Filed 4/22/16 Chao v. Chui CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


ESTHER CHAO,                                                         B262714

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                      Super. Ct. No. BC544149)
         v.

CHRISTINE CHUI, Personal
Representative of Robert Tak-Kwong
Chui, Decedent, et al.,

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Samantha P. Jessner, Judge. Reversed and remanded with directions.
         Law Offices of Michael Leight and Michael Leight for Plaintiff and
Appellant.
         Freeman, Freeman & Smiley, Jared A. Barry and Stephen Lowe for
Defendants and Respondents.




         This action, filed by a beneficiary of a trust against the widow and
representative of a former trustee and his estate, alleges the trustee breached his
fiduciary duties and caused the beneficiary financial harm. The trial court
sustained without leave to amend the representative’s demurrer to the complaint on
the ground that the beneficiary’s tort claim concerned internal trust affairs
exclusively within the jurisdiction of the “probate court.” The court subsequently
dismissed the action and entered judgment in favor of the representative.
       We conclude the trial court correctly determined that it lacked jurisdiction
over this matter involving the internal affairs of a trust. We further conclude,
however, that the trial court should have transferred the matter to the “probate
department” of the Los Angeles Superior Court (LASC) rather than dismissing the
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action. Accordingly, we reverse the judgment and remand with instructions to
transfer the matter to the probate department in which the beneficiary’s petition for
breach of trust is pending.




                                   BACKGROUND
       On review from an order sustaining a demurrer we accept as true the factual
allegations of the operative complaint. (Lueras v. BAC Home Loans Servicing, LP
(2013) 221 Cal. App. 4th 49, 55.) Plaintiff and appellant is Esther Chao. Her

1      A lack of subject matter jurisdiction refers to an absence of judicial power to hear
or determine a case. (Harnedy v. Whitty (2003) 110 Cal. App. 4th 1333, 1343 (Harnedy).)
As the trial court implicitly recognized that was not the case here. The LASC “is divided
into departments, including the probate department, as a matter of convenience; but the
subject matter jurisdiction of the superior court is vested as a whole.” (Estate of Bowles
(2008) 169 Cal. App. 4th 684, 695.) The phrase “probate court” is commonly employed,
but there is no distinct tribunal; it is merely a department of the LASC exercising that
jurisdiction. (See Prob. Code, § 7050 [“The superior court has jurisdiction of
proceedings under this code concerning the administration of the decedent’s estate”]; see
also 14 Witkin, Summary of Cal. Law (10th ed. 2005) Wills and Probate, § 346, p. 434.)


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brother, Robert Tak-Kwong Chui (Robert) passed away on June 9, 2013. During
his lifetime, Robert served “as trustee of various (Trusts) settled by his father”––
for whom Robert acted as conservator––“and his late mother.” Appellant claims
she is a beneficiary of at least one such trust and that Robert breached his fiduciary
duties while acting in his capacity as trustee and, by doing so, caused her financial
harm in an as yet undetermined amount. Defendant and respondent Christine
Chui, Robert’s widow, became the personal representative of her late husband and
his estate (Estate); Letters of Administration were issued in September 2013.
       On January 14, 2014, appellant filed a Creditor’s Claim with the Estate. She
alleged that, in October 2012, she filed a petition in the probate department (LASC
case No. BP137413) “claiming that Robert . . . acted illegally as trustee of his
parents [sic] trust,” that “[m]ultiple accountings for the trust and the sub-trusts
[would] be filed shortly,” and that discovery remained incomplete in that ongoing
proceeding. Respondent rejected the Creditor’s Claim in its entirety on February
7, 2014.
       On April 30, 2014, appellant filed this tort action alleging that Robert
breached his fiduciary duties as trustee by, among other things, failing properly to
account for his financial activities in that capacity, causing appellant to suffer
financial injury in an as yet-undetermined amount.
       On June 20, 2014, respondent filed a general demurrer asserting that this
civil action should be dismissed. (Code Civ. Proc., §§ 430.10, subd. (a), 430.50.)


2      We intend no disrespect in referring to decedent by his first name. Our goal is to
avoid confusion since Robert and Christine Chui shared a last name, and Chui is
defending this action in her capacity as her late husband’s personal representative
and the representative of his Estate.


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She maintained that, pursuant to Probate Code sections 17000, subdivision (a),
and 17200, subdivision (b)(12), the “Probate Court ‘has exclusive jurisdiction of
proceedings concerning the internal affairs of trusts.’” Accordingly, she insisted
the trial court lacked subject matter jurisdiction over this action, which
“necessarily concerns ‘the internal affairs’ of a trust and so falls within the
exclusive jurisdiction of the Probate Court.” (Boldface omitted.)
      For unexplained reasons, appellant’s opposition was not filed until January
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15, 2015. Respondent submitted her reply on January 26, 2015. On February 2,
2015, following oral argument, the court concluded it lacked jurisdiction to
determine this matter and sustained the demurrer without leave to amend. This
timely appeal followed entry of judgment on February 24, 2015.
                                       DISCUSSION
      Although they couch the issue in slightly different terms, the parties agree
that the trial court appropriately refused to consider this action because the
allegations of the complaint relate to internal trust affairs. As such, they are

3     Unless otherwise stated, further statutory references are to the Probate Code.

4     In the meantime, on August 28, 2014, the Presiding Judge of the LASC issued
an order in which he declined to deem as “related cases” (see Cal. Rules of Court,
3.300(a)) this civil action filed in April 2014, and three earlier proceedings filed in
the probate department: (1) case No. BP137413, mentioned above, the October
2012 petition filed by appellant, purportedly alleging breaches of her parents’ trust
by Robert and a co-trustee (not a party here); (2) case No. BP137626, a November
2012 petition filed by Robert, purportedly to establish a conservatorship over his
father’s person and estate; and (3) case No. BP143884, an August 2013 petition
filed by respondent to probate Robert’s Estate. We cannot review the allegations
of any petition filed in the probate department. None is included in the appellate
record, and neither party has requested that we take judicial notice of those
pleadings or any document.


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matters within the subject matter jurisdiction of the LASC probate department.
(§§ 17000, subd. (a), 17200, subd. (b)(12).) They part ways, however, on the
question of whether, as respondent contends, the trial court was correct to sustain
the demurrer without leave to amend and dismiss the action, or whether, as
appellant asserts, it erred by doing so and should instead have transferred the
action to the probate department, where a petition alleging Robert’s purported
mismanagement of internal trust affairs (case No. BP137413) was already pending.
      The parties are correct as to the first point. The Probate Code provides that
“[t]he superior court having jurisdiction over the trust . . . has exclusive jurisdiction
of proceedings concerning the internal affairs of trusts.” (§ 17000, subd. (a).)
Once probate jurisdiction has attached to a decedent’s estate, that department has
jurisdiction to decide all claims affecting estate administration, even if such
controversies would otherwise be outside its jurisdiction if asserted independently.
(See § 17000, subd. (b)(3) [court with exclusive jurisdiction over a trust under this
section also has concurrent jurisdiction over “[o]ther actions and proceedings
involving trustees and third persons”].) When supervising proceedings governed
by the Probate Code, the probate department acts a court of general jurisdiction
exercising exclusive jurisdiction over proceedings involving internal trust affairs
and concurrent jurisdiction over related claims as otherwise provided by law for a
superior court. (See Estate of Baglione (1966) 65 Cal. 2d 192, 196-197; Estate of
Kraus (2010) 184 Cal. App. 4th 103, 114.)
      Applied here, it is clear that the Probate Code controls this litigation and
establishes the permissible remedies and proceedings to which a court must adhere.
The trial court correctly found these provisions gave the probate department
jurisdiction over a proceeding alleging mismanagement of internal trust affairs,
particularly in light of the fact that a petition was currently pending in the probate

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department alleging a similar claim related to internal trust affairs and
mismanagement.
      The appropriate course would have been for appellant to proceed against
respondent as the trustee’s representative in the probate department to obtain an
accounting and remedies arising out of any proven fiduciary breach. (§§ 16420,
17000, 17200; see Estate of Bissinger (1964) 60 Cal. 2d 756, 764–765 [probate
court has the power to apply equitable and legal principles in fashioning remedies
and granting relief].)
      Appellant chose not to file a verified petition in the probate department,
which had already asserted jurisdiction over the proceedings involving internal
trust affairs, as controlling statutes mandate. (§ 17000.) Instead, she filed this civil
action asserting claims regarding internal trust affairs. When the court indicated its
intent to sustain the demurrer without leave and dismiss the action because the
probate department had exclusive jurisdiction over the dispute, appellant did not
request that the court refrain from doing so, nor did she ask that the matter be
transferred to the probate department. Respondent argues that appellant’s failure
to do so constitutes forfeiture of her contention of error on appeal. We disagree.
Although it would have been wise for appellant to have done so, and she took
significant risks by failing to object, she is not as a matter of law barred from
raising this legal question on appeal. Although we would not ordinarily consider
an objection that could have been, but was not, raised in the trial court, we remain
free to “consider on appeal ‘a claim raising a pure question of law on undisputed
facts.’ [Citation.]” (In re Stier (2007) 152 Cal. App. 4th 63, 75.) The facts are
undisputed here. The demurrer was sustained without leave to amend because the
trial court concluded it lacked jurisdiction to entertain this action. The only issue is
purely legal: Should the trial court on its own accord have transferred the matter to

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the probate department after sustaining the demurrer, rather than dismissing the
action in its entirety. The forfeiture doctrine also “does not apply where the trial
court exceeds its statutory authority.” (People v. Andrade (2002) 100 Cal. App. 4th
351, 354.)
      Given the unique nature of appellant’s claim and the jurisdictional and
procedural requirements of governing law, we conclude that no amendment would
cure the civil complaint’s fatal defects and the trial court properly concluded it
would exceed it jurisdiction by retaining this matter, particularly in the face of
respondent’s prompt objection. (§§ 17000, 17200, subd. (b)(12); cf. Harnedy,
supra, 110 Cal.App.4th at p. 1345 [concluding appellant could not wait until after
trial on the merits to argue on appeal that decision should be set aside for lack of
jurisdiction].) However, the court went too far when it dismissed the action.
Public policy favors resolution of actions on the merits, even if an action was filed
in a court lacking subject matter jurisdiction. (See Morgan v. Somervell (1940) 40
Cal. App. 2d 398, 400; cf., Friends of Mammoth v. Board of Supervisors (1972) 8
Cal. 3d 247, 269, disapproved on another ground by Kowis v. Howard (1992) 3
Cal. 4th 888, 897.) Based on our review of this spare appellate record, we conclude
that the appropriate remedy was not to dismiss the action, but for the trial court on
its own motion to transfer matter to the probate department to determine whether
an amendment was possible and the propriety of consolidating the allegations
levied in the complaint with those in the petition in the pending probate
proceedings regarding internal trust affairs. Even an independent civil action
affecting the Estate may properly be consolidated for trial in a probate proceeding
if the two actions involve “a common question of law or fact.” (See Code Civ.
Proc., § 1048, subd. (a); Estate of Baglione, supra, 65 Cal.2d at p. 196 [probate
court has power to determine whole controversy including the civil action].)

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Accordingly, we reverse the judgment and remand the matter with instructions to
transfer the action to the probate department for a determination as to how and
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whether appellant may proceed.
                                        DISPOSITION
              The judgment is reversed. The matter is remanded with instructions
that it be transferred to the probate department. Appellant shall recover costs of
appeal.
              NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


                                                 WILLHITE, Acting P. J.


              We concur:


              MANELLA, J.


              COLLINS, J.




5      We also reject respondent’s novel argument that the complaint was properly
dismissed because she failed to comply with Code of Civil Procedure section 377.41 by
naming the Estate in pending probate petitions. This provision applies when a petition is
pending prior to a person’s death, providing a procedure to permit the action to proceed
against a decedent’s representative in his stead. This civil action was not pending at the
time of Robert’s death in mid-2013. Further, to the extent the statute governs a pending
probate action, respondent has not shown how issuance of Letters of Administration, and
appellant’s submission to the court of the creditor’s claim and respondent’s rejection
thereof fail to satisfy proof of compliance.

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