Judge John B. Scherling, Case 37-2021-00029236-PR-OP-CTL 2023-09-15 Tentative Ruling

Judge: John B. Scherling, Case: 37-2021-00029236-PR-OP-CTL, Date: 2023-09-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 14, 2023

09/15/2023 02:00:00 PM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Other Probate Matter Summary Judgment / Summary Adjudication (Probate) 37-2021-00029236-PR-OP-CTL IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR HEALTH CARE OF LOUIS J. ALPINIERI DATED MARCH 26, 2017 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/06/2023

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 Adjudication filed by Andrea Alpinieri is DENIED.

The evidentiary objections at ROA 348 are OVERRULED as moot.

The Stipulation and Order at ROA 353 is approved in part.

I. Background Louis J. Alpinieri ('Louis') and Brenda L. Alpinieri ('Brenda'), as trustors and original co-trustees, established the 1987 Alpinieri Living Trust under a Declaration of Trust dated June 27, 1987, which was restated on January 22, 2011. Louis and Brenda had two children: Steven J. Alpinieri ('Steven') and Andrea Alpinieri ('Andrea').

Louis executed a General Durable Power of Attorney for Asset Management on March 31, 2010, in which he named Brenda as his primary attorney-in-fact and their son, Steven, as the alternate attorney-in-fact.

Brenda died on May 1, 2013. As a result, the Family Trust was divided into three separate trusts: a Survivor's Trust, a Residuary Trust, and a Marital Trust. Louis became the sole Trustee of the Family Trust.

In November 2013, it is alleged that Louis suffered a serious injury when he was struck by an automobile while riding his bicycle and was unable to serve as the trustee of the Family Trust during his recovery.

Pursuant to subparagraph 5.1.1 of the Family Trust, Steven was designated to serve as successor trustee. In November 2013, Steven began to serve as the successor trustee and act as Louis' attorney-in-fact under the Power of Attorney.

In or about October 2016, Louis executed a document entitled 'Exercise of Power to Change Trustee' dated October 17, 2016, in which Louis removed Steven and designated First Foundation Bank (FFB) as successor trustee, effective immediately.

FFB accepted the appointment, but Steven did not accept his removal and the appointment of FFB as Calendar No.: Event ID: TENTATIVE RULINGS

2965267 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR 37-2021-00029236-PR-OP-CTL successor trustee, and he continued to act as the trustee. In January 2017, Louis executed a Second Exercise of Power to Change Trustee, reinstating Steven as the trustee. Louis also signed a new Durable Power of Attorney for Health Care, adding Andrea as the sole agent and Steven as the successor.

Thereafter, in a separate case, Louis filed several petitions challenging Steven's actions as the trustee of several trusts. On September 10, 2018, the court approved a settlement agreement between Louis and Steven. (See Case No. 37-2017-00012192-PR-TR-CTL.) This case is pending before the Court.

Steven filed a Petition for Conservatorship, which is currently pending before this Court. (See Case No.

37-2022-00038004-PR-CP-CTL.) Although these related cases are being heard in the same department, they have not been consolidated nor coordinated.

On July 7, 2021, Steven filed a Petition for Order Determining that the Acts of Andrea Alpinieri as Agent Under Durable Power of Attorney for Health Care are not Consistent with the Expressed Desires of Louis Alpinieri and for Removal of Andrea Alpinieri as Agent ('Petition'). (ROA 1.) The Petition was supplemented at ROA 236.

The Petition alleges that Andrea is acting under a durable power of attorney for health care executed by Louis; Louis is mentally compromised and may not have understood when he named Andrea as his agent; Andrea is unduly influencing Louis; Andrea has isolated Louis from Steven and his family; Steven's attempts to have contact with Louis have been thwarted by Andrea and the caregivers she has hired to monitor and control Louis; and Andrea has ordered the caregivers to enforce the isolation of Louis.

On March 6, 2023, Andrea filed a Motion for Summary Adjudication. (ROA 255.) On July 20, 2023, the Court set briefing deadlines for the motion: opposition was due by August 25, 2023, and any reply was due by September 6, 2023. (ROA 271.) On August 21, 2023, Steven filed an opposition. (ROA 349.) On September 8, 2023, Andrea filed an untimely reply. (ROA 354.) Andrea's reply fails to comply with the Court order from April 20, 2023, setting a specific briefing schedule for the motion for summary adjudication. (See, e.g., ROA 271.) The deadline to file the reply was September 6, 2023. (Id.) Andrea filed her reply late, on September 8, 2023. In turn, Steven filed an opposition to this late reply (ROA 356), which is not authorized by any statute or rule of court. Notwithstanding, the Court finds no prejudice to the parties and will consider the late filings.

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).) 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).) '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).) 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.) Calendar No.: Event ID: TENTATIVE RULINGS

2965267 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR 37-2021-00029236-PR-OP-CTL '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 the motion is made on the following grounds: (a) In the matter of the Durable Power of Attorney for Healthcare for Louis J. Alpinieri, Case No.

37-2021-00029236-PR-OP-CTL , that respondent, Andrea Alpinieri, is entitled to judgment on any cause of action, including that the acts of Andrea Alpinieri as agent under the HCPOA are not consistent with the expressed desires of Louis J. Alpinieri and for her removal as agent, based on the ground, and petitioner's claim, that Louis J. Alpinieri is incapacitated as a result of a 2013 brain injury; (b) In the matter of the Alpinieri Family Trust dated June 27, 1987, Case No.

37-2017-00012192-PR-TR-CTL , that respondent, Louis J. Alpinieri, by and through Andrea Alpinieri, AIF, is entitled to judgment on the cause of action to compel the trustee to account to the beneficiaries defined in Probate Code §15800(b)(2) and on any cause of action granting rights to the beneficiaries defined in Probate Code §15800(b)(2) based on the ground, and petitioner's claim, that Louis J. Alpinieri is incapacitated as a result of a 2013 brain injury; and (c) In the matter of the Conservatorship of Louis J. Alpinieri, Case No. 37-2022-00038004-PR-CP-CTL , that respondent, Louis J. Alpinieri, by and through Andrea Alpinieri, AIF, (and Louis J. Alpinieri, individually), is entitled to judgment on the causes of action to appoint a probate conservator of the person and estate of Louis J. Alpinieri based on the ground, and petitioner's claim, that Louis J. Alpinieri is incapacitated as a result of a 2013 brain injury.

(ROA 255, Notice of Motion, emphasis added.) Accordingly, the motion seeks adjudication of matters outside this case, in Case Nos. 2017-12192 and 2022-38044, both of which have petitions pending resolution. All three actions are being heard before this Court. However, these cases have not been consolidated or coordinated and, although the motion caption identifies all three cases, the motion was filed only in this case. Thus, it is improper to seek adjudication of matters outside this action via the instant motion.

Further, the Notice of Motion fails to state the 'specific cause of action, affirmative defense, claims for damages, or issues of duty' raised in the motion. (CCP § 437c(f)(1).) For instance, the Notice of Motion states that Andrea is entitled to judgment on any cause of action, including that the acts of Andrea Alpinieri as agent under the HCPOA, based on Louis' incapacity. From the arguments and evidence presented, it appears Andrea is attempting to resolve the issue of Louis' capacity through the application of judicial estoppel, but the Notice of Motion does not make this clear as it simply refers to 'any cause of action ... based on the ground, and petitioner's claim, that Louis J. Alpinieri is incapacitated as a result of a 2013 brain injury.' Andrea's Separate Statement, which recites verbatim the issues as stated in the Notice of Motion, is likewise unclear. Thus, the notice is uncertain and fails to comply with CRC 3.1350.

In addition, Andrea's Separate Statement fails to state 'plainly and concisely all material facts that the moving party contends are undisputed.' (CCP § 437c and CRC 3.1350(d); ROA 256, Separate Statement of Undisputed Material Facts ['SSUMF'].) For example, as noted in the opposition, SSUMF No. 20 contains arguments based on a narrative of events, not necessarily all facts material to the instant motion. The SSUMF also improperly relies on matters outside this case, the relevance and weight of which have not been established. As noted, Case Nos. 2017-12192 and 2022-38004 are still pending adjudication.

Based on the foregoing, the Court finds the Notice of Motion is defective, and the motion should be denied on this basis.

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2965267 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR 37-2021-00029236-PR-OP-CTL B. Motion for Summary Adjudication Beyond the defects in the Notice of Motion and Separate Statement, Andrea fails to establish that summary adjudication on the issue of Louis' capacity is permitted under CCP § 437c(f).

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).) Here, Andrea asserts judicial estoppel as to Steven's assertions regarding Louis' capacity, which appears to be an affirmative defense to the petition, but Andrea does not clarify the issues raised by the motion, as discussed above. In any event, Andrea has not shown that a determination regarding Louis' capacity will completely dispose of the issues in the Petition, which seeks to hold Andrea responsible as an agent under the power of attorney for breach of her duties. In other words, a finding that Louis is incapacitated alone is not dispositive as to whether Andrea's actions are inconsistent with Louis' desires or that Andrea breached her duties as his agent and should be removed. These are distinct and separate issues. As such, resolution of the issue of Louis' capacity does not completely dispose of the issue(s) relating to Andrea's actions as Louis' agent. Thus, the motion fails to comply with CCP § 437c(f).

Therefore, for all the foregoing reasons, the motion for summary adjudication is DENIED.

C. Discovery Motions On September 1, 2023, Steven filed Stipulation and Order Regarding Continuance of Motion Hearings (ROA 353), wherein the parties stipulate to the Court confirming the discovery referee's recommendations on four of the six discovery motions set for hearing: the motions at ROA 109, 111, 174, and 245 (with the referee's recommendations at ROA 334, 336, 332, and 330 respectively). The Stipulation is approved as to these motions.

The parties further stipulate to set the motion at ROA 120 for hearing for a final decision following Steven's Objections (ROA 340) and Andrea's Response to Objections (ROA 342). The Stipulation is approved as to the motion at ROA 120. This motion is set for hearing on October 27, 2023, at 2 p.m. in D502, with briefing due according to CCP § 1005(b).

As to the discovery referee, the Stipulation and Order provides that the parties stipulated to the appointment of a discovery referee for the limited purpose of managing only the motions pending at the time of the Court's order of appointment on September 26, 2022. The Stipulation and Order states that the Court did not intend to appoint a discovery referee for general purposes to handle all discovery motions and disputes, and the parties did not agree to such an appointment.

At the hearing on November 22, 2022, the Court ordered that 'ROAs 109, 111, 120, 134 and 174 (and any other discovery motions that may be filed in the interim) are set with the Case Management Conference on ROA 1 on April 20, 2023 at 10:00 a.m., but will not be heard at that time.' (ROA 212, Minute Order dated Nov. 22, 2022.) On December 20, 2022, the Court denied without prejudice Steven's ex parte application to appoint an alternate discovery referee and ordered the parties to meet and confer regarding the selection of a new discovery referee. (ROA 233, Minute Order filed Dec. 20, 2022.) The Court further ordered that 'ROA 218 in the instant case (and any other discovery motions that may be filed in the interim) are set with the Case Management Conference on ROA 1 on April 20, 2023 at 10:00 a.m., but will not be heard at that time.' (Id.) Calendar No.: Event ID: TENTATIVE RULINGS

2965267 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DURABLE POWER OF ATTORNEY FOR 37-2021-00029236-PR-OP-CTL The Stipulation and Order does not address the motions at ROA 134 and 218, but according to the Court's minutes from November and December 2022, these motions, as well as 'any other discovery motions that may be filed in the interim,' were presumably referred to the discovery referee.

Further, in February 2023, Steven filed an ex parte application requesting an alternate discovery referee.

(ROA 237, Steven's Ex Parte Application for Appointment of Alternate Discovery Referee.) Steven stated that '[o]n September 26, 2022, this Court appointed a discovery referee to handle all discovery motions in this case.' (Id., at ¶ 4, emphasis added.) This is inconsistent with the present claim that the discovery referee was appointed for a limited purpose.

As such, the Court declines to approve the Stipulation and Order in this regard. The Court intended the appointment of a discovery referee for all the discovery motions filed in the case, and ordered the appointment based on findings that there would be undue impact on the court's time and limited resources due to the multiplicity of issues and motion to be resolved, and the high likelihood that additional discovery disputes would follow. (ROA 213, Order Appointing filed Sept. 26, 2022.) This order was not based on the consent of the parties pursuant to CCP § 638, but rather was by determination of the Court pursuant to CCP § 639. Circumstances have not changed, and the grounds for appointing a discovery referee in the first instance remain the same.

Therefore, the Court approves the Stipulation and Order as stricken and amended consistent with this ruling.

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

IT IS SO ORDERED.

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