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In re Dylan Apple Trust12/30/2003
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
A child who suffered injuries at the time of his birth has a trust fund that was created out of a medical malpractice settlement. The child's parents are now involved in an acrimonious divorce, and the mother purports to act on the child's behalf in challenging certain reimbursements made to the father over four years ago. The trial court sustained the father's demurrer without leave to amend, and we affirm that order.
FACTS
A.
Dylan Apple suffered severe and permanent injuries at the time of his birth in 1995. Dylan's parents, Heidi Hutchinson Apple and Jeffrey Apple, attributed the injuries to medical malpractice, and a lawsuit against the attending physician and the hospital was filed by Dylan (for his injuries), and by Heidi and Jeffrey (for negligent infliction of emotional distress), with Heidi designated as Dylan's guardian ad litem. In June 1999, the malpractice suit was resolved by a court-approved settlement in the amount of $4.75 million, which was allocated $250,000 to Heidi, $250,000 to Jeffrey, and $4.25 million to Dylan, with a reimbursement to Jeffrey from Dylan's share of $191,026 for the medical expenses Jeffrey had paid between the time of Dylan's birth and the settlement.
A trust was created for Dylan's benefit, and (as requested by Heidi as Dylan's guardian ad litem) Northern Trust Bank of California, N.A., was appointed Trustee of the Dylan Apple Trust. Among other things, the Trustee has the power to "commence or defend, at the expense of the trust, any litigation with respect to the trust that the Trustee deems advisable . . . ."
B.
More than three years later, in August 2002 -- by which time Heidi and Jeffrey were embroiled in a bitter divorce -- Heidi, purportedly acting as Dylan's guardian ad litem, initiated the present proceedings by filing a petition in probate in which she asked for orders requiring Jeffrey to account for the $191,026 reimbursed to him at the time the medical malpractice action was settled. The gist of Heidi's petition was that Jeffrey had not incurred the expenses for which he was reimbursed, and that Jeffrey knew his claim "was grossly inflated, fraudulent, and incorrect when he made it."
Jeffrey demurred to the petition on numerous grounds, including a challenge to Heidi's standing. Over Heidi's opposition, the demurrer was sustained without leave to amend, and Heidi's petition was dismissed. Heidi's appeal is from the order of dismissal.
DISCUSSION
Heidi's entire brief addresses the statute of limitations issue raised in Jeffrey's demurrer, and she offers nothing at all with regard to the standing issue. In his respondent's brief, Jeffrey responds to the limitations issues but also contends his demurrer was properly sustained on the ground that (assuming the existence of a claim) the Trustee, not Heidi, had standing to pursue it. Heidi has filed a reply brief, but it too is silent on the issue of standing. We treat her silence as a concession of the point (Rooz v. Kimmel (1997) 55 Cal.App.4th 573, 594, fn. 12), which would in any event have to be decided against her.
The Trustee of Dylan's trust has legal title to any cause of action related to the Trust's assets, and neither Dylan (as the beneficiary) nor Heidi (as the beneficiary's former guardian ad litem) has standin
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