Judge: John B. Scherling, Case: 37-2021-00020077-PR-LA-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - November 16, 2023

11/17/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Probate  Letters Of Administration Summary Judgment / Summary Adjudication (Probate) 37-2021-00020077-PR-LA-CTL ESTATE OF PATRICIA F. REPKE [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/05/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Summary Judgment, or in the Alternative, for Summary Adjudication of Issues (ROA 79) filed by Harvey Lansky and Darlene Lansky is DENIED.

Respondents' evidentiary objections (ROA 95) are SUSTAINED as to objection nos. 5 and 10, and OVERRULED as to the remaining objections.

I. BACKGROUND On May 3, 2021, Linda Repke Thompson and Melissa Repke Brock (collectively 'Petitioners') filed a Petition for Letters of Administration and Authorization to Administer Under the Independent Administration of Estates Act with Limited Authority, the estate of Patricia Repke ('Decedent'). (ROA 1.) This petition was supplemented at ROA 13.

On June 10, 2021, Melissa Repke Brock ('Melissa') filed a 'Petition to Determine Title to Real Property Due to Lack of Soundness of Mind and Undue Influence Exerted Over the Decedent by Harvey Lansky and Darlene Lansky; And to Recover Attorneys Fees and Costs Incurred' ('Petition'). (ROA 7.) This petition was supplemented at ROA 38.

Melissa is Decedent's niece. The Petition seeks an order finding that the transfer of property located at 4429 Point Degada, Oceanside, California, ('Oceanside Property') to Respondents is invalid on the grounds that Decedent lacked mental capacity, Respondents exerted undue influence over Decedent, and a presumption of fraud arises because Respondents were Decedent's care custodians as defined in Probate Code § 21366 et seq.

Melissa also filed a 'Will Contest and Grounds of Opposition to Probate of Purported Will.' (ROA 10.) On July 1, 2022, Mark Drach ('Petitioner'), Decedent's nephew and heir, filed a joinder to the petitions (ROA 1 and 7) and the Will contest (ROA 10). (ROA 60.) On July 6, 2022, Melissa filed a Withdrawal of Participation in the petitions and Will contest in light of Petitioner's joinder. (ROA 61.) Calendar No.: Event ID:  TENTATIVE RULINGS

2995546 CASE NUMBER: CASE TITLE:  ESTATE OF PATRICIA F. REPKE [IMAGED]  37-2021-00020077-PR-LA-CTL On July 5, 2023, Respondents filed the instant motion for summary judgment, or in the alternative, summary adjudication. (ROA 79.) On November 2, 2023, Petitioner filed an opposition. (ROA 90.) On November 9, 2023, Respondent filed a reply. (ROA 94.) II. DISCUSSION A. Notice of Motion and Separate Statement If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350(b).) 'A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty' as specified. (CCP § 437c(f)(1), emphasis added.) On motion for summary adjudication, 'the issue should be clear and unambiguous and its scope should be apparent.' (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 333.) 'It is elemental that a notice of motion must state in writing the grounds upon which it will be made. Only the grounds specified in the notice of motion may be considered by the trial court. This rule has been held to be especially true in the case of motions for summary adjudication of issues.' (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545, citations and quotation marks omitted.) Here, the Notice of Motion states generally that Respondents 'move for summary judgment in their favor against both the Petition to Determine Title to Real Property Due to Lack of Soundness of Mind and Undue Influence Exerted Over the Decedent by Harvey Lansky and Darlene Lansky; and to Recover Attorneys Fees and Costs Incurred (the 'Quiet Title Petition') and the Will Contest and Grounds of Opposition to Probate of Purported Will (the 'Will Contest'), both of which were filed by Petitioner. In the alternative, Lansky seeks summary adjudication in their favor over the various causes of actions brought in the Quiet Title Petition and the Will Contest.' (ROA 79, emphasis added.) Respondents argue that the 'motion is made on the grounds that Petitioner brings no triable issues of material fact to invalidate Patricia Repke's Last Will and Testament and/or the Grant Deed executed by Patricia Repke.' (Id.) As such, the Notice of Motion does not state any 'specific cause of action, affirmative defense, claims for damages, or issues of duty' that is the subject of the motion, as required under CRC 3.1350(b) and CCP § 437c(f)(1). This is particularly problematic where the motion is attacking two separate operative pleadings in a single motion, when separate motions should have filed against each pleading. Thus, the Notice of Motion is defective.

In addition, the Separate Statement in support of a motion must separately identify each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. (Cal. Rules of Court, rule 3.1350(d)(1)(A).) 'The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.' (Cal. Rules of Court, rule 3.1350(d)(2), emphasis added.) 'The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.' (CCP § 437c(b)(1), emphasis added.) Respondents' Separate Statement fails to include only material facts and set forth 'plainly and concisely all material facts that the moving party contends are undisputed.' (CCP § 437c(b)(2) and CRC 3.1350(d); ROA 82, Separate Statement of Undisputed Material Facts ['SSUMF'].) Instead, the SSUMF asserts conclusions of law or fact, rather than supporting factual allegations. For instance, SSUMF No.

Calendar No.: Event ID:  TENTATIVE RULINGS

2995546 CASE NUMBER: CASE TITLE:  ESTATE OF PATRICIA F. REPKE [IMAGED]  37-2021-00020077-PR-LA-CTL 4, is a conclusion of fact regarding the nature of the purported relationship between Decedent and Respondents. (See also SSUMF Nos. 14, 15, 28, 46, and 47.) Moreover, the motion attacks two of the operative pleadings filed this case, yet the SSUMF makes no attempt to distinguish the issues from one pleading to another. Respondents does not address how summary adjudication on each of the issues raised would completely dispose of 'all the causes of action, an affirmative defense, a claim for damages, or an issue of duty' as to both pleadings. (CCP § 437c(f)(1).) Therefore, the motion is procedurally defective, and it may be denied on this basis.

The Court also notes that Petitioner's response to Respondents' SSUMF fails to comply with CRC 3.1350(f)(2), which provides that 'the response must unequivocally state whether that fact is 'disputed' or 'undisputed.'' (Cal. Rules of Court, rule 3.1350(f)(2).) For example, Petitioner does not state in response to SSUMF No. 4 whether the allegation is disputed or undisputed. (See ROA 94, at p. 2.) Additional examples of noncompliance are found throughout Petitioner's response to Respondents' SSUMF. (See, e.g., responses to SSUMF 4 -15.) Petitioner's electronic exhibits fail to comply with CRC 3.1100(f)(4), which requires that unless submitted by a self-represented party, the electronic exhibits must include electronic bookmarks with links to the first page of each exhibit, with bookmark titles identifying the exhibit number and briefly describing the exhibit, and with Local Rules, rule 4.3.2.A.4, which requires that '[p]leadings that contain more than one exhibit attached must include electronic bookmarks with links to the first page of each exhibit and titles that identify the exhibit number or letter and briefly describe the exhibit.' (See ROA 90, Oppo., Exhs.

1-3.) Compliance with the Rules of Court is mandatory. The parties are expected to comply with all applicable rules in the future.

Notwithstanding the procedural deficiencies noted, the Court will rule on the merits of the motion, finding no prejudice to the parties.

B. Motion for Summary Adjudication Beyond the defects in the Notice of Motion and Separate Statement, Respondents fail to establish that summary adjudication on the issues as stated in the Separate Statement is warranted.

A party may move for summary adjudication against 'one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty.' (CCP § 437c(f)(1).) The motion may be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Id.) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (CCP § 437c(f)(2).) In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The defendant meets its 'burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.' (CCP § 437c(p)(2).) Once the defendant Calendar No.: Event ID:  TENTATIVE RULINGS

2995546 CASE NUMBER: CASE TITLE:  ESTATE OF PATRICIA F. REPKE [IMAGED]  37-2021-00020077-PR-LA-CTL meets that burden, 'the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.' (Ibid.) The plaintiff 'shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.' (Ibid.) Respondents' Separate Statement states six issues for summary adjudication: Issue 1 – Decedent did not lack testamentary capacity when she executed the Will.

Issue 2 – Respondents did not unduly influence Decedent to execute the Will.

Issue 3 – Respondents were not Decedent's care custodians.

Issue 4 – Decedent did not lack testamentary capacity when she executed the grant deed.

Issue 5 – Respondents did not unduly influence Decedent to execute the grant deed.

Issue 6 – Respondents were not Decedent's care custodians.

(See ROA 90, SSUMF.) Respondents argue summary adjudication is warranted because Petitioner fails to raise a triable issue of material fact to invalidate the Will and the grant deed. However, this is not the standard on a motion for summary judgment. Respondents, as the moving party, bear the initial burden of production to show 'that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.' (CCP § 437c(p)(2).) Once Respondents meet this burden, the burden shifts to Petitioner to show that 'a triable issue of one or more material facts exists as to the cause of action or a defense thereto.' (Id.) The burden of persuasion always remains with the moving party. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845 ['the moving party bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.'].) Here, in support of the motion Respondents submitted the declaration of Darlene Lansky, to which Exhibit A (copy of Decedent's Will) and Exhibit B (grant deed) are attached. This is the extent of Respondents' evidence. Respondents argue attorney Richard Ring drafted the Will and grant deed, but there is NO evidence to support this claim – not a declaration from this attorney, a Certificate of Independent Review, or some other document evidencing that attorney Ring drafted the Will and grant deed. Indeed, a review of the Will (Exh. A) shows the names of two witnesses, one of which appears to be 'Richard Ring.' (See Exh. A, at p. 4.) Thus, whether the Will and grant deed were drafted by an attorney, whether this attorney is identified as Richard Ring, and the circumstances of Decedent's acquaintance and meeting with this attorney, are unknown and cannot be established through the evidence presented by Respondents. Even if an attorney were involved, that fact certainly is not determinative.

Indeed, the Separate Statement essentially relies on the same core arguments or conclusory statements as to all six causes of action. (See generally ROA 82, SSUMF.) The material issues in the case, such as Decedent's mental capacity, whether Respondents exerted undue influence and the extent of this influence if any, are all issues disputed by Petitioner. (See ROA 90.) Petitioner submitted evidence establishing triable issues of material fact as to the disputed matters. (Id., Drach Decl., Exhs. 1-3.) Respondents object to the copy of the Decedent's death certificate and medical records submitted by Petitioner on evidentiary grounds, for lack of authentication and foundation, and as irrelevant and prejudicial. (ROA 95, Objection Nos. 12-14.) The Court finds the records are relevant to the issue of Decedent's mental capacity, and finds no unfair prejudice in allowing such evidence, particularly considering their probative value and the lack of serious question as to their authenticity and foundation.

Petitioner's evidence shows Decedent was assessed by medical professionals in March 2014, possibly earlier, with Alzheimer's disease and cognitive decline, and Alzheimer's disease is also shown as Decedent's cause of death in the death certificate. Both the Will and grant deed were executed in March 2013, while a conservatorship may have been in place over Decedent. Thus, Decedent's mental capacity at the time of the execution of the Will and grant deed is clearly at issue.

Calendar No.: Event ID:  TENTATIVE RULINGS

2995546 CASE NUMBER: CASE TITLE:  ESTATE OF PATRICIA F. REPKE [IMAGED]  37-2021-00020077-PR-LA-CTL Further, as drafted, even if Respondents' SSUMF was entirely undisputed, the SSUMF fails to set forth ALL material facts necessary for the resolution of the causes of action, and thus, summary adjudication of the issues would not be warranted given the arguments and evidence presented. As such, Respondents fail to meet their burden of production to show that Petitioner's claims cannot be established. On the other hand, Petitioner presented sufficient evidence to raise triable issues of material fact. Therefore, the motion for summary adjudication is DENIED.

Based on the foregoing, the motion for summary judgment is DENIED.

The minute order is the final ruling of the Court, and no formal order is required.

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

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

2995546