Judge: John B. Scherling, Case: 37-2022-00045170-PR-TR-CTL, Date: 2023-08-11 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 10, 2023

11/03/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Motion to Quash (Probate) 37-2022-00045170-PR-TR-CTL IN THE MATTER OF THE BRENNAN FAMILY TRUST, DATED JANUARY 20, 2003, AS AMENDED. [IMAGED] CAUSAL DOCUMENT/DATE FILED: Notice of Motion and Supporting Declarations, 06/09/2023

Robert Hogan and Sharron Hogan's Motion for Judgment on the Pleadings by (ROA 31) is granted with leave to amend.

I. Background: Vincent Brennan ('Decedent') and Mary Lou Brennan ('Mary Lou') created the Brennan Family Trust ('Trust') on January 20, 2003. Mary Lou died December 21, 2013, and Decedent died on June 19, 2022.

Robert Hogan and Sharron Hogan (collectively 'Respondents') are the cotrustees of the Trust.

On November 7, 2022, Decedent's nephew, Charles Brennan ('Petitioner'), filed Petition To: 1) Declare Valid the Brennan Family Trust Dated January 20, 2003; 2) Declare Invalid All Purported Trust Amendments; 3) Confirm Charles Brennan as a Beneficiary; 4) Declare Respondents Disqualified Persons Pursuant to Probate Code section 21380; 5) Remove/Suspend Trustees; 6) Find Financial Elder Abuse; 7) Impose a Constructive Trust; 8) Restrain Trustees from Using Trust Assets Pending These Trust Matters; 9) Conversion; and 10) Require Posting of Bond. (ROA 1.) The first supplement to the petition filed on March 8, 2023, adds the following causes of action: 11) Trust accounting and 12) Power of Attorney Accounting. (ROA 26.) The petition seeks an order confirming that the original version of the Trust is valid, and an order invalidating all four amendments to the Trust on various grounds including lack of capacity and undue influence from Respondents.

On April 3, 2023, Respondents filed the current motion on the ground that Petitioner lacks standing.

(ROA 31, reply at ROA 52.) They argue that Petitioner seeks to confirm the original version of the Trust as valid, the dispositive provisions of the original version of the Trust are governed by Attachment C, Petitioner is not named as a beneficiary in Attachment C, and Petitioner erroneously pled that Attachment C is not mentioned anywhere in the Trust.

Petitioner opposes the motion. (ROA 51.) He argues that the dispositive provisions of the original version of the Trust are governed by Article Sixth. Petitioner claims there are disputed factual issues as to whether Attachment C is a valid part of the Trust; Attachment C is inconsistent with the Fourth, Fifth, and Sixth Articles of the Trust, which creates an ambiguity requiring the consideration of extrinsic evidence; and Attachment C, which would devise the entire remainder of the Trust to charities, is inconsistent with Decedent's stated intent that Petitioner would receive his assets.

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2984699 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE BRENNAN FAMILY TRUST, DATED JANUARY  37-2022-00045170-PR-TR-CTL A. Judgment on the Pleadings: A motion for judgment on the pleadings may be made after the time to demur has expired and an answer has been filed. (CCP § 438(f).) Except as provided by statute (CCP § 438), the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) The factual allegations in the pleading under attack are accepted as true and given liberal construction. (Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 515–516.) If the moving party is a respondent, the motion may only be made on one of the following grounds: (1) the court has no jurisdiction; or (2) the pleading does not state facts sufficient to constitute a cause of action. (CCP § 438(c)(1)(B).) The grounds for a motion for judgment on the pleadings must appear on the face of the challenged pleading or be based on facts which the court may judicially notice. (CCP § 438(d).) The original version of the Trust contains inconsistent provisions regarding the distribution of the remainder. Pursuant to Article Sixth, the remainder is distributed to Decedent's issue, and pursuant to Attachment C, the remainder is distributed to several named charities. The Trust does not clearly specify which of these conflicting provisions should prevail.

The petition alleges that Attachment C has no force or effect because it is not mentioned anywhere in the Trust. (ROA 1, ¶¶ 32, 33.) This is incorrect because Attachment C is mentioned in the Trust's table of contents, Article First, and just below the notarization of the Trust. The petition also does not properly seek a determination that Attachment C is of no force or effect. While this is requested in the petition at paragraph 33, it is not requested in the prayer for relief. Instead, the prayer for relief requests an order 'an order validating the BRENNAN FAMILY TRUST DATED JANUARY 20, 2003.' (ROA 1, 19:9-10.) Under these circumstances, the petition does not state an adequate basis for invaliding Attachment C, nor does it contain a proper request to invalidate Attachment C. Without a proper challenge to Attachment C in the petition, Petitioner lacks standing because if Attachment C was enforced, Petitioner would not be a beneficiary of the Trust. The motion is therefore granted.

B. Leave to Amend: When there is a reasonable possibility that the defect can be cured by amendment, a motion for judgment on the pleadings should be granted with leave to amend, but the burden of proving such reasonable possibility is on the petitioner. (Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1402.) Petitioner admits that his petition incorrectly alleged that the Trust did mention Attachment C. His opposition to the motion also states several theories on which Attachment C could be found ineffective, such as ambiguity. The motion is therefore granted with leave to amend. An amended petition shall be filed a served within 10 days of the date of the hearing.

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

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

IT IS SO ORDERED.

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