similarly conclude that the attorney fee clause—paragraph 12—also does not pertain strictly to claims related to enforcement of the settlement agreement in this case. Aside from the fact that the settlement extends beyond the single trust being litigated, the agreement’s language also supports a broader reading. Specifically, it states, “Any prevailing party is entitled to attorney fees and costs for any action arising from this trust administration.” (Emphasis added.) This clearly goes beyond the instant case, and pertains to any action “arising” from “this trust administration”; we presume “this trust administration” intends to refer to the administration of either trust, since the settlement expressly references two trusts throughout. There is no limitation awarding attorney fees only to the prevailing party of disputes related to “enforcement of this settlement agreement,” although this would admittedly be common language included in many settlement agreements. Instead, the language we are presented with here refers to actions “arising” from “this trust administration,” which is considerably broader. All of the disputes in this case undoubtedly arose from the administration of the Nita K. Evans Irrevocable Trust No. 1, dated November 13, 2000, and thus fall within the express language of this fee-shifting agreement, whether or not they were based on the settlement.
This is why we similarly conclude the “prevailing party” must include the party that prevails in this litigation relating to the administration of these trusts, and not merely on a motion to enforce the settlement agreement. Were it otherwise, the contract would run into logical inconsistencies: for instance, where one party prevailed in enforcement of the settlement—say, if Kirkland successfully forced Beeck to turn over certain documents she had neglected to turn over by a particular date—but did not ultimately prevail in the litigation, if, for instance, Beeck’s petition for approval of her trustee fees was substantially approved. If we construe “prevailing party” to pertain only to the motion to enforce the settlement, in that scenario, Kirkland would still receive his attorney fees for the case, despite ultimately losing. This possibility—that Kirkland might ultimately lose—must have been contemplated by the parties, since they continued to litigate the matter through trial even after this settlement agreement was executed. It would be absurd to award attorney fees to a “prevailing party” that had won a motion but lost the case, and we interpret contracts to avoid absurdities. (Eucasia Schools Worldwide, Inc. v. DW August Co. (2013) 218 Cal.App.4th 176, 182.)
The plain language of the agreement also supports a broader reading. The introductory language of the provision refers to “[a]ny prevailing party,” and Kirkland is certainly a prevailing party here. Additionally, in the absence of specified definitions, any contractual term must be understood in the context of the agreement. (Wolf v.
Superior Court (2004) 114 Cal.App.4th 1343, 1352.) This provision’s reference to “any action arising from this trust administration” informs our understanding of what it means to be a “prevailing party,” and leads us to conclude that it applies to Kirkland, who inarguably prevailed in the litigation.
Beeck contends that she cannot be held “personally” liable for attorney fees, which we take to mean that she cannot be charged for Kirkland’s attorney fees above and beyond either the fees she received from her work as trustee or her beneficial interest in the trust distribution, although her argument does not specify which. Certain statutory law does limit the personal liability of trustees in fee-shifting cases to instances in which a beneficiary establishes bad faith. For instance, “[i]f a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied.” (Prob. Code, § 17211, subd. (b), emphasis added.) Similarly, courts have limited the liability of a party to a trust when awarding attorney fees based on their inherent equitable powers, holding the party can only be required to pay attorney fees up to their share of the trust estate. (See, e.g., Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 185–189 (Pizarro) [noting equity allowed the charging of attorney fees against a beneficiary’s share if they “ ‘instigate[d] an unfounded proceeding against the trust in bad faith,’ ” but that there was no equitable authority for charging a beneficiary beyond their share of the trust].)
However, neither Probate Code section 17211 nor the common law logic exemplified in Pizarro is implicated here, because the court did not engage in fee-shifting pursuant to a statute or its own inherent equitable powers. Rather, it enforced the parties’ express contract, which included a fee-shifting provision for “[a]ny prevailing party” in
“any action arising” from “this trust administration.” Nothing in the contract limits Beeck’s liability for attorney fees to only her share of the trust distribution or her funds received for her work as trustee, even though the parties could have chosen to so limit her exposure. Nothing in the contract requires a showing of “bad faith.” Further, paragraph 2 of the settlement agreement contemplates that a specific attorney fee payment would be paid to Kirkland from the trusts, but “without waiver of claim against Beeck for surcharge.” While this reference to a “surcharge” is not defined and we need not fully define it now, it at least suggests the parties did not intend to limit Beeck’s liability for attorney fees.
Here, both parties were represented by counsel, and chose to include in a hastilydrafted settlement agreement a broad fee-shifting clause awarding attorney fees to “[a]ny prevailing party” in “any action arising” from “this trust administration.” As noted above, the language of the contract is clearly more expansive than what might more commonly be found in a settlement agreement, which often includes a clause entitling the prevailing party in a motion to enforce the settlement agreement to attorney fees incurred in seeking enforcement of the settlement. However, that is not what the parties chose when they wrote and executed this contract, and we find no reason to attempt to re-write the parties’ settlement agreement here, especially where both sides were represented by competent counsel. The plain language of the settlement here supports the trial court’s award of attorney fees against Beeck.
DISPOSITION
For the reasons given above, the judgment is affirmed. Kirkland shall recover his costs.
SNAUFFER, J.
WE CONCUR:
FRANSON, Acting P. J.
GUERRA, J.