Judge David J. Cowan, Case Number: 24STPB04661, Date: 2025-02-21 Tentative Ruling

In re: the matter of The Ralph Harboe Trust dated July 24, 2006, Case No. 24STPB04661

Until the events described below, Ralph Harboe (“Harboe”), now eighty-two, and Linda Olsson (“Olsson”), also eighty-two, had been living together as an unmarried couple for almost forty years at a home located at 25 3^rd Street in Hermosa Beach, California (“the Property”).

Leann DiMarzo (“DiMarzo”) is Harboe’s adult daughter from a prior relationship who resides in New York.

On July 24, 2006, Harboe created the Ralph Harboe Trust dated July 24, 2006 (“the Trust”). Harboe was named trustee of the Trust. On his incapacity or death, Olsson was named first successor trustee and DiMarzo was named second successor trustee. Relevant here, the Trust provides that Olsson is permitted to “reside in any real property owned by this Trust constituting [Harboe’s] principal residence at the time of [Harboe’s] death.” The Trust does not specifically refer to the Property and Olsson indicates that Harboe never changed title to the Property in favor of the Trust. On the same date, Harboe also executed a Power of Attorney in favor of DiMarzo.

On September 1, 2021, Harboe executed a holographic will, in front of two witnesses, which provides in relevant part for Olsson to have a life estate in the Property.[1]

On or about March 16, 2023, due to various medical issues, Harboe was admitted (apparently believing it to be temporary), to an assisted living facility known as the Canterbury in Rancho Palos Verdes -- at a cost of approximately $18,000 per month. Olsson indicates that she has made improvements to the Property so Harboe could come back to the Property but that has yet to occur. Olsson also experienced significant medical issues herself in 2023, including surgery on August 11, 2023. She continues to reside at the Property.

On August 28, 2023, Dr. Samra Vazirian, a neurologist for Harboe, stated in a letter that Harboe “needs assistance with managing finances and all instrumental activities of daily living due to his cognitive impairment.” Olsson contends Vazirian wrote this letter at DiMarzo’s request. By contrast, DiMarzo contends that this opinion was consistent with Harboe’s cognitive decline over the prior several years.

On August 29, 2023, according to Olsson, DiMarzo persuaded Olsson to decline to serve as successor trustee - which Olsson did – thereby making DiMarzo successor trustee. By contrast, according to DiMarzo, Olsson was not interested in serving as trustee and decided not to serve after Olsson and DiMarzo met with Olsson’s estate planning attorney, Robert Valentine. According to Valentine, Olsson decided not to serve due to Harboe’s lack of capacity.

On October 31, 2023, 2023, acting as Harboe’s attorney-in-fact, DiMarzo executed a deed whereby Harboe transferred the Property to the Trust. Valentine drafted this deed for DiMarzo.

Olsson contends that DiMarzo took the foregoing actions in order that she could sell the Property – in violation of Olsson’s right to a life estate in the Property – and in connection therewith asked Olsson to vacate the Property.

Thereafter, on unknown date, Olsson retained William F. Clark (“Clark”) as her lawyer in anticipation of litigation with DiMarzo. Clark contends he and DiMarzo’s lawyer (Robert Barton) discussed the need to sell the Property and DiMarzo’s proposal of April 8, 2024 that Olsson either vacate the Property or pay $18,000 per month to allow Harboe to remain at the Canterbury. Olsson contends DiMarzo wanted Olsson to enter into a lease agreement to merely defray the expenses at Canterbury.

On or about April 9, 2024, Clark contacted Tara McGuiness, an estate planning lawyer, to represent Harboe concerning these issues. Clark informed McGuiness that Harboe had sufficient liquid funds to pay for the Canterbury, that DiMarzo did not need to sell the Property and that Harboe’s estate plan showed he wanted Olsson to live at the Property.

On April 12, 2024, with McGuiness’ assistance, Harboe executed an Amendment to Trust (“the Amendment”). The Amendment provides that DiMarzo would no longer serve as successor trustee, instead appointing Olsson and then two other persons as alternatives, and further provides that Olsson could live at the Property during Harboe’s lifetime and at the time of his death, being responsible only for ordinary expenses of maintenance, utilities and minor repairs, so long as she used the Property exclusively as her principal residence.

Clark contends that neither he nor Olsson gave instructions to McGuiness as to what action she should take and that Olsson was not present when Harboe executed the Amendment. Clark contends further he never met nor communicated with Harboe himself. Di Marzo contends, by contrast, that the Amendment was pre-printed and that Harboe had no input and lacked capacity in executing.[2] She also contends that Clark enabled McGuiness to meet Harboe by contacting the Canterbury on behalf of Harboe and Olsson by email dated April 11, 2024. Further, she contends McGuiness showed Clark the proposed Amendment before it was shown to Harboe, including by e-mail dated April 9, 2024 and April 11, 2024. In turn, Clark allegedly paid McGuiness’ bill.

On April 22, 2024, DiMarzo, as successor trustee of the Trust, filed a petition against Olsson and DOES 1 through 50 as to the validity of the Amendment, claiming that Olsson procuring the Amendment was financial elder abuse, that Harboe lacked capacity and was subject to undue influence and was without the necessary consent of DiMarzo as successor trustee, as well as seeking different forms of relief if the Amendment were found invalid.

On June 17, 2024, the Court appointed attorney Stephanie Cutler as a guardian ad litem for Harboe (“GAL”).

On November 15, 2024, DiMarzo filed amendments to the petition naming Clark as Doe 1 and McGuiness as Doe 2. Clark understands that they are sued as alleged “co-conspirators” with Olsson.

On January 10, 2025, Clark filed the subject special motion to strike under the Anti-SLAPP statute, together with Declarations of Olsson and Clark. The motion contends as follows: CCP sec. 425.16 requires a two-step analysis: First, whether Clark has shown his actions are “protected activity.” Second, if so, whether DiMarzo can show that she has a reasonable probability of prevailing on her claims or stated, otherwise, that DiMarzo can show “minimal merit” to the claim. (Wilson v. CNN (2019) 7 Cal.5^th 871, 891) If DeMarzo cannot meet that burden with admissible evidence, then the action must be dismissed. Conversely, if DeMarzo can meet that burden, the motion must be denied.

Clark argues that the statements he made in connection with or in preparation for litigation are privileged. (CCP sec. 425.16(e); statement made in connection with an issue under consideration by a judicial body) This provision is read broadly to include statements in connection with or in preparation for litigation, including counseling. (Kolar v. Donahue, et al. (2006) 145 Cal.App.4^th 1532, 1537, Bel Air Internet v. Moreales (2018) 20 Cal.App.5^th 924, 940) For example, revising an estate plan may be protected activity if done in connection with anticipated litigation. (Cabral v. Martin (2009) 177 Cal.App.4^th 471) Clark states he was hired as a litigation attorney and hence his actions, including contacting McGuiness related to the likely litigation, are protected.

Clark in turn argues that DiMarzo will not be able to prove a probability of prevailing for the following reasons:

First, the litigation privilege in Civil Code sec. 47 precludes liability, including for potential litigation. (Olsen v. Harbison (2010) 191 Cal.App.4^th 325)

Second, Civil Code sec. 1714.10(a) requires a court order before assertion of a claim against a lawyer for civil conspiracy with a client and DiMarzo did not obtain such order.

Third, due process requires dismissal where Clark cannot defend this case where his client has not and will not waive the attorney-client privilege. (Solin v. O’Melveny, et al. (2001) 89 Cal.App.4^th 451, 466-467)

Fourth, DiMarzo has “unclean hands” in breaching her fiduciary duties as trustee and committing elder abuse against Olsson and Harboe.

Fifth, Olsson did not commit elder abuse in Harboe having executed the Amendment where the provision of a life estate to Olsson was consistent with his will and contrary to DiMarzo’s view that the Property was a Trust asset. Clark also cannot have assisted Olsson therewith where his involvement (as indicated above) was not “substantial,” as required, and he lacked actual knowledge of what transpired with the Amendment. (Das v. Bank of America (2010) 186 Cal.App.4^th 727, 744, American Master Lease v. Idanta Partners (2014) 225 Cal.App.4^th 1451, 1475) For similar reasons, there can be no liability under Probate Code secs. 850 and 859.

On January 27, 2025, DiMarzo filed Opposition to the motion, together with Declarations of DiMarzo, Valentine and Barton. They also filed Evidentiary Objections to the Olsson Decl.

DiMarzo argues that Clark’s conduct was not “protected.” (White v. Davis (2023) 87 Cal.App.5^th 270, 287-290 (actions to procure Trust amendment by undue influence of an elder are not protected even if related litigation is protected)).[3] Conduct that is unlawful cannot be “protected.” (Flatley v. Mauro (2006) 39 Cal.4^th 299, Cabral, supra, 177 Cal.App.4^th at 480) DiMarzo refers to Clark’s conduct as “criminal.” Clark merely describing himself as a litigation lawyer does not make his retention one in anticipation of litigation. That DiMarzo and Olsson were at an impasse concerning Olsson remaining at the Property without contributing towards Harboe’s rent at Canterbury did not necessarily therefore mean litigation was imminent.

In turn, DiMarzo contends she has shown a probability of prevailing on the petition against Clark for elder abuse and undue influence in at least three ways: first, working with McGuiness to prepare the Amendment without first consulting Harboe - in a way that benefitted his client. Second, instructing the Canterbury staff to allow Harboe to meet with McGuiness (Ex. J to Barton Decl.), knowing Harboe had lacked capacity for at least eight months. (Ex. C to Barton Decl. ) Third, according to McGuiness and Olsson, in his paying McGuiness for her services. (Exs. A and F to Barton Decl. (deposition testimony))

DiMarzo contends the litigation privilege does not apply to the facts above as to execution of the Amendment where those were separate from conduct of the litigation. (Kimmel v. Goland (1990) 51 Cal.3d 202) In turn, she argues the attorney client privilege does not apply in perpetration of a fraud. (Evid. Code sec. 956) Relatedly, that the holographic will does not show Olsson would have a life estate that might justify securing the Amendment. DiMarzo disavows a claim of civil conspiracy that would require a court order to permit in advance. “aiding and abetting” liability is distinct from a conspiracy. (American Master Lease, supra, 225 Cal.App.4^th at 1476) Finally, DiMarzo contends there was no wrongful taking of the Property where she conveyed the deed to the Trust in her capacity as Harboe’s attorney-in-fact pursuant to a power of attorney.

On February 4, 2025, Clark filed a Reply in support of the motion. In summary, he argues:

First, DiMarzo’s referring to Clark as a criminal is inappropriate and unsupported. Hence, the “criminal” conduct exception, under Flatley, supra, does not make Clark’s conduct not “protected.” For conduct to be considered “criminal,” the criminality cannot be reasonably be disputed. (City of Montebello v. Vasquez (2016) 1 Cal.5^th 409)

Second, there is no evidence of wrongdoing by Clark as concerns McGuiness. McGuiness herself decided what advice to give Harboe. Clark did not direct McGuiness to take any action. His advising the Canterbury to allow entry to McGuiness was harmless. Neither McGuiness nor Olsson confirm that Clark paid for McGuiness’ services. In any event, these factual issues do not bear upon whether Clark’s conduct was “protected” for purposes of Prong 1.

Third, Clark’s conduct was in anticipation of imminent litigation, where the parties had already conveyed to each other conflicting positions. Clark’s actions relating to Harboe amending the Trust was to “improve” his client’s position in that litigation.

Fourth, White, supra, is distinguishable from the facts here where in that case according to Clark the underlying conduct preceded contemplation of litigation – and caused the litigation - whereas here Clark’s conduct at issue was after litigation was already imminent.

Fifth, as far as likelihood of DiMarzo prevailing on the merits, Clark argues the litigation privilege bars the claim, due process makes bringing action against Clark unfair where he cannot disclose communications with his client, the claims is one for conspiracy requiring a pre-suit order permitting, and unclean hands of DiMarzo - to try to sell the Property before Harboe’s death - preclude any liability. Further, Clark could not have committed elder abuse on a person with whom he had no contact and where the evidence also does not show his client and long-time companion intended any harm to Harboe.

Finally, DiMarzo is not entitled to fees even if she did prevail on this motion where it was not one that “any reasonable attorney would agree was totally devoid of merit.” (City of Rocklin v. Legacy Fam., et al. (2022) 86 Cal.App.5^th 713, 726)

On February 14, 2025, Clark requested the Court take judicial notice of a civil complaint, LASC Case No. 24STCV30832, for ejectment against Olsson that Di Marzo, as trustee, filed on November 21, 2024 which seeks to remove Olsson from the Property.

The Court has ruled herewith on the Evidentiary Objections in the form provided.

Initially, the Court rejects DiMarzo’s claim that Clark’s conduct was “criminal” such that it could not be “protected.” DiMarzo does not indicate what part of the Penal Code Clark violated or the foundation for that contention. Moreover, under Vasquez, supra, any such “criminality” or illegality must be unquestionable. As discussed below, the outcome here is uncertain. Whatever may be finally said of Clark’s actions, they do not rise to the level of conduct such as the alleged extortion at issue in Flatley, supra. DiMarzo does not meet that burden. The Court agrees with Clark that the use of such a description against an attorney is also unnecessarily inflammatory and does not help DiMarzo’s case.

That said, the Court rejects Clark’s reading of the relevant cases on anti-SLAPP motions involving estate planning:

In Cabral, supra, the Court held that a lawyer’s actions in revising a will to seemingly disinherit the son of the decedent and then lodging a will with the Probate Court (to attempt to allegedly avoid child support obligations of the son of the decedent to his ex-wife under a child support judgment) were both “protected activity” for purposes of the anti-SLAPP statute. The Court affirmed the trial court having granted the motion. The Court held that the attorney’s revision of the will “was of no effect in and of itself, but only insofar as it was later implemented through the probate proceedings. Accordingly, the will revision was also protected activity under the anti-SAPP statute. Even if not, it was only incidental to the subsequent protected activity, thus rendering…the entire cause of action subject to a special motion to strike.” (Id., 177 Cal.App.4^th at 483)

By contrast, in White, supra, the Court held that a lawyer’s actions in purportedly representing the settlor of a trust, who was under conservatorship, to amend his trust so it would change the beneficiary, as well as in bringing legal actions to remove a trustee and terminate the conservatorship, was not “protected activity.” The Court affirmed the trial court having denied the motion. The Court ruled that the actions involved in isolating, agitating and confusing the conservatee to effectuate a change in his estate plan that gave rise to the applications for elder abuse restraining orders were not protected free speech or “petitioning activity.” (Id., 87 Cal.App.5^th at 289) The Court relied on Gaynor v. Bulen (2018) 19 Cal.App.5^th 864 where the Court had denied an anti-SLAPP motion as against a petition to prevent unfair distribution of trust funds, finding that the claims of defendant beneficiaries who filed the motion were predicated on their taking actions to the detriment of other beneficiaries. (Id.) The White court notes that the Gaynor court distinguished between the legal filings that were protected activities and the separate conduct at issue was the basis for the claim of breach of fiduciary duty.

The facts here are more like those in White than those in Cabral: Here, Clark’s actions do not concern a will that would need to be probated, as in Cabral. Rather, like in White, his alleged actions concern the amendment to a trust, which, by definition, is a non-probate asset that is designed to not need to be administered through a court. Though some of Clark’s actions may have been in anticipation of litigation, the actions about which DiMarzo complains include the introduction of McGuiness to Harboe, allowing McGuiness to meet Harboe and then arranging for payment of McGuiness – none of which is “petitioning” conduct that would be protected. All these actions if true are independent of seeking to represent Olsson in a judicial proceeding and - admittedly according to the Reply – were part of an attempt to change the playing field as to the parties’ respective rights to the Property to increase Olsson’s leverage in any litigation. Amendment of a trust is not a part of the litigation process. That Clark chooses to classify himself as a litigation attorney, as opposed to an estate planning attorney, does not provide him any legal basis to not be responsible for conduct outside the context of litigation in arranging for Harboe to change his Trust.

Finally, the Court does not accept Clark’s proposition that White is inapposite here because of the timing of the estate planning as concerns the ultimate litigation. As in White, here the Amendment of Trust did cause the litigation – even if there was an impasse between DiMarzo and Olsson that might have led to litigation in any event.[4] The litigation DiMarzo initiated was due to her contention that Olsson had improperly influenced Harboe to change the Trust, not per se Olsson’s occupancy of the Property. Instead of seeking relief from the Court related to construing the terms of the Trust, for example by filing a petition for instructions, as DiMarzo suggests, Clark instead appears to have taken matters into his own hands - and become a de facto estate planning attorney - by arranging for and paying a lawyer to meet Harboe to assist him with executing an Amendment whereby Olsson might prevent litigation.

However, even assuming this conduct was protected for sake of argument, the Court reaches the merits below and still reaches the same conclusion that the motion should be denied. Hence, whether the conduct in question is protected would not be material at least with these facts.

There is at least some potential of DiMarzo prevailing on the sole claim against Clark of financial elder abuse: There is evidence that on behalf of his client Clark engineered a situation whereby Harboe, indisputably a dependent adult, changed the Trust to the benefit of his client, Olsson, by undue influence: He found a lawyer for Harboe, arranged for the lawyer to meet with Harboe at the Canterbury and caused that lawyer to be paid. He did so where his client already knew that Harboe’s physician, Dr. Vazirian, had found that Harboe needed assistance with managing his finances and all instrumental activities of daily living due to his cognitive impairment -- such that Olsson knew she would need to take over as successor trustee of the Trust (even if she may not have assumed that role for disputed reasons.) The Valentine Declaration corroborates Olsson’s knowledge of this issue – even if there is still argument about Valentine’s recitation of what occurred.[5] These facts show a case for undue influence - one of the bases for financial elder abuse under Welfare & Institutions Code sec. 15610.30(a)(3).

The Court acknowledges Clark’s contention that he did not direct McGuiness to take any action; however, left unsaid was why he would have sought a lawyer for Harboe (as opposed to for his client) for any reason other than to assist his client – who sought the clarification that the Amendment purports to make. Clark did not represent Harboe. The Court does not know what may have been said or implied in Clark reaching out to McGuiness. However, there is at least an inference of wrongdoing from what ultimately occurred here based on that contact. Similarly, while Clark advising the Canterbury to allow entry to McGuiness might on its own seem harmless, it also appears the case that but for this action Harboe himself would not have met McGuiness – where there is no evidence that Harboe himself sought to amend the Trust until he met with McGuiness.[6] McGuiness came to the meeting with Harboe with an Amendment drafted already (but which she had shown to Clark.) Finally, neither Clark nor Olsson dispute that Clark paid for McGuiness’s services -- ostensibly for Harboe.

Hence, where there is at least some reason to believe Olsson (and therefore Clark as her agent) knew or should have known Harboe lacked capacity to make the Amendment, or alternatively, that Clark sending and paying for a lawyer to Harboe to seemingly amend the Trust was to benefit Olsson, not Harboe, potentially constituting undue influence by Olsson through Clark as her agent, there is the necessary showing of a minimal probability of success on the merits for purposes of this motion based on the facts presented here and applicable law.

Whether ultimately DiMarzo prevails on these causes of action the Court does not now decide.[7] Further evidence may show that the terms of the Amendment reflected what Harboe already sought to do by way of the Trust – as demonstrated also by his seeming intent expressed in his will. In turn, it is not clear DiMarzo should have taken the position that Olsson had to vacate the Property where DiMarzo had control of significant cash of Harboe outside the Trust to continue to pay for his care at the Canterbury. The Property was also Olsson’s longtime home – even if she was not married to Harboe – and there was at least some evidence indicating some level of intent on Harboe’s part that she had a right to remain there – the exact terms of which the Court does not now determine either. Whether this demand makes DiMarzo guilty of “unclean hands” such that equity would deny her relief remains to be seen. That DiMarzo has also filed a separate civil action for ejectment against Olsson may also be inconsistent with Harbo’s intent.

For similar reasons to why Clark’s actions are not protected conduct, the foregoing actions were not part of the litigation that the parallel litigation privilege under Civil Code sec. 47 would apply. The actions here were not merely “communications” but were steps in securing an amendment to a trust. (Kimmel v. Goland (1990) 51 Cal.3d 202, 205) In turn, the Court does not find, and DiMarzo indicates she is not asserting, that there was a “conspiracy” by and between Olsson, Clark and McGuiness that a pre-suit order allowing such claim would have been required. While the Court recognizes Clark’s point that it would not be fair for him to have to defend this case where Olsson will not waive the attorney client privilege between them, the Court intends to bifurcate the claims against he and McGuiness, as set forth in the Court’s accompanying tentative ruling on the OSC to bifurcate, which decision should avoid this issue because the case between Olsson and DiMarzo will be decided one way or another already before the part of the case involving Clark and McGuiness, and were Olsson to prevail, may make DiMarzo’s case against Clark and McGuiness moot.

For these reasons, the Court denies the motion. Any entitlement by DiMarzo to attorneys’ fees is to be determined by further motion.[8]

[1] The will would not have, however, any current legal effect where Harboe is alive.

[2] In support of this claim, DiMarzo points to Olsson utilizing a health care directive for Harboe, related to his care at Canterbury, which would not be effective unless Harboe lacked capacity.

[3] Like in White, supra, DiMarzo also contends that Olsson is also improperly isolating Harboe from her by means of using the healthcare directive to restrict her availability to her father at Canterbury.

[4] The Court does not have a complete picture as to the tenor of the negotiations between DiMarzo and Olsson as to what amount DiMarzo was demanding Olsson pay as rent to defray Harboe’s cost of staying at the Canterbury to be able to conclude litigation was necessarily imminent.

[5] Valentine corroborates DiMarzo’s chronology of what occurred and disputes Olsson’s claim that DiMarzo persuaded her to decline to serve as successor trustee.

[6] Indeed, significantly, Harboe’s GAL has questioned the validity of the Amendment.

[7] The Court will need to hear the testimony of Clark and McGuiness, as well as of Harboe’s physician, at trial, subject to cross-examination, to be able to make a fair evaluation. Declarations, and even deposition testimony, do not give the Court enough to know how it may rule.

[8] The Court does not now reach Clark’s claim that DiMarzo would not be entitled to any fees, as opposed to the amount, where DiMarzo did not address in her opposition and indicated an intent to address separately.

TENTATIVE RULING ON DEMURRERS OF DIMARZO TO PETITIONS OF OLSSON (1) TO REMOVE TRUSTEE, (2) FOR INSTRUCTIONS AND (3) TO ACCOUNT

In re: the matter of The Ralph Harboe Trust dated July 24, 2006, Case No. 24STPB04661

On January 10, 2025, Linda Olsson (“Olsson”) filed a petition for instructions as to four issues: first, that the subject property (“the Property”) remains Ralph Harboe’s principal residence, notwithstanding his now staying at an assisted living facility, second, that LeAnn DiMarzo (“DiMarzo”) transfer the Property back to the Trust, third, that DiMarzo reimburse Olsson for property taxes on behalf of the Trust and fourth, a declaration that Harboe is not incompetent or lacking in testamentary capacity.

On January 10, 2025, Olsson also filed a petition to remove DiMarzo as trustee and to disgorge attorneys’ fees paid by DiMarzo, as trustee.

On January 24, 2025, DiMarzo filed a demurrer to each of the three petitions. DiMarzo argues that Olsson’s contention in each petition that the Trust is revocable (see p.5 of petition) where Harboe – the living settlor – has yet to be declared incompetent and remains trustee (as the petition admits at p.4) is inconsistent with Olsson’s claim that she is now trustee. Further, DiMarzo contends the Amendment is void and therefore Olsson is merely a contingent residuary beneficiary under the Trust and as a result lacks alleged standing as trustee pursuant to the Amendment.

DiMarzo contends also that Olsson lacks standing to bring the petitions as a beneficiary: Under Probate Code sec. 15800, a beneficiary lacks standing to challenge a trust where a trust is revocable and the person holding the power to revoke the trust is competent. (Drake v. Pinkham (2013) 217 Cal.App.4^th 400, 408-409, Estate of Giraldin (2012) 55 Cal.4^th 1058, 1067) Here, the petition admits Harboe still holds the power to revoke.

In addition, under sec. 4.1(d) of the Trust, any amendment to changing the duties, powers or responsibility of the trustee requires the trustee’s consent. The trustee (Harboe) did not consent to the Amendment, which changes what the trustee must administer -- in providing Olsson a life estate presently, as opposed to at Harboe’s death, as well as who is designated as trustee, removing DiMarzo as trustee. The terms of the Trust are therefore still in effect – due to which Olsson again lacks standing.

Finally, regarding the petition seeking disgorgement of attorneys’ fees, DiMarzo asserts this is inconsistent with Article 7.2 of the Trust that allows a trustee to retain counsel and under Article 9.4 to pursue litigation with Trust funds without prior court approval, as well as with the trustee’s duty to defend the Trust. (Zahnleuter v. Mueller (2023) 88 Cal.App.5^th 1294, 1304)

In opposition to the demurrers to the petitions, Olsson asserts the following same key points in each opposition:

First, Olsson has standing to file the petition and has an interest in these proceedings where she is Harboe’s life-time companion and was designated in the Trust as first successor trustee, as well as Harboe’s agent under both a power of attorney (“POA”) and advance health care directive (“AHCD”).

Second, on November 30, 2023 Olsson rescinded her declination on August 29, 2023 to serve as first successor trustee and therefore Olsson is still successor trustee if Harboe lacks capacity.

Third, by the Amendment to Trust of April 12, 2024, Harboe reinstituted Olsson as first successor trustee. DiMarzo’s consent was not required, nor possible given DiMarzo’s position.

Fourth, no court has adjudicated Harboe’s lack of capacity, as required under paragraph 3.2 of the Trust, and therefore Harboe retained the ability to make the Amendment making Olsson successor trustee.

Fifth, even if DiMarzo is correct that Harboe lacked capacity to make the Amendment, and the Trust is now irrevocable, Olsson is then a Trust beneficiary entitled to twenty percent of the remainder of the Trust (leaving aside the Property), giving her standing to seek this accounting from DiMarzo.

Finally, on the merits, relief by these petitions is needed because DiMarzo has improperly taken Trust funds by way of a false Certification of Trust (that states the Trust was irrevocable), that DiMarzo will not now disclose the whereabouts or amount of those funds (as Olsson had requested by way of discovery that is now the subject of a pending motion to compel) and that DiMarzo is not paying Harboe’s bill for staying at the Canterbury as she should be. Instead, Olsson contends DiMarzo has wrongly made her husband a signatory to an account where certain monies were placed and improperly disbursed significant funds to her lawyers. In summary, Olsson contends that the status of the parties vis-a-vis the Trust are factual issues to still be decided by the Court. Specifically, Olsson contends that a recent mental evaluation of Harboe shows he still had the requisite capacity to make the Amendment, notwithstanding the earlier opinion of Dr. Vazirian related to Harboe’s needs (on which DiMarzo relies for her claim he lacks capacity.)

On February 13, 2025, DiMarzo filed a Reply in support of the demurrer to the petition to account. DiMarzo argues the Court must sustain her demurrer where Olson lacks standing:

Under the terms of the revocable Trust attached to the petition, Olsson is merely a contingent residuary beneficiary without standing while Harboe remains trustee, as alleged. (Drake, supra, and Giraldin, supra)

The petition makes no reference to the Amendment and therefore may not properly be considered as part of the opposition to a demurrer.

A contingent, as opposed to an income, beneficiary further lacks standing on that additional basis. (Babbit v. Sup. Ct. (2016) 246 Cal.App.4^th 1135, 1144)

Under Probate Code sec. 17200(b)(7)(C) a beneficiary may only petition to account if the trustee has failed to submit an account within sixty days of a written request to do so. The petition does not alleged compliance with this section. She contends the Court’s order that all relevant petitions be filed by a date certain does not excuse compliance with this Code section.

The contentions in the opposition concerning capacity and reference to documents not attached to the petition (nor subject to judicial notice) are not properly the subject of consideration on demurrer and hence any resulting factual issues are beyond the scope of what can now be decided.

There is no reasonable possibility Olsson will be able to cure the defects in an amended petition – and as to amending the petition to include the Amendment where that lacked DiMarzo’s required agreement.

On February 13, 2025, DiMarzo also filed a Reply in support of the demurrer to the petition to remove trustee. DiMarzo argues the Court must sustain her demurrer where Olson lacks standing:

The Amendment is facially invalid (where DiMarzo as successor trustee did not consent) and hence Olsson lacks standing as beneficiary, for the reasons stated above, or as purported trustee. The opposition to demurrer cannot allege facts which are “surplusage” in so far they are inconsistent with the exhibits attached to the petition. (Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal.App.4^th 500, 505)

Probate Code sec. 15800(b) provides that so long as the settlor is alive the trustee’s duties are to the settlor, not beneficiaries. (Johnson v. Kotyck (1999) 76 Cal.App.4^th 83)

There is no reasonable possibility Olsson will be able to cure the defects in an amended petition while Harboe is alive.

Olsson’s other arguments address matters outside the corners of the petition and therefore cannot now be decided. Olsson’s reliance on CRC Rule 7.700 is misplaced where that concerns compensation of attorneys and personal representatives in administering a probate estate, not as here regarding attorneys’ fees incurred by a trustee.

On February 13, 2025, DiMarzo further filed a Reply in support of the demurrer to the petition for instructions. DiMarzo argues the Court must sustain her demurrer where Olson lacks standing:

The petition itself acknowledges that Harboe has not been determined to lack capacity, thereby causing Olsson to lack standing. Further, Olsson’s original petition in this case – contending Harboe still had capacity to execute the Amendment is irreconcilable with her position here that her rights as a successor trustee or beneficiary would have vested to allow her to now bring this petition.

The Amendment attached to the petition is facially invalid where DiMarzo did not consent as the then-acting successor trustee.

Finally, DiMarzo asserts the same arguments outlined above as to the other demurrers.

Filed herewith, the Court has sustained the evidentiary objections to exhibits attached to each opposition to the demurrers to the petitions, ruling that consideration of those documents is outside what the Court may consider on a demurrer.

There is a rebuttable presumption that all persons have the capacity to make decisions. (Probate Code sec. 810(a)) A judicial determination rebutting such presumption requires evidence. (Probate Code sec. 810(c) At least at this point, therefore, the Court presumes Harboe had capacity to execute the Amendment, consistent with the allegations of the petitions for instructions and for removal, as well as Olsson’s initial petition herein. Consequently, DiMarzo’s contention that Olsson’s interests as beneficiary have not yet vested - and that the trustee’s duties are solely to Harboe so long as he is living – appears to have merit. (Drake, supra, and Giraldin, supra) Olsson cannot now contend that she has standing as beneficiary based upon merely DiMarzo’s contention that Harboe lacks capacity and that if so Olsson’s rights as beneficiary would have vested.

That said, the petition for instructions alleges Olsson resides at the Property that may be a Trust asset. In addition, Olsson may have some form of life estate. Further, though not alleged in these three petitions, it appears without dispute from DiMarzo’s petition – of which the Court takes judicial notice, that the Court is also herewith considering that Olsson has an AHCD and POA on behalf of Harboe (as DiMarzo may have also as far as a POA). By reason of the foregoing involvement in matters concerning Harboe, including as settlor and trustee, the assets of the Trust, as well as her own possessory and or ownership interests in the Property (leaving aside whatever additional residual interests Olsson may have as a contingent beneficiary), the Court finds that Olsson is an “interested person,” under the facts alleged here, within the meaning of Probate Code sec. 48(b), giving her standing to file the three petitions at issue on these three demurrers.

It is critical that the Court now determine whether Olsson and or DiMarzo have the financial responsibility for payment of Harboe’s monthly expenses at the Canterbury, including relatedly whether the Property should be sold to pay for those expenses and or the availability of other funds to do so. Relatedly, Olsson has a right to now seek her competing declaration as to Harboe’s capacity in executing the Amendment -- that does not depend on her beneficiary status. These issues cannot wait until after Harboe passes.

The Court does not now reach the factual issues argued over in the briefing, including as to Harboe’s capacity, DiMarzo’s rights to obtain or use Trust funds for attorneys’ fees or the validity of the Amendment (or if DiMarzo’s agreement thereto was required.)

Notwithstanding the foregoing, the Court did not intend by its case management order -related to filing of petitions by a date certain to foster prompt resolution of this case - to allow bypass of any statutory requirements before filing. If those were not then satisfied, it would have been premature for Olsson to have filed any petition that had such prerequisite. Therefore, though the Court is understanding of why Olsson filed the petition, DiMarzo’s contention that the accounting petition does not allege that she did not fail to provide an accounting within sixty days of written notice appears valid. However, Olsson should be able to amend her petition if she now makes that written request and then DiMarzo still fails to timely do so.

For these reasons, the Court overrules the demurrer to the petitions for instructions and for removal of trustee. DiMarzo is ordered to respond to the merits of those two petitions within twenty days of this ruling. The Court sustains the demurrer to the petition to account, with ninety days leave to amend.

TENTATIVE RULING ON OSC TO BIFURCATE TRIAL OF CAUSES OF ACTION IN DIMARZO PETITION AGAINST ATTORNEY RESPONDENTS FROM CAUSE OF ACTION AS TO INVALIDITY OF TRUST

In re: the matter of The Ralph Harboe Trust dated July 24, 2006, Case No. 24STPB04661

On April 22, 2024, Leann L. DiMarzo, as trustee of the Ralph Harboe Trust dated July 24, 2006 (“the Trust”) (“DiMarzo”), filed a petition against Linda Olsson (“Olsson”) and DOES 1 through 50 as to the validity of an amendment to the Trust, dated April 12, 2024, as well as other causes of action seeking different forms of relief if the amendment were found invalid.

On November 15, 2024, DiMarzo filed amendments to the petition naming William F. Clark (“Clark”) as Doe 1 and Tara McGuiness (“McGuiness”) as Doe 2.

On December 11, 2024, the Court issued an order to show cause why the causes of action in the petition against Clark and McGuiness should not be bifurcated from the other causes of action (“OSC”) and set a briefing schedule and hearing date on the OSC.

McGuiness elected not to bifurcate the claim against her. She provided no reasons.

Clark (through his own counsel) contended that bifurcation was premature. Clark requests that the Court first address his challenge to the pleadings; namely, his special motion to strike that is also to be heard concurrent to this OSC.

The Guardian Ad Litem for Ralph Harboe, Stephanie S. Cutler (“GAL”), elected that the Trust interpretation matter be bifurcated and heard before all other pending matters. No statement of reasons was provided.

Olsson contends that the matters against the lawyers should not be bifurcated and or is premature at best. She contends there is still discovery to be conducted and that the attorneys have not yet had a chance to fully respond to the petition that they contend is without merit for various reasons. She also contends that since the causes of action against the lawyers alleges a conspiracy between her and them that this issue be decided at one time in interests of efficiency.

DiMarzo supports bifurcation. She contends she is ready to try the invalidity petition, having completed discovery, and that Olsson is merely seeking delay due to her not having completed discovery. She asserts that the invalidity issue is narrow and can be determined quickly. By contrast, the causes of action against the lawyers may take a long time, including review of any order on the special motion to strike. Indeed, if the amendment is valid, as Respondents contend, this would avoid all the ensuing issues.

On January 10, 2024, a court-imposed deadline, Olsson also filed three separate petitions: to remove DiMarzo as trustee and for her lawyer to disgorge fees paid by DiMarzo, for an accounting by DiMarzo and for instructions pertaining to four separate issues.

On January 10, 2025, Clark (again through his own counsel) filed a Special motion to strike (Anti-SLAPP) DiMarzo’s petition filed against him.

On January 24, 2025, Olsson filed a Reply to DiMarzo’s response to the OSC, reiterating why bifurcation is premature, including the numerous other petitions and motions pending against DiMarzo.

The Court is herewith denying Clark’s Special motion to strike. Hence, the Court has addressed his response to the petition that might have made bifurcation unnecessary. Similarly, this decision addresses Olsson’s argument that bifurcating trial would be premature until the Court addresses the parties’ responses to DiMarzo’s petition. Bifurcation of trial will also not preclude the parties engaging in further discovery related to Clark and McGuiness; however, it should have the effect of focusing the parties on the other issues herein to be tried first -- which may ultimately make that part of the petition as against Clark and McGuiness either entirely moot or at least narrow the issues to be tried. In turn, bifurcation is consistent with GAL’s recommendation that determination of the issues concerning the Amendment be tried first. Finally, bifurcation is supported by DiMarzo given the relative narrowness of those issues as contrasted to those related to potential liability of the attorney respondents.

The Court finds under CCP sec. 598 that bifurcation of trial of that part of DiMarzo’s petition as against Clark and McGuiness will be in the interests of judicial economy. Were Olsson to prevail at a trial of the other aspects of the petition, for sake of argument, that may dispose of the balance of the petition. The petition as against the lawyers also involves issues of attorney liability that are not present concerning validity of the Amendment. In turn, Clark has argued in support of his motion to strike that defending the petition now puts him at a disadvantage here where he cannot rely on privileged communications. That situation may change after his client’s case is determined. Further, as DiMarzo notes in opposition to Olsson’s motion to compel, it may be that Clark may not permissibly both defend himself and represent his client in the same proceeding at the same time. The Court does not know if Olsson has provided any necessary informed written consent to Clark doing so.

For these reasons, the Court bifurcates trial of that part of DiMarzo’s petition as against Clark and McGuiness until after the Court makes its decision after trial on the balance of the petition, including related to the validity of the Trust Amendment taking into consideration the claims of lack of capacity and undue influence.

TENTATIVE RULING ON MOTION TO COMPEL SUPPLEMENTAL RESPONSES TO SECOND REQUEST FOR PRODUCTION OF DOCUMENTS

In re: the matter of The Ralph Harboe Trust dated July 24, 2006, Case No. 24STPB04661

On January 23, 2025, Linda Olsson (“Olsson”) filed this motion to compel supplemental responses to her second set of requests for production of documents and for monetary sanctions against LeAnn DiMarzo (“DiMarzo”) in the sum of $5,060. In summary, Olsson seeks documents as to the power of attorney and or advance health care directive that DiMarzo contends she has on behalf of Ralph Harboe. In addition, Olsson seeks documents from DiMarzo as to her use of Harboe’s funds since DiMarzo took over as trustee of Harboe’s trust – which she asserts were about $2 million at that time – and that are now purportedly in DiMarzo’s own personal possession. Relatedly, Olsson has filed a petition for an accounting by DiMarzo. Olsson contends DiMarzo’s objections to the responses are without merit and that she needs these documents before being able to take DiMarzo’s deposition.

On February 6, 2025, DiMarzo filed opposition to the motion and made a counter request for monetary sanctions against Olsson in the sum of $1,500. DiMarzo contends that there is an automatic stay concerning all discovery proceedings herein by reason of counsel for Olsson, Clark (himself a party herein) having on January 10, 2025 filed a Special Motion to strike (Anti-SLAPP). CCP sec. 425.16(g) stays all discovery proceedings upon the filing of a motion under that section. Nonetheless, Olsson has still filed this motion. In turn, Olsson has not sought an order to show good cause to pursue discovery, notwithstanding the stay. Therefore, DiMarzo contends the Court should deny the motion and issue sanctions for “misuse of the discovery process,” under CCP sec. 2023.010.

The Court has herewith denied the Anti-SLAPP motion. Therefore, the stay is no longer in effect. The Court orders DiMarzo to either further respond to the discovery and or file further opposition on the merits to the motion within ten days of the hearing. Olsson may then reply within seven days thereafter.

The Court continues this motion to March 21, 2025 at 8:30 a.m. The Court does not now order sanctions to either party.