Judge: John B. Scherling, Case: 37-2021-00026119-PR-TR-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - July 13, 2023

07/14/2023  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) 37-2021-00026119-PR-TR-CTL IN THE MATTER OF THE DECLARATION OF LIVING TRUST OF MARCEL H. VAN BOXTEL DATED JANUARY 31, 2008 AND AS AMENDED ON SEPTEMBER 8, 2008 CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/21/2023

Pursuant to San Diego Superior Court Rule 4.23.7, the court's tentative ruling is as follows: Todd Van Boxtel's Motion for Summary Adjudication (ROA 251) is granted in part and denied in part.

I. Background: On January 31, 2008, Marcel Van Boxtel ('Decedent') executed the Declaration of Living Trust of Marcel H. Van Boxtel ('Trust'). Decedent executed the First Amendment to the Trust on September 8, 2008 ('First Amendment') and the Second Amendment to the Trust on March 10, 2010 ('Second Amendment').

Under the original version of the Trust, Decedent's wife, RoseAnn Van Boxtel ('Petitioner'), receives a life estate in the real property located at 1546 Luneta Drive, Del Mar, CA 92014 ('Residence'), and after Petitioner's death the Residence is distributed equally to Decedent's sons, Todd Van Boxtel ('Respondent') and Deron Van Boxtel ('Deron'). The First Amendment removed the life estate for Petitioner and instead only gave her the ability to reside in the Residence for one year.

The original version of the Trust also provides that a Union Banc Investment Account is to be distributed to Petitioner, and the remainder of the Trust is to be distributed to Respondent and Deron. Petitioner's name is handwritten on the original version of the Trust as a third beneficiary of the remainder.[1] The Second Amendment modifies these provisions so that the gift of the Union Banc Investment Account is removed, and the remainder is distributed equally to Respondent, Deron, and Petitioner.

On July 30, 2021, Petitioner filed a First Amended Petition To: 1. Invalidate Trust Amendments Due to Lack of Capacity; 2. Invalidate Trust Amendments Due to Undue Influence; 3. Enforce Contract to Make Will or Trust; 4. Elder Financial Abuse; 5. Intentional Interference With Expected Inheritance; 6.

Accounting; 7. Removal Of Trustee 8. Appointment Of Successor Trustee 9. Instructions For Trustee Not to Use Trust Funds for Litigation Expenses; and 10. Attorney's Fees ('Invalidation Petition'). (ROA 13.) The Invalidation Petition alleges that the First and Second Amendments to the Trust are invalid based on Decedent's lack of capacity and undue influence from Respondent.

On August 22, 2022, Petitioner filed a Petition For: 1. Spousal Support for Roseann Van Boxtel; 2.

Suspension of Respondent as Successor Trustee; 3. Suspension of Respondent as Attorney in Fact for Both Financial and Health Care Decision Making; 4. Appointment of Professional Fiduciary ('Spousal Support Petition'). (ROA 162.) The Spousal Support Petition alleges that Respondent breached his Calendar No.: Event ID:  TENTATIVE RULINGS

2956725 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DECLARATION OF LIVING TRUST  37-2021-00026119-PR-TR-CTL fiduciary duties to Decedent and improperly refused to provide Petitioner with spousal support.

On September 6, 2022, in response to an ex parte application filed by Petitioner, the court awarded Petitioner (1) a lump sum of $13,118, with the characterization of that payment reserved pending resolution of the Spousal Support Petition, and (2) temporary spousal support in the amount of $2,000 per month effective as of September 1, 2022. (ROA 182.) Decedent died on December 7, 2022.

On March 21, 2023, Respondent filed the current motion for summary adjudication. (ROA 251, reply at ROA 296.) He seeks summary adjudication of the first through fifth causes of action in the Invalidation Petition, and of the first and third claims in the Spousal Support Petition. Petitioner opposes the motion.

(ROA 292.) II. Judicial Notice: Respondent requests judicial notice of Decedent's death certificate and this court's minute order dated February 7, 2023. (ROA 252.) The unopposed request is granted.

III. Analysis: A. Legal Standard: 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. (CCP § 437c(f)(1).) A defendant moving for summary judgment must show that either one or more elements of a cause of action cannot be established, or there is a complete defense to that cause of action. (CCP § 437c(p)(2).) 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. (CCP § 437c(p)(2).) B. Invalidation Petition: 1. First Cause of Action- Invalidation of First and Second Amendments Based on Lack of Capacity: Respondent argues that there is no evidence that Decedent lacked capacity when he executed the First and Second Amendments. A defendant may meet his or her burden that an essential element of the plaintiff's claim cannot be established by presenting evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence to establish at least one element of the cause of action.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-55.) '[P]ointing out the absence of evidence to support a plaintiff's claim is insufficient to meet the moving defendant's initial burden of production.

The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.' (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action, or factually devoid discovery responses. (Aguilar, supra, 25 Cal.4th at 855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) Here, Respondent has merely pointed out an alleged absence of evidence, and he has not produced evidence that Petitioner cannot reasonably obtain evidence to support her claim. Respondent has therefore failed to meet his initial burden by asserting that Petitioner lacks evidence to support this cause of action.

Respondent also relies on the presumption of capacity in Probate Code section 810(a), which is a rebuttable presumption affecting the burden of proof. However, a presumption affecting the burden of Calendar No.: Event ID:  TENTATIVE RULINGS

2956725 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DECLARATION OF LIVING TRUST  37-2021-00026119-PR-TR-CTL proof does not affect the showing required for summary adjudication, and only a presumption affecting the burden of producing evidence operates to shift the burden to the opposing. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 642.) As such, the presumption under section 810(a) is insufficient to shift the burden to Petitioner.

Finally, Respondent relies on the following evidence regarding this cause of action: - The dates of execution of the Trust and the amendments (Trust- January 31, 2008, First Amendment- September 8, 2008, and Second Amendment- March 10, 2010).

- Deposition testimony from Petitioner wherein she stated: in 2008, Decedent knew who she, Respondent, and Deron were; in 2008 Decedent and Petitioner watched the business channel and discussed Decedent's shares in Qualcomm and his desire to give those shares to his grandchildren; Decedent forgot who Respondent was around 2021; and Decedent was seen by a neurologist for possible dementia issues sometime between 2017 and 2019. (ROA 255, Exhibit A, pp. 57, 103-106.) - A certificate of incapacity regarding Decedent dated January 13, 2021, from Abraham Chyung, M.D.-Ph.D., and Monsita J. Faley, DNP, FNP-BC. (ROA 254, Exhibit E.) Respondent argues that this evidence demonstrates that Decedent knew the nature of his property and his relationships around the time he signed the First and Second Amendments, and Decedent was not declared incapacitated until much later.

Probate Code section 6100.5 governs testamentary capacity in circumstances such as this where a trust amendment closely resembles a will. (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 731.) Subsection (a) of section 6100.5 provides that an individual lacks capacity if: (1) The individual does not have sufficient mental capacity to be able to do any of the following: (A) Understand the nature of the testamentary act.

(B) Understand and recollect the nature and situation of the individual's property.

(C) Remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.

Respondent's evidence only addresses (B) and (C) of subsection (a)(1) of section 6100.5, and he does not provide any evidence of (A) regarding Decedent's understanding of the nature of the challenged amendments. Respondent's evidence also only references Qualcomm stock, and it does not address Decedent's understanding of the situation and nature of all his property or the property in question, which is the Residence and Union Banc investment account. Respondent is required to submit evidence that is sufficient to disprove as a matter of law an essential element of the cause of action (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597), and the court must strictly construe Respondent's evidence (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64). Based on this standard and the lack of evidence regarding Decedent's understanding of the disputed amendments and all his property, Respondent has failed to carry his initial burden.

Based on the foregoing, the motion is denied as to this cause of action.

2. Second Cause of Action- Undue Influence: Respondent argues that there is no evidence that he actively participated in procuring the First and Second Amendments, and there is no evidence that he unduly benefited from those amendments.

Respondent's argument is misplaced because it is based on the elements for the presumption of undue influence. (See, e.g., Rice v. Clark (2002) 28 Cal.4th 89, 97.) Even if Petitioner were unable to establish that presumption, that would not necessarily defeat her cause of action, as she could prove undue influence without invoking the presumption. Additionally, as was the case with the first cause of action, Respondent improperly points out an alleged absence of evidence without producing evidence that Petitioner cannot reasonably obtain evidence to support this cause of action.

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2956725 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DECLARATION OF LIVING TRUST  37-2021-00026119-PR-TR-CTL Finally, Respondent's evidence is limited to the provisions of the Trust and the amendments, and his own testimony of the following: Respondent and Deron attended the meeting when the First Amendment was executed; Respondent and Deron encouraged Decedent to permit Petitioner to live in the Residence for up to a year following Decedent's death because he was originally inclined to only allow her to live in the Residence for thirty or ninety days; Respondent did not direct or prepare the First Amendment; Respondent did not attend the meeting when the Second Amendment was signed; and Respondent did not know that the Second Amendment existed until December 2017. (ROA 254, ¶¶ 5-6.) On the other hand, Petitioner submits her own deposition testimony in which she states the following regarding Decedent as of 2008: Decedent was an alcoholic; Decedent exhibited volatile behavior, repetitiveness, forgetfulness, and confusion; and Petitioner took Decedent to a neurologist who determined that he damaged his cerebellum from alcoholism. (ROA 294, Exhibit 1, 44:5-45:23, 47:19-48:7, 95:14-96:22, 110:10-112:13) Petitioner also presents Respondent's deposition testimony in which Respondent does not deny Decedent's drinking habits, Respondent acknowledges that he discussed limiting Petitioner's life estate in the Residence with Decedent prior to the execution of the First Amendment, and Respondent asserts that he was not involved in the preparation of the original version of the Trust. (ROA 294, Exhibit 2, 176:12-21, 122:17-123:3, 177:5-7, 180:12-19.) And as discussed in further detail below regarding the fourth cause of action, Petitioner submits evidence that Decedent promised to take care of her for her life and never told her that he amended the Trust.

'Undue influence' means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. (Welfare & Institutions Code § 15610.70(a); Probate Code § 86.) 'Direct evidence as to undue influence is rarely obtainable and hence a court or jury must determine the issue of undue influence by inferences drawn from all the facts and circumstances.' (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1355.) There is sufficient circumstantial evidence to create a triable issue of fact that Decedent's will was overcome regarding both amendments based on the evidence regarding Decedent's alcoholism, Decedent's promise to provide for Petitioner, the reduction of Petitioner's interest in the Trust under the First and Second Amendments, Respondent's discussions with Decedent regarding limiting Petitioner's life estate; and Respondent's admitted involvement in the First Amendment. There is also sufficient evidence of an inequitable result. The First Amendment reduced Petitioner's life estate in the Residence to one year, the Second Amendment removed the gift of the Union Banc investment account to Petitioner, and Respondent benefited from the removal of these gifts as a remainder beneficiary.[2] The motion is therefore denied as to this cause of action.

3. Third Cause of Action- Enforce Contract to Make Will or Trust: Respondent argues that this cause of action fails as a matter of law under Probate Code section 21700, which provides in pertinent part as follows: (a) A contract to make a will or devise or other instrument, or not to revoke a will or devise or other instrument, or to die intestate, if made after the effective date of this statute, can be established only by one of the following: (1) Provisions of a will or other instrument stating the material provisions of the contract.

(2) An expressed reference in a will or other instrument to a contract and extrinsic evidence proving the terms of the contract.

(3) A writing signed by the decedent evidencing the contract.

(4) Clear and convincing evidence of an agreement between the decedent and the claimant or a promise by the decedent to the claimant that is enforceable in equity.

(5) Clear and convincing evidence of an agreement between the decedent and another person for the benefit of the claimant or a promise by the decedent to another person for the benefit of the claimant that is enforceable in equity.

Petitioner relies on subsections (a)(1) and (3) of section 21700, and argues that the original version of Calendar No.: Event ID:  TENTATIVE RULINGS

2956725 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DECLARATION OF LIVING TRUST  37-2021-00026119-PR-TR-CTL the Trust is evidence of her agreement with Decedent. Respondent counters that nothing in the original version of the Trust supports the alleged agreement. The court agrees with Petitioner. The original version of the Trust provides Petitioner with a life estate in the Residence and the Union Banc investment account. This is consistent with an agreement that Decedent would provide for Petitioner for her life.

Petitioner also relies on subsection (a)(4) of section 21700 and she submits her own deposition testimony which includes the following: Decedent promised to take care of Petitioner for her life before they got married; Petitioner gave up a lucrative job in reliance on Decedent's promises; Decedent provided Petitioner with a good standard of living during their marriage; Decedent told Petitioner she would inherit a third of his house; Petitioner went with Decedent to the lawyer's office when the original version of the Trust was prepared and they discussed taking care of Petitioner; the original version of the Trust was consistent with Decedent's promises; and Decedent never told Petitioner about the amendments. (ROA 294, Exhibit 1, 99:8-19, 12:19-13:5, 13:9-16, 14:20-15:13, 19:3-24, 107:25-108:3, 20:24-22:2, 66:4-6.) Respondent argues that Petitioner's evidence does not identify the specific terms of the purported agreement, but the alleged agreement is sufficiently specific because the terms were that Decedent would provide for Petitioner financially for the rest of her life. Respondent does not otherwise challenge Petitioner's evidence of the agreement, and that unchallenged evidence is sufficient to show a triable issue of fact regarding a promise by Decedent that is enforceable in equity.

Respondent also claims that the alleged agreement between Decedent and Petitioner would violate the statute of frauds regarding any interest in Decedent's residence. However, as noted above, the original version of the Trust is a writing that supports Petitioner's claim. Further, 'equitable estoppel may apply to avoid the statutes of fraud and to make an oral agreement enforceable if (a) the promisee detrimentally relied on the agreement and would suffer an unconscionable injury if the oral agreement were not enforced or (b) the promisor would receive unjust enrichment if allowed to retain the benefit of the promisee's performance without abiding by the promisor's obligations under the oral agreement.' (Estate of Housley (1997) 56 Cal.App.4th 342, 359 [emphasis in original].) Petitioner has made a sufficient showing of detrimental reliance based on the evidence discussed above. There is also sufficient evidence of unjust enrichment because as explained above, Respondent benefits from the changes made by the First and Second Amendments.

Respondent has therefore failed to show that he is entitled to summary adjudication of the third cause of action.

4. Fourth Cause of Action- Financial Elder Abuse: Respondent argues that the fourth cause of action fails because the second and third causes of action fail, and that there is no evidence of his active participation or his undue benefit. These arguments fail for the reasons stated above, and the motion is denied as to this cause of action.

5. Fifth Cause of Action- Intentional Interference with Expected Inheritance: Respondent argues that the cause of action for intentional interference with expected inheritance ('IIEI') fails pursuant to Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, because Petitioner has an adequate probate remedy. Petitioner argues that Beckwith v. Dahl did not hold that unavailability of an adequate probate remedy is required, and a subsequent case, Gomez v. Smith (2020) 54 Cal. App. 5th 1016, also did not include that as a required element.

Petitioner's description of Beckwith v. Dahl is inaccurate, as that case did hold that a cause of action for IIEI is only available to a plaintiff who lacks an adequate probate remedy: Synthesizing the above, we conclude that a court should recognize the tort of IIEI if it is necessary to afford an injured plaintiff a remedy. [...] In addition, case law from other jurisdictions bars IIEI claims when an adequate probate remedy exists. By recognizing similar restrictions in IIEI actions, we strike the Calendar No.: Event ID:  TENTATIVE RULINGS

2956725 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DECLARATION OF LIVING TRUST  37-2021-00026119-PR-TR-CTL appropriate balance between respecting the integrity of the probate system, guarding against tort liability for inherently speculative claims, and protecting society's interest in providing a remedy for injured parties.

(Beckwith v. Dahl (2012) 205 Cal.App.4th 1039, 1056.) Petitioner's reliance on Gomez v. Smith is also misplaced. While that case listed the elements of IIEI and adequacy of a probate remedy was not included in those elements, Beckwith v. Dahl also did not consider it to be an element. (Beckwith, supra, 205 Cal.App.4th at 1057.) Instead, it was treated as a procedural prerequisite. Gomez v. Smith simply did not address adequacy of a probate remedy, indicating that it was not at issue in that case. 'It is axiomatic that cases are not authority for propositions not considered.' (People v. Hernandez (2017) 10 Cal. App. 5th 192, 203.) As such, Gomez v. Smith cannot be considered authority regarding the adequacy of a probate remedy.

A probate remedy is clearly available to Petitioner, as demonstrated by the other causes of action in the Invalidation Petition. Accordingly, Petitioner is precluded from pursuing IIEI as a matter of law, and the motion is granted as to this cause of action.

C. Spousal Support Petition: Respondent argues that the first claim in the Spousal Support Petition, which seeks spousal support, and the third claim, which seeks suspension of Respondent as Decedent's agent under a power of attorney and healthcare directive, are now moot based on Decedent's death.

Petitioner concedes that she is no longer entitled to ongoing spousal support based on Decedent's death, and the court grants summary adjudication of that issue in favor of Respondent. However, the characterization of the lump sum payment and the adequacy of the temporary spousal support payments ordered on September 6, 2022, remain unadjudicated.

Petitioner also concedes that her claims for suspension of Respondent as Decedent's agent under a power of attorney and healthcare directive are now moot based on Decedent's death. The court therefore grants summary adjudication of these claims in favor of Respondent.

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

Counsel for Respondent is directed to serve notice of ruling in accordance with the provisions of Code of Civil Procedure § 1019.5(a).

IT IS SO ORDERED.

/n [1] The parties do not address whether this handwritten addition is valid, and the court makes no ruling on this issue.

[2] Even if the handwritten portion of the original version of the Trust in which Petitioner appears to be named as a one-third remainder beneficiary is invalid, and the Second Amendment added Petitioner as a one-third beneficiary of the remainder, there is still a sufficient showing of an inequitable result based on the removal of Petitioner's life estate and gift of the Union Banc investment account.

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