Judge John B. Scherling, Case 37-2022-00001299-PR-TR-CTL 2023-08-25 Tentative Ruling

Judge: John B. Scherling, Case: 37-2022-00001299-PR-TR-CTL, Date: 2023-08-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 24, 2023

08/25/2023 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) 37-2022-00001299-PR-TR-CTL IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED JULY 12, 2021 IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 05/24/2023

Pursuant to San Diego Superior Court Rules 4.23.7, the court's tentative ruling is as follows: Farrukh I. Ahmed and Riffat S. Ahmed's Motion for Summary Judgment (ROA 93) is denied.

I. Background Ashfaq Malik ('Decedent') died on July 21, 2021. He was survived by his wife, Asifa Hashmi ('Petitioner').

On January 12, 2022, Petitioner filed a Verified Petiton [sic] Under Cal. Probate Code Section 17200 Challenging Validity of Trust Based on Undue Influence and Mistakes of Fact; Imposition of Constructive Trust and Request for Accounting ('Petition'). (ROA 1.) The Petition alleges that the Ashfaq Malik Revocable Living Trust Dated July 12, 2021 ('Trust') is invalid based on mistake of fact and undue influence from Decedent's sister, Riffat S. Ahmed, and Decedent's brother-in-law, Farrukh I. Ahmed (collectively 'Respondents').

On June 17, 2022, the court sustained Respondents' demurrer to the Petition on the ground that it was barred by the statute of limitations in Probate Code section 16061.8. (ROA 38.) However, the court granted Petitioner leave to amend because there was a reasonable possibility that she overcome the statute of limitations based on equitable tolling.

On September 28, 2022, Petitioner filed a Verified First Amended Petition: 1.) For an Order to Transfer Real Property and Issue Statutory Damages Under Probate Code §§ 850(3)(A), 856, 859; 2. For an Order Challenging Validity of Trust Based on Undue Influence and Mistakes of Fact Under Probate Code § 17200; 3. For Imposition of Constructive Trust and Request for Accounting Under Probate Code §§ 17200 (A) and 17200 (B) ('FAP'). (ROA 48.) The FAP seeks to invalidate the Trust on the same grounds as the Petition, and it adds a new claim that Petitioner has a community property interest in the real property located at 1316 Kiso Glen, Escondido, CA ('Property').

On May 24, 2023, Respondents filed the current motion for summary judgment. (ROA 93.) They argue that the contest of the Trust is barred by the statute of limitations in Probate Code section 16061.8, the FAP is untimely pursuant to California Rules of Court, Rule 3.1320(g), and Petitioner did not properly plead a cause of action sufficient to grant her a community property interest in the Property.

Petitioner opposes the motion. (ROA 106.) She argues that the motion only seeks summary judgment, Calendar No.: Event ID: TENTATIVE RULINGS

2980902 CASE NUMBER: CASE TITLE: IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED 37-2022-00001299-PR-TR-CTL not summary adjudication, so it must be denied because it does not dispose of her claim to the Property.

Petitioner contends that her claim to the Property is not time-barred, and Respondents have not submitted any admissible evidence to defeat that claim.

In their reply, Respondents argue that they did request summary adjudication in their motion, Petitioner has not submitted any evidence in support of her claims, and their evidence regarding the claim to the Property is admissible. (ROA 119.) II. Analysis: A. Evidentiary Objections: Petitioner has filed evidentiary objections to the declarations of Respondents and their attorney, Mindy A. Galindo. (ROA 109.) The court declines to rule on these objections pursuant to Code of Civil Procedure section 437c(q) because they are not material to the disposition of the motion. As discussed below, the only relevant evidence is that in relation to Petitioner's claim to the Property, and even if the court assumes the admissibility and validity of that evidence, Respondents are not entitled to summary judgment.

B. Summary Adjudication: '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.' (California Rules of Court, Rule 3.1350(b).) Respondents claim that they have properly sought summary adjudication because they reference summary adjudication in their notice of motion and in two other places in their memorandum of points and authorities. However, the specific causes of action, affirmative defenses, claims for damages, or issues of duty against which summary adjudication is sought are not stated in the motion or Respondents' separate statement of undisputed material facts. As such, Respondents have not properly sought summary adjudication, and the court may not summarily adjudicate any issues. (Homestead Savings v. Superior Court (1986) 179 Cal.App.3d 494, 498; Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1546.) This means that if Respondents fail to make the requisite showing for one of the claims in the FAP, the motion must be denied.

C. Summary Judgment: A motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (CCP § 437c(c).) A defendant moving for summary judgment must make a prima facie showing that either one or more elements of a cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) 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. (Ibid.) Regarding Petitioner's claim to the Property, the FAP alleges as follows: 1. Petitioner seeks an order from this Court requiring Respondents or third parties in possession of real property located at 1316 Kiso Glen, Escondido, CA 92025, APN 235-300-18-00 ('Subject Property') to transfer the Subject Property to Petitioner.

2. Petitioner claims a community property interest in the Subject Property as Grantor's wife. Petitioner is informed and believes that Grantor had two lines of credit on the Subject Property during marriage which were paid off in full or part with community property assets.

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2980902 CASE NUMBER: CASE TITLE: IN RE: THE ASHFAQ MALIK REVOCABLE LIVING TRUST DATED 37-2022-00001299-PR-TR-CTL (ROA 48, ¶¶ 1-2.) In support of their motion in relation to this claim, Respondents present a declaration from Ms. Galindo stating that Decedent bought the Property in 1994; he obtained deeds of trust on the property in 1994, 1998, 2003, and 2006; the 1998 deed of trust was released in 2000; the 2003 deed of trust was released in 2006; the 2006 deed of trust was released in 2016; and Decedent only took $2.42 from the 2006 deed of trust. (ROA 95, ¶¶ 2-5.) Even if the court assumes that these matters are true, it falls short of establishing that one or more elements of the claim cannot be established, or that there is a complete defense to the claim.

Respondents do not explain when Decedent and Petitioner were married, nor do they present any evidence on that issue. Without the date of marriage, the court is unable to assess the community property interests in the Property. Even if the court assumes that Decedent and Petitioner were married in 2003 as alleged in the FAP, Respondents' evidence still falls short. Respondents do not explain whether the 1994 deed of trust has been paid off, and if so, whether separate or community funds were used. Additionally, although the 2003 deed of trust was released in 2006, that would have been three years into the marriage, and Respondents do not address if that loan was paid with community funds.

Finally, regarding the 2006 deed of trust, Respondents contend that it was a line of credit that Decedent did not use, and they submit records from January 26, 2013, to March 28, 2016, to support this claim.

(ROA 95, Exhibit K.) These records fail to address the initial six years in which this line of credit was in place (2006 – 2012).

Based on the foregoing, Respondents have failed to show that one or more elements of the claim to the Property cannot be established, or that there is a complete defense to that claim.

As for the timeliness arguments, they do not apply to the claim to the Property. Section 16061.8 only relates to trust contests, and the claim to the Property is separate and distinct from Petitioner's challenge of the Trust. California Rules of Court, Rule 3.1320(g), relates to the time for filing an amended petition after a demur is sustained, and it is not applicable to the claim to the Property because that claim was never asserted in the Petition.

In summary, Respondents have failed to show that they are entitled to summary judgment regarding the claim to the Property, and the motion is therefore denied.

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

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

IT IS SO ORDERED.

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