Judge: John B. Scherling, Case: 37-2022-00037514-PR-TR-CTL, Date: 2023-12-22 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - December 21, 2023

12/22/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Probate  Trust Proceedings Summary Judgment / Summary Adjudication (Probate) 37-2022-00037514-PR-TR-CTL IN THE MATTER OF THE BOBBY R. HUBBERT LIVING TRUST, DATED SEPTEMBER 18, 1990 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/25/2023

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 (ROA 94) filed by Erik Hubbert is DENIED.

The Joinder to the motion (ROA 108) filed by Emma Hubbert is GRANTED.

The Request for Judicial Notice (ROA 109) filed by Emma Hubbert is GRANTED pursuant to EC § 452(d) as a court record.

The Request for Judicial Notice (ROA 135) filed by Eldon Tindugan is GRANTED pursuant to EC § 452(d) as a court record.

The evidentiary objections to the declaration of Emma Hubbert filed by Eldon Tindugan (ROA 131) are OVERRULED based on relevance and EC § 1250.

The evidentiary objection to the declaration of attorney Benjamin Green filed by Eldon Tindugan (ROA 132) is OVERRULED based on relevance, and declarant's personal knowledge as the attorney who drafted the testamentary documents at issue, and his availability to testify if called as a witness.

The evidentiary objections to Eldon Tindugan's declaration filed by Erik Hubbert (ROA 141) are OVERRULED as to objection nos. 1, 5, 7, and 8, which are statements by Tindugan based on his personal knowledge or conduct. Objection no. 4 is SUSAINED as hearsay. The remaining objections are SUSTAINED based on relevance as to objection no. 2, lack of personal knowledge as to objection no. 3, and lack of foundation and authentication as to objection no. 6. Objection no. 9 is not a proper objection as it is directed at Tindugan's responses to Hubbert's Separate Statement of Undisputed Material Facts, and not to any specific evidence.

The evidentiary objections to Eldon Tindugan's declaration filed by Emma Hubbert (ROA 147) are SUSTAINED as to objection nos. 1 and 3 based on lack of foundation, and hearsay as to objection no.

2.

The Court notes that objection no. 4 (ROA 141) and objection no. 2 (ROA 147) are directed at paragraph 4 of Tindugan's declaration at ROA 136, which states '[w]hen my mother informed Decedent of her pregnancy, Decedent denied he was responsible for the pregnancy, explaining he had undergone a Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL vasectomy therefore was unable to bear children.' Thus, although the objections are sustained on the present record, evidence of Decedent's vasectomy is admitted through Emma's declaration. (See ROA 112, at ¶ 5.) I. BACKGROUND On September 18, 1990, Bobby R. Hubbert ('Decedent') executed the Bobby R. Hubbert Living Trust ('Trust'). The Trust was thereafter amended by the First Amendment on November 15, 2013, and the Second Amendment on November 21, 2013. On October 31, 2013, the Trust was restated by the Third Restatement and Decedent's Will was created. Decedent died on January 23, 2021. Monica Cardenas Rodriguez ('Rodriguez') is the trustee of the Trust.

On October 18, 2022, Eldon Tindugan ('Tindugan') filed a Petition: (1) To Find that Eldon Tindugan is an Omitted Child Pursuant to Prob. Code § 21622 and to Authorize and Direct the Trustee of the Trust to Convey or Transfer Assets Held in or Allocable to the Trust to Eldon Tindugan in Proportion to His Share of Settlor's Estate Pursuant to Prob. Code § 21622; (2) To Invalidate the Appointment of Monica Cardenas Rodriguez as Successor Trustee of the Trust and Immediately Suspend Her Authority as Trustee; (3) To Appoint a Neutral Third Party as Successor Trustee of the Trust; (4) To Modify Trust to Address Trustee Compensation; (5) To Authorize and Direct Conveyance or Transfer of Property to the Trust Pursuant to Prob. Code § 850 and for Double Damages and Attorney Fees from Monica Cardenas Rodriguez Pursuant to Prob. Code § 859; (6) For Constructive Trust; (7) To Enjoin Monica Cardenas Rodriguez from Using Trust Assets to Fund Her Defense in this Matter; (8) To Enjoin Any and All Further Distributions from the Trust Pending Determination of Eldon Tindugan's Status as an Omitted Child; (9) To Deny Compensation to Monica Cardenas Rodriguez For Services Rendered as Trustee; (10) To Deny Compensation to Monica Cardenas Rodriguez's Attorneys; (11) For Damages, Attorney's Fees, and Costs Pursuant to Prob. Code § 16061.9; and (12) For Punitive Damages Pursuant to Civ. Code § 3294 ('Petition'). (ROA 6.) The Petition alleges: Decedent and Tindugan's mother had an intimate relationship in the Philippines in 1965 resulting in Tindugan's mother becoming pregnant; Tindugan's mother informed Decedent of the pregnancy but he denied being the father because he had undergone a vasectomy; prior to 2018, Tindugan last saw Decedent on Tindugan's eighth birthday in 1974 while Tindugan was still residing in the Philippines; in December 2017, Tindugan took a DNA test through Ancestry.com that indicated that Decedent was Tindugan's biological father; Tindugan reestablished contact with Decedent in February 2018 and informed him of the DNA test results; and Decedent accepted the information as accurate, acknowledged Tindugan as his son, and continued to maintain contact with Tindugan until his death.

On December 8, 2022, Decedent's son, Erik A. Hubbert ('Hubbert') filed a demurrer to the petition.

(ROA 15, reply at ROA 48.) Decedent's surviving spouse, Emma Martinez Molinero Hubbert ('Emma'), and Rodriguez filed joinders to the demurrer. (ROA 25, 27.) The Court overruled the demurrer, finding that the Petition alleged sufficient facts to sustain a claim under Probate Code § 21622. (ROA 56, Minute Order filed Feb. 24, 2023.) On August 25, 2023, Hubbert filed the instant motion for summary judgment. (ROA 94.) Hubbert moves on the grounds that there is no triable issue of material fact in that Tindugan has not pleaded and cannot establish that he is an omitted child entitled to a share of Decedent's estate under Probate Code § 21622. Emma filed a joinder to the motion. (ROA 108.) On December 1, 2023, Tindugan filed an opposition and supporting documents. (ROA 129.) On December 15, 2023, Hubbert filed a reply and supporting documents. (ROA 139.) Emma also filed a reply and supporting documents. (ROA 144.) II. DISCUSSION Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL A. Compliance with the Rules of Court As a preliminary matter the Court notes that Hubbert's exhibits fail to comply with CRC 3.1100(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 142, Anderson Decl.) In addition, there is no index of exhibits provided as required under CRC 3.1110(f)(1). (Cal. Rules of Court, rule 3.1110(f)(a) ['An index of exhibits must be provided. The index must briefly describe the exhibit and identify the exhibit number or letter and page number.'].) Hubbert is reminded that compliance with the Rules of Court is mandatory. The parties are expected to comply with all applicable rules in the future.

B. Motion 1. Argument Hubbert argues that Tindugan's Petition is without merit under Probate Code § 21622 ('§ 21622').

Hubbert argues that the material facts in Rallo v. O'Brian (2020) 52 Cal.App.5th 997 ('Rallo'), are identical to the facts in the instant case, and thus, Rallo applies and is binding on this Court. Under Rallo, therefore, Hubbert argues that Tindugan cannot meet the requirements of § 21622: Decedent was aware of Tindugan's birth and did not believe Tindugan was dead, and Decedent did not fail to provide for Tindugan solely because Decedent was not aware of Tindugan's birth or believed he was dead.

Hubbert contends that § 21622 is clear and no interpretation is required.

Hubbert further contends that Estate of Della Sala (1999) 73 Cal.App.4th 463 ('Della Sala'), which was cited and quoted in the Court's order overruling the demurrer, did not hold that an omitted child included those whose parent was aware of the child's birth but not of their relationship to the child. Hubbert argues that the quoted portion was dictum and there is no other appellate decision that has held contrary to Rallo.

Analogizing to Rallo, Hubbert argues that the facts, for purposes of this motion, are virtually identical: Decedent had an intimate relationship with Tindugan's mother; Decedent was aware of Tindugan's birth and was even told by Tingugan's mother that Tindugan was his child; and Decedent saw Tindugan on his eighth birthday. Thus, according to Hubbert, Decedent unquestionably was aware of Tindugan's birth for purposes of § 21622.

Hubbert argues – assuming arguendo that Decedent was not aware Tindugan was his child at the time he executed his testamentary instruments – that Tindugan still does not qualify under § 21622 because 'the holding in Rallo necessarily includes that an omitted child does not qualify to take a share of a decedent's estate when the decedent was aware of the child's birth but not aware the child was his at the time he executed his testamentary instruments.' (ROA 94, Mot. at p. 5.) Decedent concurrently executed his pour-over Will and the Third Restatement of Declaration of Trust on October 31, 2013, which according to Hubbert, make up 'decedent's testamentary instruments' as that phrase is defined in Probate Code § 21601, and they are meant to operate in conjunction with each other. Hubbert argues that Decedent's testamentary instruments not only state a specific intent to omit to provide for any heir not named in his testamentary instruments, but also expressly and clearly state an intent to not provide for any person claiming to be an heir. Hubbert thus contends that it is irrelevant whether Decedent understood, knew, or believed that Tindugan was his child because Decedent Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL expressly stated an intent to omit Tindugan and, under Rallo, the omission was intentional and not solely because he was unaware of the child's birth.

In support of the motion, Hubbert submitted the declaration of attorney Green, who purportedly drafted Decedent's Will and Trust amendments, along with Decedent's Will executed on October 31, 2023. (See ROA 96, Green Decl., Exh. 1.) Hubbert resubmitted the Will and attorney Green's declaration, with two emails exchanged between Hubbert's counsel and attorney Green regarding the Will. (ROA 142, Anderson Decl., Exhs. 1-4.) Emma joins in Hubbert's motion and files her own Separate Statement of Undisputed Material Facts and declaration in support of the motion. (ROA 133.) In opposition, Tindugan argues that whether Decedent was aware of Tindugan's birth and Decedent's knowledge of his relation to Tindugan as of November 21, 2013 are disputed issues. Tindugan argues that Decedent believed that he was infertile at the time he learned that Petitioner's mother was pregnant and when he attended Petitioner's eighth birthday party. Tindugan asserts that Decedent believed Petitioner was not his biological child until Petitioner presented Decedent with DNA test results in or about February 2018, long after the Trust was executed.

Tindugan argues that at the time Decedent executed his most recent estate plan, had he known that Tindugan was his son, or was concerned Tindugan might claim to be his child, Decedent could have included a general disinheritance clause or specifically disinherited Petitioner in the Trust, but Decedent did neither. The plain language of the Trust itself definitively establishes that Decedent did not know he was Petitioner's father when the Trust was executed. (See ROA 130, Evid., Exh. 1, at § I.E [Third Restatement of Declaration of Trust providing that Decedent 'has one adult child, Erik A. Hubbert.

Settlor has no other children, living or deceased.'].) In reply, Hubbert argues that Rallo rejected the argument that 'awareness of birth' requires a knowledge of parentage, Rallo held to the contrary, and this Court is bound by the holding in Rallo.' (ROA 139, Reply at p. 2.) Hubbert claims that Rallo found that awareness of the birth of the child did not require or include an awareness of decedent's parentage of the child. Hubbert further contends that Tindugan does not offer any evidence whatsoever with respect to the second requirement to be deemed an omitted child pursuant to § 21622, and that Tindugan's allegations are speculative, self-serving, and inadmissible.

In reply, Emma argues that Decedent knew Tindugan could have been his child, and Tindugan's interpretation of § 21622 is unreasonable. Emma argues that 'a much more measured and reasonable interpretation of the statute is that it bars children that the decedent knew he could have fathered.' (ROA 144, Reply at p. 3.) According to Emmna, there is abundant evidence that prior to 2013 Decedent knew that he could have fathered Tindugan. Because the evidence shows that Decedent knew he could have fathered Tindugan, Tindugan cannot meet his burden of showing that the sole reason Decedent did not provide for him was his unawareness of Tindugan's birth. Given this evidence, Emma contends that the Court is not required to accept Tindugan's allegations as true as it must on a demurrer, and the ruling on the demurrer does not prevent the Court from accepting Emma's interpretation of § 21622.

Lastly, Emma argues that Tindugan's evidence (the DNA test result and his declaration) is inadmissible and should be disregarded.

2. Legal Standard 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL 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 [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 defendant meets its 'burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.' (CCP § 437c(p)(2).) Once the defendant meets that burden, 'the burden shifts to the plaintiff or cross-complainant 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 plaintiff '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.) 'Findings of fact and conclusions of law are required after the trial of a question of fact by the court. They have no place in summary judgment procedure which seeks to discover whether there is anything to try and is concerned with issue finding, not issue determination.' (EHP Glendale, LLC v. County of Los Angeles (2011) 193 Cal.App.4th 262, 275, citations and quotations omitted.) 3. Analysis 'If, at the time of the execution of all of decedent's testamentary instruments effective at the time of decedent's death, the decedent failed to provide for a living child solely because the decedent believed the child to be dead or was unaware of the birth of the child, the child shall receive a share in the estate equal in value to that which the child would have received if the decedent had died without having executed any testamentary instruments.' (Prob. Code, § 21622.) '[A]n omitted child's recovery under section 21622 is conditional: (1) the decedent must have been unaware of the child's birth (or mistaken about the child's death), and (2) the decedent must have failed to provide for the unknown child solely because of that lack of awareness (or mistaken belief).' (Rallo, supra, 52 Cal.App.5th 997, 1009.) Thus, 'a living child who desires to 'override' a parent's testamentary disposition of his property to obtain a distribution contrary to it must prove 'the sole reason [the parent] did not provide for [the child] was a mistaken belief [the child] was dead [or an unawareness of the child's birth].' [Quoting Della Sala, supra, 73 Cal.App.4th 463, 469-470.]' (Id. at 1007, emphasis added.) Extrinsic evidence is admissible to show lack of intent to omit a child. (Estate of Torregano (1960) 54 Cal.2d 234, 243–248 ('Torregano').) Here, the Will provides that Decedent '[has] no other children, living or deceased.' (ROA 96, Exh. 1, at ¶ 2.) The Will further provides that '[e]xcept as otherwise provided in this Will, I have intentionally omitted to provide herein for any of my heirs, or persons claiming to be my heirs, living at the date of my death, whether or not known to me.' (Id., at ¶ 6.) The Third Restatement of Declaration of Trust, on the other hand, provides that Decedent 'is not married. Settlor has one adult child, Erik A. Hubbert. Settlor has no other children, living or deceased.' (ROA 130, Evid., Exh. 1, at § I.E.) Unlike the Will, the Trust does not include a disinheritance clause.

Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL Rallo, which addressed the trial court's ruling on a demurrer, does not address the precise situation here, past the pleading stage on a motion for summary judgment, where the parties' mere allegations are insufficient to carry the burden of production. Evidence must be presented to meet that burden. The evidence presented here consists of Decedent's Will and the Third Restatement of the Trust, both executed on October 31, 2013 (and not November 21, 2013, as argued in Tindugan's opposition), and the declarations of the Tindugan, Emma, and attorney Green, who drafted the testamentary documents.

Rallo is also factually distinguishable from the instant case. In Rallo, while the omitted child (Kimberly) alleged that although the decedent paid the delivering doctor, she also alleged, as in this case, that the decedent was not aware she was his child when he executed the trust; that alleged unawareness at the time of execution, however, was not because the decedent in Rallo had been unaware of the parental relationship, but because he allegedly forgot about it due to his cognitive impairments coupled with the passage of time. (Rallo, supra, 52 Cal.App.5th at p. 1004.) The parties have presented no evidence in the instant case suggesting a loss of awareness by Decedent; rather, Tindugan contends that Decedent never was aware of the parental relationship until well after the execution of the Trust. That contention initially is supported by Decedent's belief he was infertile due to his vasectomy (see ROA 112, ¶ 5), and is further supported by the express statement in the Third Restatement that Decedent had no children other than Hubbert. And Mr. Green, the drafting attorney, confirms that Decedent was of sound mind when he executed the documents. (ROA 96.) While evidence at trial (see, e.g., ROA 112, Emma's Decl.) may or may not be sufficient to overcome the evidence of lack of awareness as expressed in the Third Restatement, it is sufficient to preclude summary judgment here.

To the extent that reading § 21622 regarding the awareness of the birth of the child as set forth in the Court's decision overruling the demurrer is a departure from a literal reading of the statute, as noted in Rallo, a departure from that literal language is appropriate when the literal language would yield an unreasonable result – here potentially including a child for whom Decedent was unaware of the actual parent-child relationship. (See ROA 56 [order overruling Hubbert's demurrer].) For purposes of summary judgment, the evidence of that unawareness here is sufficient to warrant denial of the motion.

Beyond triable issues as to whether Decedent was 'unaware of the birth of the child' under § 21622, Tindugan has the ultimate burden of proving that Decedent must have failed to provide for Tindugan solely because of a lack of such awareness. (Rallo, supra, 52 Cal.App.5th at p. 1009.) It is undisputed that Tindugan presented the DNA test result to Decedent in February 2018, and thus, Decedent was presumably aware that Tindugan was his child at that point. Emma suggests Decedent may have believed Tindugan was his son in 2013 when the testamentary documents were executed. Evidence that Decedent did not amend the testamentary documents after February 2018, coupled with the disinheritance provision in the Will and the Trust language, and evidence of Decedent's state of mind at the time of execution of the Will and Trust documents, are probative of Decedent's intent and whether he intentionally omitted Tindugan from the Will and/or Trust.

The trust at issue in Rallo included a general disinheritance clause, disinheriting any other potential heirs living at the time of the decedent's death. In contrast, there is no express disinheritance provision included in Decedent's Trust, which provides only that Decedent has no other children, living or dead.

Instead, a disinheritance provision is only included in the Will, which was executed simultaneously with the Third Restatement of the Trust. Mr. Green, the drafting attorney, states that Decedent understood the documents and they accurately expressed his intent. (ROA 96.) Although the Will pours over into the Trust, on this record, the Court cannot rule out the inference that Decedent may have had reason for the distinction between the Will and Trust, even if the two documents are considered together as Hubbert urges. In other words, the disinheritance provision in the Will arguably is ambiguous evidence of Decedent's testamentary intent, not a conclusive bar to a claim under § 21622 for purposes of summary judgment. In any event, unlike in Rallo, there is no disinheritance provision included in the Trust, which is the document underlying Decedent's Petition, from which to conclude that 'the decedent did not fail to provide for an unknown child solely because he was unaware of the child's birth.' (Rallo, at p. 1010.) As such, Decedent's intent is not clear and there are triable issues with respect to his intent.

Calendar No.: Event ID:  TENTATIVE RULINGS

3014853 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BOBBY R.

HUBBERT LIVING TRUST, DATED  37-2022-00037514-PR-TR-CTL Based on the evidence submitted by the moving party, the Court finds there are triable issues regarding Decedent's testamentary intent, particularly considering Emma's declaration which suggests that Decedent may have believed that Tindugan could have been his son. Emma argues that 'awareness' within the meaning of § 21622 means awareness that Decedent could have fathered Tindugan. Thus, Emma raises the possibility that – despite his belief in his infertility due the vasectomy and despite the statement in the Third Restatement to the Trust that he had no other children – Decedent could not affirmatively deny his paternity at the time of execution of the testamentary documents. Indeed, Decedent returned to the Philippines for Tindugan's eighth birthday, from which it may be inferred that Decedent may not have been completely convinced that Tindugan was not his child, or at least recognized some possibility of paternity.

Further, while Tindugan did not present any evidence (beyond the Restatements to the Trust) and his declaration regarding Decedent's intent, and most of Tindugan's allegations contained in the declaration are not evidence, as the moving party, Hubbert bears the initial burden of production to make a prima facie showing that no triable issues exist. The evidence Hubbert submitted does not conclusively establish Decedent's intent, but raises issues as to Decedent's intent, as discussed above. Moreover, particularly in view of the statement in the Trust that Decedent has no children other than Hubbert, the Court cannot find that Hubbert has presented sufficient evidence that there are no triable issues with regard to Decedent's intent: that Decedent did not provide for Tindugan for reasons other than that Decedent lacked awareness under § 21622. Thus, while Tindugan will bear the burden of proof at trial, Hubbert fails to shift the burden of production to Tindugan for purposes of summary judgment.

As noted above, the Court must both liberally construe the evidence and resolve doubts concerning the evidence in favor of the party opposing summary judgment (Dore, supra, 39 Cal.4th at p. 389) and must view the evidence and reasonable inferences in the light most favorable to the opposing party (Aguilar, supra, 25 Cal.4th at p. 843). Based on the applicable standards and the foregoing discussion, the motion for summary judgment is DENIED.

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

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

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3014853