Judge: John B. Scherling, Case: 37-2022-00039821-PR-TR-CTL, Date: 2023-09-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 08, 2023

09/11/2023  10:00:00 AM  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 Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion to Dismiss filed by Angelina Hetmer is DENIED.

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) Cancellation 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 the 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. (ROA 78, Minute Order dated Jun. 27, 2023, in case no. 22-39831.) II. Motion to Dismiss Calendar No.: Event ID:  TENTATIVE RULINGS

3008075 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY  37-2022-00039821-PR-TR-CTL A. Procedural History 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, Minute Order dated Mar. 20, 2023.) After additional briefing was filed, the Court declined to address the jurisdiction or standing issues at that time because the issues as then framed by Angelina were not properly before the Court. (See ROA 33, Minute Order dated Jun. 27, 2023.) On July 5, 2023, Angelina filed the instant motion to dismiss. (ROA 34.) On August 10, 2023, the Court issued its tentative ruling on the motion to dismiss, granting the motion and dismissing the petition without prejudice. (ROA 43, Minute Order dated Aug. 10, 2023.) Based on the parties' arguments and requests at the August 11, 2023 hearing, the motion was continued to September 11, 2023 to allow additional briefing. (See ROA 52, Minute Order dated Aug. 11, 2023.) On August 15, 2023, Petitioners filed a supplemental declaration of counsel with exhibits in support of the opposition. (ROA 53.) On August 25, 2023, Angelina filed her reply. (ROA 55.) B. Discussion 1. Moving The motion is made pursuant to Probate Code §§ 15800, 17002, and 17005(a)(2), and on the ground the Court lacks subject matter jurisdiction. Angelina argues the petition should be dismissed because Petitioners lack standing. First, Angelina argues that Respondents Sylvia Cowen and Joseph Molina are not presently the trustees: Angelina is the trustee and the real party in interest. Second, Angelina argues that the petition is premature because the trustor with the power to revoke the trust, Angelina, is still alive. (See Estate of Giraldin (2012) 55 Cal.4th 1058.) Third, Angelina argues that Petitioners' contingent interest has not vested. Thus, Petitioners, as the contingent beneficiaries of a revocable trust, lack standing under Probate Code § 15800. The lack of standing is jurisdictional.

Angelina further argues Probate Code § 17200 does not provide relief against Respondents, the named successor trustees, while Angelina is the trustee.

Moreover, Angelina argues the petition should be dismissed pursuant to Probate Code § 17202 because she has capacity, and as Petitioners have no vested interests in the revocable Trust under Probate Code § 15800, Petitioners have no interests to be protected.

Lastly, Angelina contends the Court lacks subject matter jurisdiction because Petitioners brought a premature proceeding under Probate Code §§ 17200 and 15800. Petitioners only have an expectancy in a revocable trust and thus, no actual controversy exists between the parties. Therefore, the court lacks subject matter jurisdiction.

As to the claims of financial elder abuse, Angelina argues these are precluded by Tepper v. Wilkins (2017) 10 Cal. App. 5th 1198, 1203 (Tepper), which makes clear Angelina is the only party who has standing to file an elder abuse claim while she's alive. Petitioners do not hold a representative capacity or office on behalf of Angelina and thus, they are precluded by the provisions of Welfare and Institutions Code § 15600 et. seq., based on lack of standing under Tepper, to bring claims for elder abuse.

2. Opposition Calendar No.: Event ID:  TENTATIVE RULINGS

3008075 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY  37-2022-00039821-PR-TR-CTL Petitioners oppose the motion. (ROA 40.) Petitioners argue the question of jurisdiction hinges on where the Trust is being administered, and because the evidence shows it is being administered in San Diego, the motion must be denied.

Petitioners argue the request for dismissal under Probate Code § 17202 must be made by petition, not by motion. Citing to Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425-426, Petitioners argue an evidentiary hearing is required under Probate Code § 17202 and request such a hearing. Petitioners assert that the issues of subject matter jurisdiction and standing are questions of fact that must be resolved by an evidentiary hearing, and the evidence shows the Trust is being administered in San Diego.

In reply, Angelina urges the Court to uphold the tentative ruling from August 10, 2023, granting the motion to dismiss without prejudice. (ROA 55.) 3. Analysis There is no statutory authority for using a motion to dismiss to challenge pleadings. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2022) ¶ 7:370; Thomas, California Civil Courtroom Handbook and Desktop Reference (Expert Series 2022) § 11:44.) Nonetheless, some cases have stated a motion to dismiss may serve the same function as a general demurrer. (Ibid.; see, e.g., McKay v. Riverside County (1959) 175 Cal.App.2d 247, 249; Barragan v. Banco BCH (1986) 188 Cal.App.3d 283, 299.) However, '[t]he procedure of moving to dismiss an action based on extrinsic evidence is disapproved in California and the motion is permitted only where it complies with the requirements for a motion for summary judgment.' (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) Here, Angelina refers to the motion as a 'motion to dismiss,' but she does not provide any legal authority for the basis of the motion. She relies on facts that are not alleged in the petition or – with the exception of the capacity declaration filed in the conservatorship matter on December 13, 2022 – potentially subject to judicial notice, and she disputes the facts alleged in the petition. A demurrer assumes all facts pleaded are true and must be based on matters that appear on the face of the petition or that are subject to judicial notice. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6; Saint Francis Memorial Hospital v. State Department of Public Health (2021) 59 Cal.App.5th 965, 973-974; CCP § 430.30(a).) As such, the current motion cannot be treated as a demurrer.

The motion also seeks dismissal based on extrinsic evidence. However, it does not comply with the procedural requirements for a motion for summary judgment (CCP § 437c), and therefore cannot be treated as such.

Angelina nevertheless contends that Probate Code section 17202, which provides that the '[t]he court may dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trustee or beneficiary,' authorizes the court to dismiss the petition. The Court disagrees. First, Angelina relies on Saks v. Damon Raike and Company (1992) 7 Cal.App.4th 419, and her reliance on that case is misplaced. Saks concerned a demurrer in a civil case, and it did not address the court's powers under section 17202. Second, while the court's power under section 17202 is broad, section 17202 does not specify the procedural mechanism upon which such a dismissal may be made.

As such, it does not authorize dismissal on a motion when there are contested factual issues and the parties do not agree to proceed without an evidentiary hearing. (Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425-427.) Finally with respect to procedural issues, to the extent Angelina might argue that the determination regarding jurisdiction in the conservatorship case is controlling in this case, the Court would disagree.

Jurisdiction in a conservatorship matter is determined based on different circumstances than jurisdiction in a trust matter. (See Prob. Code, §§ 1991, 1993, 1700 et seq.) Calendar No.: Event ID:  TENTATIVE RULINGS

3008075 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY  37-2022-00039821-PR-TR-CTL Even if the Court were to consider Angelina's arguments despite the foregoing procedural and legal hurdles, the Court notes that '[w]hen a demurrer or pretrial motion to dismiss challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint. Instead, the court must first determine standing by treating the properly pled allegations as true. If, having taken the allegations as true, the court finds no standing, it should sustain the demurrer or dismiss the petition. If it finds standing by contrast, the court should allow the litigation to continue. [Citations.]' (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827 (Jennings) [held the Probate Code grants standing in probate court to individuals who claim the trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.].) Further, a 'beneficiary' for trust purposes is 'a person who has any present or future interest, vested or contingent.' (Prob. Code, § 24(c).) A beneficiary is permitted to petition the probate court under section 17200 regarding the internal affairs of a trust. (Prob. Code, § 17200(a).) '[W]hen a plaintiff claims to be a rightful beneficiary of a trust if challenged amendments are deemed invalid, she has standing to petition the probate court under section 17200.' (Jennings, at 828.) Petitioners filed a petition under Probate Code § 17200. (ROA 1.) It is undisputed that Petitioners are contingent beneficiaries under the trust and thus, they are beneficiaries within the meaning of Probate Code § 24(c). As beneficiaries and based on allegations of undue influence and incompetence in the petition, Petitioners would have standing to bring a petition under Probate Code § 17200. (Jennings, supra, at 828.) The beneficiaries of a trust have a right to maintain an action for breach of trust under Probate Code § 15800 following the death or incapacity of the settlor. (Estate of Giraldin, supra, 55 Cal.4th 1058, 1074, emphasis added.) Probate Code § 15800 does not preclude standing because Angelina's competence has been placed at issue. As such, the petition is not premature, and it may not be dismissed at this stage pursuant to Probate Code § 17202 without an evidentiary hearing or trial.

As to the elder abuse allegations, Petitioners rely on these allegations in support of their claim for cancellation of trust under Probate Code § 17200. There is no independent claim for elder abuse such that the cause of action would be barred under Tepper, supra, 10 Cal.App.5th 1198, as Angelina contends.

In any event, although the Court allowed Angelina to file a motion regarding jurisdiction and standing on June 27, 2023, the Court did not allow Angelina to abandon the Code of Civil Procedure. In the absence of any authority authorizing dismissal of the petition on a motion, the Court is left with three options: (1) resolve the issues on the papers if agreed to by the parties; (2) determine the issues at an evidentiary hearing; (Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 425-427); or (3) 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).

The first option is unavailable because Petitioners have requested an evidentiary hearing on these issues. (ROA 29, 40.) Since the last hearing on August 11, 2023, Petitioners filed the supplemental declaration of counsel with additional evidence. The evidence includes Angelina's medical records from a hospital admission in October 2021, which put at issue Angelina's competence. (ROA 53, Stillwell Decl., Exhs. A-E.) Petitioners previously submitted evidence in support of the opposition indicating that Angelina may be residing in San Diego. (ROA 41.) Based on Petitioners' proffers rebutting the capacity declaration filed in the conservatorship case and on Petitioners' submissions on the issue of Angelina's residence, the Court declines to exercise its discretion to deny the matter without an evidentiary hearing.

As such, the only option is to resolve these issues at an evidentiary hearing or trial.

In summary, the motion to dismiss is denied without prejudice as procedurally improper and as otherwise warranting resolution at an evidentiary hearing or trial.

Therefore, the motion to dismiss is DENIED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3008075 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE JOHN AND ANGELINA HETMER FAMILY  37-2022-00039821-PR-TR-CTL Attorney for Petitioners is directed to serve notice of ruling in accordance with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

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