Judge David J. Cowan, Case Number: BC486080, Date: 2024-04-23 Tentative Ruling

Judge: David J. Cowan, Case: BC486080, Date: 2024-04-23 Tentative Ruling

Case Number: BC486080 Hearing Date: April 23, 2024 Dept: 200

LOS ANGELES SUPERIOR COURT

WEST DISTRICT - BEVERLY HILLS COURTHOUSE

DEPT. 200

TENTATIVE RULING ON MOTION FOR RECONSIDERATION AND ON OSC RE: DISMISSAL OF FIRST AMENDED COMPLAINT

Yen Mach v. Dennis Wong, et al., Case No. BC 486080 (Related to Case Nos. BP125161, 20STPB09139 and 20STPB06913)

Date: April 23, 2024, Time: 8:30 a.m.

BACKGROUND / CONTENTIONS

On January 30, 2024, the Court issued its nineteen-page ruling on four issues the parties

agreed the Court could decide on the papers submitted. The Court also issued in the same ruling an OSC why it should not dismiss the first amended complaint.

On February 9, 2024, Yen Mach (“Yen”) filed a “Reply Positions and Statement regarding Court’s January 30, 2024 ruling.” She raises three issues:

First, No creditor’s claim was needed to bring an action against the estate of Dennis Wong (“Dennis”) because of the waiver of the five-year statute and stipulation for stay, and that the Court had already substituted the parties. The estate is also estopped to claim otherwise.

Second, Dennis permitted Yen to stay at the Windsor property both before she married Calvin Wong (“Calvin”) and after Calvin died. As Calvin’s personal representative, Yen stands in his shoes and therefore was a tenant in common with Dennis. As a tenant in common, she did not have any rental obligations to Dennis where he did not seek her ouster. She was not a “tenant at sufferance.”

Third, Bradford Chow (“Chow”) admitted at his deposition to not investigating what occurred before he became successor trustee because he did not believe he was required to do so and therefore the Court cannot conclude he met his duty to investigate what Dennis had done previously as trustee.

On February 14, 2024, the Court issued a minute order concerning the February 9 filing. It states in relevant part: “Initially, a court ruling is not subject to a reply. The parties agreed to submit all relevant argument and evidence before the ruling. If the Reply is intended as a motion for reconsideration of the rulings, Mach should file a motion and schedule it for hearing on April 23, 2024. If it is a response to the OSC, Mach should make that clear.”

On February 22, 2024, Yen filed a motion for reconsideration. The motion addresses the second and third of the above-referenced issues.1

On April 2, 2024, Bradford Chow (“Bradford”) filed his opposition to the motion for reconsideration, as well as a separate response to the OSC.

Concerning the motion, Bradford argues there are no new or different facts, circumstances or law to support reconsideration and that it is merely a statement of disagreement with the Court’s ruling.

In response to the OSC, Bradford contends the Court should dismiss the amended complaint.

On April 12, 2024, Yen filed a Reply to Defendants’ Response to the OSC re: dismissal.

DISCUSSION

Motion for reconsideration

There are no new facts, circumstances or law to allow reconsideration under CCP sec. 1008(d). Indeed, Yen acknowledges that the facts she claims make a difference in the Court concluding that she was not a tenant in common at Windsor – that Dennis allowed her to live there before she married Calvin and that Yen was Calvin’s personal representative after he died – are set forth in the declaration she filed before the Court made its ruling. In any event, Yen residing there with Dennis’ consent initially did not change her status as a tenant at sufferance, as explained in the ruling. Further, that Yen was Calvin’s personal representative with the power to manage whatever Calvin owned did not mean she had thereby inherited his interests to make her a tenant in common. Moreover, as personal representative, Yen had a fiduciary obligation to ensure Calvin’s other heir receive his share of what Calvin owned, not just keep it for her-self. Similarly, Bradford not investigating what Dennis had done was also raised in the papers filed before the ruling. In any event, as explained in the ruling, even if Bradford believed he had no reason to investigate, if he had there was insufficient reason to have brought an action against Dennis.

OSC re: dismissal

Yen argues that by reason of the stay of this action she was precluded from filing a creditor’s claim. In addition, she argues that the Court having on March 1, 2021 substituted Bradford in lieu of Dennis as a party – with Bradford’s agreement - relieved her of the obligation to file a creditors’ claim under Probate Code sec. 9370 and or estops Bradford raising this issue, citing Heywood v. Municipal Court (198) 198 Cal.App.3d 1438, Estate of Prindle (2009) 173 Cal.App.4th 119, 128 and Dacey v. Taraday (2011) 196 Cal.App.4th 962, 978.

In response, Bradford argues that Yen did not file a creditor’s claim with Dennis’ personal representative, as required, though she and her counsel were given notice of administration of an estate for Dennis, thereby precluding relief, citing Venturi v. Taylor (1995) 35 Cal.App.4th 16, 18. Indeed, Yen filed a request for special notice in that case within the one-year deadline to file an action. Further, he argues that Yen points to no action on his part that would lead Yen to reasonably rely upon to warrant estoppel, thereby making the cases Yen relies upon distinguishable.

In reply, Yen cites to Lewis v. O’Brien (1967) 248 Cal.App.2d 628, 630-631 where the Court found substituting in the personal representative satisfied the claims requirement. Yen argues that she relied on that order in not then filing a creditor’s claim. In turn, she argues that providing a notice to Bradford in Dennis’ estate would not have changed anything where Dennis had already disputed her claim and hence Bradford would have rejected the claim. Yen also notes that the one-year statute is as to filing an action under CCP secs. 366.2 and 366.3, not to filing a creditor’s claim with the administrator within the deadline under Probate Code sec. 9100 – that is at issue here.

As noted in issuing the OSC (see p. 18, fn. 16, of January 30, 2024 Ruling), this concerns only claims for damages against Dennis, as an individual, not as trustee. The action against him as trustee is not at issue here. The significance of the dismissal is solely as to Calvin’s rights to the $49,282.78 held by Hamni Bank. That said, the Court finds Yen has presented facts and circumstances to warrant the court finding that Bradford has waived and or is estopped from asserting compliance with the creditor’s claim requirements prior to continuing with this action, for the following reasons: It is not clear why the Court permitted substitution of Bradford on Dennis passing without Yen showing she had followed the statutory procedures beforehand. Where the Court did not insist on her doing so or thought it unnecessary under the circumstances where Bradford was already disputing the claim and the entire complaint was not all subject to the creditor claim requirement in any event, this Court cannot say it was then unreasonable for Yen to believe she had done what was needed to continue with the action against Bradford in lieu of Dennis. Moreover, where Bradford stipulated to the Court taking this action, there was implicitly some level of waiver of Yen having to go through that procedure. Further, where Bradford never previously raised the issue - the Court did so in review of what had occurred here – there is further reason to conclude he would not have done so and thereby be deemed to have waived the issue. The Court does not find that Yen having actual notice of the estate proceeding changes this analysis.

CONCLUSION

For these reasons, the Court denies the motion for reconsideration and discharges the OSC. Yen’s entitlement to the $49,282.78 of the Hamni Bank will continue to be held pending determination of the offset claim against Yen for waste.