Judge Daniel S Belsky, Case 37-2011-00150457-PR-TR-NC 2023-12-28 Tentative Ruling

Judge: Daniel S Belsky, Case: 37-2011-00150457-PR-TR-NC, Date: 2023-12-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 27, 2023

12/28/2023 02:00:00 PM 504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate Trust Proceedings Motion Hearing (Probate) 37-2011-00150457-PR-TR-NC IN THE MATTER OF THE JEANETTE LETMAN TRUST U/A DATED 8/8/90, AS AMENDED AND RESTATED IN ITS ENTIRETY ON 11/11/92 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/02/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Amend Judgment filed by judgment creditor, Wounded Warrior Project ('WWP') (ROA 235) is DENIED without prejudice.

The Requests for Judicial Notice (ROA 247, 248) filed by WWP are GRANTED as to items 5 and 6 pursuant to EC § 452 and caselaw and DENIED as to the remaining requests based on relevance.

I. BACKGROUND The case concerns the Jeannette Letman Trust U/A dated August 8, 1990, as amended and restated.

Jeannette Letman ('Settlor') died in 2011 and Grover Gordon, Jr. ('Gordon') and Sydney Kirkland ('Kirkland') were appointed as successor co-trustees of the Trust.

On August 30, 2011, Gordon filed a Petition for Removal of Co-Trustee, for Transfer of Trust Assets to Remaining Co-Trustee, for Order Compelling an Accounting and Production of Financial Statements and for Surcharge, as amended. (ROA 1, Amendment at ROA 20, Second Amendment at ROA 128.) On July 11, 2012, the Court entered default judgment against Kirkland and in favor of Gordon. (ROA 157, Judgment After Default Prove-Up filed Jul. 11, 2012.) The judgment against Kirkland was recorded by Gordon on September 28, 2012. (ROA 247, Request for Judicial Notice ['RJN'], Exh. 5.) Gordon arranged to assign the judgment entered on July 11, 2012, to WWP, which became the Assignee of Record of the judgment, currently in the amount of $1,912,409.28. Gordon died on May 8, 2016.

On May 11, 2021, the Application for and Renewal of Judgment was recorded by WWP with the San Diego County Recorder's Office as Document No. 2021-0360446. (Id.) On June 16, 2023, WWP applied to the Court for a Writ of Execution, which was issued that day and set forth the total amount due as $1,855,018.64, plus post-judgment per diem interest accruing at $421.99 from said date.

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3051417 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE JEANETTE LETMAN TRUST U/A DATED 8/8/90, 37-2011-00150457-PR-TR-NC On June 26, 2023, attorney Giacomelli, counsel for WWP, conducted a debtor's examination of Kirkland.

(ROA 237, Giacomelli Decl., Exh. 1.) On November 2, 2023, WWP filed the instant motion to amend the judgment to add Kirkland's aliases, for issuance of an earnings withholding order against Kirkland's spouse, Mark Burnside ('Burnside'), and for an assignment of rental payments to WWP. (ROA 235, Reply at ROA 260.) WWP argues that Kirkland has failed to repay Gordon's estate for over ten years, and she and her husband have simultaneously been (1) strategically transferring funds out of Kirkland's account so that the ending balance each month is insufficient to pay the judgment; (2) operating a successful canine breeding business under the table, and (3) gathering rental income from a tenant on their property. As such, there should be no reason that Kirkland or Burnside cannot satisfy the amounts outstanding and owed to WWP.

On December 15, 2023, Kirkland filed an opposition. (ROA 260.) II. DISCUSSION A. Aliases WWP argues that Kirkland has used numerous aliases over the years, including taking her husband's last name, changing 'Sydney' to 'Sidney,' and going by the name 'Mary Beth Kirkland,' in an effort to hide her business dealings and personal assets.

Here, WWP's request is unclear and unsupported by reliable evidence. First, WWP generally claims that Kirkland has used numerous aliases, including her husband's last name and her first name with a different spelling, but WWP does not provide a concrete list of aliases that are sought to be added.

Second, and more importantly, aside from counsel's declaration, there is NO evidence that Kirkland has used any aliases. (See ROA 237, Giacomelli Decl.) While WWP claims it has located Kirkland's website, 'http://symarborzoi.com/,' where Kirkland advertises breeding of Borzois, a rare breed of dog that sells for thousands of dollars, this evidence lacks foundation and authentication. (See ROA 237, Giacomelli Decl., Exh. 3.) WWP merely alleges that Kirkland 'may use a different name for her operation of this business,' without evidence. Counsel's statements in a declaration based on her own inferences from the evidence are not admissible evidence.

Thus, the request is DENIED without prejudice.

B. Earnings Withholding The general rule is that the assets of the community estate are liable for debts incurred by either spouse before or during the marriage, 'regardless of which spouse has the management and control of the property and regardless of whether one or both spouses are parties to the debt or to a judgment for the debt.' (Fam. Code, § 910(a).) The presumption is that property acquired by married persons during the marriage is community property. (Fam. Code, § 760.) An exception to that general rule is that the separate assets of the non-debtor spouse may not be used to satisfy such debts. (Fam. Code, § 913, subd. (a)(2).) 'The earnings of a married person during marriage are not liable for a debt incurred by the person's spouse before marriage.' (Fam. Code, 911(a).) 'If a writ of execution has been issued to the county where the judgment debtor's employer is to be served and the time specified in subdivision (b) of Section 699.530 for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order.' (CCP § 706.108(a).) 'An earnings withholding order may not be issued against the earnings of the spouse of the judgment debtor except by court order upon noticed motion.' (CCP § 706.109.) Calendar No.: Event ID: TENTATIVE RULINGS

3051417 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE JEANETTE LETMAN TRUST U/A DATED 8/8/90, 37-2011-00150457-PR-TR-NC Here, WWP presented the marriage certificate evidencing a valid marriage between Kirkland and Mark Burnside. (ROA 260, Allyn Decl., Exh. 2.) The certificate shows they were married on May 7, 2000, well before the judgment in this case was entered in 2011 and originally recorded in 2012. Therefore, the judgment entered at issue constitutes community debt, and Burnside is liable for the judgment even if he was not a named judgment debtor.

Kirkland does not deny the existence of a marriage but only argues that WWP did not present evidence to prove a marriage between Kirkland and Burnside exists. The Court is not persuaded. Kirkland's testimony at the judgment debtor's examination in June 2023, and the marriage certificate WWP submitted in rebuttal clearly establish that a valid marriage has existed from 2000 to the present. (See ROA 237, Giacomelli Decl., Exh. 1.) However, the writ of execution issued in this case expired on December 13, 2023. (See ROA 234, Minute Order filed Nov. 9, 2023, discussing date of expiration and continuing the motion for order for sale past the expiration date.) Thus, the present request for an earnings withholding order fails to comply with CCP § 706.108 as 'the time specified in subdivision (b) of Section 699.530 for levy on property under the writ' has expired. (CCP § 706.108(a).) Therefore, the request for an earnings withholding order is DENIED without prejudice.

C. Assignment Order Upon motion by a judgment creditor, 'the court may order the judgment debtor to assign to the judgment creditor ... all or part of a right to payment due or to become due, whether or not the right is conditioned on future developments,' including rents. (CCP § 708.510(a).) WWP claims that Kirkland is operating a show dog breeding business under the table as her bank account statements identify multiple purchases at a canine sperm bank. WWP argues that Kirkland earns at least $1,500 in rental income from the accessory dwelling unit ('ADU'), and that Kirkland testified she sells Borzoi puppies for at least $1,200, but that on average, her annual earnings were negative $5,000. WWP also attached 40 pages of Paypal and Venmo transactions, without highlighting the relevant transactions for the Court's review, arguing that Kirkland also runs a doggy day care business. (See ROA 237, Giacomelli Decl., Exh. 4.) Here, based on the evidence submitted, it is unclear if Kirkland is receiving rental income from the ADU.

In addition to the testimony WWP notes, Kirkland also testified that the tenant was not paying timely or consistently and may be asked to leave. (ROA 237, Giacomelli Decl., Exh. 1, at p. 9.) The debtor's exam took place in June 2023, over six months ago. It is unknown if the ADU is currently being rented and how much actual rental income Kirkland is receiving.

In addition, Kirkland testified that a Borzoi puppy could sell for $1,200, but she also testified that she was on average making negative $5,000 annually. There is NO evidence showing that Kirkland is actually earning any income from her dog breeding/selling business, or that Kirkland is operating a doggy day care business. The Venmo charges show regular payments to Kirkland, from which one may reasonably infer Kirkland may be running a small business, but the evidence is not conclusive. Thus, on the evidence presented, the Court cannot determine as a threshold matter, that Kirkland is receiving any rents or income from the sources identified by WWP such that the Court may order an assignment of the rents or income under CCP § 708.510.

WWP discusses personal property (1949 and 1995 Packard and Harley Davidson motorcycle) owned by Kirkland and/or Burnside, but it is unclear what WWP seeks with this property.

Therefore, the request is DENIED without prejudice.

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3051417 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE JEANETTE LETMAN TRUST U/A DATED 8/8/90, 37-2011-00150457-PR-TR-NC Counsel for Kirkland is ordered to serve written notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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