Judge: John B. Scherling, Case: 37-2022-00005303-PR-LA-CTL, Date: 2024-03-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - February 08, 2024

02/09/2024  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Letters Of Administration Summary Judgment / Summary Adjudication (Probate) 37-2022-00005303-PR-LA-CTL ESTATE OF MAURICIO ORANTES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 07/31/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Summary Judgment filed by Michael Orantes (ROA 139) is DENIED.

The Request for Judicial Notice filed by Ena Orantes (ROA 179) is GRANTED in part.

The evidentiary objections filed by Ena Orantes (ROA 181) are SUSTAINED as to objection no. 9 and OVERRULED as to the remaining objections.

The evidentiary objection filed by Michael Orantes (ROA 187) is SUSTAINED.

I. BACKGROUND Mauricio Orantes ('Decedent') died on October 2, 2021.

On February 8, 2022, Decedent's daughter, Ena Orantes ('Ena') filed a petition to be appointed as the administrator of Decedent's estate, alleging that Decedent died intestate. (ROA 1.) On May 13, 2022, Decedent's son, Michael A. Orantes ('Michael'), filed objections to Ena's petition.

(ROA 16.) The objections alleges that Ena's petition only identifies one asset of the estate, which is the real property located at 1702 C Avenue, National City, CA 91950 ('Property'); Decedent transferred the Property to Michael before Decedent's death; and Decedent executed a Will on February 6, 1989 ('1989 Will') which names Michael as the sole beneficiary of Decedent's estate.

Michael filed a competing petition for probate seeking to probate the 1989 Will and to be appointed administrator of Decedent's estate. (ROA 17.) Michael attached a copy of the 1989 Will to his petition and submitted this Will to the Court, which was Deposited with the Court as Will No. D81712.

On June 24, 2022, Ena filed an objection to Michael's petition. (ROA 32.) Ena objects on the grounds that Michael has not deposited an original Will, that Michael's petition attaches a copy of a Will that is not signed, and that the Property was purchased before Decedent's third marriage to Elena Gonzalez Orantes ('Elena,' Decedent's surviving spouse and Michael's mother), making the Property separate property as there is no transmutation deed. Ena demands an evidentiary hearing on these issues.

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3064960 CASE NUMBER: CASE TITLE:  ESTATE OF MAURICIO ORANTES [IMAGED]  37-2022-00005303-PR-LA-CTL On May 13, 2022, Elena filed a spousal property petition regarding the Property. (ROA 21.) Elena alleges that the Property was community property and asserts that her petition was filed as a contingency in the event that the Court finds that the transfer of the Property to Michael was invalid.

On October 12, 2022, Michael filed a motion for summary judgment, or in the alternative, adjudication on the theory that Michael was Decedent's amanuensis. (ROA 54.) The Court denied this motion, finding that there were triable issues of fact as to what, if any, instructions Decedent provided to Michael regarding the transfer of the Property. (ROA 105, Minute Order date Jan. 20, 2023.) On January 18, 2023, Ena filed a Petition for Letters of Special Administration, as supplemented. (ROA 109, Supp. at ROA 112.) The Court granted this petition on April 15, 2023. (ROA 123, Minute Order filed Apr. 5, 2023.) The Court appointed Ena as the Special Administrator for the Estate of Mauricio Orantes and issued Letters of Special Administration with authority under Probate Code § 8544 and with the specific limited power to make reasonable efforts to determine the true nature of, and title to, property held, or rightfully belongs, in the name of Decedent. (ROA 137, Order for Probate filed Apr. 17, 2023.) On July 31, 2023, Michael filed the instant second motion for summary judgment seeking 'summary judgment in favor of Objector and Counter-Petitioner Michael A. Orantes and against Petitioner and Respondent Ena Orantes, as requested in the Objections by Michael A. Orantes to Petition of Ena Orantes [ROA 16] and the Competing Petition for Probate, etc. [ROA 17], specifically with respect to the following: that Mauricio Orantes died testate and the Salvadoran Last Will and Testament of Mauricio Orantes, dated February 6, 1989, as lodged with the court by Michael A. Orantes on or about April 3, 2023, is authentic and valid and is the Last Will and Testament of Mauricio Orantes. Michael therefore contends that the court should deny the Petition of Ena Orantes [ROA 16] and grant Michael A. Orantes' competing Petition for Probate, etc. [ROA 17].' (ROA 139, Notice of Mot. at p. 2.) On September 14, 2023, Ena filed a Petition for Letters of Special Administration (ROA 155) seeking additional limited powers to: (1) make reasonable efforts to determine the true nature of, and title to, property held, or rightfully belong, in the name of Decedent, and take such property into possession; (2) to accept service of process for the Estate; and (3) to submit to this Court any claims against the Estate which are served upon the special administrator, such that any interested person may contest the claim.

(Id.) On November 22, 2023, Ena filed an opposition to the summary judgment motion, along with a request for judicial notice and evidentiary objections. (ROA 178, 179, 181.) On December 1, 2023, Michael filed a reply and evidentiary objections. (ROA 184, 187.) On December 8, 2023, the Court granted in part and denied in part Ena's petition for letter of administration at ROA 155. (ROA 205, Minute Order filed Dec. 8, 2023 ['The Court orders as follows: [¶] 1. On the Court's own motion, the court appoints Michael Orantes as Special Administrator to accept service on behalf of the Estate only. [¶] 2. Attorney Mason to submit DE-140 and DE-150 not later than 12/22/2023. [¶] 3. The Letters of Special Administration appointing Michael Orantes are to expire on 10/05/2024.' (Id.) In addition, the Court continued the hearing on the motion for summary judgment (ROA 139) filed by Michael to February 9, 2024 in light of the second copy of the 1989 Will Michael claimed to have deposited with the Business Office on April 3, 2023. (ROA 203, Minute Order filed Dec. 8, 2023.) The Court continued the motion to allow Ena an opportunity to review and submit additional briefing regarding the copy of the certified 1989 Will purportedly from El Salvador that was determined to have been lodged on April 3, 2023, with the Probate Business Office.

The petitions at ROA 1, 17, and 21 were continued to February 9, 2024, at 2 p.m. for case management conferences to trail the motion. (ROA 192, 196, 200.) Calendar No.: Event ID:  TENTATIVE RULINGS

3064960 CASE NUMBER: CASE TITLE:  ESTATE OF MAURICIO ORANTES [IMAGED]  37-2022-00005303-PR-LA-CTL As to the petition at ROA 17, the Court ordered as follows: '1. Attorney Mason or Attorney Anderson are to file a supplement or amend ROA#17 not later than 12/15/2023 with a copy of document to be admitted to probate. [¶] 2. Attorney for Ms. Orantes is to contact Probate Manager, Nina Henson or Probate Supervisor, Kristine Snyder to view the Deposited Will (D81217) and Foreign Will submitted to the probate court.' (ROA 200, Minute Order filed Dec. 8, 2023.) On December 15, 2023, Michael filed a Supplement to Petition for Probate, supplementing the petition at ROA 17. (ROA 207, Supp. Pet. filed Dec. 15, 2023.) On February 6, 2024, Ena filed the supplemental declaration of attorney Torrence, which states that 'Petitioner will rest on the pleadings and brief already before the Court and will not amend nor supplement her Opposition to Michael A. Orantes' Motion for Summary Judgment.' (ROA 213, Torrence Decl. at ¶ 2.) No proof of service has been filed indicating proper service of this supplemental declaration of attorney Torrence on Michael.

II. DISCUSSION A. Request for Judicial Notice Ena requests the Court take judicial notice of the following: (1) notice of the filing of a will, no. D81217, on June 15, 2022, and (2) notice that no petition for probate has been filed, seeking to admit any documents as Decedent's Will other than Michael's Petition for Probate at ROA 17.

The request is GRANTED as to the first item, and the Court takes notice of the Will filed on June 15, 2022. The request is DENIED as to the second item, which is not seeking notice of any specific filing, but seeking notice of the nonexistence of any other petition for probate filed by Michael in this case. EC § 452 authorizes the Court to take judicial notice of certain matters, as specified, but it does not provide for judicial notice of the nonexistence of matters. Further, in light of the second copy of the 1989 Will filed in April 2023, the request for judicial notice is irrelevant for purposes of this motion.

B. Evidentiary Objections Ena's evidentiary objections (ROA 181) are SUSTAINED as to objection no. 9 based on relevance and OVERRULED as to the remaining objections. The statements contained in the declarations of Michael, Mercedes, and Elena are based on information and belief, and the Court finds no issues with knowledge and foundation. Ena's objection no. 7 does not state a valid evidentiary basis to sustain the objection.

Ena also objects to the copy of the 1989 Will deposited by Michael in April 2023 and the corresponding English translation (Exhs. 1 and 2 attached to the Michael's original Separate Statement of Undisputed Material Facts [ROA 140]), on the grounds that the purported testamentary instrument is not an original document that lacks a written statement under Probate Code § 8223, that it is a foreign will without proper authentication under Evidence Code § 1530(a)(3), and the Will is not properly submitted for probate under Probate Code § 8002. The Court finds no merit in these objections.

Probate Code § 8002 provides that if there is a will, '[t]he petition shall attach to the petition a photographic copy of the will,' and attach an English language translation. (Prob. Code, § 8002(b)(1), (2), emphasis added.) Probate Code § 8223 applies to lost or destroyed wills, and thus, it is inapplicable here. Evidence Code § 1530 provides that '[a] purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry' if '[t]he copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept,' and if '[t]he office in which the writing is kept is not within the United States or any other place described in paragraph (2), and the copy is attested as a correct copy of the writing or entry by a person having authority to make attestation.' (Evid. Code, § Calendar No.: Event ID:  TENTATIVE RULINGS

3064960 CASE NUMBER: CASE TITLE:  ESTATE OF MAURICIO ORANTES [IMAGED]  37-2022-00005303-PR-LA-CTL 1530(a)(1), (3), emphasis added.) Michael deposited a photography copy with an English translation, attestations and Apostille attached, evidencing issuance by the Supreme Court of El Salvador. Thus, Ena's objection nos. 15 and 16 are OVERRULED. Evidence Code § 1530 does not address admissibility of a purported will, but whether a purported copy of a will may be prima facie evidence of the existence and content of that will.

C. Compliance with the Rules of Court Michael'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 141, 186.) Further, the notice for the instant motion states that Michael moves 'for an order granting summary judgment in favor of Objector and Counter-Petitioner Michael A. Orantes and against Petitioner and Respondent Ena Orantes, as requested in the Objections by Michael A. Orantes to Petition of Ena Orantes [ROA 16] and the Competing Petition for Probate, etc. [ROA 17], specifically with respect to the following: that Mauricio Orantes died testate and the Salvadoran Last Will and Testament of Mauricio Orantes, dated February 6, 4 1989, as lodged with the court by Michael A. Orantes on or about April 3, 2023, is authentic and valid and is the Last Will and Testament of Mauricio Orantes. Therefore, the court should deny the Petition of Ena Orantes [ROA 16] and grant Michael A.

Orantes' competing Petition for Probate, etc. [ROA 17].' (ROA 139, Notice of Mot. at p. 2, emphasis added.) Thus, the notice of motion is unclear as to whether it seeks summary judgment on Michael's petition at ROA 17, and/or summary adjudication on two issues: that Decedent died intestate in El Salvador, and that the 1989 Will lodged on April 3, 2023, is the valid last will of Decedent. Thus, to the extent the motion seeks summary adjudication, the Court will not separately adjudicate the issues raised in the notice. (Cal. Rules of Court, rule 3.1350(b) ['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.'].) Moreover, as discussed below, summary judgment is DENIED because a triable issue exists as to the validity of the purported 1989 Will deposited with the Court in April 2023 ('April 2023 Will') (and attached as Exhs. 1 and 2 in support of the motion), which Ena disputes is authentic.

D. Summary Judgment 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.) In determining whether the parties have met their respective burdens, 'the court must 'consider all of the evidence' and 'all' of the 'inferences' reasonably drawn therefrom [citation], and must view such evidence Calendar No.: Event ID:  TENTATIVE RULINGS

3064960 CASE NUMBER: CASE TITLE:  ESTATE OF MAURICIO ORANTES [IMAGED]  37-2022-00005303-PR-LA-CTL [citations] and such inferences [citations], in the light most favorable to the opposing party.' (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) 'There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.' (Id. at p. 850, fn. omitted.) Thus, a party 'cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.' (LaChapelle v. Toyota Motor Credit Corp. (2002) 102 Cal.App.4th 977, 981.) 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.) Here, Michael deposited the purported 1989 Will with the Court in April 2023. Previously, Michael had originally deposited the purported 1989 Will on June 15, 2022 ('June 2022 Will'), which was attached to Michael's petition at ROA 17. Since the last hearing on December 9, 2023, Ena's counsel reviewed the April 2023 Will and, while they state that Ena will rest on the pleadings and brief already before the Court, the supplemental declaration of counsel (ROA 213) appears to challenge the authenticity of the April 2023 Will. (Id. at ¶¶ 12-14.) Indeed, Ena objects to this document on evidentiary grounds and argues that the original will has not been submitted.

The Court has closely reviewed the June 2022 Will and April 2023 Will, the two documents purporting to be the 1989 Will of Decedent. While the documents appear identical in substance, the June 2022 Will and April 2023 Will are not duplicates of each other, bearing different marks. The April 2023 Will bears the seal(s) of the Supreme Court of El Salvador and is signed with Decedent's name and the names of the witnesses. On the other hand, the June 2022 Will shows a notarial seal, while the signatures are missing, and instead, it is noted in writing that the signatures were placed. Further, the June 2022 Will bears the writing 'T.R. 0987800,' while the April 2023 Will bears 'T.R. 0409513.' The 1989 Will is a record allegedly kept by the El Salvadoran Government, and there are references in the June 2022 Will and April 2023 Will that the Will is found in Book 33 of the year 1989. Thus, the copies should presumably be identical, as obtained from Book 33. However, the discrepancies between the two documents are left unexplained, leaving for trial – and potential presentation of clarifying expert evidence testimony by the parties – the authenticity and validity of the April 2023 Will.

In his moving papers, Michael argues that he has presented sufficient evidence to authenticate the April 2023 Will, through his own declaration and the declarations of his mother, Elena, and his sister Mercedes, who is alleged to be an attorney in El Salvador. Michael further argues that the April 2023 Will includes signed and sealed attestations of its authenticity, and a signed and sealed Apostille from the Ministry of Foreign Affairs of the Republic of El Salvador. In addition, Michael argues that the April 2023 Will is self-authenticating because the original is in the custody of El Salvador, and El Salvador and the United States are parties to the Hague Convention of 1961, and the April 2023 Will has been properly attested to as the true and correct copy, with the Apostille attached.

However, while Michael, Elena, and Mercedes offer their lay opinion regarding the April 2023 Will, no person claims to have expertise in how wills are kept in El Salvador and what attestations would be sufficient to meet Evidence Code § 1530. Thus, the issue is whether the April 2023 Will meets Evidence Code § 1530 such that it may be admitted to Probate as the valid last will of Decedent.

Evidence Code § 1530 provides in pertinent part: 'A purported copy of a writing in the custody of a public entity, or of an entry in such a writing, is prima facie evidence of the existence and content of such writing or entry if: [¶] (1) The copy purports to be published by the authority of the nation or state, or public entity therein in which the writing is kept; [and] [¶] (3) The office in which the writing is kept is not within the United States or any other place described in paragraph (2) and the copy is attested as a Calendar No.: Event ID:  TENTATIVE RULINGS

3064960 CASE NUMBER: CASE TITLE:  ESTATE OF MAURICIO ORANTES [IMAGED]  37-2022-00005303-PR-LA-CTL correct copy of the writing or entry by a person having authority to make attestation. The attestation must be accompanied by a final statement certifying the genuineness of the signature and the official position of (i) the person who attested the copy as a correct copy or (ii) any foreign official who has certified either the genuineness of the signature and official position of the person attesting the copy or the genuineness of the signature and official position of another foreign official who has executed a similar certificate in a chain of such certificates beginning with a certificate of the genuineness of the signature and official position of the person attesting the copy. Except as provided in the next sentence, the final statement may be made only by a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States ....' Here, even apart from the discrepancies noted above with respect to the June 2022 and April 2023 Wills, Michael's evidence does not establish that Evidence Code § 1530 has been met. The Spanish version of the April 2023 Will includes an attestation by attorney Jose Raul Vides Munoz at the very end, following the attestation by Dr. Paula Pineda Orellana, which is missing from the English translation. This attestation by Jose Raul Vides Munoz appears to be the 'final statement certifying the genuineness of the signature and the official position of ... the person who attested the copy as a correct copy.' (Evid.

Code, § 1530(a)(3).) However, it appears that the final statement here is not made by 'a secretary of an embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular office of the foreign country.' Instead, the final statement is made by an official of the Supreme Court of El Salvador. Thus, the April 2023 Will has not been shown to be prima facie evidence of Decedent's 1989 Will.

Therefore, for the foregoing reasons, summary judgment is DENIED.

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

IT IS SO ORDERED.

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