Judge: John B. Scherling, Case: 37-2021-00005931-PR-TR-CTL, Date: 2023-08-18 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 17, 2023

08/18/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Summary Judgment / Summary Adjudication (Probate) 37-2021-00005931-PR-TR-CTL IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED MAY 18, 2006 CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 11/30/2022

Pursuant to San Diego Superior Court Rule 4.23.7, the court's tentative ruling is as follows: Kristian A. Garcia, Sergio A. Garcia, and Kenneth F. Colom's Motion for Summary Judgment or, Alternatively, Summary Adjudication (ROA 232) is denied.

I. Background: Arturo Garcia ('Decedent') executed the Arturo Garcia Jr. Living Trust on May 18, 2006 ('Trust'). The Trust was restated on April 13, 2018 ('Restatement'), and amended on July 3, 2019 ('First Amendment').

Decedent died on August 29, 2019, and was survived by his wife, Eva Ricasa Garcia ('Petitioner'), and the following children: Kristian A. Garcia ('Kristian'), Sergio A. Garcia, and Kenneth Colom (collectively 'Respondents'). Kristian is the trustee of the Trust.

On July 15, 2021, Eva filed a Third Amended Verified Complaint 1. Complaint to Quiet Title 2. Breach of Fiduciary Duty 3. Intentional Inflection [sic] of Mental Distress 4. Fraud 5. Cancellation of Instruments ('TAC'). (ROA 145.) The TAC alleges that pursuant to the Restatement, Petitioner was granted a life estate and an undivided 50% interest in the real property located at 5412 Romega Court, Bonita, California ('Property'); the First Amendment, which only allows Petitioner to reside at the Property based on the trustee's discretion, is invalid because it was fraudulently created by Respondents and Decedent lacked capacity when it was executed; and Kristian improperly transferred the Property to Respondents pursuant to the First Amendment.[1] On December 15, 2022, Respondents filed the current motion for summary judgment and summary adjudication of the TAC. (ROA 232, reply at 310.) They contend that on or around September 16, 2019, Petitioner was served with a trustee's notification pursuant to Probate Code section 16061.7, and Petitioner filed her initial complaint more than 120 days later on July 22, 2020. Thus, Respondents argue that they are entitled to summary judgment because Petitioner's claims are barred by the statute of limitations in Probate Code section 16061.8. Respondents also argue they are entitled to summary adjudication of the first, second, fourth, and fifth causes of action because Petitioner has no interest in the Trust or the Property based on her failure to timely challenge the First Amendment. Respondents further contend Petitioner cannot establish the elements of her third cause of action for intentional infliction of emotional distress.

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2997127 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED  37-2021-00005931-PR-TR-CTL Petitioner opposes the motion. (ROA 298.) She argues that the TAC is not barred by the statute of limitations in section 16061.8 because she was not served with a trustee's notification. She further contends that there are triable issues of fact regarding all of her claims.

On June 8, 2023, the court issued a tentative ruling denying the motion. (ROA 320.) The court tentatively found that there was a triable issue of fact regarding whether Petitioner received a trustee's notification; therefore, Petitioners were not entitled to summary judgment based on the statute of limitations. At the hearing on June 9, 2023, Respondents provided additional legislative history regarding Probate Code sections 16061.7, 16061.8, and 1215 to support their arguments that the limitations period under section 16061.8 is triggered when the trustee places the trustee's notification in the mail, and that there is no requirement that the trustee's notification actually be received by the intended recipient. (ROA 331.) Based on this introduction of new material, the court continued the hearing and allowed further briefing on this issue. The parties have submitted supplemental briefing (ROA 332, 334),[2] and court now rules on the motion as follows.

II. Preliminary Matters: A. Respondents' Requests for Judicial Notice: Respondents filed a request for judicial notice with their moving papers. (ROA 237.) The request is granted regarding the recorded deeds, Decedent's death certificate, various court filings, and Probate Code sections 16061.7 and 16061.8 (Exhibits A-M). These matters are judicially noticeable pursuant to Evidence Code section 452(a), (c) and (d).

The request is denied as to the text messages, bank statements, and correspondence (Exhibits N-U).

These are not matters that are subject to judicial notice. Nonetheless, these exhibits have not been objected to; therefore, the court has received them as evidence.

Respondents also filed a request for judicial notice in support of their reply. (ROA 312.) Normally, the court is not inclined to accept new evidence with a reply, but Respondents are only requesting judicial notice of California Rules of Court, Rule 3.1350. The request is therefore granted pursuant to Evidence Code section 452(e).

B. Respondents' Objections to Petitioner's Separate Statements: Petitioner filed a 'Plaintiff's Responses to Defendant's Separate Statement of Undisputed Material Facts in Opposition to the Motion for Summary Judgment or, Alternatively, Summary Adjudication,' in which she responds to Respondents' separate statement. (ROA 278.) Petitioner also filed an 'Amended Plaintiff's Separate Statement of Undisputed Material Facts in Support of Opposition to Defendants' Summary Judgment Motion or in the Alternative Summary Adjudications,' in which she adds additional facts. (ROA 299.) Respondents object to both of these separate statements on the following grounds: the facts added by Petitioner are not separately identified making it impossible for Respondents to respond as 'undisputed' or 'disputed'; the added facts are irrelevant; Petitioner should not have filed two separate statements and instead should have added her additional facts in her responsive separate statement; and Petitioner failed to properly respond to Respondents' separate statement because her responses are convoluted, argumentative, unrelated, or fail to present evidence. (ROA 313.) The court agrees that Petitioner has failed to follow the rules governing separate statements. (See, California Rules of Court, Rule 3.1350(d) & (f); CCP § 437c(b)(3)). Nonetheless, Respondents' requests that both separate statements be stricken and that the motion be granted is too harsh of a remedy, and the defects were not material to the court's resolution of the instant motion, which primarily involves a legal issue. Respondents' requests are therefore denied.

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2997127 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED  37-2021-00005931-PR-TR-CTL C. Missing Exhibits from Petitioner: Petitioner filed exhibits in support of her opposition in an unusual fashion. They were filed in separate groups, on different days, without cover pages, and some were rejected by the court. (ROA 266-274, 282, 295-297, 302-206.) Other than Petitioner's declaration, the exhibits filed by Petitioner were not material to the court's resolution of the motion, but the court notes that it did not receive exhibits numbers 41, 42, and 44-53.

III. Analysis: A. Legal Standard: A defendant moving for summary judgment or summary adjudication must make a prima facie showing that either one or more elements of a cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the defendant has met that burden, the burden shifts to the plaintiff to make a prima facie showing that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. (Ibid.) B. First, Second, Fourth, and Fifth Causes of Action- Statute of Limitations: 'A person upon whom the notification by the trustee is served pursuant to paragraph (1) of subdivision (a) of Section 16061.7, whether the notice is served on the person within or after the time period set forth in subdivision (f) of Section 16061.7, shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon the person, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to the person during that 120-day period, whichever is later.' (Probate Code § 16061.8.) Respondents submit a declaration from attorney Gary Bowman in which he states that he mailed a trustee's notification pursuant to section 16061.7 to Petitioner and Respondents on September 17, 2019.

(ROA 241.) They also present evidence that all Respondents received the mailing from Mr. Bowman, Petitioner and Kristian were living at the Property when the notice was mailed, Petitioner had control over the mailbox at the Property, and Kristian received the notification after Petitioner dropped off his mail. (ROA 253, ##'s 13-20.) On the other hand, Petitioner presents her own declaration stating that she did not receive the trustee's notification. (ROA 277, ¶ 37.) Although Respondents have presented more evidence regarding Petitioner's receipt of the trustee's notification, Petitioner's declaration is sufficient to create a triable issue of fact on this issue.

Respondents argue that Petitioner's single self-serving statement is insufficient to defeat summary judgment because Petitioner must produce substantial responsive evidence, and responsive evidence that gives rise to no more than mere speculation cannot be regarded as substantial and is insufficient to establish a triable issue of material fact. Petitioner's declaration is not mere speculation. Rather, she affirmatively declares that she did not receive the trustee's notification. Additionally, '[a] prima facie showing is one that is sufficient to support the position of the party in question. [...] No more is called for.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) Petitioner's declaration is sufficient to support her position, and the court cannot weigh it against Respondents' evidence to resolve this issue on a summary judgment/adjudication motion.

Because Petitioner has established a triable issue of fact as to whether she received the trustee's notification, the court will now address whether the claimed lack of receipt is an available defense to the statute of limitations in section 16061.8. The court's interpretation of section 16061.8, as well as sections 16061.7 and 1215, is governed by the following: Calendar No.: Event ID:  TENTATIVE RULINGS

2997127 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED  37-2021-00005931-PR-TR-CTL When interpreting a statute, ' 'our fundamental task ... is to determine the Legislature's intent so as to effectuate the law's purpose. [Citation.] We begin by examining the statute's words, giving them a plain and commonsense meaning. [Citation.]' ' (People v. Acosta (2002) 29 Cal.4th 105, 112, 124 Cal.Rptr.2d 435, 52 P.3d 624; People v. $31,500 United States Currency (1995) 32 Cal.App.4th 1442, 1459, 38 Cal.Rptr.2d 836.) If possible, ' ' 'significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.' [Citation.]' ' (DuBois v. Workers' Comp. Appeals Bd.

(1993) 5 Cal.4th 382, 388, 20 Cal.Rptr.2d 523, 853 P.2d 978.) Where the 'legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive; 'no resort to extrinsic aids is necessary or proper.' [Citation.]' (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Where the statutory language is susceptible to more than one reasonable interpretation, however, we look to extrinsic aids, including the objects of the legislation, public policy, and the statutory scheme of which the statute is a part.

(People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 422.) The relevant language of section 16061.8 states '[a] person upon whom the notification by the trustee is served pursuant to paragraph (1) of subdivision (a) of Section 16061.7, [...] shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon the person.' (Probate Code § 16061.8 [emphasis added.]) The use of the word 'served,' when interpreted in light of section 1215(a)(4), which provides that '[d]elivery by mail is complete when the notice or other paper is deposited in the mail,' is susceptible to more than one reasonable interpretation. It could mean, as Respondents contend, that deposit in the mail constitutes valid and complete service that cannot be challenged by the intended recipient. A second interpretation is that the use of the word 'served' is to refer to the subsection of section 16061.7 that requires service of the trustee's notification, and to set the calculation of the 120-day deadline based on the date of mailing. The second interpretation appears to be the correct one for several reasons.

First, section 1215(a)(4) only states that 'delivery' is complete upon deposit in the mail. It does not say that 'service' is complete or that service is not subject to challenge. Section 1215(a)(4) also states '[t]he period of notice is not extended,' which confirms that the subsection was intended to address the calculation of notice periods, not whether a party can challenge service. Respondent's reliance on Bridgeman v. Allen (2013) 219 Cal.App.4th 288, 294, is not convincing. That case merely confirmed that service of a trustee's notification under section 16061.7 is governed by Probate Code section 1215, and it did not address a party's ability to challenge receipt.

Respondents also rely on the following quote from Silver v. McNamee (1999) 69 Cal.App.4th 269, 280: 'Further, the sender does not have the burden of showing the notice was actually received by the addressee...the addressee incurs the risk of the failure of the mail.' However, McNamee involved Code of Civil Procedure section 364, which requires a plaintiff to give notice of intent to bring a medical malpractice action at least 90 days prior to filing such an action. Section 364 does not involve notice to a plaintiff regarding his/her rights to commence a suit, it does not shorten but may extend the statute of limitations, and its purpose is to provide a health care provider with notice of the imminence of suit and promote prelitigation settlement. On the other hand, sections 16061.7 and 16061.8 require a trustee to give beneficiaries notice of their rights regarding a trust, and they impose a short and strict statute of limitations to file a challenge to a trust. McNamee therefore did not involve sections 16061.7 and 16061.8, nor did it involve a statute similar to sections 16061.7 and 16061.8, making it distinguishable from this case. Indeed, while a letter that is correctly addressed and properly mailed is presumed to have been received, that is a rebuttable presumption. (Evidence Code §§ 601, 603, 641.) Second, imposing a short 120-day statute of limitations on a person regardless of their actual receipt of a trustee's notification is too severe. For example, section 16061.7 authorizes a trustee to serve a notification in the requisite form on a person's last known address. (Probate Code § 16061.7(e).) If the Calendar No.: Event ID:  TENTATIVE RULINGS

2997127 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED  37-2021-00005931-PR-TR-CTL trustee complied with that provision but the person to be served had moved to a new address, it would certainly be unfair to find that mere deposit in the mail triggered the statute of limitations.

Third, the Legislative Counsel's Digest from the initial enactment of section 16061.8 refers to receipt: 'This bill would require a trustee to provide other specified information regarding certain events in connection with an irrevocable trust or irrevocable portion of a trust, as specified, and would prohibit a person who receives a notice pursuant to these provisions from bringing an action to contest the trust after a specified period of time. (1997 Cal. Legis. Serv. Ch. 724 (A.B. 1172) [emphasis added].) Actual receipt was therefore contemplated when section 16061.8 was enacted, and the more reasonable interpretation of section 16061.8 is that actual receipt may be challenged, otherwise there would be little justification for imposing such a short statute of limitations. The additional legislative materials provided by Respondents are not inconsistent with this analysis. Those materials address the trustee's duties, the manner in which a trustee's notification may be served, and the date upon which the 120-day period commences. They do not address the current situation, which is whether lack of receipt is a defense to the statute of limitations under section 16061.8.

Overall, it is a matter of fairness and due process. How can a notification trigger a statute of limitations if that notification is never received? While delivery by mail is complete when a trustee's notification is deposited in the mail, that does not necessarily establish that the intended recipient is barred from challenging receipt. Although sections 16061.7 and 16061.8 were intended to allow quick administration of trusts, that interest does not trump the interests of due process and resolving disputes on the merits.

The statutory language, the caselaw cited by Respondents, and the legislative materials provided by Respondents do not indicate that an intended recipient of a trustee's notification is barred from challenging receipt, and such a result would defy common sense. Accordingly, the court finds that alleged recipients may challenge the statute of limitations under section 16061.8 by asserting that they did not receive a trustee's notification.

Based on the foregoing, there is a triable issue of fact as to whether the TAC is timely. Because the challenges to the first, second, fourth, and fifth causes of action are all premised on the untimeliness of the TAC, the motion is denied as to each of those causes of action.

C. Third Cause of Action- Intention Infliction of Emotional Distress: 'A cause of action for intentional infliction of emotional distress ['IIED'] exists when there is (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.' (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050 [internal quotations omitted].) A defendant's conduct is 'outrageous' when it is so extreme as to exceed all bounds of that usually tolerated in a civilized community. (Id. at 1050-1051.) However, a party is not subject to liability for IIED when it has merely pursued its own economic interests and properly asserted its legal rights. (Kruse v. Bank of America (1988) 202 Cal.App.3d 38, 67; Chang v. Lederman (2009) 172 Cal.App.4th 67, 87.) Similarly, the litigation privilege, which applies to any publication required or permitted by law in the course of a judicial proceeding to achieve the objects of the litigation, even though the publication is made outside the courtroom and no function of the court or its officers is involved, provides a defense to a claim of IIED. (Chang, supra, 172 Cal.App.4th at 87–88.) Respondents argue that Petitioner cannot establish IIED because '[n]ot only does the conduct identified by Eva in her TAC fail to rise to the level of 'so extreme and outrageous as to exceed all bounds of decency,' but all conduct identified was lawful and/or protected by the litigation privilege pursuant to California Civil Code section 47(b).' (ROA 15:17-20.) Respondents identify various allegations of misconduct in the TAC such as the transfer of the Property to Respondents or the filing of an unlawful detainer action against Petitioner. While these actions might fall under the litigation privilege or be characterized as an assertion of Respondents' legal rights, the motion completely ignores the allegations Calendar No.: Event ID:  TENTATIVE RULINGS

2997127 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE ARTURO GARCIA JR. LIVING TRUST DATED  37-2021-00005931-PR-TR-CTL that Respondents fraudulently procured the Trust, which is one of the primary claims in the TAC and is alleged in support of this cause of action. (See, e.g., ROA 145, ¶ 22, incorporating ¶¶ 1-21, and ¶ 10.) Respondents fail to explain how the fraudulent procurement of an estate planning document under the circumstances of this case is not outrageous as a matter of law, nor do they cite any supporting authority on that issue. Respondents also fail to address the merits of the fraud allegations, as they claim that cause of action is barred by the statute of limitations.

Under these circumstances, Respondents have failed to make a prima facie showing that either one or more elements of IIED cannot be established, or that there is a complete defense to the IIED cause of action. The motion is therefore denied as to the third cause of action.

The minutes constitute the order of the court, and no formal order is required.

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

IT IS SO ORDERED.

/n [1] The TAC also named Garry Bowman as a respondent, but it was dismissed as to him on November 5, 2021. (ROA 188.) [2] Petitioner's supplemental briefing raises issues in addition to whether a person can challenge receipt of a trustee's notification, such as whether the trustee's notification complies with Harustak v. Wilkins (2000) 84 Cal.App.4th 208. Those additional issues are beyond the scope of supplemental briefing allowed by the court and will not be considered.

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