Judge: Curtis A. Kin, Case: 22STCV06395, Date: 2023-03-09 Tentative Ruling

Case Number: 22STCV06395    Hearing Date: March 9, 2023    Dept: 72

DEMURRER

Date:           3/9/23 (9:30 AM)                   

Case:          Teresa Forshee v. Sydney Atkins et al. (22STCV06395)

TENTATIVE RULING:

Defendants Sydney Atkins and Millett & Dominguez, LLC’s Demurrer to Complaint is OVERRULED.

The requests for judicial notice by defendants Sydney Atkins and Millett & Dominguez, LLC and plaintiff Teresa Forshee, Personal Representative of the Estate of Magdalena Burger are GRANTED, but only for the existence of the documents, not the truth of the matters asserted therein. (See Evid. Code § 452(d); Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-69.)

On January 24, 2023, the Court continued the hearing on the instant demurrer and ordered plaintiff Teresa Forshee to serve and file a Notice of Related Case in Department 1. On January 30, 2023, plaintiff filed a Notice of Related Case in Department 1. On February 17, 2023, Department 1 declined to relate the instant action with the probate action 21STPB10648 (In re: Estate of Burger).  (2/17/23 Minute Order.) Accordingly, the Court rules on the instant demurrer.

Defendants contend that, based on the pour over will filed in the probate proceeding, the subject property belongs to the Magdalena Burger Family Trust, not the Estate of Magdalena Burger. Plaintiff Teresa Forshee brought this action as the personal representative of the decedent Magdalena Burger’s estate.  Decedent’s pour over will, attached to the petition for probate that plaintiff filed (Case No. 21STPB10648), states: “I give, devise and bequeath my entire estate of every kind and nature and wheresoever situated, to the Trustee(s) of the TRUST (the pour-over beneficiary"), in trust.” (Def. RJN, Pour Over Will attached to Ex. 2.) Plaintiff, however, maintains that the estate’s interest cannot be pour overed to decedent’s trust until the instant matter is resolved.

The Complaint alleges that the Estate “is the sole and true owner of the Subject Property,” which the Court takes to be true on Demurrer.  (Compl. ¶ 32; see also Compl. ¶ 33 [“Decedent’s Estate, as the true and only owner of the Subject Property, is entitled to possessions of the Subject Property free and clear of all liens and encumbrances”].)  Indeed, as Judge Court observed when declining to relate this matter to the probation action, “there have been no petitions filed in the probate action to resolve any disputes related to the property.”  (2/17/23 Minute order at 3.)  Further, any dispute over the effect of the pour over will on the Estate’s ownership of the property vis-à-vis the Magdalena Burger Family Trust may be addressed or resolved in the instant action before this civil department, which possesses jurisdiction to do so.  (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1449 [“Even though a superior court is divided into branches or departments, pursuant to California Constitution, article VI, section 4, there is only one superior court in a county and jurisdiction is therefore vested in that court, not in any particular judge or department. Whether sitting separately or together, the judges hold but one and the same court”].)

The demurrer is OVERRULED.

Ten (10) days to answer.