Judge David J. Cowan, Case Number: 16STPB04520, Date: 2023-07-20 Tentative Ruling

TENTATIVE RULING ON MOTION OF MARK ROTENBERG AND STEVEN ROTENBERG FOR SUMMARY ADJUDICATION OF FIRST, SEVENTH, NINTH, TENTH AND ELEVENTH CAUSES OF ACTION IN PETITION FILED JUNE 13, 2023

Mark Rotenberg, et al. v. Joyce Steinberg Fickett, In the Matter of the Norman and Mary Louise Rotenberg Trust dated February 12, 1998, as amended, Case No. 16STPB04520 (related to Case Nos. 19STCV21680, 19STPB02719, 22STPB00218 & 22STUD00039)

On February 12, 1998, Norman Rotenberg, M.D. (“Norman”) and Mary Lou Rotenberg (“Mary Lou”), husband and wife, had two children, Mark Rotenberg (“Mark”) and Steven Rotenberg (“Steven”).

On June 27, 2000, Norman and Mary Lou executed a First Amendment to Trust. (Ex. 2 to Steven Decl.) Norman was trustee. Mark and Steven were beneficiaries.

On June 27, 2000, Norman executed a will. (Ex. 3 to Steven Decl.) The residue after certain specific bequests is to pour over into the Trust.

On July 18, 2009, Norman executed a Designation of Co-Trustees, whereby Mark and Steven were also named as co-trustees with him. (Ex. 4 to Steven Decl., Decl. of Mark Powell)

On March 24, 2014, Norman executed a holographic will. (Ex. 7 to Steven Decl.) It states: “I revoke all living wills, trusts and codicils that I have previously made…I give my property of every kind and description, real, personal and mixed, and wherever located to Joyce [Fickett] (“Joyce”)…”

On March 28, 2014, Norman executed another will. (Ex. 6 to Steven Decl.) The March 28 Will states in relevant part:

“I have intentionally failed to provide in this will for my sons and grandchildren.”

“I give my entire estate to the trustee, then in office under the Trust designated as NORMAN P. ROTENBERG, M.D., established March 28, 2014 of which I am a Trustor and Trustee.”

“Except as otherwise provided in this will and the trust mentioned herein, I have intentionally and with full knowledge omitted to provide by my heirs.”

On March 28, 2014, Norman executed a Declaration of Trust. (Ex. 6 to Steven Decl.) Norman is the sole trustee. Joyce is to be successor trustee on Norman’s passing. Joyce is remainder beneficiary. Movants are disinherited. The document does not, however, expressly revoke the 2009 Designation of Co-Trustees or the earlier iterations of the Trust.

On September 23, 2016, Mark and Steven filed a Heggsted petition, as well as under Probate Code sec. 850, to confirm that the Summitridge property (“the Property”) is an asset of the 2000 Trust and not of the 2014 Trust. (Ex. 8 to Steven Decl.)

On December 1, 2016, Norman executed a Revocation of Designation of Co-Trustees. (Ex. P to Hartmann Decl., Decl. of Blake Rummel)

On October 6, 2018, Norman passed away. Pursuant to para. 8 of the 2014 Trust, Joyce is to assume Norman’s position as successor trustee.

By judgment entered August 4, 2021, Judge Luna found that the Property is an asset of the 2000 Trust.

On January 10, 2022, Joyce, as successor trustee, filed a petition seeking an order that assets in the 2000 Trust be conveyed to the 2014 Trust.

On April 18, 2022, Judge Luna sustained a demurrer, without leave to amend, to Joyce’s January 10, 2022 petition on grounds of res judicata and waiver.

By order filed March 8, 2023, on a motion for summary judgment Movants filed in their related unlawful detainer case seeking to recover possession of the Property from Joyce (Case No. 22STUD00039), the undersigned ruled that Joyce had not been named as a party to Mark and Steven’s 2016 petition, notwithstanding her attorney having attended numerous hearings on that petition, and that also for numerous other reasons stated therein, that certain of the issues that Movants now seek to adjudicate on this motion had not been previously adjudicated; in particular, the effect of the wills on the 2000 Trust where the 2016 petition was filed before those wills were effective; i.e., before Norman died.

On June 9, 2023, in related Case No. 19STPB02719 (Estate of Norman P. Rotenberg), this Court entered an order on a stipulation of the parties for an expedited hearing of a petition to be filed (that would address issues that the Court had not yet determined), as well as of this motion, on abbreviated notice, to potentially avoid or shorten what otherwise appeared to be a lengthy trial in these related cases, as well as further discovery beforehand.

On June 23, 2023, Mark and Steven filed the above-referenced motion, together with a Separate Statement of Undisputed Material Facts. The motion can be summarized as follows:

By this cause of action, Movants seek an order that the holographic Will did not effectively revoke the 2000 First Amended Trust, or the Survivors’ Trust thereunder, under Probate Code sec. 15401.

Movants contend that by the 2009 Amendment Norman might only permissibly revoke the Trust if notice was provided not just to him but also to Mark and Steven as co-trustees. Movants contend that they did not receive notice of revocation (by way of the Declarations of Mark and Steven) and hence the holographic Will would not revoke the Trust. They also point to deposition testimony of Wendy Hartmann that Norman told her that he had not given the 2014 holographic Will to Mark or Steven. Movants cite to Diaz v. Zuniga (2023) 91 Cal.App.5^th 916 in support of the proposition that compliance with terms of a trust is necessary for revocation.

By this cause of action, Movants seek an order that the holographic Will did not effectively revoke the 2000 First Amended Trust, or the Survivors’ Trust thereunder, by reason of Norman’s judicial admissions; specifically, by Norman stating in an objection to Mark and Steven’s petition, filed February 14, 2017, that the 2000 Trust was the “operative document, ” and stating in his petition for approval of account, filed June 9, 2017, that the Survivor’s Trust was operative and that the Marital and Family Trusts were irrevocable (with the passing of Mary Lou.) (Mark and Steven in their respective declarations state Norman filed any document with either of them that revoked the Survivor’s Trust.)

By this cause of action, pursuant to Probate Code sec. 6120, Movants seek an order that the March 24 holographic Will did not effectively revoke the 2000 First Amended Trust, or the Survivors’ Trust thereunder, because the holographic Will was itself revoked by a later will of March 28. In further support of this argument, Movants point to Joyce having sought to probate the March 28 Will, not the March 24 Will.

By this cause of action, Movants seek an order that Norman never revoked the 2000 First Amended Trust, or the Survivors’ Trust thereunder.[2]

By this cause of action, Movants seek an order that Joyce does not have a life estate in the Property. They argue that Joyce would need to rebut by clear and convincing evidence the presumption that the 2000 Trust owns the Property by reason of Evid. Code sec. 662. They argue that any oral statement by Norman that he was giving her a life estate would be barred by the statute of frauds in Civil Code sec. 1091 (as an estate for a term exceeding one year).

Movants argue also that the only basis in writing that Joyce has for this claim is the reference in the March 24 holographic Will that Norman wished to convey to Joyce all his property and that this would not be effective to award her the Property where the Court ruled already conclusively in August 2021 that it is an asset of the 2000 Trust and hence would not be a non-Trust asset that would comprise any estate governed by the March 24 Will.

On July 7, 2023, Joyce filed opposition to the motion, together with a responsive Separate Statement (which included additional material facts), as well as Objections to certain declarations filed by moving parties. The opposition can be summarized as follows:

1. Norman was not required under sec. 2.4 and 13.16 of the Amendments to First Amended Trust to give notice to Steven and Mark. She argues that a notice to trustee could not be “filed” and at best could be delivered. In addition, she argues that the definition of trustee is ambiguous and does not state definitively that all three trustees would had to have been notified. She contends that the way the provision it is written Norman giving himself notice as trustee sufficed.

First, Joyce states in paras. 14 & 15 of her declaration that she observed Norman giving Mark notice of revocation of the 2009 Trust amendment by sending him both wills and the 2014 Trust, once in 2014 and then again in 2015.

Second, Blake Rummel, then counsel for Norman, states in her declaration that she prepared, and Norman executed, a notice of revocation of the co-trustee designation on December 1, 2016 which she sent counsel for Mark and Steven by no later than February 14, 2017.

Third, Hartmann states in her declaration to her giving notice of the revocation by sending copies of the March 24 and 28 Wills and 2014 Trust to counsel for Mark and Steven on December 24, 2016.

Finally, Joyce argues that Mark and Steven’s petition filed May 5, 2017 shows they were given notice of revocation of Trust and hence their filing that petition to confirm the continuing validity of the 2000 Trust.

3. There was moreover no deadline by which Norman was required to give notice to Mark and Steven of his revocation of Trust.

Joyce argues that merely because Norman stated that the 2000 Trust was the operative document (that the petition was concerned with) does not mean he was admitting that he had not revoked the 2000 Trust. Moreover, these statements by Norman would not bind Joyce. Further, if the argument is that she is bound to what Norman said as successor trustee, that would still not bind her on this petition in which she is sued as an individual.

“(a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator’s contemporary or subsequent declarations that the testator intended the first will to take effect as executed.”

Applying this section, she argues in essence that even though the holographic Will was revoked by the March 28 will four days later, the earlier 2000 will is still revoked because the circumstances of revocation of the second will (execution of a formal will) do not show that Norman intended the first will (from 2000) to take effect because the formal will of March 28, like the holographic will, provides only for Joyce, not Mark or Steven (by way of reference to the 2014 Trust.)

Joyce argues that this cause of action rests solely on the earlier three causes of action and as there are triable issues as to those this too must fail.

Joyce relies on her own declaration, as well as the testimony of Hartmann, Margarita Jerabek and Carol Soucek King, in support of her claim Norman stated to each of them that he wanted Joyce to remain in the Property until she passed.

Moreover, Joyce argues that even if the Court has or does determine she had no legal right to the Property, it has not determined her rights to possession. She asserts also that the March 24 Will is a writing that would satisfy Movants’ argument under the statute of frauds that a writing is needed to convey her any interest in the property. The statement in that will about giving her property generally is sufficient and the words “life estate” are not required. Further, she argues that Movants are estopped to assert the statute of frauds where she has made substantial payments towards the upkeep of the Property in reliance on having a life estate.

As to the First cause of action, that, according to Joyce, Norman sent the March 24 and 28 Wills and 2014 Trust only to Mark, not Steven, in 2014 and 2015. Hence, any revocation by this means would not have been effective as not all co-trustees were provided notice. In addition, they point out that service by Hartmann on Steven on December 24, 2016 would not have been effective either where Hartmann did not represent Norman (he was represented by Rummel) and by then according to the notice of revocation of December 1, 2016 Steven was no longer a co-trustee. Finally, they argue that Joyce cannot take the position that as of late December 2016, where Mark and Steven were no longer co-trustees, that the notice only needed to be filed with Norman as the sole trustee, where Norman never testified to revocation of the 2000 Trust.

As to the Seventh cause of action, that Norman’s statement in June 2017 (after purportedly having revoked it in 2014) that the Survivor’s Trust was and remains revocable is undisputed. They argue further that Joyce’s testimony otherwise may not properly be considered. D’Amico v. Board of Med. Examiners (1974) 11 Cal.3d 1, 21-22

As to the Ninth cause of action, that it is undisputed that the holographic Will was revoked.

As to the Eleventh cause of action, that what Joyce has paid while in possession has not been detrimental reliance on her having a life estate where that has been significantly below what the Court found to be its fair rental value for purposes of a preliminary injunction as to the unlawful detainer trial.

The Court has ruled separately on the Evidentiary Objections to the Declarations in the forms provided.

Initially, Movants argue essentially that Joyce has no standing to now assert that she has any interest in the Property when she was given the opportunity to appear in Movants’ initial petition when her counsel attended numerous hearings but elected not to do so. In response, Joyce indicates that the Court has addressed this issue already and found that Joyce was not named as a party to that proceeding and was not required to intervene in a proceeding to which she was not a party. Indeed, she contends that Movants apparently then took the position that she could not file objections to that petition where she was not a party to it. (Ex. F to Opposition) Joyce therefore filed a request for special notice where she was not a party. She argues Movants could have supplemented their petition to name her as successor trustee as an additional respondent after Norman died but for whatever reason did not do so.

By its ruling filed March 8, 2023, this Court has already ruled on this issue: Judge Luna proceeded forward to trial of the petition even though Norman had objected and had by then passed. Joyce never filed any pleading making an appearance where she was not named as a respondent. Thereafter, Judge Luna ruled that Joyce as successor trustee could not assert - in her own subsequent petition - that the Property was an asset of the 2014 Trust. Joyce as an individual is not barred from asserting the affirmative defenses raised by this petition where these issues were not previously litigated, on their merits, and she was not previously a party in this capacity. Judge Luna did not rule Joyce had waived her rights to ownership as an individual. Turning to the substance:

Revocation of a trust is governed by PC sec. 15401. PC sec. 15401 provides in relevant part:

“(a) A trust that is revocable by the settlor or any other person may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing, other than a will, signed by the settlor or any other person holding the power of revocation and delivered to the trustee during the lifetime of the settlor or the person holding the power of revocation. If the trust instrument explicitly makes the method of revocation provided in the trust the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph.”

As set forth above, whether revocation will be effective depends on the manner of revocation set forth in the Trust. In this case:

Survivor’s Limited Powers of Amendment and Revocation. After the Deceased Grantor’s death, the Survivor may, by written notice filed with the Trustee, change the interest of any Beneficiary in the Survivor’s Trust or revoke the Survivor’s Trust; but the Marital Trust and the Family Trust may not be amended or revoked.”

“Trustee. The term “trustee” shall be deemed to include not only the singular, but also the plural, and to include any successor Trustee or Co-Trustees.”

Applying sec. 15401 and the foregoing provisions, whether all three co-trustees needed to be notified, as Movants argue, is complex and for this reason the Court quotes at length the relevant authorities:

Initially, the Court must determine whether sec. 2.4 of the First Amendment to Trust – filing with the Trustee - is the “exclusive” means to revoke the Trust. If so, revocation may not be by will. As stated in Gardenhire v. Sup Ct. (2005) 127 Cal.App.4^th 882, 894:

As noted, section 15401, subdivision (a)(1) allows a trust to provide any method of revocation. If the trust is silent and does not provide a method, then section 15401, subdivision (a)(2) allows revocation by a writing, other than a will, signed and delivered by the trustor to the trustee during the trustor’s lifetime.⁷ [Fn. 7: In expressly excluding wills, section 15401 subdivision (a)(2) appears to embody Comment (j) and the notion that a will cannot revoke a trust. However, subdivision (a)(2) of section 15401 provides a default method of revocation where the trust is silent on revocation or does not explicitly provide the exclusive method.] If the trust is not silent and instead provides a method of revocation, then section 15401, subdivision (a)(2) is inapplicable. On its face, the statute does not require that a trust contain a specific and express provision authorizing revocation by will. Nor does subdivision (a)(2) represent a proviso to subdivision (a)(1) to the effect that although a trust may provide any method of revocation, if the trustor wants to allow revocation by will, then he or she may not use general language, such as written notice, that would necessarily encompasses a will; rather the trustor must instead expressly specify that a will can constitute written notice. (fn omitted)

How do we determine whether the trust document explicitly provides that its stated method of revocation is exclusive? We look to dictum in Huscher v. Wells Fargo Bank (2004) 121 Cal.App.4th 956, 18 Cal.Rptr.3d 27. Dicta may not decide a case but can be persuasive and influence later cases. Huscher’s dictum, however, is so persuasive that it becomes the law here.

Huscher chronicled and analyzed the history of Civil Code section 2280. Just before it was replaced by Probate Code section 15401, Civil Code section 2280 provided that every voluntary trust is revocable “[u]nless expressly made irrevocable by the instrument creating the trust....” (Huscher v. Wells Fargo Bank, supra, 121 Cal.App.4th 956, 963, 18 Cal.Rptr.3d 27.) The Huscher court concluded that language in trust documents that purports to revoke under Civil Code section 2280 is reasonably subject to an analysis of whether the language explicitly or implicitly makes the method of revocation exclusive. Under this analysis, one could argue that the language here, providing that notice of revocation be given by the trustor to the other trustor and the trustee, is implicitly exclusive.

But this argument is less persuasive under current Probate Code section 15401, subdivision (a)(2). Huscher points out that “a modification method is explicitly exclusive when the trust instrument directly and unambiguously states that the procedure is the exclusive one.” (Huscher v. Wells Fargo Bank, supra, 121 Cal.App.4th 956, 968, 18 Cal.Rptr.3d 27.) We agree with respondents that section 2.1 of the Family Trust does not state that the method of revocation it provides is explicitly exclusive. It is simply one method of revocation in addition to that provided in Probate Code section 15401, subdivision (a)(2). Edward complied with section 15401, subdivision (a)(2), by giving notice to himself as trustee. If the language in the trust were sufficient to qualify as the explicitly exclusive method, then the language in section 15401, subdivision (a)(2) would be unnecessary.

In Gardenhire, the trustor was also the trustee. After the trust was created, the trustor revoked the trust by executing a will in which she disposed of all her property. The appellate court held that the trustor revoked according to the method described in the trust, “written notice signed by the Trustor and delivered to the Trustee.” (Gardenhire v. Superior Court, supra, 127 Cal.App.4th 882, 886, 26 Cal.Rptr.3d 143.) This qualified as a writing in which the trustor gave notice to herself as trustee. Respondents point out that in this respect the notice was the same as the notice here. Like the trustor in Gardenhire, Edward revoked by giving notice to himself as trustee. Here the difference is that the trustor used a method provided in Probate Code section 15401, subdivision(a)(1), instead of the method provided in the trust.

Joette reads Gardenhire to hold that if the language of revocation in the trust is clear and express, then that is the exclusive method to revoke. Gardenhire states in dictum, “If the trust is not silent and instead provides a method of revocation, then Probate Code section 15401, subdivision (a)(2) is inapplicable.” (Gardenhire v. Superior Court, supra, 127 Cal.App.4th 882, 894, 26 Cal.Rptr.3d 143.) But were we to adopt the Gardenhire view, Probate Code section 15401, subdivision (a)(2) would be, at best, a clarification of former Civil Code section 2280, and not a change. Huscher’s reasoning, albeit expressed in its dictum, compels us to conclude that, absent language in the trust that its method of revocation is exclusive, the trustor has the option of revoking according to the method provided in Probate Code section 15401, subdivision (a)(2), delivering notice to himself as trustee. That there are two trustees here does not change our view. (Emphasis added) Under subdivision (a)(2), Edward’s notice to himself is sufficient as notice to “the trustee.”

Nor does the method of revocation here violate section Probate Code section 15401, subdivision (b). That section provides, “Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, except as provided by Section 761 of the Family Code.” Family Code section 761 provides, “Unless the trust instrument expressly provides otherwise, a power to revoke as to community property may be exercised by either spouse acting alone.”

Joette argues that such an interpretation of Probate Code section 15401 and its subdivisions is not good public policy, because it allows a “secret” revocation and represents one spouse taking advantage of the other. It is true that had Joette been given notice of the revocation as provided in the Family Trust, she could have tried to persuade Edward to change his mind or could have made changes in the disposition of her community share of the trust property.

But married parties are permitted to dispose of their share of the community without the consent of the other spouse. And if the Legislature sees an overriding public policy argument that the method of revocation used here violates public policy, it can certainly once again amend the statute.

Here, sec. 2.4 of the Trust does not state specifically that giving notice to Trustee is the exclusive method of revocation. It does not state, for example, that it cannot be by other means provided by statute. In turn, it also does not state specifically that each co-trustee must be given notice. Notwithstanding Powell’s intent, sec. 13.16 states only that the Trustee can be one or more persons. As indicated above, Masry indicates that receiving notice of revocation even after death of the other co-trustee is still valid.[3]

Thus, in view of Masry, supra, Joyce’s argument that there is no requirement as to by when Trustee is required to receive the notice has merit. Moreover, here, unlike in Masry and Diaz (for that matter), supra, Mark and Steven still had an opportunity while Norman was alive to contest that revocation – which they did by filing a petition – and to which petition Norman filed an objection on February 14, 2017.[4]

Therefore, under sec. 15401(a)(1), Norman could revoke the Trust by will by having himself filed the notice.[5] There is no apparent dispute that Norman had possession of the wills and the 2014 Trust to meet this requirement. Movants do not show any requirement that Norman was unnecessarily required to mail or deliver these documents to himself if he had them already. Presumably, mailing or delivery would be required if the settlor was not also the trustee as here.

Moreover, even if for sake of argument all three co-trustees were to have been notified of revocation of the Trust, there is still a material issue of fact as to whether Norman gave notice:

On the one hand, Mark and Steven each state in their respective declaration that Norman never filed with them any document amending any provision of the Survivor’s Trust (which would include who was its trustee by way of revoking their serving as co-trustees.)

On the other hand, Joyce states Norman did give notice at least to Mark.[6] Though Norman did not himself provide notice to Steven, Rummel on behalf of Norman provided the express revocation of his acting as co-trustee to counsel for Steven, Bradley Kirk.[7]

Where the Court cannot evaluate the credibility of witnesses on a motion for summary judgment, the Court must deny the motion.[8]

Neither of the pleadings Norman filed state anything one way or another concerning the Wills (which were not the subject of that petition – not yet having become effective while he was still alive.) Hence, they cannot serve as judicial admissions in this subsequent proceeding after his passing.[9] Further, they are not admissions by Joyce (as an individual). She is the only party here, not Norman. While these statements may be relevant at a trial when credibility is at issue, they cannot now serve as a basis for a ruling as matter of law.

Movants overstate the significance of the revocation of the holographic Will. Though it is true that the holographic Will expressly revokes prior trusts, whereas the March 28 will does not do so expressly, and hence why Movants argue its revocation by the later will is material, this ignores that the March 28 Will still implicitly revokes the prior trust also. As set forth above, paras. 4 and 6 of the March 28 will make clear that Norman is trustee and that he does not wish to provide for Mark or Steven (as he did in the First Amendment to Trust). In turn, the 2014 Declaration of Trust provides for Joyce to be trustee on his passing, for her to receive undistributed income from the Trust and for disinheritance of his heirs. Norman’s intent in 2014 is indisputably to provide for Joyce, not Movants. Hence, revocation of the holographic will is ultimately immaterial.

Moreover, under PC sec. 6123(b), where the March 24 Will would have revoked the 2000 Will had it not itself been revoked, the 2000 Will is still revoked unless it appears from the March 28 Will that Norman intended the 2000 Will to take effect. The March 28 Will intends that the concurrent version of the Trust take effect (which provides for Joyce). By contrast, the 2000 Will provides for a pour over to the Trust that provides for Mark and Steven. Therefore, revocation of the March 24 Will does not mean that the 2000 Will is sought to be revived so that Mark and Steven would benefit.

Therefore, revocation of the March 24 Will does not by itself preclude Joyce asserting an affirmative to the defense to Movants’ claim that the First Amendment to Trust or Survivor’s Trust was not revoked.

In view of the Court denying summary adjudication as to the foregoing causes of action, and without any additional basis to grant the motion as to this cause of action, the Court cannot now find that Norman never revoked the 2000 First Amended Trust or the Survivors’ Trust thereunder.

That said, the issue at this time (since Mary Lou’s passing) concerns revocation of the Survivors’ Trust, not the 2000 First Amended Trust. The parties do not address their positions (or provide the relevant evidence) as to whether the Property is an asset of the Survivors’ Trust or whether some or all of it is also an asset of the other Marital and Family Trusts. Judge Luna did not address this either.

The Court also cannot now determine whether providing the March 24 and 28 Wills and the 2014 Trust to Mark (or to Steven through counsel) was an effective revocation – even if the notice was by a permissible method: The parties do not address whether these documents constitute valid revocation of the designation and earlier Trust provisions: The revocation of trusts by the March 24 Will does not mention the co-trustee designation. Likewise, the 2014 Trust does not at least expressly revoke earlier versions of the Trust. These are further factual issues precluding summary adjudication.

Unlike the above causes of action, this Court had ruled already that Judge Luna did not decide this issue. The unlawful detainer complaint related to possession is still pending. Turning to the merits:

Leaving aside the testimony of Joyce, Hartmann, Margarita Jerabek and Carol Soucek King that Norman intended to provide Joyce a life estate (as to which Movants offer no contesting testimony), the argument on the motion concerns the need for a writing under the statute of frauds. Movants argue that the only possible writing would be the March 24 Will. However, where the Court has ruled above that there is evidence that under the March 28 Will Norman may have revoked the 2000 Trust, the March 24 Will is not the only relevant writing (as the motion assumes.) Movants present no argument related to the provision for Joyce in the 2014 Trust if the 2000 Trust is revoked. Absent such evidence, the Court does not need to reach the factual issues related to the reasonableness of what Joyce has paid towards the Property to satisfy the statute. Moreover, the Court could not grant summary adjudication on these issues without the necessary evidentiary support that is missing from the motion.

The Court finds the following purported undisputed facts asserted by Movants in their Separate Statement to be disputed:

8. This sets forth Movants’ interpretation of provisions of the 2000 First Amended Trust and is not a fact. As discussed above, Joyce disputes this interpretation.

9. This pertains to whether Norman ever filed with Mark and Steven a notice of change of their interests as beneficiaries of, or amendment or revocation of, the Survivor’s Trust. As discussed above, Mark and Steven contend they did not whereas Joyce contends they did.

13. This states that the purported transfer of the Property to the 2014 Trust was “squarely at issue in the Trust matter.” Joyce contends it was not given that by trial of the Trust matter Norman had since died, Movants had not named Joyce as a respondent to that matter and the petition did not address the effect of the wills on that transfer.

16, 19, 29 and 37: These facts contend that Joyce “appeared” at various hearings. Joyce disputes that she “appeared” given that she was not a party to the proceedings at which hearings were held even if her counsel were present, in reliance on the Hartmann and Krasilovsky Decls. filed in opposition to the motion.

20. This fact concerns whether Joyce “participated” in discovery proceedings. Joyce again disputes that she “participated” where she was not a party even if she was involved as a non-party.

25, 32 and 44: These similarly concern whether Joyce’s counsel was “served” with various papers, in view of the same contention that she was not a party, notwithstanding her acknowledgment that she was mailed and received those documents, consistent with having filed a request for special notice.

42. This fact contends that “inherent” in the August 2021 ruling was that the First Amended Trust “existed and had not been revoked.” Joyce disputes that the Court made any finding as to revocation and hence why Movants filed the petition that they now seek to summarily adjudicate. As discussed above, this Court’s March 8, 2023 ruling addressed the limits of earlier rulings – which did not include directly addressing revocation.

However, of these disputed facts, the Court finds that only Fact no. 9 is truly disputed factually. All the other facts concern disputes about language, interpretation or the legal effect of various otherwise uncontested matters and hence do not create a “material issue of fact” to require denial of the motion.

Fact No. 9 is also relied upon in each of the issues sought to be summarily adjudicated. (The same total 57 facts are set forth as the basis for all five issues.) However, where this fact is not material to those other causes of action, the Court does not deny summary adjudication of those causes of action on this basis.

In view of this finding, the Court does not need to decide whether the additional facts asserted by Joyce in her responsive Separate Statement are material or disputed.

[1] For ease of reference, family members and parties are referenced by their first name and without intending any disrespect.

[2] The motion does not make clear if Movants’ position is that the Property is held by the Survivor’s (Sub) Trust or the 2000 Trust. If the former, the prior orders do not address the Survivor’s Trust.

[3] Movants’ reliance on Diaz, supra, is misplaced: Diaz pertains to notice of proposed modifications to a trust under PC sec. 15402, not revocation under sec. 15401. As stated in Diaz, 91 Cal.App.5^th at 924-925, “The plain language of section 15402 states that a settlor may modify the trust by the procedure for revocation set forth in section 15401 “[u]nless the trust instrument provides otherwise.” That qualifying statutory language is clear and unambiguous, particularly when read together with section 15401.⁴ Unlike section 15401, section 15402 does not require the trust instrument to “explicitly” state that the method of revocation provided in the trust instrument is the “exclusive” method of modification for the trust terms to displace the statutory modification provisions….The trust provisions at issue in Pena and Gardenhire did not require delivery by certified mail but provided that any amendment or revocation be made in writing signed by the settlor and simply “ ‘delivered to the trustee.’ ” (Pena, at p. 549, 252 Cal.Rptr.3d 265; Gardenhire, at p. 886, 26 Cal.Rptr.3d 143.) Masry concerned revocation, not amendment of a trust, and is inapposite. (Masry, at pp. 739–740, 82 Cal.Rptr.3d 915.)

[4] The Court rejects Joyce’s related argument that the Court should allow a will to modify a trust, even if not done correctly, because courts may allow deviation from the formalities of a will where there is clear and convincing evidence to do so, citing Estate of Berger (2023) 91 Cal.App.5^th 1293, 1303. Here, the issue is not formalities of a will but the separate requirements of the Trust – which under Diaz, supra, must be strictly followed.

[5] Accordingly, the Court does not need to reach whether a notice of revocation may be executed after having executed the 2014 amendment, i.e., here, by Norman executing a revocation on December 1, 2016.

[6] Movants argue that Joyce may not now make this claim by declaration in opposition to the motion when her deposition testimony was to the contrary, citing D’Amico, supra. However, p. 156 of the transcript of her deposition (which Movants lodged) shows that Joyce was aware Norman executed a will in 2014 – contrary to the claim in the Reply that she did not know about a will.

[7] The Court does not find that by Hartmann providing counsel for Steven these same documents in December 2016 that this was proper notice where notice was required to be given by Norman and as Hartmann did not represent Norman could not act for him.

[8] For the same reasons, the Court cannot consider how likely it is that Norman twice sent Mark notice by certified mail but that Joyce cannot locate any receipt or whether Joyce’s declaration in opposition to the motion is inconsistent with her deposition testimony as well as that of Hartmann at her deposition.

[9] Though they are pleadings and for that reason can be admissions, still the pleading needs to be on point or “unambiguous.” The context of the statement is in terms of administration of the sub-trusts. In addition, at least according to Hartmann, Norman did not want Mark or Steven to know about the Wills. It is unclear why Norman may not have testified about the 2014 Trust or revocation of the 2000 Trust by will. Norman’s statement in discovery responses, however, cannot serve as an admission where it was not a pleading.