Judge John B. Scherling, Case 37-2022-00039821-PR-TR-CTL 2023-08-11 Tentative Ruling

Judge: John B. Scherling, Case: 37-2022-00039821-PR-TR-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 10, 2023

08/11/2023 02:00:00 PM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Trust Proceedings Motion Hearing (Probate) 37-2022-00039821-PR-TR-CTL IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY TRUST, DATED MAY 14, 2020 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Dismiss, 07/05/2023

Pursuant to San Diego Superior Court Rule 4.23.7, the court's tentative ruling is as follows: Angelina Hetmer's Motion to Dismiss Petition for Lack of Jurisdiction (ROA 34) is granted.

Angelina Hetmer's Motion to Quash Subpoenas Served by Petitioners for Private Financial Records (ROA 23) is granted.

I. Background: John Hetmer ('Decedent') and Angelina Hetmer ('Angelina') executed the John and Angelina Hetmer Family Trust on May 14, 2020 ('Trust'). Decedent died on March 2, 2021.

On October 5, 2022, Teresa Dillon, Brian Hetmer, Karen Moye, Brenda Emerson, and Pearl Medina-Hicks (collectively 'Petitioners') filed a Petition for: 1. Instructions to Trustee; 2. Removal of Trustee; 3. Cancelation of Instruments; 4. Set Aside of Trustee's Acts; 5. Return of Trust Property; 6.

Compel Accounting; and 7. Surcharge. (ROA 1.) Petitioners are the children of the settlors, and their petition alleges that Angelina's daughter, Sylvia Medina Cowen, and Angelina's grandson Joseph Molina (collectively 'Respondents'), haven taken advantage of Angelina's declining mental capacity. The petition alleges that Respondents have isolated Angelina and prevented her from returning to her home in Idaho; Respondents caused Angelina to amend the Trust and execute other estate planning documents under which Respondents were named as co-trustees of the Trust; and Respondents have misappropriated Angelina's assets.

On November 21, 2021, Angelina filed an objection to the petition. (ROA 6.) She argues that this court is the wrong venue because the Trust is being administered in Idaho, and that Petitioners lack standing because she has capacity and is the settlor and trustee of the Trust. On August 3, 2023, Respondents filed an objection to the petition on similar grounds. (ROA 42.) There is a related conservatorship case, in which two of Petitioners (Teresa Dillon and Pearl Medina-Hicks) filed a petition to appoint a conservator of the person and estate of Angelina. (Case No.

37-2022-00039831-PR-CP-CTL.) The conservatorship case was ultimately dismissed without prejudice on June 27, 2023, based on lack of jurisdiction because there was insufficient evidence of Angelina's connection with California during the requisite time period.

II. Motion to Dismiss: Calendar No.: Event ID: TENTATIVE RULINGS

2995856 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY 37-2022-00039821-PR-TR-CTL A. Background: On March 20, 2023, the court ordered further briefing on the issue of Angelina's residence, and ordered the parties to submit a statement as to whether the issue could be decided on the papers or would require an evidentiary hearing. (ROA 18.) After additional briefing was filed, the court ruled as follows on June 27, 2023: The court declines to address jurisdictional or standing issues at this time. The memoranda filed by Ms.

Hetmer (ROAs 21 and 27) do not frame the issue as relating to residency (the subject of the jurisdictional issues in the related conservatorship case, 37-2022-00039831-PR-CP-CTL) but rather as legal grounds more properly the subject of a demurrer or motion as suggested by Petitioners (ROA 29).

If a motion other than for summary judgment / summary adjudication is filed and served not later than July 14, 2023, it may be set for hearing on August 11, 2023 at 2:00 p.m. If Ms. Hetmer chooses to file a motion for summary judgment or summary adjudication, it shall be set to be heard in due course.

(ROA 33.) On July 5, 2023, Angelina filed the current motion to dismiss. (ROA 34.) She argues that Petitioners lack standing because she has capacity and she is the trustee and settlor of the Trust. Angelina also argues that the court lacks jurisdiction because the Trust is being administered in Idaho.

Petitioners oppose the motion. (ROA 40.) They argue that the motion presents a factual issue that must be resolved by an evidentiary hearing, and that the evidence shows that the Trust is being administered in San Diego.

No reply has been filed.

B. Timeliness and Service of Opposition Papers: The opposition was filed five court days before the hearing instead of the required nine court days. (CCP § 1005(b).) There is also no indication that the opposition was served on Angelina. The court will presume that the opposition was served and that its untimeliness did not cause any prejudice, and Angelina may address these issues at the hearing.

C. Analysis: The petition in this matter is contested, and Petitioners have requested an evidentiary hearing on the issues of jurisdiction and standing. Under these circumstances, Petitioners would generally be entitled to an evidentiary hearing. (Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425–427.) However, the court has discretion to deny a request for an evidentiary hearing when the requesting party fails to make an offer of proof as to what evidence would be presented and the substance of that evidence. (Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377–378.) Angelina claims that the petition should be dismissed because Petitioners lack standing. This claim is based on Angelina's assertions that she is alive, has capacity, and is a settlor of the Trust. If these assertions are true, then the Petitioners, as contingent beneficiaries of the Trust, would lack standing.

(Probate Code § 15800; Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, 1145–1146; Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1204.) It is undisputed that Angelina is alive and that she is a settlor of the Trust. As for capacity, Angelina relies on a capacity declaration filed in the conservatorship matter on December 13, 2022.[1] That declaration was executed on December 7, 2022, by Lisa Considine, a licensed physician, and indicates that Angelina displays the highest level of cognitive functioning. Angelina is also presumed to have Calendar No.: Event ID: TENTATIVE RULINGS

2995856 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY 37-2022-00039821-PR-TR-CTL capacity. (Probate Code § 810(a).) On the other hand, Petitioners do not address Angelina's capacity in their opposing memorandum of points and authorities. (ROA 40.) Similarly, all of the evidence presented by Petitioners in opposition to the motion relates to where the Trust is being administered. (ROA 41 [See, e.g., concluding ¶ 8, stating 'These pieces of evidence give a prima facia showing that Ms. Hetmer is not residing in Idaho anymore, and that the Trust is being administered in Spring Valey, California.']) As such, Petitioners have not identified any evidence or made an offer of proof to show that Angelina lacks capacity. There is simply no need for an evidentiary hearing under these circumstances, and Petitioners' request for an evidentiary hearing is denied.

In summary, Angelina's unrebutted evidence and the presumption under Probate Code section 810(a) establish that she has capacity, Petitioners have failed to show the need for an evidentiary hearing on this issue, and Angelina's capacity defeats Petitioners' standing to pursue the petition. The motion is granted therefore granted and the petition is dismissed without prejudice.

III. Motion to Quash: On April 21, 2023, Angelina filed a motion to quash subpoenas served by Petitioners on the following institutions: 1) Simmons Bank; 2) Prudential Financial, Inc.; 3) Capital One, N.A.; 4) Athene Annuity & Life Assurance Company; 5) First Interstate Bank; and 6) Wells Fargo Bank, N.A. (ROA 23.) Despite proper service (ROA 25), the motion is unopposed. The subpoenas are also now moot based on the court's dismissal of the petition without prejudice. The motion is therefore granted.

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

Counsel for Angelina 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.

/n [1] Angelina did not file the capacity declaration with her motion. However, she cited to it in her memorandum of points and authorities, Petitioners' counsel has received a copy of it based on his participation in the conservatorship case as counsel for Teresa Dillon and Pearl Medina-Hicks, and Petitioners have not objected to the court considering it. The court therefore intends to take judicial notice of the declaration on its own motion.

Calendar No.: Event ID: TENTATIVE RULINGS

2995856