Filed 2/19/14 Buser v. Buser CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

D064000

MARTIN BUSER, as Trustee

Respondent, (Super. Ct. No. 37-2010-00150555-PR-

TR-NC)

v.

DOUGLAS BUSER,

Appellant.

APPEAL from an order of the Superior Court of San Diego County, Julia Craig

Kelety, Judge. Affirmed.

Douglas Buser, in pro. per., for Objector and Appellant.

Hickson Kipnis & Barnes, Howard A. Kipnis and Steven J. Barnes for Petitioner

and Respondent.

Douglas Buser appeals from a probate court order approving a preliminary

distribution of the assets in the trust established by appellant's deceased parents.

Appellant asserts the court abused its discretion in approving the preliminary distribution.

We reject this contention and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In 1997, Floyd and Donna Buser (the parents) established a trust for the

distribution of their assets upon their death to their three sons (appellant, Martin Buser,

and Burton Buser). Martin was named as successor trustee upon their death or incapacity

and was granted power of attorney. In 2009, Donna died. Martin gradually assumed

responsibility for the management of Floyd's financial affairs, and in 2011 took over as

successor trustee due to Floyd's dementia.

The parents owned five real estate properties, known as the Padilla, Park, Bogue,

Rosecrans, and San Marino properties.1 Before Floyd's death, Burton moved into the

San Marino property (where he and his wife took care of Floyd) and appellant moved

into the Rosecrans property. Apparently Burton and appellant did not pay rent. Starting

in 2010, Martin and appellant became involved in litigation that relates to the trust but

concerns issues not directly involved in this appeal. A separate appeal filed by appellant

arising from this dispute is currently pending before our court. (Buser v. Buser,

D063381.)

On May 3, 2012, Floyd died. As we detail below, nine months after Floyd's death,

Martin filed with the court a plan for final distribution of the trust assets, and appellant

objected to this plan. After several hearings, the court approved a preliminary

1 The parties refer to one of the properties as both the San Marino property and the Winthrop property; we refer to it as San Marino. 2 distribution of assets, with the issue of the final distribution to be decided at a future date.

The order approving the preliminary distribution is the subject matter of this appeal.2

I. Distribution Proposals and Objections Considered by the Court

The trust provides for the distribution of the trust assets in equal shares to the three

sons. Relevant to the issues raised on appeal, in 2006 the parents amended the trust to

accommodate a $186,000 loan they made to Burton that was not repaid. The amendment

states that "[a]ssets of the estate equal in value to $186,000" shall be distributed to both

appellant and Martin, and the "balance of the estate shall be distributed in equal shares"

to the three sons.3

A. Martin's Proposed Final Distribution Plan and Appellant's Objections

On February 8, 2013, Martin filed a final accounting (for the period of May 3,

2012 through October 31, 2012), and a petition for approval of a final distribution of the

trust estate (the Final Distribution Plan or Plan). In this pleading, Martin stated generally

that some of the beneficiaries owed obligations to the trust and others were entitled to

payments, and noted that the trust assets were to be distributed equally to the three sons

after first deducting $186,000 from Burton's share.

2 Appellant was represented by counsel in the proceedings before the trial court, and is representing himself on appeal.

3 The amendment states in relevant part: "Settlors made loans to their son, BURTON G. BUSER in the approximate amount of $186,000.00. These loans have not been repaid and were discharged in bankruptcy. . . . [¶] . . . [¶] . . . The . . . Trust . . . shall be distributed as follows: [¶] (i) Assets of the estate equal in value to $186,000.00 shall be distributed to DOUGLAS A. BUSER . . . . [¶] (ii) Assets of the estate equal in value to $186,000.00 shall be distributed to MARTIN B. BUSER . . . . [¶] (iii) The balance of the estate shall be distributed in equal shares to the sons of Settlors . . . ." 3 More specifically, the Final Distribution Plan states that as of October 31, 2012,

the total value of the estate is $5,670,196.96. Before calculating the one-third

distribution to each beneficiary, the Plan states there are two "[e]qualling allocation[s]"

for appellant and Martin: that is, (1) $186,000 and $18,500 to appellant, and (2)

$186,000 and $48,500 to Martin.4 After these equaling allocations, the Plan states that

the total value of the estate is $5,231,196.96, which entitles each beneficiary to a one-

third distribution of $1,743,732.32.

The Plan then calculates the particular distributions for each beneficiary. For

appellant, he is first entitled to the equaling allocations of $186,000 and $18,500.

Second, his one-third estate distribution of $1,743,732.32 is allocated as: (a) receipt of

the Rosecrans property valued at $1.4 million; (b) receipt of personal property from the

estate valued at $14,133; (c) $184,682.34 debt to estate owed by appellant (consisting of

$50,000 for a loan; $119,682.34 for court costs; and $15,000 for rent receivables); (d)

$50,000 to be kept in the estate as a reserve for expenses and contingencies; and (e)

$94,916.98 cash distribution from the estate to appellant. The total cash distribution to

appellant would be $299,416.98 (the equaling allocations of $186,000 and $18,500, plus

the $94,916.98 from the one-third distribution).

Burton's proposed distribution consists of his one-third estate distribution of

$1,743,732.32 allocated as: (1) receipt of personal property from the estate valued at

$14,134; (2) $13,569.14 debt to the estate owed by Burton (consisting of $3,364 for a car

4 The $18,500 and $48,500 equaling allocations owed to appellant and Martin, respectively, are referred to in a 2011 settlement agreement reached between the parties. 4 loan and $10,205.14 for rent receivables); (3) $50,000 reserve kept in the estate; and (4)

$1,666,029.18 cash distribution from the estate to Burton.

For Martin, he is first entitled to the equaling allocations of $186,000 and $48,500.

Second, his estate distribution consists of: (a) receipt of the Padilla, Park, Bogue, and

San Marino properties, valued at $575,000, $880,000, $1,750,000, and $897,600.41,

respectively; (b) personal property valued at $14,133; and (c) $50,000 reserve kept in the

estate. This estate distribution (the real estate, personal property, and reserve) totals

$4,166,733.41, which exceeds his one-third share of $1,743,732.32 by $2,423,001.09.

Accordingly, he is required to make a $2,188,501.09 cash contribution to the estate

(consisting of $2,423,001.09 minus his equaling allocations of $186,000 and $48,500).

Appellant's Objections

On March 28, 2013, appellant filed objections to the Final Distribution Plan,

claiming the trust estate was not in a condition to be closed. He raised numerous

objections, including that Martin had not provided adequate financial accountings, had

mismanaged trust assets, had incurred unnecessary legal expenses, and had requested

excessive trustee fees. Appellant also claimed that Martin's valuations of the trust assets

did not reflect market values, and appellant believed the Rosecrans property was

presently worth under $1 million rather than $1.4 million. Appellant stated that once he

was provided the information withheld by Martin, he planned to submit a different final

distribution plan. Appellant requested that the court grant relief by, inter alia, ordering

discovery and additional accounting from Martin, appointing a temporary trustee in lieu

of Martin, and imposing liability on Martin for his breach of duties.

5 B. Martin's Preliminary Distribution Proposal and Appellant's Objections

On April 8, 2013, Martin filed a supplemental pleading seeking authority to make

preliminary distributions from the trust (the Preliminary Distribution Proposal or the

Proposal). Martin explained that Burton was in dire financial straits and needed money

to move out of the San Marino property and to sustain himself financially.5 To

accommodate Burton's request, Martin filed the Preliminary Distribution Proposal,

requesting that—pending determination of appellant's objections to the Final Distribution

Plan—the court grant him authority to distribute a value of $1.4 million to each

beneficiary and to sell the San Marino property. Martin stated that appellant had

expressed a desire to receive an in-kind distribution of the Rosecrans property, and

accordingly Martin incorporated this request into the Proposal.

In the Proposal, Martin stated that the estate had a value of about $5,750,000, of

which 96 percent was in residential real estate. The cash assets totaled about $90,000.

Martin proposed that each beneficiary receive $1.4 million of the trust assets, except that

Burton's share would be reduced by $186,000. Appellant would receive the Rosecrans

property valued at $1.4 million; Burton would receive $1,214,000 in cash ($1.4 million

minus $186,000); and Martin would receive the Bogue property (valued at $1.75 million)

and make a $350,000 cash contribution to the estate (to equalize the difference between

$1.75 million and $1.4 million). Also, to provide the trust with the cash necessary to

5 According to Martin's pleading, Burton had appeared in court at a hearing on April 4, 2013, and made a plea for immediate funds because he was " 'broke,' " and the court had suggested that Martin file a request for approval of a preliminary distribution. 6 make the preliminary cash distribution to Burton, Martin would make a personal loan of

$1,214,000 to the trust, which would bear interest "at [the] market rate" and be secured

by deeds of trust on the remaining trust properties (Padilla, Park, and San Marino). The

total net distribution from the trust would be $4,014,000 ($4,364,000 total distribution

minus Martin's $350,000 equalizing payment).

After the preliminary distributions, the trust would retain assets having a total net

value of approximately $1,600,000. That is, the trust would have (1) the Padilla, Park,

and San Marino properties (total value of $2,355,000); and (2) cash assets of $440,000

(the existing $90,000 plus the $350,000 equalizing payment by Martin).6 After

subtracting Martin's $1,214,000 loan to the trust, the net value of the trust would be

$1,581,000.

Martin stated that if appellant prevailed on any of his objections to the Final

Distribution Plan and/or on the issues raised in his pending appeal, there would be

sufficient assets in the trust to make the necessary adjustments in appellant's favor.

Martin explained that if appellant prevailed in his pending appeal, this could alter the

$120,000 that was allocated to appellant's share of the trust estate as court costs he owed

to the estate, and if appellant prevailed in his challenges to the real estate appraisals, it

was unlikely the necessary adjustments would exceed $100,000 to $150,000.

6 Martin listed the Padilla, Park, and San Marino properties as valued at $575,000, $880,000, and $900,000, respectively. He listed the cash assets as $10,000 with Bank of America, $80,000 with Schwab Brokerage, and $350,000 from his equalizing payment. 7 Appellant's Objections

On April 30, 2013, appellant filed an objection to Martin's Preliminary

Distribution Proposal. Appellant stated the Proposal "suffers from the same fundamental

problem as the proposed final distribution in that it calls for distributions 'in-kind' based

upon value and allocations that are not acceptable" to appellant. Appellant stated that he

"has not agreed to accept certain properties as his share of the Trust estate and cannot

accept such properties without information concerning trust administration and the

establishment of acceptable distribution values for all properties." Appellant also

objected to Martin becoming a secured creditor of the trust estate, contending that this

created a conflict of interest based on his role as trustee and beneficiary. Appellant

suggested that to meet Burton's need for cash, the trust should make an immediate

$25,000 cash distribution to each beneficiary and distribute $2,000 per month to each

beneficiary, which would allow Burton to continue living in the San Marino residence.

Martin's Response

On May 3, 2013, Martin filed a response to appellant's objections to the

Preliminary Distribution Proposal. Martin noted that the trust gave the trustee broad

powers to allocate the trust estate; make preliminary distributions "in kind"; withhold

final distribution based upon competing claims; make loans with his own funds to the

trust with interest at current rates and secured by trust assets; and purchase assets of the

trust at their fair market value as determined by an independent appraiser. He repeated

the terms of his Preliminary Distribution Proposal, and reiterated that the $1.6 million

assets remaining in the trust after the proposed preliminary distribution would be "more

8 than sufficient to address any possible adjustments among the three remainder

beneficiaries."

Further, Martin stated that Burton and his wife wanted to move out of the San

Marino residence; Burton indicated he would do so as soon as he received the proposed

distribution; and this would allow Martin to sell the residence. As to the in-kind

distribution to appellant, Martin stated that appellant had requested in writing that the

Rosecrans property be distributed to him; appellant had been living there for over three

years; and if appellant did not want to receive the Rosecrans property he needed to make

this clear to Martin and the court.

II. Trial Court's Order Approving the Preliminary Distribution Proposal

At a hearing on May 6, 2013, the court ruled that Martin could make the requested

preliminary distributions from the trust, ordering as follows: (1) Martin could distribute

$1,214,000 cash to Burton; Burton should vacate the property by July 8, 2013; and

Martin could sell the property; (2) Martin could distribute the Bogue property to himself,

and the value of the property "shall be determined at a later date"; (3) appellant should

inform Martin by July 1, 2013, whether he wishes to have the Rosecrans property

distributed to him "at a value as of the time of distribution to be determined at a later

date," or whether he wishes to vacate the Rosecrans property and receive a cash

distribution upon the sale of the Rosecrans property.

DISCUSSION

A preliminary distribution from an estate is proper when "it appears that the

distribution may be made without loss to creditors or injury to the estate or any interested

9 person." (Prob. Code, § 11621, subd. (a); Estate of Toler (1957) 49 Cal.2d 460, 468.)7 A

preliminary distribution may be made even when there are pending disputes about the

estate distribution, as long as there are sufficient assets available to properly

accommodate the outstanding matters. (See Estate of Anderson (1977) 68 Cal.App.3d

1010, 1016-1017; Estate of Morelli (1951) 102 Cal.App.2d 39, 42.)

On appeal, we review a preliminary distribution order for abuse of discretion,

drawing all reasonable inferences in favor of the court's order. (Estate of Beard (1999)

71 Cal.App.4th 753, 780.) "In the absence of a clear showing that the probate court

abused its broad discretion in concluding that the estate was in such condition that the

preliminary distribution could be safely made, its determination in that regard may not be

reversed on appeal." (Estate of Toler, supra, 49 Cal.2d at p. 468.)

On appeal, appellant raises a variety of arguments to support his claim that the

trial court abused its discretion by approving Martin's Preliminary Distribution Proposal,

including that the distribution violates the trust terms; the court failed to evaluate the

financial impact of the distribution; it was improper to make a distribution when the real

estate valuations are undetermined; the distribution terms favor Martin's interests and

create a conflict of interest; and the court failed to follow various rules.

7 Although these authorities concern a probate estate rather than a trust estate, the probate and trust estate rules may be used interchangeably to the extent they involve substantially the same considerations. (See, e.g., Newman v. Wells Fargo Bank (1996) 14 Cal.4th 126, 134; Estate of Thompson (1958) 50 Cal.2d 613, 616; Edwards v. Gillis (2012) 208 Cal.App.4th 1318, 1329.) 10 We note that several of the issues raised by appellant were not raised before the

trial court at all, or were not raised until after the court's ruling in a motion for

reconsideration. The record on appeal does not show how the reconsideration motion

was resolved. Moreover, the record does not include a reporter's transcript or settled

statement of any of the hearings before the trial court. To obtain appellate review of an

issue, the appellant must pursue the claim before the trial court and provide an adequate

record on appeal to permit meaningful review. (In re Marriage of Freeman (1996) 45

Cal.App.4th 1437, 1450-1451; Bianco v. California Highway Patrol (1994) 24

Cal.App.4th 1113, 1125-1126.) A self-represented litigant is held to these same rules.

(Bianco, supra, at pp. 1125-1126.) As we consider each of appellant's contentions, our

review is in some instances forestalled or limited due to appellant's failure to comply with

these requirements.

11 A. Claim of Delayed Distribution to Appellant in Violation of Trust Terms

Appellant asserts the Preliminary Distribution Proposal approved by the court

failed to follow the terms of the trust which—to accommodate the $186,000 unpaid loan

to Burton—require that appellant receive an affirmative distribution of $186,000 before

the assets are divided among the three sons. Appellant contends the effect of the court's

order is to delay distribution to him, and the court violated the trust terms by approving

distributions to Martin and Burton before him.8

To determine whether the court's order violates the trust terms, we give the words

used in the trust their ordinary and common sense meaning, with a view to carrying out

the trustors' intent. (Estate of Simoncini (1991) 229 Cal.App.3d 881, 888-889.) The trust

states that appellant and Martin should each receive a distribution of "[a]ssets of the

estate equal in value to $186,000" and that the balance of the estate should be distributed

in equal shares to the three sons. (See fn. 3, ante.) The preliminary distribution order

provides for a distribution of the Rosecrans property to appellant, either as an in-kind

distribution of the property or a cash distribution upon the sale of the property, at

appellant's election. There is no dispute that the Rosecrans property is worth far more

than $186,000.

The plain language of the trust allows the $186,000 distribution to be based on

assets that are equal to this monetary amount. This language does not suggest or imply

8 Appellant's claim that the Preliminary Distribution Proposal violates the trust terms was not raised before the trial court until appellant filed the motion for reconsideration after the court's ruling. We exercise our discretion to consider this particular claim because it does not require us to resolve any factual disputes. 12 that appellant must receive $186,000 cash before any one-third division of the assets can

occur among the beneficiaries, nor does it preclude deriving the $186,000 distribution

from the receipt, or sale, of real estate. The trustors' clear intent was to ensure that

appellant and Martin were placed on an equal financial footing with Burton given

Burton's receipt of $186,000 before the trustors' deaths. The preliminary distribution

satisfies this directive by distributing the Rosecrans property to appellant either in kind or

in cash upon sale, as elected by appellant.

B. Claim that Court Failed To Evaluate the Financial Impact of the Proposal

Appellant argues the court failed to evaluate the financial impact of the

preliminary distribution on the trust. He contends the distribution removed the largest

income producing property from the trust (the Bogue property), and it encumbered the

two remaining income producing properties (the Padilla and Park properties) with a

promissory note. Further, he claims it was improper to allow Martin to encumber the

trust with a promissory note without disclosing the terms of the note and the interest rate

other than Martin's statement it would be at the market rate. He asserts the trust could

suffer a negative cash flow problem because of the loss of income from the Bogue

property, the fact that the remaining real estate assets are illiquid, and the creation of the

debt service obligations.

Based on these claims, appellant contends a cash flow analysis was needed to

determine if the plan was reasonable. He asserts Martin did not provide a financial

evaluation to the court; the court should have continued the hearing and ordered Martin to

13 provide the basic details of the plan to the beneficiaries; and the court did not give

appellant time to prepare an analysis.

Appellant has not cited to anything in the record showing that he objected to the

preliminary distribution because of a potential cash flow concern, or that he requested

more time to respond to the proposal for purposes of preparing his own cash flow

analysis. Accordingly, these claims are forfeited on appeal. (Santantonio v.

Westinghouse Broadcasting Co. (1994) 25 Cal.App.4th 102, 113.)

Moreover, the record supports a finding that the trust would remain financially

viable after the preliminary distribution. In the Preliminary Distribution Proposal, Martin

set forth information showing that after the preliminary distribution, the trust would

retain a net value of about $1.6 million, including $440,000 in cash ($350,000 which was

derived from Martin's equalizing payment). Appellant has not shown the liquid assets

would be insufficient to meet the debt service obligations or other trust expenses until the

San Marino property is sold. We note that although the court's order does not explicitly

state that Martin must make the proposed $350,000 equalizing payment (apparently

because the court decided to leave the real estate valuations open), the court could

reasonably assess that Martin, as a beneficiary, had a personal interest in maintaining the

value of the trust estate and hence would carry out the preliminary

14 distribution in a manner that would ensure an adequate cash flow.9

Appellant's contention that the court could not properly approve a distribution

proposal that failed to disclose the terms and interest rate for the promissory note is

unavailing. The trust allows the trustee to loan the trustee's own funds "to the trust for

any trust purpose, with interest at current rates" and to encumber the trust assets to secure

any such loan.10 Given this broad authority provided to the trustee under the trust,

appellant has not shown that the court was required to order the trustee to specify further

details of the promissory note needed to make the cash disbursement to Burton.

C. Challenge to Later Valuation of Real Estate

Appellant asserts the trial court erred in allowing the values of the real estate to be

determined at a later date. He contends the valuations affect how the distributions should

be made to the beneficiaries, and thus the valuations should be agreed upon before any

partial distribution of the trust assets.

9 Consistent with this, in written communications to appellant discussing proposed wording for the court's written order, Martin's attorney stated that Martin intended to make the $350,000 cash contribution: "Rest assured that while Martin intends to proceed with the equalizing payment to the Trust in the amount of $350,000 as set forth in the [Preliminary Distribution Proposal], in our view since it is not set forth in the Court's minute order, it need not be spelled out in the written order."

10 This provision setting forth the trustee's powers states: "To loan or advance the Trustee's own funds to the trust for any trust purpose, with interest at current rates; to receive security for such loans in the form of a mortgage, pledge, deed of trust, or other encumbrance of any assets of the trust; to purchase assets of the trust at their fair market value as determined by an independent appraisal of those assets; and to sell property to the trust at a price not in excess of its fair market value as determined by an independent appraisal." 15 The trial court's decision to leave open the real estate valuations reasonably

accommodated the competing interests arising from Burton's need for immediate cash

and appellant's challenge to the real estate valuations presented by Martin. Again, the

information provided by Martin supports that in the event the court finds any of Martin's

valuations are inaccurate, the $1.6 million net value remaining in the estate after the

preliminary distributions is sufficient to make any needed equalizing adjustments in the

final distribution. Under these circumstances, the trial court was not required to delay all

distributions until the valuation dispute was resolved.

D. Claim that Proposal Favors Martin's Interests and that

Martin Has a Conflict of Interest

Appellant asserts that Martin's distribution favored Martin's interests over his

interests because Martin gave himself a property valued at $1.7 million, whereas

appellant was given an option of receiving a property valued at $1.4 million. Further, he

contends that Martin at first proposed making a $350,000 equalizing payment into the

trust (i.e., in the Preliminary Distribution Proposal), but then Martin removed this

contribution in his subsequent pleading to the court (i.e., in his response to appellant's

objections to the Preliminary Distribution Proposal).

Appellant's assertion that Martin submitted a proposal that eliminated the

$350,000 equalizing payment misstates the record. Contrary to appellant's summation of

Martin's pleadings, Martin's response to appellant's objections to the Preliminary

Distribution Proposal was not a third distribution proposal; rather, it was merely a

response to appellant's objections, and it reiterated the terms of the Preliminary

16 Distribution Proposal, including the $350,000 equalizing payment. Thereafter, in its

order approving the Preliminary Distribution Proposal the court left the real estate

valuations open. Given that the valuations were left undecided in the preliminary

distribution order, the court reasonably declined to calculate what equalizing payments

should be made. It is clear from Martin's various submissions to the court that when the

valuations are ultimately determined, equalizing payments will be calculated and ordered

at that time. Appellant's claim of unfairness in this regard is unavailing.

Appellant further asserts that Martin "prematurely allocated himself the largest

income producing property and the biggest cash flow generator of the trust for his own

benefit while arbitrarily allocating a non-income-producing residential property to

[appellant] in a 'take it or leave it' manner." Appellant has not cited to anything in the

record showing that the Bogue property is the largest income producing property. Even

assuming that it is, the income producing characteristics of the Bogue property will be

reflected in the market valuations that are still to be determined and appropriate

equalizing payments will be ordered.

In his motion for reconsideration filed after the court's order approving the

Preliminary Distribution Proposal, appellant—apparently for the first time—told the

court that he wanted to be allocated the Bogue property and other income producing

property. As noted, the record on appeal does not indicate how the reconsideration

motion was resolved. On appeal, appellant complains in general fashion that the

distribution of the Bogue property to Martin was premature and arbitrary, but he does not

specifically claim that he wanted to receive this property and be subjected to any required

17 equalizing payment. An issue not raised on appeal is deemed abandoned. (Multani v.

Witkin & Neil (2013) 215 Cal.App.4th 1428, 1442, fn. 6.) Given that appellant's

challenge to the allocation of the Bogue property to Martin was raised in belated fashion

before the trial court and was not squarely raised on appeal, appellant has not shown the

trial court abused its discretion in approving the distribution of the Bogue property to

Martin.

To support his challenge to the court's distribution order, appellant also states that

he never requested that the Rosecrans property be distributed to him, but rather he told

Martin that he was interested in purchasing it.11 He posits that a purchase "involves a

reasonable price with offsets for deferred maintenance." Deferred maintenance issues

can be addressed in the valuation of the Rosecrans property regardless of whether it is

purchased by, or distributed to, appellant. Appellant has not established that distribution

of the Rosecrans property to him (either in kind or in cash upon a sale) will prejudice his

interests as compared to his purchase of the residence.

Appellant further contends that Martin has a conflict of interest because under the

court's order he is a secured lender with the right to foreclose, a beneficiary, and a trustee.

Appellant acknowledges that under the trust terms, Martin could properly loan his own

funds to the trust. (See fn. 10, ante.) Thus, he apparently recognizes that a trustee's loan

to a trust permitted under the trust terms is not viewed as a conflict of interest. (See

11 Appellant's request to purchase the property is contained in a letter written to Martin shortly after his father's death, stating: "Now that the Trust has entered a new phase, I am interested in purchasing 541 Rosecrans when it is the appropriate time." 18 Estate of Thompson, supra, 50 Cal.2d at pp. 616-617 [trust may authorize transactions by

trustee that might otherwise constitute prohibited self-dealing]; Copley v. Copley (1981)

126 Cal.App.3d 248, 278-279.) However, he contends that Martin's wife, along with

Martin, is a holder of the promissory note, and this is improper because she is a stranger

to the trust. The record on appeal does not show that the court was presented with a

proposed promissory note at the time of its order approving the Preliminary Distribution

Proposal. Our review is confined to matters submitted to the trial court. (See In re Zeth

S. (2003) 31 Cal.4th 396, 405.) In any event, even assuming Martin's wife is a holder of

the promissory note, the trust broadly permits the trustee to "borrow money and to

encumber trust property," which can reasonably encompass a promissory note from a

third party such as Martin's wife.12

E. Claim that Court Failed To Follow Rules

Appellant asserts the court failed to follow various rules, including the rule placing

the burden of proof on Martin as the petitioner. Absent a contrary indication in the

record, we presume the court properly followed the law. (Ross v. Superior Court (1977)

19 Cal.3d 899, 913.) The record on appeal does not include any reporter's transcripts or a

settled statement which might have reflected the reasoning underlying the court's order,

and the record before us does not show the court failed to place the burden of proof on

Martin.

12 The trust states that the trustee has the power to "borrow money and to encumber trust property by mortgage, deed of trust, pledge, or otherwise, for the debts of the trust . . . ." 19 Appellant also contends the court erred in accepting Martin's response to

appellant's objections to the Preliminary Distribution Proposal even though the response

was filed late. He asserts that because of the late filing, he was unable to prepare a timely

objection to the response. The record shows that in March and April 2013, appellant

filed objections to Martin's Final Distribution Plan and Preliminary Distribution Proposal.

Thereafter, on May 3, 2013, Martin filed a response (which was stamped "LATE" but

accepted for filing) to appellant's objections to the Proposal. The hearing on the

Preliminary Distribution Proposal was held on May 6, and appellant appeared at this

hearing with counsel. Appellant has not cited to anything in the record showing that he

requested more time to respond to Martin's response, or that he was impeded from

presenting any significant information to the court because Martin's response was filed

late. Significantly, Martin's response was not a new or revised distribution plan, but

simply a response to appellant's objections to the Preliminary Distribution Proposal.

In the reconsideration motion presented to the trial court after the May 6 hearing,

appellant's attorney stated that he did not have an opportunity to adequately review the

late-filed response. This pleading, standing on its own and with no information as to its

resolution, does not suffice to show prejudicial error arising from the court's acceptance

of Martin's late response. Moreover, the specific claims of error raised in the

reconsideration motion have been resolved in this appeal.

Appellant also cites various local court rules relating to timeliness, notice, and

other matters, and claims these rules were violated. We reject these assertions because he

20 fails to present an adequate record and/or arguments to support his claims of prejudicial

error on these points. (See Multani v. Witkin & Neil, supra, 215 Cal.App.4th at p. 1457.)

Appellant has not shown the court abused its discretion.

DISPOSITION

The order is affirmed. Appellant to pay respondent's costs on appeal.

HALLER, J.

WE CONCUR:

MCCONNELL, P. J.

MCINTYRE, J.

21