To preserve the trust and to respond to perceived breaches of trust, the probate court has wide, express powers to "make any orders and take any other action necessary or proper to dispose of the matters presented" by the section 17200 petition. Schwartz v. Labow, 164 Cal. App. 4th 417, 427 citing Sec. 17206. Among the remedies in the probate court's arsenal, is the express power to remove a trustee on its own motion, without a petition (Sec. 15642(a); see 3 Gillick et al., Cal. Civil Practice: Probate & Trust Proceedings (1992) Remedies (2005 supp.), Secs. 24:96, pp. 24-102 to 24-105 & 24:47, p. 24-60), along with the express authority to suspend a trustee pending a hearing on a petition for the trustee's removal. Schwartz v. Labow, 164 Cal. App. 4th 417, 427 citing Sec. 15642(e).

More important, the probate court has the "inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust." Schwartz v. Labow, 164 Cal. App. 4th 417, 427 citing Estate of Heggstad (1993) 16 Cal. App. 4th 943, 951. “This inherent equitable power of the probate court has long been recognized to encompass the authority to take remedial action.” Id. "Under California trust law, a court can intervene to prevent or rectify abuses of a trustee's powers." Edwards v. Edwards (1998) 61 Cal. App. 4th 599, 604.

“Where a probate court has the express authority to remove a trustee sua sponte (under Sec. 15642(a)), it necessarily has the inherent equitable power to employ the less extreme remedy of suspending most of the trustee's powers and appointing an interim trustee pending a hearing. Schwartz v. Labow, 164 Cal. App. 4th 417, 428 citing Getty v. Getty (1988) 205 Cal. App. 3d 134, 142 (where probate court has authority in exercise of its general jurisdiction to remove a trustee, it may also, in exercise of inherent equity jurisdiction, take the ancillary step of removing only some of the trustee's powers and appointing a trustee ad litem).

Jurisdiction

The probate court has general power and duty to supervise the administration of trusts. Proceedings in the probate court "concerning the internal affairs of the trust" are commenced with the filing of a petition. Secs. 17201, 17200(a); Ross, Cal. Practice Guide: Probate (The Rutter Group 2007) Para. 2:116.20, at 2-76.13.

Notice

Under Prob.C. § 17203 for a Trustee removal petition, there is a 30-day statutory notice filing requirement in advance of the hearing.

Cause for Removal — Probate Code Section 15642

Under California Probate Code section 15642, a trustee may be removed for any “good cause,” including:

1. where the trustee has committed a breach of trust,
2. where the trustee is insolvent or otherwise unfit to administer the trust,
3. where hostility or lack of cooperation among co-trustees impairs trust administration,
4. where the trustee fails or declines to act,
5. where the trustee’s compensation is excessive,
6. where the trustee has serious mental capacity issues, or
7. where the trustee is substantially unable to resist fraud or undue influence.

Sterling v. Sterling (2015) 242 Cal. App. 4th 185

Trustee Removal, Extraordinary Risk of Injury or Loss and Section 1310(b)

The probate court may invoke section 1310(b), where it is found that the trustee is “vulnerable under the law” [and] “determined to be at risk of making serious lapses in judgment and was found unable to manage [...] finances or to resist fraud and undue influence. Sterling v. Sterling (2015) 242 Cal.App.4th 185, 200. The trustee is “properly removed” where this finding is “supported by strong evidence.” Id.

Attorney’s fees

“The general rule that trust beneficiaries must ordinarily pay their own attorney fees in challenging a trustee’s conduct, even when successful....” Leader v. Cords (2010) 182 Cal.App. 4th 1588, 1595.

However, the equitable "common fund" doctrine operates as a well-established exception to that rule. City and County of San Francisco v. Sweet (1995) 12 Cal.4th 105, 110-111; Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505. “The common fund doctrine recognizes the common law 'historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys' fees, from the fund or property itself or directly from the other parties enjoying the benefit...” The doctrine applies in trust litigation. (E.g., Estate of Reade (1948) 31 Cal.2d 669, 671-672; Winslow v. Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 277; Hutchinson v. Gertsch (1979) 97 Cal.App.3d 605, 617.)