Judge John B. Scherling, Case 37-2021-00026119-PR-TR-CTL 2023-11-13 Tentative Ruling

Judge: John B. Scherling, Case: 37-2021-00026119-PR-TR-CTL, Date: 2023-11-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 09, 2023

11/13/2023 10:00:00 AM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Trust Proceedings Motion Hearing (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: Demurrer, 08/18/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the Court's tentative ruling is as follows: The Demurrer filed by RoseAnn Van Boxtel is SUSTAINED without leave to amend.

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'). The Trust identifies the following successor trustees 'in the order so named': (1) Todd Van Boxtel ('Todd'); and (2) Deron Van Boxtel ('Deron'). On or about January 18, 2021, Todd became the trustee of the Trust.

On July 30, 2021, RoseAnn Van Boxtel ('RoseAnn') 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 as well as undue influence.

Decedent died on December 7, 2022.

On July 13, 2023, Deron filed a Petition for Instructions Regarding Repayment of His Attorneys' Fees and Costs Out of Trust Property ('Fees Petition'). (ROA 301.) The Fees Petition requests a determination from the Court that Deron is entitled under Probate Code section 15684 to repayment of his attorneys' fees and costs incurred in these trust proceedings as expenditures that were either properly incurred in the administration of the Trust or benefited the Trust. The Fees Petition alleges that although only Todd formally accepted the position of successor trustee, RoseAnn named both Todd and Deron as successor trustees and respondents in her petitions. Thus, Deron is a named respondent to RoseAnn's petitions, at least in part, by virtue of his nomination as an alternative successor trustee. The Fees Petition also alleges that Deron has established a common interest agreement with Todd (as trustee) and has cooperated with Todd in this action to the benefit of the Trust.

On August 18, 2023, RoseAnn filed the instant demurrer to Deron's Fees Petition. (ROA 340.) RoseAnn Calendar No.: Event ID: TENTATIVE RULINGS

3011009 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DECLARATION OF LIVING TRUST 37-2021-00026119-PR-TR-CTL demurs on the ground the Court has no jurisdiction as to the subject matter of the cause of action alleged in the Fees Petition, the Fees Petition does not state facts sufficient to constitute a cause of action, and the Fees Petition is uncertain. (CCP § 430.10(a), (e)-(f).) RoseAnn argues Deron cannot seek repayment of his attorneys' fees and costs out of trust property, because such relief under Probate Code section 15684 is only available to trustees, and Deron admits he is not the trustee of the Trust and never occupied that position.

On October 27, 2023, Deron filed his opposition to the demurrer. (ROA 360.) Deron argues the notice of demurrer and demurrer is procedurally defective under California rules of Court, Rule 3.1320. Deron also argues he has standing as Decedent's beneficiary and as an interested person under Probate Code section 17200 to bring a petition concerning the internal affairs of the Trust. Deron also argues RoseAnn's Invalidation Petition names Deron as a respondent in his individual capacity and as a successor trustee, the Invalidation Petition includes breach of trust allegations against Deron and Todd, and Deron and Todd have a joint defense agreement against these breach of trust allegations. As a result, Deron's personal defense against these allegations also benefits Todd, the Trust, and the orderly administration of the Trust.

II. Discussion A. Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] [Courts] also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140-141; see also Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) A complaint should provide defendants sufficient notice of the cause of action stated against them so that they are able to prepare their defense. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) 1. Defective Notice of Demurrer 'A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.' (CCP § 430.60.) 'Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.' (Cal. Rules of Court, rule 3.1320(a).) 'A party filing a demurrer must serve and file therewith a notice of hearing that must specify a hearing date in accordance with the provisions of Code of Civil Procedure section 1005 and, if service is by electronic means, in accordance with the requirements of Code of Civil Procedure section 1010.6(a)(4) and rule 2.251(h)(2).' (Cal. Rules of Court, rule 3.1320(c).) Deron argues the demurrer should be overruled for failure to comply with Rule 3.1320(a) and 3.1320(c).

While the moving papers may not strictly comply with Rule 3.1320(a), the supporting memorandum of points and authorities distinctly specifies the grounds upon which the demurer is based, and each ground is described under a separate heading. Based on references to 'the petition' in all three grounds, Calendar No.: Event ID: TENTATIVE RULINGS

3011009 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DECLARATION OF LIVING TRUST 37-2021-00026119-PR-TR-CTL the demurrer applies to the entire Fees Petition, which is permissible under Rule 3.1320(a). Additionally, it is unclear on what grounds Deron contends the demurrer is defective under Rule 3.1320(c), as the case caption in the notice of demurrer and demurrer as filed includes the requisite information on the hearing date. (ROA 340.) Moreover, Deron has not articulated any prejudice resulting from these deficiencies and has presented an opposition addressing the merits of the demurrer. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697 ['It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion'].) The Court therefore declines to overrule the demurrer on these grounds.

2. Standing RoseAnn argues Deron cannot seek repayment of his attorneys' fees and costs under Probate Code section 15684 on the grounds that Deron is not the trustee of the Trust. 'Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff.' (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810.) 'Where, as here, it is alleged that a party lacks standing to sue, the complaint can be challenged by general demurrer for failure to state a cause of action in this plaintiff.' (County of Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009, emphasis original.) '[W]hen a demurrer ... challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint.

Instead, the court must first determine standing by treating the properly pled allegations as true.' (Id. at 827.) Deron's request for repayment of his attorneys' fees and costs in the Fees Petition is based on Probate Code section 15684, which provides: A trustee is entitled to the repayment out of the trust property for the following: (a) Expenditures that were properly incurred in the administration of the trust.

(b) To the extent that they benefited the trust, expenditures that were not properly incurred in the administration of the trust.

(Prob. Code, § 15684, emphasis added.) The Fees Petition does not plead facts establishing Deron's standing to obtain relief under Probate Code section 15684. Deron argues he has standing as Decedent's beneficiary and as an interested person under Probate Code section 17200 to the bring the Fees Petition. However, Deron's status as a beneficiary and as an interested person does not separately grant him standing to request fees under Probate Code section 15684, which specifically applies to trustees. The Fees Petition alleges Todd became successor trustee in January 2021, 'only Todd G. Van Boxtel formally accepted the position of Successor Trustee,' and Deron was nominated as an alternative successor trustee. (ROA 301, at ¶¶ 1, 3, 7, 10.) Thus, it appears on the face of the Fees Petition that Deron does not have standing under Probate Code section 15684.

Moreover, '[w]hen a party opposing a demurrer admits that it does not dispute facts extrinsic to the complaint, the trial court may properly treat these facts as judicial admissions for the purpose of testing the sufficiency of the complaint.' (Buckland v. Threshold Enterprises, Ltd. (2007) 155 Cal.App.4th 798, 806, disapproved of on other grounds in Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310.) Deron admits in his opposition that 'only Todd formally accepted the position of Successor Trustee of the Trust,' Todd is the trustee as of January 2021, and Deron is a successor trustee. (See ROA 360, 2:3-5, 2:9-10, 6:17-22.) Deron has therefore impliedly conceded he does not have standing under Probate Code section 15684, and the demurrer is sustained on this basis.

Deron cites Hollaway v. Edwards (1998) 68 Cal.App.4th 94 ('Holloway') to support his position that due to his individual defense of RoseAnn's breach of trust allegations and Deron and Todd's joint defense Calendar No.: Event ID: TENTATIVE RULINGS

3011009 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DECLARATION OF LIVING TRUST 37-2021-00026119-PR-TR-CTL against these allegations, Deron has expended attorneys' fees and costs (1) in the course of trust administration or (2) to the benefit of Todd as trustee, the Trust, and the orderly administration of the Trust. However, Deron's allegations that he and Todd have cooperated in this action and that their cooperation may benefit the Trust has no bearing on the threshold issue of whether Deron has standing under Probate Code section 15684.

Additionally, Hollaway is factually distinguishable. In Hollaway, a dispute between two sisters who were co-trustees and beneficiaries of a trust culminated in one sister filing a petition for removal of the other as co-trustee. (Hollaway, supra, 68 Cal.App.4th at p. 96.) The responding sister and co-trustee successfully moved for summary judgment on the removal petition and was thereafter allowed to recover attorneys' fees incurred in her defense of the other co-trustee's claims that she had wrongfully obtained or withheld property from the trust. (Ibid.) In contrast, the instant Fees Petition does not allege or concern a dispute against or between co-trustees; Deron is not a co-trustee of the Trust, has never been a trustee of the Trust, and admits that Todd is the trustee.

Based on the foregoing, the demurrer to the Fees Petition is sustained.

3. Leave to Amend The plaintiff bears the burden to show there is a reasonable possibility the defective pleading may be cured. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) If a defect raised by a demurrer is not reasonably capable of cure, then the motion may be granted without leave to amend. (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1146.) Critically with regard to leave to amend, Deron fails to show how the noted defects may be cured by amendment.

Therefore, the demurrer is SUSTAINED without leave to amend.

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

IT IS SO ORDERED.

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