Judge: John B. Scherling, Case: 37-2021-00045478-PR-TR-CTL, Date: 2024-02-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - February 01, 2024

02/02/2024  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) 37-2021-00045478-PR-TR-CTL IN THE MATTER OF: THE WILLIAM AND TARSIS MULACH FAMILY TRUST [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 10/06/2023

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 Judgment, or in the Alternative, Summary Adjudication of Issues (ROA 96) filed by Kenneth Cordova is GRANTED.

The Request for Judicial Notice (ROA 98) is GRANTED pursuant to EC § 452(c) as official acts of state agencies.

I. BACKGROUND Kenneth Cordova ('Trustee') is the successor co-trustee of the William and Tarsis Mulach Family Trust, and the successor trustee of the William and Tarsis Mulach Family Trust, Survivor's Trust.

On March 25, 2022, Trustee filed a Petition for: (1) Instructions to Determine Real Property Formerly Held in Trust was William Tarsis' [sic] Separate Property; (2) to Confirm that Sale Proceeds Held in Escrow be Distributed to Trustee of Survivor's Trust. (ROA 28.) On December 8, 2022, Joseph Talamantes ('Co-Trustee') filed a Petition for Orders: (1) Confirming Assets Pursuant to Probate Code § 850; (2) Instructions as to Proceeds From Sale of Property; (3) Compelling Trustee to Report and Account; (4) Breach of Fiduciary Duty as Trustee; (5) Surcharge of Trustee; (6) Allocate Charges to Distributive Share; and (7) Removal of Trustee. (ROA 45.) On July 10, 2023, Co-Trustee filed a Heggstad Petition. (ROA 78.) This petition was supplemented multiple times. (See ROA 90, 91, 92, 106 & 117.) On October 6, 2023, Trustee filed the instant motion for summary judgment, or in the alternative, summary adjudication at to his Petition at ROA 28. (ROA 96.) On January 25, 2024, Co-Trustee filed a response/opposition to the motion captioned: 'MOTION TO QUASH IN OPPOSITION-RESPONSIVE PLEADING OPPOSING TO SUMMARY JUDGMENT MOTION/SUMMARY ADJUDICATION MOTION [LIMITED SCOPE RESPONSIVE PLEADING MOTION PRACTICE ONLY].' (ROA 118.) On January 26, 2024, Trustee filed a reply. (ROA 120.) Calendar No.: Event ID:  TENTATIVE RULINGS

3034853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF: THE WILLIAM AND TARSIS MULACH FAMILY  37-2021-00045478-PR-TR-CTL On January 29, 2024, Co-Trustee filed 'REPLY IN OBJECTION TO OBJECTION FOR PETITIONER's [sic] HEGGSTAD PETITION: 1. HEARSAY WITH NO EXCEPTION IS INADMISSIBLE' (ROA 123), and 'REPLY BY INDIRECT QUASH IN OBJECTION TO OBJECTION TO MOTION TO QUASH IN OPPOSITION-RESPONSIVE PLEADING FOR: 1. SPEAKING OBJECTIONS NOT ALLOWED 2. CLAIM AND ISSUE PRECLUSION 3. DISINTERITANCE BY NO CONTEST CLAUSE FOR SUBSTANTIVE OBJECTIONS' (ROA 122).

II. DISCUSSION A. Compliance with the Rules of Court The Court notes that the document filed at ROA 118 by Co-Trustee, that appears to be an opposition to the instant motion, fails to comply with CRC 3.1350(e), which provides that: Except as provided in Code of Civil Procedure section 437c(r) and rule 3.1351, the opposition to a motion must consist of the following separate documents, titled as shown: (1) [Opposing party's] memorandum in opposition to [moving party's] motion for summary judgment or summary adjudication or both; (2) [Opposing party's] separate statement in opposition to [moving party's] motion for summary judgment or summary adjudication or both; (3) [Opposing party's] evidence in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate); and (4) [Opposing party's] request for judicial notice in opposition to [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

(Cal. Rules of Court, rule 3.1350(e).) Co-Trustee's opposition, confusedly labeled a motion to quash, does not contain a memorandum of points and authorities that complies with CRC 3.1113(b) ('The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.') There is no statement of facts, a concise statement of the law, nor cogent arguments supported by legal authority and evidence.

Instead, the opposition consists of a variety of statements relating to evidentiary issues and the purported preclusive effect of a judgment entered in a prior Probate matter, the significance and relevance of which is not addressed. In sum, the opposition does not address the issues raised by Trustee in the motion, nor present any rebuttal evidence.

Second, Co-Trustee did not attach a Separate Statement nor set forth the disputed material facts. The only evidence attached to the opposition is a copy of the Minute Order from a hearing held on November 8, 2019, in a different Probate matter (in case no. 18-22432).

Third, Co-Trustee's filings at ROA 122 and 123, which are sur-replies, are not authorized by statute or Court rule. Thus, the Court will not consider them. Even if the Court were to consider these untimely filings, the ruling would not change.

Fourth, Trustee's electronic exhibits fail to comply with CRC 3.1110(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 113, Supp. Decl., Exhs. 1-9.) The Court further notes that Trustee's motion papers referred to exhibits in the Notice of Lodgment.

Calendar No.: Event ID:  TENTATIVE RULINGS

3034853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF: THE WILLIAM AND TARSIS MULACH FAMILY  37-2021-00045478-PR-TR-CTL There is no Notice of Lodgment filed. Indeed, '[l]odgments will not be accepted unless specifically authorized by statute, rule, or court order.' (Super. Ct. San Diego County, Local Rules, rule 4.3.3(G).) Trustee then filed the Supplemental Declaration of Trustee (ROA 113), attaching all the exhibits that were supposed to be attached to the Notice of Lodgment to this declaration, but without filing corresponding amended motion papers to reflect the change. Moreover, although the Trust Coversheet lists the exhibits, there is no Index of Exhibits provided that complies with CRC 3.1110(f)(1). This confusion with the exhibits made the task of reviewing the motion unnecessarily time consuming, as it was not readily apparent from the papers where the exhibits identified in the Separate Statement were located. The motions papers should have been amended with the correct references to the exhibits. In this regard, the motion is not well taken.

Compliance with the Rules of Court is mandatory and failure to comply is grounds for sanctions. The parties are expected to comply with all applicable rules in the future and follow proper motion procedures.

B. Motion for Summary Judgment 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 plaintiff meets their 'burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.' (CCP § 437c(p)(1).) Once the plaintiff meets that burden, 'the burden shifts to the defendant or cross-defendant 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 defendant '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.) Trustee moves for summary judgment on the ground that the real property located at 1735 Foss Road, Alpine, California ('Alpine Property') was surviving spouse/trustor William Mulach's separate property as a matter of law when it was transferred into the Trust, and per the Trust terms, the property is considered separate property. Trustee argues that there is no triable issue of material fact affecting or rebutting the title presumption: the Mulachs acquired the Alpine Property during their marriage; although they initially transferred the property into the Trust, they later transferred the Alpine Property out of Trust and issued title in the names of the settlors, husband and wife, as community property with the right of survivorship, which unambiguously designated the property as community property; and upon trustor Tarsis L. Mulach's death, the Alpine Property became the separate property of the surviving spouse by operation of law.

Alternatively, Trustee's Separate Statement states two issues for summary adjudication: ISSUE ONE: Petitioner is entitled to judgment on the First Claim for Relief under Probate Code section Calendar No.: Event ID:  TENTATIVE RULINGS

3034853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF: THE WILLIAM AND TARSIS MULACH FAMILY  37-2021-00045478-PR-TR-CTL 17200(b)(1) and (b)(6) contained within ROA 28 because there is no defense to Petitioner's claim that the real property located at 7037 Everglades Avenue, San Diego, California 92119 (the 'Alpine Property') was William J. Mulach's separate property and should have been allocated to the William and Tans Mulach Family Trust, Survivor's Trust ('Survivor's Trust'). (Emphasis added.) ISSUE TWO: Petitioner is entitled to judgment on the Second Claim for Relief contained within ROA 28 for an Order from this Court directing the Escrow Holder to release the net sale proceeds for the sale of the Alpine Property to Petitioner in his capacity as Trustee of the Survivor's Trust.

1. Analysis Trustee filed a Petition for: (1) Instructions to Determine Real Property Formerly Held in Trust was William Tarsis' Separate Property; (2) to Confirm that Sale Proceeds Held in Escrow be Distributed to Trustee of Survivor's Trust. (ROA 28.) The Petition identifies real property located at 1735 Foss Road, Alpine, California, 91901, as the 'Alpine Property.' (Id. at p. 2, § A.) As a preliminary issue, the Court notes that the notice of motion identifies property located at an address different from the one identified in the motion papers (7037 Everglades Avenue versus 1735 Foss Road) for the Alpine Property. The Court assumes there is only one property located in Alpine that is the subject of the Petition and instant motion and thus, one of the addresses listed in the motion papers is incorrect and finds this error is immaterial for purposes of ruling on the motion.

Trustee asserts the following material facts: - On or about June 2, 2016, William and Tarsis Mulach executed The William and Tarsis Mulach Family Trust.

- Article 1(b) of the Trust states: 'Any property conveyed or distributed to or, in any manner received by the Trust shall retain its separate or community character, and in the event of revocation, property reconveyed to the Trustors, or either of them, shall retain the same character it had at the time of its transfer to the trust.' - On or about June 2, 2016, settlors conveyed the 'Alpine Property' into the Trust.

- On or about June 23, 2016, settlors executed a Grant Deed conveying the Alpine Property out of the Trust to themselves as 'William J. Mulach and Tarsis L. Mulach, Husband and Wife as Community Property with Right of Survivorship.' - On or about May 20, 2017, Tarsis L. Mulach died.

- Upon settlor Tarsis L. Mulach's death, the Trust divided into two trusts: the Survivor's Trust and the Exemption Trust, with the Survivor's Trust consisting of the surviving spouse's share of the community property and separate property held in Trust.

- The Trust permits the surviving trustor to amend the Survivor's Trust in writing.

- On November 20, 2017, surviving spouse/trustor, William J. Mulach, signed the First Amendment to the Trust, which identified a series of nineteen specific distributions, and directed the trustee of the Survivor's Trust to 'distribute all remaining trust property outright and free of trust to my son, Kenneth Arthur Cordova I.' - On or about January 25, 2018, settlor William J. Mulach executed a Trust Transfer Deed, and conveyed title of the Alpine Property back into Trust as 'William J. Mulach, Trustee, or his successors in interest, of the William and Tarsis Mulach Family Trust dated June 2, 2016, and any amendments thereto.' - On December 29, 2019, settlor William J. Mulach died.

(ROA 97, Separate Statement of Undisputed Material Facts ['SSUMF'] Nos. 1-10.) These material facts are undisputed by Co-Trustee. As such, moving party presented sufficient evidence to meet their burden of proof that no triable issues exist: in June 2016, the settlors conveyed the Alpine Calendar No.: Event ID:  TENTATIVE RULINGS

3034853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF: THE WILLIAM AND TARSIS MULACH FAMILY  37-2021-00045478-PR-TR-CTL Property into the Trust, and shortly thereafter, conveyed the Alpine Property out of the Trust to themselves as husband and wife, as community property with the right of survivorship; wife died in May 2017, with the entire interest passing to the surviving husband as his separate property (See CCP § 682.1(a)); the Trust then was split into a Survivor's Trust and an Exemption Trust, with authority in the surviving spouse to amend the Trust; the Alpine Property was held as separate property by the surviving spouse/trustor at the time of its transfer back into the Trust; under Article (b), the property retained its separate property character upon transfer; and the last amendment by the surviving spouse/trustor to the Trust instructs in part that all remaining Trust property be distributed to Trustee outright. Thus, given Trustee's arguments and evidence, the burden shifted to Co-Trustee 'to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.' (CCP § 437c(p)(1).) Co-Trustee did not 'set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto' and failed to carry his burden of proof. (Id.) To the extent Co-Trustee is relying on the judgment entered in the prior Probate case referenced above (in case no.

18-22432), it is unclear to the Court how that judgment creates any triable issues with respect to the Petition at ROA 28. Co-Trustee did not submit any other evidence in opposition to the motion.

Therefore, the motion for summary judgment is GRANTED.

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

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

IT IS SO ORDERED.

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