An Order Compelling an Accounting is Not Appealable, Unless It Expressly or Implicitly Decides Other Issues That Could be the Subject of an Appealable Order

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[author: Steve Braccini]

“In probate court, nothing speaks more eloquently or provides more insight into factual and legal issues than an accounting.”

Christie v. Kimball (2d Civil No. B230286, January 26, 2012).

Under Probate Code §1304(a), an order compelling a trustee to account is not appealable. However, an exception to this rule occurs where the order also expressly or impliedly decides other issues that could be the subject of an appealable order. Esslinger v. Cummins (2006) 144 Cal.App.4th 517, 522. But what does “other issues that could be the subject of an appealable order” mean, exactly?

On January 26, 2012, in Christie v. Kimball, supra, the Second District Court of Appeal addressed this question. In Christie, a purported beneficiary filed a petition to remove a trustee and to compel an accounting. The trial court sought to identify the assets that were part of the trust. In response to the trial court’s questioning, Christie said that she had distributed assets to herself as beneficiary, had used trust funds to pay attorney’s fees, and that approximately $130,000 of trust funds were “basically gone.” In an attempt to determine where the $130,000 in trust funds had gone, the trial court ordered Christie to account. Christie appealed. On appeal, Christie recognized that the order compelling the account was not appealable in and of itself, so she claimed that by ordering the account, the trial court was impliedly deciding that Kimball was a beneficiary of the trust (i.e., another issue that could be the subject of an appealable order). The Court of Appeal disagreed and reasoned that the trial court had the power to order an account sua sponte due to its inherent authority to supervise the administration of trusts, and if it did, the result would be the same without the necessity of deciding whether Kimball was a beneficiary. In fact, the Court of Appeal determined that the issue of whether Kimball was a beneficiary was an issue yet to be litigated in light of the many ambiguities in the terms of the trust. The Court of Appeal concluded that the order compelling the account, therefore, was not appealable, and determining the need for an accounting to locate assets was within the trial court’s sound discretion in supervising the administration of the trust.

The Take AwayIf practitioners want orders compelling accountings to hold, they should seek ancillary relief separately from a petition to compel an accounting. When petitioning to compel an accounting from a trustee, be sure not to conflate the issues by seeking, let alone, obtaining ancillary orders.