Estate of Fegan CA2/4

Opinion

Filed 9/18/26 Estate of Fegan CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR Estate of DANIEL JOHN FEGAN, B350856 Deceased.

(Los Angeles County Super. Ct. No. 18STPB02917)

ALEXANDRA FRANCESCA THOMSON,

Petitioner and Appellant, v. EDWARD FEGAN et al., Respondents.

APPEAL from an order of the Superior Court of Los Angeles County, Daniel Juarez, Judge. Affirmed. Baker & McKenzie, Edward D. Totino, Praniet Chopra for Appellant.

Holland & Knight, Jonathan H. Park for Respondent Edward Fegan. Sheppard, Mullin, Richter & Hampton, Nancy B. Reimann, Valerie E. Alter for Respondent Leilani Ishikawa.

INTRODUCTION Alexandra Thomson grew up without knowing who her biological father was. In 2024, a genealogy report from Ancestry.com suggested that Daniel Fegan (Daniel)1 was her father. Daniel passed away in 2018, but Thomson was able to contact some of Daniel’s family members and learned Daniel had established a trust to which she might have a claim. Nearly a year later, Thomson hired lawyers to investigate her potential rights and learned that approximately five months prior, the probate court entered an order approving a final distribution of assets and closing Daniel’s estate. Thomson moved to vacate the probate court’s final order, arguing that she was a reasonably ascertainable heir and that she was denied notice of the probate court proceedings through extrinsic fraud by the estate’s administrator and the trustee of Daniel’s trust. The probate court denied the motion, concluding Thomson was not a reasonably ascertainable heir and that she had failed to establish extrinsic fraud. Thomson now appeals, arguing the probate court abused its discretion in denying her motion. We find no abuse of discretion and affirm.

1 As this action involves multiple members of the Fegan family who share a last name, we will refer to certain parties by their first names where necessary in the interest of clarity. No disrespect is intended.

2 FACTUAL AND PROCEDURAL BACKGROUND

I. Daniel Fegan’s Estate Daniel was a sports agent and lawyer. Daniel had one son, Bradyn Fegan, born in 2012. As far as the family was aware, at the time Daniel died in February 2018, Bradyn was his only child. In 2014, Daniel executed an integrated estate plan consisting of a will and trust. Daniel’s will named Christen Dudley as the personal representative of his estate. It also provided that the assets of Daniel’s estate would be distributed to the trust. At all relevant times, Daniel’s brother, Edward Fegan, served as the sole trustee of Daniel’s trust. Following Daniel’s death, the probate court appointed Dudley as executor of Daniel’s estate. In 2024, Dudley filed a petition seeking an order distributing the remainder of Daniel’s estate to Edward as trustee of Daniel’s trust. The petition was heard in December 2024 and granted by the probate court on January 30, 2025. In its written order, the court approved the final distribution of estate assets to Daniel’s trust and ordered that “The administration of this estate is brought to a close.”

II. Thomson’s Potential Claim to Daniel’s Estate Thomson was born in 1987 in Australia. Thomson was raised by her mother and was unaware of her biological father’s identity. In April 2024, Thomson had her DNA sampled and obtained a genealogy report from Ancestry.com. The report revealed a 25 percent DNA match to Daniel’s mother, Marlene Fegan. According to the report, there was an 89 percent chance that Thomson and Marlene were related. Further internet research led Thomson to a 2018 obituary notice of Daniel’s death. The notice matched the background information Thomson 3 knew about her biological father, namely that he attended Yale University and studied law. In May 2024, Thomson sent a letter to Marlene informing her of their potential familial relationship. The two began corresponding, which led Thomson to also correspond with Edward. In July 2024, Thomson traveled to the United States to meet the Fegan family, including Marlene and Edward. Thomson alleges on the last day of her trip, Edward told Thomson Daniel had an estate and that Daniel “would have wanted the estate to be divided equally between” Thomson and Bradyn. In that same conversation, Edward allegedly told her about Daniel’s trust and mentioned that he was a trustee. In May 2025, Thomson retained American legal counsel to determine if she could obtain a portion of Daniel’s estate.

III. Thomson’s Motion to Vacate In June 2025, Thomson filed a motion to set aside the probate court’s January 2025 final order of distribution. In her motion, Thomson claimed she was one of Daniel’s reasonably ascertainable heirs and was therefore entitled to receive notice of the probate proceedings under Probate Code section 8110.2 Thomson alleged that Edward and Dudley failed to provide her with the statutorily required notice of the hearing on Dudley’s petition for an order of final distribution. Thomson raised two arguments. First, she claimed that the January 2025 order was procured through extrinsic fraud because both Edward and Dudley failed to apprise her of the probate proceedings and failed to advise the probate court of her status as one of Daniel’s heirs. This extrinsic fraud 2 All further statutory references are to the Probate Code unless otherwise specified.

4 denied her the opportunity to appear in the probate court and make a claim to the estate before the final order was issued in January 2025. Second, Thomson argued that “[e]quitable [c]onsiderations” warranted setting aside the probate court’s order because otherwise she would face “irreparable hardship.” Thomson attempted to show “that she was a reasonably ascertainable heir, that a fiduciary in probate failed to provide her with statutorily required notice, and that she could make a claim to the estate were the final distribution order set aside.” Thomson argued that both Edward and Dudley “knew of [her] right to the estate.” Thomson argued that she was a beneficiary of Daniel’s trust and Edward, as the trustee, owed her a fiduciary duty to disclose her existence to Dudley and/or the probate court. Thomson also noted that she was in the process of “carrying out DNA testing to confirm that Daniel Fegan [was], in fact, her biological father.” Thomson’s declaration described her search for her biological father and her July 2024 conversation with Edward. Thomson stated that she could not recall “any further information” about her conversation with Edward. Bradyn’s mother, Leilani Ishikawa, opposed Thomson’s motion. Ishikawa argued that Thomson was not a reasonably ascertainable heir entitled to notice of the probate proceedings under section 8110. She also argued Dudley had no knowledge of Thomson’s existence or claimed relation to Daniel before the probate court issued its final order in January 2025. Ishikawa also asserted that Edward’s knowledge of Thomson was irrelevant, as Edward did not owe Thomson a duty to provide notice of the probate proceedings or inform Dudley of her existence. Ishikawa argued that a trustee’s fiduciary duties only extend to the beneficiaries of a trust, and Thomson had not established that she was a beneficiary of Daniel’s trust.

5 Finally, Ishikawa argued that Thomson’s request was barred by the doctrine of laches because Thomson unreasonably delayed in seeking a share of Daniel’s estate. Ishikawa’s opposition was accompanied by declarations from Dudley and Edward. In his declaration, Edward stated that he first learned of Thomson in May 2024 when she reached out to the Fegan family claiming she was Daniel’s daughter. Edward “believed that this information was highly sensitive and personal” for the Fegan family and that “it was [Thomson]’s news to share with whomever she wished.” Dudley stated he first learned of Thomson’s existence in May 2025. Before May 2025, he “had no reason to believe that anyone” was claiming to be Daniel’s child aside from Bradyn. Thomson filed a reply in support of her motion. She again argued that Edward, as the trustee of Daniel’s estate, owed her a fiduciary duty to provide notice of the probate proceedings and notify Dudley of her potential claim to Daniel’s estate. She also argued the doctrine of laches did not bar her motion and reiterated the assertion that the balance of the equities supported vacatur. Thomson’s reply raised new arguments not presented in her original moving papers. For example, Thomson invoked the doctrine of equitable mistake, arguing for the first time that she mistakenly relied on Edward to protect her interests rather than obtain her own legal counsel. Thomson’s reply also put forth new evidence in support of her assertion of extrinsic fraud. Thomson argued that Dudley “submitted a document signed by [Edward] that contained a false statement about the beneficiaries of the trust in what appears to be an effort to have this Court make incorrect factual findings for use in further proceedings involving the Trust.”

6 Specifically, Thomson pointed to a Receipt for Preliminary Distribution and Consent filed in November 2024 in which Edward stated that he approved a January 2023 preliminary distribution of estate assets to the trust because “it was in the best interests of the Trust and its sole beneficiary, Bradyn Fegan.” Thomson argued she was also a beneficiary of Daniel’s trust, and thus Edward’s statement was a misrepresentation constituting extrinsic fraud. Despite her earlier claim that she could not recall any additional details about her July 2024 conversation with Edward, Thomson’s reply was accompanied by a second declaration providing additional statements purportedly made by Edward. According to Thomson’s second declaration, Edward also stated that Thomson was “entitled to a share” of Daniel’s estate.3 Her new declaration also asserted that, because Edward had mentioned the existence of Daniel’s estate “alongside the warmth and love of [her] newly discovered family,” she “trusted that any relevant information or required actions would be communicated to [her]” and “Edward would be looking out for [her].” The probate court denied Thomson’s motion. The court concluded that the evidence showed that Dudley did not know of Thomson before the January 2025 order was issued. The court rejected Thomson’s claim of extrinsic fraud and concluded that her moving papers failed to establish that she was a beneficiary of Daniel’s trust. The court also denied Thomson’s request for relief on equitable grounds.

3 At the hearing on Thomson’s motion, Edward’s counsel disputed certain events described in Thomson’s reply declaration. Specifically, counsel argued that Edward never told Thomson that she was entitled to half of Daniel’s estate.

7 Thomson timely appealed the denial of her motion.

DISCUSSION

I. Appealability Ishikawa argues that we must dismiss Thomson’s appeal as the denial of a motion to set aside an order in probate court is not an appealable order. Ishikawa is correct that orders denying relief under Code of Civil Procedure section 473 are generally not appealable in probate matters. (See Kalenian v. Insen (2014) 225 Cal.App.4th 569, 576; Probate Code, §§ 1300, 1303.) However, our Supreme Court has long recognized an exemption to this general rule under which “one appeal is permitted from an order refusing to vacate a judgment or decree when, for reasons involving no fault of the appealing party, he has never been given an opportunity to appeal directly from the judgment or decree.” (Estate of Baker (1915) 170 Cal. 578, 582.) “In such cases it is always permissible for the one injured to make himself a party to the litigation, if he has not been a party, and after he has thus submitted to the jurisdiction of the court, to move the vacation of the decree or appealable order injuriously affecting his interest, and to appeal if the motion be denied.” (Ibid.) Here, it is undisputed that Thomson had no notice of Dudley’s 2024 petition, the December 2024 hearing on the petition, or the probate court’s January 2025 order granting the petition. As Thomson’s claims on appeal all stem from the allegation that she was denied notice of and access to these probate proceedings because of extrinsic fraud, we conclude that the exemption to the general rule of non-appealability applies.

8 II. Legal Standards “We review an order denying equitable relief for an abuse of discretion.” (Hudson v. Foster (2021) 68 Cal.App.5th 640, 661 (Hudson).) “In doing so, we determine whether the trial court’s factual findings are supported by substantial evidence [citation] and independently review its statutory interpretations and legal conclusions [citations].” (County of San Diego v. Gorham (2010) 186 Cal.App.4th 1215, 1230.) “‘In assessing whether any substantial evidence exists, we view the record in the light most favorable to respondents, giving them the benefit of every reasonable inference and resolving all conflicts in their favor.’ [Citation.]” (Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 28; accord Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 546, overruled on other grounds by Soule v. General Motors (1994) 8 Cal.4th 548, 574.) “‘[W]hen the evidence gives rise to conflicting reasonable inferences, one of which supports the finding of the trial court, the trial court’s finding is conclusive on appeal. [Citation.]’ [Citation.]” (Phillips v. Campbell (2016) 2 Cal.App.5th 844, 851.)

III. The Probate Court Did Not Abuse Its Discretion Thomson raises three arguments on appeal. First, she argues that the probate court failed to consider extrinsic fraud or mistake caused by Edward. Second, she asserts the probate court erred by failing to consider extrinsic fraud or mistake by Edward’s counsel. Third, she argues the probate court failed to consider whether the January 2025 order was the result of her mistake in trusting Edward to protect her interest in Daniels’ estate.

9 A. Extrinsic Fraud by Edward Under Probate Code section 8110, the executor of an estate must provide notice of a petition for administration at least 15 days before the hearing on the petition. The executor is required to provide such notice to “Each heir of the decedent, so far as known to or reasonably ascertainable by the petitioner.” (§ 8110, subd. (a).) “Extrinsic fraud usually arises when a party is denied a fair adversary hearing because he has been ‘deliberately kept in ignorance of the action or proceeding, or in some other way fraudulently prevented from presenting his claim or defense.’” (Kulchar v. Kulchar (1969) 1 Cal.3d 467, 471.) “An heir, devisee or legatee has been held to be under no duty to notify another heir, devisee or legatee of the death of the decedent, or of the probate proceedings.” (Stevens v. Torregano (1961) 192 Cal.App.2d 105, 123.) “[A] mere failure to volunteer information is not fraudulent unless there is a duty to speak.” (Id. at p. 120.) Accordingly, “silence on the part of a fiduciary, who is under a duty to speak, is fraud.” (Id. at p. 123.) Similarly, “one who is asked for or volunteers information must be truthful.” (Id. at p. 120.) Thomson argues we must find an abuse of discretion by the probate court because it failed to consider Thomson’s theory of extrinsic fraud by Edward. We are not persuaded. Thomson’s argument is belied by the record on appeal. The probate court’s order and the reporter’s transcript from the hearing on Thomson’s motion both show that the court considered and rejected Thomson’s theory of extrinsic fraud. Thomson argued that she was a beneficiary of Daniel’s trust and therefore Edward owed her a fiduciary duty in his capacity as trustee. But the probate court expressly concluded that Thomson failed to establish 10 she was a beneficiary of Daniel’s trust. This finding is fatal to Thomson’s argument that Edward owed her a fiduciary duty as a trustee. As Thomson bore the burden of establishing her status as a beneficiary of Daniel’s trust, “‘it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the [probate court’s order]. . . . [¶] Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) “uncontradicted and unimpeached” and (2) “of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.”’ [Citation.]” (Dreyer’s Grand Ice Cream, Inc. v. County of Kern (2013) 218 Cal.App.4th 828, 838; accord Patricia A. Murray Dental Corp. v. Dentsply Internat., Inc. (2018) 19 Cal.App.5th 258, 270.) Here, the evidence provided by Thomson was not of such weight and character as to compel the conclusion that she was a beneficiary of Daniel’s trust as a matter of law. The only evidence put forth on this point was a genealogy report generated by the website Ancestry.com. The scientific validity and reliability of this test were not established in Thomson’s moving papers. Thomson also tacitly acknowledged the insufficiency of the genealogy report by stating that she was in the process of having DNA testing performed with an established chain of custody that would confirm her status as Daniel’s heir. In the face of such evidence, the probate court did not err in concluding that Thomson failed to establish that she was a beneficiary of 11 Daniel’s trust to whom Edward owed a fiduciary duty in his capacity as trustee.4 On appeal, Thomson ignores this aspect of the probate court’s ruling. Thomson provides no argument or authority suggesting that trustees owe fiduciary duties to non-beneficiaries. “It is the parties’ responsibility to support claims of error with meaningful argument and citation to authority. [Citations.] When they do not furnish legal argument with citation to authority on a particular point, we may treat the point as forfeited and pass it without consideration. [Citations.]” (Shaw v. Los Angeles Unified School Dist. (2023) 95 Cal.App.5th 740, 754 (Shaw).) In other words, Thomson’s moving papers effectively conceded that she did not establish that she was a beneficiary of Daniel’s trust. Therefore, Thomson failed to establish that Edward owed her a fiduciary duty stemming from his role as trustee. For the first time on appeal, Thomson argues that Edward owed her a fiduciary duty arising from a special or confidential relationship. Thomson forfeited this argument by failing to raise it in the probate court. (See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564 (Premier Medical).) The argument also fails on its merits. Thomson is correct that a fiduciary duty may arise from a confidential or special relationship between parties. “When a person places confidence in another person, the person who voluntarily accepted the confidence cannot take any advantage from acts undertaken for the other party without the knowledge or consent of that 4 For this same reason, we reject Thomson’s argument that Edward committed extrinsic fraud by representing to the probate court and Dudley that Bradyn was the sole beneficiary of Daniel’s trust.

12 party.” (Hudson, supra, 68 Cal.App.5th at p. 663.) But the law on this point is settled; a confidential relationship is only found where one party places their confidence in another party, and “the latter voluntarily accepts or assumes to accept the confidence.” (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101–1102; accord Estate of Sanders (1985) 40 Cal.3d 607, 615.) Here, Thomson presented no evidence or argument below suggesting that Edward voluntarily accepted her trust or purported to act on her behalf. Nor is there evidence in the record that Edward was aware that Thomson placed her trust in him to protect her potential claim to Daniel’s estate. Thomson’s uncommunicated assumption that Edward would act on her behalf is insufficient to establish that Edward owed her a fiduciary duty stemming from a special or confidential relationship. In the absence of any fiduciary duty to Thomson, Edward had no obligation to inform Dudley or the probate court of Thomson’s potential claim to the estate. We find no abuse of discretion in the probate court’s rejection of Thomson’s theory of extrinsic fraud by Edward.

B. Extrinsic Fraud by Edward’s Counsel Thomson contends the probate court failed to consider her theory of extrinsic fraud by Edward’s counsel. But Thomson did not provide any evidence, argument, or authority suggesting that Edward’s counsel had knowledge of her existence or an obligation to inform the probate court of her existence. We agree with Ishikawa that Thomson forfeited this argument by failing to raise it in the probate court. (Premier Medical, supra, 163 Cal.App.4th at p. 564.) Thomson’s argument also fails on the merits.

13 Thomson asserts in conclusory fashion that “Edward Fegan’s counsel had knowledge of Ms. Thomson’s existence and Ms. Thomson’s potential claims to the probate estate at the time of the hearing on the Final Distribution Order and failed to disclose to the probate court.” But Thomson provides no citation to evidence in the record supporting these factual representations. Instead, Thomson points to the fact that her counsel made this assertion at the hearing on her motion and that Edward’s counsel “did not deny the assertion.” This is insufficient to establish that Edward’s counsel knew of Thomson’s existence before the court entered the January 2025 order. (People v. Kiney (2007) 151 Cal.App.4th 807, 814–815 [“Unsworn statements of counsel are not evidence because unsworn testimony in general does not constitute ‘evidence’ within the meaning of the Evidence Code”].) Nothing in the record suggests that Edward’s counsel knew of Thomson’s potential claim to Daniel’s estate at any point before the probate court entered the January 2025 order. This alone is fatal to Thomson’s claim of extrinsic fraud by Edward’s counsel. Thomson’s argument also fails because she has provided no authority suggesting Edward’s counsel had a duty to notify the probate court or Dudley of Thomson’s existence as a potential heir. For this separate reason, she forfeited the argument. (Shaw, supra, 95 Cal.App.5th at p. 754.)

C. Mistake Thomson argues the probate court abused its discretion because it failed to consider her theories of mistake by Edward, Edward’s counsel, or Thomson herself. We find no abuse of discretion by the probate court because Thomson’s theory of mistake was based on evidence and argument presented for the first time in her reply in support of her motion below.

14 The record on this point is clear. Thomson’s initial moving papers raised only two arguments: that vacatur was warranted under a theory of extrinsic fraud and that a balancing of the equities weighed in favor of vacatur. Thomson’s theory of mistake was raised for the first time in her reply brief and was based on purported new evidence contained in her reply declaration. “The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay); accord Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [new evidence submitted in a reply will only be considered in exceptional cases and where the opposing party is given an opportunity to respond].) Ultimately, the decision of whether to consider new arguments and evidence in a reply is committed to the discretion of the trial court. (Jay, 218 Cal.App.4th at p. 1538.) The record before us is silent as to whether Ishikawa or any other party was given the opportunity to substantively respond to Thomson’s new reply arguments or evidence.5 The record is similarly silent as to whether the probate court, in its discretion, declined to consider Thomson’s new arguments and evidence raised for the first time in her reply. “[T]he appellate presumptions are in favor of the trial court’s actions if there is a silent record.” (Jones v. Solgen Construction, LLC (2024) 99 Cal.App.5th 1178, 1192.)6 Similarly, “[t]he general rule is that on a silent record the 5 While the reporter’s transcript from the hearing on Thomson’s motion indicates that Ishikawa filed objections to Thomson’s reply, those objections are not included in the appellate appendix submitted by Thomson.

6 Thomson’s reliance on Rappleyea v. Campell (1994) 8 Cal.4th 975 (Rappleyea) is misplaced. Rappleyea noted that “Because the law favors disposing of cases on their merits, ‘any doubts in applying [Code of Civil 15 ‘“trial court is presumed to have been aware of and followed the applicable law”’ when exercising its discretion.” (Biscaro v. Stern (2010) 181 Cal.App.4th 702, 708.) Given the silent record before us, we can only presume the probate court exercised its discretion to disregard Thomson’s second declaration and the arguments asserted for the first time in her reply. We discern no error in this decision.7 DISPOSITION The probate court’s order denying Thomson’s motion to set aside is affirmed. Respondents are awarded their costs on appeal. NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS ZUKIN, P. J.

We concur:

TAMZARIAN, J. DAUM, J.

Procedure] section 473 must be resolved in favor of the party seeking relief from default [citations].’” (Id. at p. 980.) But Rappleyea did not overrule the long line of precedent establishing that error will not be presumed from a silent record. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564; Jameson v. Desta (2018) 5 Cal.5th 594, 609.)

7 We also reject Thomson’s claim on appeal that the probate court erred by not allowing her to conduct discovery as she raised this request for the first time in her reply below. Thomson also forfeited this claim of error by failing to raise it in her opening brief on appeal. “Points raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.)