Judge David J. Cowan, Case Number: 21STCV41179, Date: 2023-09-07 Tentative Ruling

TENTATIVE RULING ON MOTION OF TIMOTHY L. MOORE AND VANESSA D. CAMPBELL FOR JUDGMENT ON THE PLEADINGS

Jazmyn Brown v. Timothy L. Moore, et al., Case No. 21STCV41179 (related to In re: Harold Campbell Family Trust, Case No. BP169659)

The Court is faced here with two related proceedings – neither of which is pending in a manner that will allow a final adjudication of all issues. Moving parties’ request for dismissal of the civil case does not properly address the failure of Jazmyn Bown (“Jazmyn”) to plead the relevant provisions of the Probate Code.[1] The answer lies in the parties’ responding to this Court’s issuance of an OSC why co-trustees Timothy Moore (“Timothy”) and Vanessa Campbell (“Vanessa”), should not be ordered to file an accounting.

By order filed March 17, 2020, the Probate Court entered an order in the above-referenced Probate case granting a petition for approval of a settlement of a petition to contest the validity of the Harold Campbell Family Trust (“the Trust”). There are no petitions now pending in that Probate case.

On November 9, 2021, Jazmyn filed a complaint in this case against Timothy, Vanessa and Valeria Hatcher (“Valeria”) – like Jazmyn, beneficiaries of the Trust - for intentional and negligent infliction of emotional distress, intentional and negligent interference with prospective economic advantage, conversion, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, unjust enrichment, violation of Unfair Competition Law and for an accounting. In summary, Jazmyn alleges that on October 26, 2020 co-trustees sold the principal asset of the Trust, certain real property, and improperly refused to give Jazmyn her share as a beneficiary when they should have and that what she did finally receive was not her full share in view of defendants’ also having taken monies in various Trust bank accounts.

The first through fourth causes of action are against Timothy. The fifth and ninth causes of action are against all three defendants. The sixth and tenth causes of action are against Timothy and Vanessa as co-trustees of the Trust. The seventh cause of action is against Valeria and Doe 31. The eighth cause of action is against Valeria and other Does.

On January 21, 2022, Dept. 1 of the Court related this case to the Probate case and transferred it to the Probate Dept. The Court found that Jazmyn’s claims against Timothy and Vanessa concerned what as a beneficiary she should have received from them as co-trustees and that therefore these were “internal affairs” of the Trust that should be heard in the Probate Dept. which has exclusive jurisdiction to hear matters like this that would be governed by Probate Code sec. 17200, et seq.

On May 25, 2023, Valeria filed an Answer to the Complaint. (The Answer was erroneously filed in the Probate case.)

On May 26, 2023, this case and the Probate case were assigned to the undersigned for trial.

On July 18, 2023, the Court held a status conference and a hearing on its OSC re: why this case was not foreclosed by reason of a settlement agreement. The Court discharged the OSC on learning that Jazmyn was not a party to the settlement agreement.

On August 1, 2023, Jazmyn filed an Amendment to Complaint naming Doe 31 as Sarita Campbell (“Sarita”).

On August 1, 2023 Timothy and Vanessa filed this motion. They argue that this Court lacks subject matter jurisdiction where the Complaint concerns “internal affairs” of the Trust that are the exclusive province of the Probate Dept. under Probate Code sec. 17200, eq seq. They contend the case should be dismissed and that they do not consent at this late date to a transfer of this case to a Probate department.

On August 21, 2023, Jazmyn filed opposition to the motion. She argues that the issue here is governed by Estate of Bowles (2008) 169 Cal.App.4^th 684, which indicates that exclusive “jurisdiction” of the Probate Division for purposes of handling issues under Probate Code sec. 17200, eq seq, within the Superior Court does not also mean this Superior Court lacks subject matter jurisdiction. They argue that Bowles requires instead transfer of a civil case raising those issues to a Probate courtroom. (See also to same effect Capra v. Capra (2021) 58 Cal.App.5^th 1072) Jazmyn argues also that her claims against Timothy for infliction of emotional distress and in turn that her claims against Valeria (who was not a co-trustee) go beyond the “internal affairs” of the Trust. Finally, she argues it is too late for Timothy and Vanessa to insist that Jazmyn bring a petition under Probate Code sec. 17200 where such claim would be untimely, citing Harnedy v. Whitty (2003) 110 Cal.App.4^th 798, 807-808.

On August 30, 2023, Timothy and Vanessa filed a reply in support of the motion, arguing this case is dissimilar to Bowles and dismissal of this complaint is required where there is no petition pending in the Probate case and that the Probate Dept. would have exclusive as opposed to concurrent jurisdiction to hear claims under Probate Code sec. 17200, et seq. They argue further the addition of Sarita as a party is improper and that the Court should not take this fact into account.

Bowles and Capra, supra, make very clear that the Court cannot dismiss this case for lack of subject matter jurisdiction even assuming all of Jazmyn’s claims were “internal affairs” of the Trust. Whether the Probate Dept.’s basis for hearing the case it has is by virtue of having exclusive jurisdiction over Probate issues or concurrent jurisdiction over civil issues, dismissal is still not the remedy for a civil complaint raising possibly Probate issues. Similarly, that there is no petition now pending in the Probate case again does not make dismissal proper. A Probate trust case remains in place even if there is no petition pending because like here there may still be another petition filed later. Moreover, Dept. 1 previously found this case related to the Probate case, notwithstanding there was no petition pending, because issues in the civil case might be impacted by what had already transpired in the Probate case.

The issue of transfer is moot where this civil case was already related to a Probate courtroom on January 21, 2022. That has not changed by virtue of these cases having been sent to this courtroom for trial. Both cases will continue to be heard together by one judge.

That said, the Court is not convinced that the miscellaneous common law causes of action pled may not all be made redundant by Probate Code sec. 17200 - providing a full set of remedies against a trustee, including to compel an accounting (consistent with the tenth cause of action in the complaint for an accounting) and for a surcharge in the event objections were sustained to that accounting. (See Probate Code sec. 17200(a)(7(C)) Here, it is not clear Timothy or Vanessa have provided an accounting. In turn, whether Valeria and Sarita received more than they should have and or improperly assisted the trustees, or Jazmyn did not receive what she should have, may be premature until the Court can review that accounting. An accounting will determine whether other beneficiaries received the correct amount (see Probate Code secs. 17200(a)(4 and 5)); i.e., Valeria and Sarita – even though they are not co-trustees, as well as determine what liability co-trustees may have. For these reasons, the Court is issuing an OSC in the Probate case why they should not now be ordered to file an accounting and for a stay of this civil case until the Court can hear a petition for approval of that accounting.[2]

For these reasons, the Court denies the motion. The Court issues an OSC in the Probate case for October 9, 2023 at 1:30 p.m. re: why Timothy and Vanessa should not be ordered to file an accounting and for a stay of this civil case until further order of court. Response to the OSC shall be filed by September 25, 2023. Any objection to the response shall be filed by October 2, 2023.

[1] Without intending any disrespect, the Court refers to the parties by their first names for ease of reference.

[2] Therefore, any prejudice from the addition of Sarita as a party to the civil case may be made moot.