Judge Daniel S Belsky, Case 37-2022-00033643-PR-PW-CTL 2023-11-02 Tentative Ruling

Judge: Daniel S Belsky, Case: 37-2022-00033643-PR-PW-CTL, Date: 2023-11-02 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 01, 2023

11/02/2023 02:00:00 PM 504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate Probate of Will - Letters Testamentary Motion Hearing (Probate) 37-2022-00033643-PR-PW-CTL ESTATE OF IRMA S. ESPINO [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Compel Discovery, 07/17/2023

Pursuant to the Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion to Remove Executor filed by Felix Espino (ROA 54) is DENIED.

The Motion to Compel Inventory and Appraisal filed by Felix Espino (ROA 116) is DENIED.

The Request for Judicial Notice filed by Carmen Santiago (ROA 155) is GRANTED. The request at ROA 158 is DENIED as duplicative.

DISCUSSION Irma Espinosa ('Decedent') died on May 3, 2022. On August 22, 2022, Decedent's son, Felix Espino ('Petitioner') filed a Petition for Probate of Will and for Letters Testamentary, requesting that Carmen Santiago be appointed the executor of the estate ('Petition'). (ROA 1.) The Court denied the Petition without prejudice on December 15, 2022. (ROA 22, Minute Order filed Dec. 15, 2022.) On November 30, 2022, Decedent's daughter, Carmen Santiago ('Objector') filed objections to the Petition. (ROA 16.) The objection was made on the grounds that '1. There are no assets subject to probate administration 2. Decedent executed a Simple Revocable Transfer on Death Deed (attached) 3.

Notice of Revocable Transfer on Death Deed served to each heir, including Petitioner, on 5/27/2022 pursuant to Probate Code §5681. 120 days have elapsed and no heir has objected to the Simple Revocable Transfer on Death Deed.' (Id.) On December 19, 2022, Petitioner moved to vacate the Court's ruling of September 15, 2022. (ROA 23.) This motion was continued several times due to lack of proof of service of the motion and notice of hearing, and ultimately taken off calendar on June 6, 2023, when the defects were not addressed. (ROA 69, Minute Order filed Jun. 7, 2023.) Commencing in June 2023 through the present, Petitioner has filed multiple petitions, requests, and motions, including but not limited to the following: - On May 23, 2023, Petitioner filed a 'Motion to Remove Carmen Santiago as executor, request for Court; Order Carmen to produce documents; Birth Certificates, inventory and interrogatories.' (ROA 54.) - On June 1, 2023, Petitioner filed a 'Petition for Revocation of Will and T.O.D.D. both are fraudulent and Calendar No.: Event ID: TENTATIVE RULINGS

3013621 CASE NUMBER: CASE TITLE: ESTATE OF IRMA S. ESPINO [IMAGED] 37-2022-00033643-PR-PW-CTL errors on Death Certificate.' (Sic.) (ROA 61.) - On June 14, 2023, Petitioner filed 'Petitioners Direct Contest of a Fraudulent Will' and 'Petitioners Contest of a T.O.D.D.' (Sic.) (ROA 71, 72.) - On July 17, 2023, Petitioner filed a 'Motion to Compel Carmen Santiago to File inventory and appraisal' (Sic.) (ROA 116), 'Interrogatories, Written 30 questions, first set,' (ROA 117).

- On July 24, 2023, Petitioner filed 'Petition to Suspend the Powers of Executor Carmen Santiago.' (ROA 122.) - On August 18, 2023, Petitioner filed 'petition for allowance, approval or rejection of filed claims.' (ROA 130.) On October 20, 2023, Objector filed oppositions to the motion to remove her as the executor and the motion to compel Objector to file an inventory and appraisal. (ROA 153, 156.) Objector also filed Requests for Judicial Notice (ROA 155, 158) and supporting declarations (ROA 154, 157).

Motions Petitioner argues that Objector should be removed as the executor of Decedent's estate (ROA 54), citing to various sections of the Probate Code. Petitioner argues Objector destroyed and disposed of estate property and abused her discretion. Petitioner further claims that Objector should be disqualified as the executor in that Decedent's Will was the product of fraud or undue influence. Petitioner further requests the Court order Objector to respond to his interrogatories, produce an inventory of Decedent's estate, and produce Objector's birth certificate from Mexico.

In opposition, Objector argues that she was never appointed to serve as the executor, and therefore Petitioner's request for removal is moot. Further, Objector argues that Petitioner never served the requests for production pursuant to code and a citation under Probate Code § 8870 is unwarranted.

Objector seeks an order to stay any discovery that Petitioner may serve in the future as Objector will demurrer to each of the petitions filed by Petitioner as frivolous and baseless, and only meant to harass Objector.

Objector argues that Petitioner cannot seek to prohibit her from using or spending estate assets because there are no longer any assets in the estate as Objector administered the estate pursuant to Probate Code § 13100 et seq. as a small estate. Objector contends that the decedent's main asset was administered pursuant to a Transfer on Death Deed, and it was not an estate asset. And since there is no pending probate, Petitioner has no grounds to request an inventory and appraisal.

Here, as a preliminary matter, the Court notes the motion for removal (at ROA 54) fails to comply with the California Rules of Court, rule 3.1112 in that several motions are essentially combined into one motion. In addition to the removal of the executor, the motion seeks to compel responses to discovery and an order for an inventory and appraisal. This is improper motion practice. The requests for responses to the interrogatories, which is not clear were even served according to code and the Rules of Court on Objector, is DENIED without prejudice. Any discovery issues should be brought by way of a properly pleaded and filed discovery motion.

In substance, the motion to remove Objector as the executor is moot given that Objector was not appointed as the executor of Decedent's estate, and Petitioner cannot show otherwise. Indeed, the Petition at ROA 1 has been denied without prejudice based on a finding that the estate does not possess any additional assets for distribution, and the estate has already been administered under Probate Code § 13100 et seq. There was no personal representative appointed and Objector is not the personal representative. As such, the request for inventory and appraisal is DENIED as moot.

Based on the above, the motion to compel Objector to file an inventory and appraisal (ROA 116) is DENIED as moot.

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3013621 CASE NUMBER: CASE TITLE: ESTATE OF IRMA S. ESPINO [IMAGED] 37-2022-00033643-PR-PW-CTL As to Objector's request for an Order to Show Cause ('OSC') pursuant to CCP § 391, Objector may file a motion re OSC why Petitioner should not be determined a vexatious litigant to be set in due course.

If the motion re OSC is filed, discovery is stayed pending the hearing on the OSC, or until further Court order.

The minutes constitute the formal order of the Court, and no further order is required.

Counsel for Carmen Santiago is directed to serve notice of this ruling on all parties in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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