Judge: John B. Scherling, Case: 37-2021-00032887-PR-TR-CTL, Date: 2023-11-17 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 16, 2023

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

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2021-00032887-PR-TR-CTL IN THE MATTER OF THE SANDERS FAMILY TRUST [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 07/03/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motions to Dismiss, Set Aside Default Judgment, and Order to Remove Dolores Sanders as Interim Trustee (ROA 82) are DENIED.

I. DISCUSSION This case concerns the Sanders Family Trust dated June 29, 2000 ('Trust'). James Sanders ('Respondent') is the Trustee. Delores Sanders ('Petitioner') is one of the settlor's daughters and a named beneficiary under the Trust.

On August 2, 2021, Petitioner filed a Petition to: (1) Immediately Suspend and Remove Trustee and Appoint Successor Trustee; (2) for Order Confirming Trust Assets; (3) Accounting; (4) Breach of Fiduciary Duty; (5) Surcharge of Trustee; (6) Instructions for Trustee not to Use Trust Funds for Litigation; and (7) Attorney's Fees. (ROA 1.) On October 19, 2021, the Court granted Petitioner's ex parte request to use substituted service by publication on Respondent, and to continue the hearing on the Petition to allow for service of process.

(ROA 20, Minute Order filed Oct. 19, 2021; ROA 21, Order.) On October 21, 2022, the Court granted relief 1, 2, 4, and 6 sought in the Petition, as modified. (ROA 58, Minute Order filed Oct. 21, 2022; ROA 67, 68, Nunc Pro Tunc Order correcting minutes from Oct. 21, 2022.) Among other relief, the Court suspended Respondent as Trustee, appointed Petitioner as Interim Successor Trustee, and ordered Respondent to transfer Trust property in his possession or control to Petitioner and to account. (ROA 67.) On July 3, 2023, Respondent filed the instant 'MOTION TO DISMISS PETITIONERS CASE, SET ASIDE DEFAULT JUDGMENT, AND ORDER TO REMOVE DELORES SANDERS AS INTERIM TRUSTEE. MEMORANDUM OF POINTS AND AUTHORITIES, DECLARATION OF FACTS, LIST OF EXHIBITS.' (Sic.) (ROA 82.) Respondent argues that the case filed by Petitioner is legally void and Trustee is not the respondent in this case, and therefore, not subject to personal jurisdiction. Respondent further argues that Petitioner's right to file a claim against Respondent is barred by the statute of limitations.

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2992915 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE SANDERS FAMILY TRUST [IMAGED]  37-2021-00032887-PR-TR-CTL On October 18, 2023, Respondent filed an amended notice of motion and motion. (ROA 90.) Respondent argues Petitioner has filed false documents, service of the Petition on Respondent is defective, Respondent was denied notice of the ex parte hearing regarding the request to serve by publication and thus, the ex parte request must be denied. Respondent argues Petitioner intentionally failed to serve him proper notice.

On November 3, 2023, Petitioner filed an opposition to the motion. (ROA 96.) On November 13, 2023, Respondent filed a declaration, which duplicates most of the arguments made in the amended motion at ROA 90. (ROA 101.) 1. Analysis a. Notice of Motion The motion caption refers to a motion to dismiss, a motion to set aside default judgment, and a motion to remove Petitioner as the interim trustee. As such, Respondent's motion is procedurally deficient in that three motions are combined into one motion, without a proper notice of motion indicating the grounds for each motion. (Cal. Rules of Court, rule 3.1110(a) ['A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.'].) Indeed, notice was insufficient to place the opposing party on notice of the claims raised in the motion as evidenced by Petitioner's response. Opposing party should not be expected to speculate as to the bases for the motion.

While Petitioner has liberally construed the motions and responded comprehensibly in the opposition paper, the Court will not guess at Respondent's grounds for the motions and address every conceivable possibility of arguments. Thus, the motions may be denied as procedurally defective. Notwithstanding the procedural deficiency, the Court rules on the merits of the motions.

b. Motion On the merits, as a preliminary matter, the Court notes that Respondent's declaration at ROA 101 (filed on November 13, 2023) is untimely pursuant to CCP § 1005(b). The deadline to file the declaration, which is effectively an amended memorandum of points and authorities, was November 9, 2023. Thus, the Court will not consider this late declaration.

The Petition at ROA 1 was initially adjudicated in October 2022, when the Court granted some of the relief requested in the Petition, in the nature of interim, protective orders issued in view of the circumstances presented to the Court at the time of consideration, and ordered an accounting from Respondent to be filed by January 13, 2023. No accounting has been filed, and the case remains active with trial on the ultimate issues in the case (removal of Trustee and damages) still pending resolution, with trial not yet set. Respondent does not provide any legal authority in support of his request to dismiss the Petition at this stage, prior to trial on the merits.

To the extent Respondent is arguing that the Petition should be dismissed because the claims are barred by the statute of limitations pursuant to Probate Code § 16460, or based on defective service of process, Respondent does not present evidence supporting his claims. The evidence Respondent presented consists of documents filed in this matter and their probative value on the issues in this motion is unclear. (ROA 90, Exhs. A-J.) Respondent argues that Petitioner knew his address in Point Loma and served him there in March 2023, as evidenced by the Notice to Consumer Petitioner served on Respondent. However, Respondent misstates the evidence. The Notice to Consumer (Exh. F) provides that records are sought from 'PostalAnnex in San Diego – Point Loma, c/o Tyler Wilson & Julia Scott 3960 Point Loma Blvd., Suite H, San Diego, CA 92110.' (Id., Exh. F.) The Notice to Consumer does not show service on Respondent at an address in Point Loma.

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2992915 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE SANDERS FAMILY TRUST [IMAGED]  37-2021-00032887-PR-TR-CTL As discussed, the ultimate issues in the Petition remain pending. The statute of limitations is a defense to the Petition and Respondent is not prevented from raising this defense at trial or by a properly filed and supported motion. Based on the foregoing, the motion to dismiss is DENIED, with the denial being without prejudice as to a statute of limitations defense.

As to the motion to set aside default judgment, Respondent cites to CCP §§ 473.5 and generally claims fraud with the Petition but does not present any arguments applying the legal standard to the relevant facts. It is also unclear to which order or judgment the motion is directed: the order on the ex parte application for service by publication on Respondent, the order on the Petition at ROA 1, or all prior orders. Thus, the motion is ambiguous and fails to provide sufficient notice of the claims in the motion.

If the motion is directed at the order granting Petitioner's ex parte application (ROA 21, Order), this Order was made after the Court considered the arguments and evidence presented, including the due diligence declarations of third parties to this action, as well as the requirements set forth in CRC 3.1202 pertaining to ex parte applications. Respondent does not present any cogent reasons for this Court to set aside this order or to question the veracity and reliability of the statements in the due diligence declarations submitted by Petitioner. As such, to the extent the motion is directed at the interim order granting relief as to the Petition at ROA 1 based on lack of proper service and notice of the Petition, Respondent fails to present a prima facie case for relief. There was no failure to serve as Respondent argues because Petitioner was granted leave by this Court to serve by publication, and service by publication is an authorized method for service of process under certain circumstances. Respondent fails to establish 'that the motion was made within the period permitted by subdivision (a) and that his or her lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect.' (CCP § 473.5(c).) Further, Respondent did not attach any objection or responsive pleading to the motion as required. (CCP § 473.5(b) ['The party shall serve and file with the notice a copy of the answer, motion, or other pleading proposed to be filed in the action.'] Relief from the interim orders is not properly sought through the instant motion to set aside. Therefore, the motion to set aside default judgment is DENIED.

Respondent also cites to CCP § 473(d) but does not discuss how he is entitled to relief under this section, which provides that a court may on its own motion correct a clerical error, or on motion from a party, set aside any void judgment or order. There is no clerical error to correct, and Respondent fails to show the existence of any void order or judgment.

As to the motion to remove Petitioner as the interim trustee, the request is improperly brought by way of a motion, unsupported by proper legal authority and recitation of the relevant facts. Therefore, the motion to remove the interim trustee is DENIED.

The hearing on ROA 90 (the amended notice of motion and motion) which is set for February 9, 2024, is taken off calendar in light of this ruling, which considered all arguments and evidence presented in ROA 90.

The minute order is the final order 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.

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