Judge: Daniel S Belsky, Case: 37-2022-00048350-PR-TR-CTL, Date: 2023-10-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 04, 2023

10/05/2023  02:00:00 PM  504 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Daniel S. Belsky

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2022-00048350-PR-TR-CTL IN THE MATTER OF THE HAIM FAMILY TRUST DATED DECEMBER 10, 2016 CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 07/25/2023

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 Strike filed by Sam Haim is DENIED.

DISCUSSION On July 25, 2023, Sam Joseph Haim ('Mr. Haim') filed the instant Motion to Strike the Petition for Approval of Accounting ('Petition') filed by Suda Miller ('Trustee') on July 21, 2023, at ROA 159. (ROA 172.) Mr. Haim moves to strike Trustee's Petition on estoppel grounds. Mr. Haim argues '[t]he respondent Suda M. Miller is under an estoppel and that precludes her from filing any documents related to this probate case. Also, the trustee, Suda M. Miller, with the help of third parties in the San Mateo Health Department created a fraudulent certified death certificate.' (ROA 172, Mot. at p. 2.) On September 28, 2023, Petitioner filed 'Objections' to the motion and supporting declarations. (ROA 188-190.) 1. Compliance with the Rules of Court and Statutes As a preliminary matter, the Court notes there is no Notice of Motion filed. Thus, the motion fails to comply with CRC 3.1110 and 3.1112, and CCP § 1010 because a Notice of Motion was not filed. (Cal.

Rules of Court, rule 3.1110(a) ['A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.']; Cal. Rules of Court, 3.1112(a) ['Unless otherwise provided by the rules in this division, the papers filed in support of a motion must consist of at least ...' a notice of hearing on the motion, the motion itself, and a memorandum of points of authorities in support of the motion.]; CCP § 1010 ['Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.'].) The legal basis and grounds for the motion are unclear from the pleadings. On the one hand, the motion requests the Court to strike the Petition, while on the other hand, requesting an accounting. Thus, the motion is uncertain.

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3003143 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE HAIM FAMILY TRUST DATED DECEMBER  37-2022-00048350-PR-TR-CTL In addition, the proof of service Mr. Haim filed at ROA 185 is defective in that the date on the proof of service (September 15, 2023) predates the date of service of the motion on September 25, 2023. The proof of service at ROA 187 appears to be a duplicate of the proof of service at ROA 185. Further, service was made on September 25, 2023, by mail, as stated on the proof of service, and thus, improper under CCP § 1005(b), as 16 court days to serve before the hearing fell on September 13, 2023. As such, there is no valid proof of service filed, and the service as effected was improper.

Lastly, there is no declaration and no proof Mr. Haim complied with the meet-and-confer requirement under CCP § 435.5(a).

Therefore, the motion is procedurally deficient and denied on this basis.

2. Motion On the merits, the motion fails to set forth a prima facie case for relief. The motion does not present a cogent, reasoned analysis of the issues, with citations to relevant legal authority and argument regarding the applicability of the estoppel doctrine to the facts alleged.

Mr. Haim argues Petitioner created a fraudulent death certificate for Settlor. However, Mr. Haim argues estoppel based on the purported fraud committed by Petitioner regarding Settlor's date of death and burial place, without any legal authority as to how these allegations support the application of the estoppel doctrine. These allegations, even if presumed true, fail to allege estoppel as Mr. Haim does not show detrimental reliance.

Mr. Haim further argues the petition at ROA 159 is wasteful litigation, but Mr. Haim commenced this litigation when he filed the Petition for Removal of Trustee in December 2022. Further, as Trustee, Petitioner has a duty to account. (See Prob. Code, § 16062.) The federal cases cited in the motion, and the propositions for which they stand, are not applicable to a petition for approval of an accounting in probate proceedings. (Fantasy, Inc. v. Fogerty (9th Cir. 1993) 984 F.2d 1524 [appeal of entry of summary judgment in a copyright infringement action], reversed by Fogerty v. Fantasy, Inc. (1994) 510 U.S. 517; Federal Deposit Ins. Corp. v. Main Hurdman (E.D. Cal. 1987) 655 F.Supp. 259 [tort action against an accounting firm based on fraud, negligent misrepresentation, and accounting malpractice.].) Based on the foregoing, the motion is DENIED.

Attorney for Petitioner is directed to serve notice of ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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