Judge: John B. Scherling, Case: 37-2023-00012641-PR-TR-CTL, Date: 2023-11-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 09, 2023

11/13/2023  10:00:00 AM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2023-00012641-PR-TR-CTL IN THE MATTER OF THE AMY M. REESE TRUST, 2000 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/03/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the Court's tentative ruling is as follows: The Demurrer filed by Respondent Karen Poole (ROA 80) is OVERRULED.

Respondent's Request for Judicial Notice (ROA 66) is DENIED.

I. Background On July 18, 2000, Amelia Margaret Reese, a.k.a. Amy M. Reese ('Decedent'), executed the Amy M.

Reese Trust 2000 ('Trust'). Decedent died on August 29, 2022. Decedent was survived by her brother, Michael Castro ('Petitioner'), and her niece, Karen Poole ('Respondent').

On March 21, 2023, Petitioner filed a Petition for: (1) Reformation of Trust; (2) Instructions (in the Alternative to Reformation); (3) Constructive Trust; and (4) Payment of Attorneys' Fees and Costs ('Petition'). (ROA 1.) The Petition alleges that Petitioner is the trustee of the Trust pursuant to the First Amendment dated August 5, 2022; Respondent disputes the validity of the First Amendment and is acting as trustee pursuant to the original version of the Trust; the Trust should be reformed because due to a mistake, the First Amendment does not reflect Decedent's intent that the remainder of the Trust estate be distributed in the manner determined by Petitioner; in the alternative to reformation, the Trust should be distributed pursuant to intestate succession because Decedent's son predeceased her, and the Trust contains no distribution provisions for that event; and Respondent improperly transferred the Trust's real property located at 949 Sheffield Street, Cambria, California ('Property') to herself.

Respondent has filed a related case in San Luis Obispo in which she challenges Petitioner's actions as trustee and claims the First Amendment is invalid based on Decedent's lack of capacity and undue influence from Petitioner.

On April 14, 2023, Respondent filed a motion seeking to transfer venue to San Luis Obispo. (ROA 17.) Respondent asserted that the main asset of the Trust was the Property, the Property is now titled in her individual name, and the Property is located in San Luis Obispo. The Court denied the motion finding that venue was proper in San Diego. (ROA 47, Minute Order filed Jun. 23, 2023.) Respondent alleges there is a pending motion for change of venue filed in San Luis Obispo set for Calendar No.: Event ID:  TENTATIVE RULINGS

3006084 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE AMY M.

REESE TRUST, 2000 [IMAGED]  37-2023-00012641-PR-TR-CTL November 22, 2023.

On July 24, 2023, Respondent filed a 'NOTICE OF DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER.' (ROA 71.) On August 3, 2023, Respondent filed a 'FIRST AMENDED NOTICE OF MOTION AND FIRST AMENDED DEMURRER; MEMORANDUM OF POINTS AND AUTHORITIES.' (ROA 80.) On October 30, 2023, Petitioner filed an opposition. (ROA 92.) On November 1, 2023, Respondent filed a reply. (ROA 93.) II. Discussion A. Compliance with the Rules of Court The demurrer is untimely and fails to comply with CCP § 430.40. The Petition was filed on March 21, 2023. (ROA 1.) The original Notice of Demurrer and Demurrer was filed on July 24, 2023, well past the 30 days provided for in CCP § 430.40 to file a demurrer. (ROA 71.) Respondent argues the demurrer is timely because Petitioner 'has failed to serve Karen Poole a service of summons sufficient for probate.' (ROA 80, Amended Demurrer, at p. 14.) Respondent is mistaken; a summons is not required to be issued in Probate proceedings. (See Prob. Code, §§ 17201, 17203.) Further, the Amended Notice of Motion fails to comply with CRC 3.1110(a), CRC 3.1320, and CCP § 430.60. (Cal. Rules of Court, rule 3.1110(a) ['A notice of motion must state in the opening paragraph the nature of the order being sought and the grounds for issuance of the order.'; Cal. Rules of Court, rule 3.1320(a) ['Each ground of demurrer must be in a separate paragraph and must state whether it applies to the entire complaint, cross-complaint, or answer, or to specified causes of action or defenses.' (emphasis added)]; CCP § 430.60 ['A demurrer shall distinctly specify the grounds upon which any of the objections to the complaint, cross-complaint, or answer are taken. Unless it does so, it may be disregarded.' (emphasis added.)].) In addition, '[a] demurrer must state, on the first page immediately below the number of the case, the name of the party filing the demurrer and the name of the party whose pleading is the subject of the demurrer.' (Cal. Rules of Court, rule 3.1320(e).) The amended notice states that Respondent 'will demur to MICHAEL CASTRO'S PETITION, filed on or about March 21, 2023, on the grounds stated in the below First Amended Demurrer to petition.' (ROA 80.) Thus, the Notice of Demurrer fails to state the grounds for the demurrer with specificity in separate paragraphs.

The Court also notes that Respondent's memorandum of points and authorities fails to comply with CRC 3.1113(d) ('Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.'). Although the demurrer is 15 pages long, the line spacing on pages 1-15 is such that significantly more than 28 lines are contained per page. Thus, in effect, the memorandum is longer than 15 pages. However, Respondent did not seek leave of Court to file a longer memorandum. To the extent Respondent intended to circumvent the Rules of Court and file a longer memorandum without first seeking proper leave of Court as required, the motion is not well taken.

As such, the demurrer is procedurally defective and may be denied on this basis. Notwithstanding, the Court will rule on the merits of the motion finding no prejudice to Petitioner.

B. Request for Judicial Notice Respondent requests judicial notice ('RJN') of the following: '(1) There is an existing previously filed and pending case pertaining to the internal affairs of a trust in San Luis Obispo County. (2) All the exhibits Calendar No.: Event ID:  TENTATIVE RULINGS

3006084 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE AMY M.

REESE TRUST, 2000 [IMAGED]  37-2023-00012641-PR-TR-CTL that were filed in the exhibit binder, previously filed in the Superior Court of San Luis Obispo under 23PR0008. A true and correct copy is attached. (3) A party admission of the Letter of Incompetence stating Amy M. Reese's incompetence on the proper date. Opposing counsel properly recognized said letter, which is also included in the aforementioned exhibit binder. (4) We request that Exhibit 9, Attorney Castro's petition, be judicially recognized for its existence and the timing of its filing after Karen Poole's petition and same subject matter and parties. However, this court does not take judicial notice of the assertions within the complaint except for the facts regarding the letter of incompetency which fall within the original evidence exception and are not disputed by either party.' (Sic.) (ROA 66, RJN, at pp. 6-7.) The declaration of attorney Schneidereit filed in support of the demurrer refers to an exhibit binder and the nine exhibits included in this binder, which consist of the following: 'a. Exhibit 1 - Original Trust of AMY M. REESE. b. Exhibit 2 - Original Will of AMY M. REESE. c. Exhibit 3 - Certification of Incapacity.

d. Exhibit 4 - Attorney Castro Representation Letter. e. Exhibit 5 - Amended Trust of AMY M. REESE. f.

Exhibit 6 - Will Codicil of AMY M. REESE. g. Exhibit 7 - Karen Poole's Petition filed in 23PR0008. h.

Exhibit 8 - Karen Poole's Amended Petition filed in 23PR0008. i. Exhibit 9 - Attorney Castro's Petition filed after Karen Poole's Petitions in 23PR0008.' (ROA 67, Decl.) No exhibits are attached to the RJN or the declaration of counsel in support of the RJN. (See ROA 66, 67.) Therefore, the RJN is DENIED.

C. Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] [Courts] also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) A complaint should provide defendants sufficient notice of the cause of action stated against them so that they are able to prepare their defense. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) Respondent demurs on the grounds that the Court: (1) lacks subject matter jurisdiction; (2) there is another action pending between the same parties on the same cause of action; (3) the pleading does not state facts sufficient to constitute a cause of action. (ROA 80, Amended Demurrer, at p. 5.) 1. Court's Jurisdiction Respondent argues this Court lacks subject matter jurisdiction because there is no trust asset or property, and the only property has been transferred by the trustee through a grant deed to the only beneficiary, herself. Respondent further argues that Petitioner filed a petition under Probate Code § 17200, when he should have filed a petition under Probate Code § 850. Respondent also claims that she has not submitted to the personal jurisdiction of the Court.

As to personal jurisdiction, Respondent is mistaken. In demurring to the Petition, Respondent has clearly made an appearance in this Court pursuant to CCP § 1014 and submitted to the jurisdiction of this Court. Thus, the Court has personal jurisdiction over Respondent.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006084 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE AMY M.

REESE TRUST, 2000 [IMAGED]  37-2023-00012641-PR-TR-CTL As to subject matter jurisdiction, the issue is whether this Court has jurisdiction over the trust, and matters relating to the trust. Petitioner filed a petition for instructions pursuant to Probate Code § 17200 concerning Decedent's Trust. This Petition was properly filed and served. (Prob. Code, § 17201 ['A proceeding under this chapter is commenced by filing a petition stating facts showing that the petition is authorized under this chapter.'].) The Probate Court has exclusive jurisdiction over matters concerning the internal affairs of a trust. (Prob. Code § 17000.) Assuming arguendo Petitioner should have filed a petition under Probate Code § 850, this argument does not establish that a petition under Probate Code § 17200 is improperly filed or that this Court lacks subject matter jurisdiction under the circumstances.

Significantly, in the Order denying Respondent's motion for change of venue, the Court explained: As discussed below, the proper venue in this case is based on the principal place of administration of the Trust. However, both parties claim that they are the trustee, and they are attempting to administer the Trust in separate counties. Respondent asserts she is the trustee based on the terms of the initial version of the Trust, claiming that the First Amendment is invalid based on lack of capacity and undue influence. On the other hand, Petitioner contends the First Amendment is valid and claims to be the trustee under its provisions.

...

[¶] Thus, the Court found that the Trust should be administered according to its terms, which include the First Amendment, unless and until Respondent proves that the First Amendment is invalid. Petitioner is the trustee pursuant to the First Amendment, so he is the current trustee of the Trust.

(ROA 49, Minute Order filed Jun. 23, 2023.) The Court further explained that '[t]he petition in this case concerns the internal affairs of the Trust because it seeks modification of the Trust, instructions regarding the final distribution of the Trust, and relief for a breach of the Trust. (Probate Code § 17200(a)(4), (6), (12) & (13).) Additionally, as discussed above, Petitioner is the current trustee, and he is administering the Trust in San Diego. Accordingly, venue is proper in San Diego pursuant to section 17005(a)(1).' (Id.) Therefore, the Court finds no merit in Respondent's arguments.

2. Another Pending Action Respondent demurs to the Petition on the ground there is another action pending in San Luis Obispo.

Respondent requests judicial notice of exhibits submitted in that case, of which the Court declines to take judicial notice because no exhibits are attached to the RJN. Moreover, Respondent does not provide any details regarding the claims raised in the litigation filed in San Luis Obispo, and how the pending action in another county divests jurisdiction from this Court.

Indeed, Petitioner argues that the petition filed in San Luis Obispo, which alleges undue influence and elder financial abuse, was not properly served until May 2023, well after Petitioner filed his petition in San Diego. The instant Petition does not allege such claims, and instead seeks reformation/instructions regarding the Trust, and a constructive trust over the Property.

3. Sufficiency of Pleadings To be clear, a demurrer tests the sufficiency of the pleadings in a petition, treating the material factual allegations as true; it does not test the veracity of the allegations or resolve evidentiary issues.

Respondent argues legal and evidentiary issues and does not address the pleadings in the Petition and how the pleadings are insufficient to sustain the causes of action, in effect treating the demurrer as a motion attacking the merits of the claims in the Petition. That is not the function of a demurrer.

Calendar No.: Event ID:  TENTATIVE RULINGS

3006084 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE AMY M.

REESE TRUST, 2000 [IMAGED]  37-2023-00012641-PR-TR-CTL The demurrer is devoid of any cogent arguments addressing the allegations in the Petition. For instance, Respondent argues '[t]his Court Should Not Reform the Trust to Help Attorney Castro Commit Fraud.' (ROA 80, Demurrer at p. 8.) As to capacity, Respondent further argues 'Castro failed to include in his petition the capacity standard needed to amend a trust,' attacks Petitioner's motives, and asserts that Decedent's intent to amend the trust cannot be shown to warrant reformation. Respondent then argues her position regarding Special Needs Trusts and that 'Castro advances an argument that the fraud attempted by Attorney Castro against the decedent by suppressing material term of changing the beneficiary from Karen Poole as an argument for why the transferred title of should be held in constructive trust.' (Sic.) (Id., at p. 12.) Respondent argues in circular format that 'attorney fees cannot be awarded the [sic] Castro here because this court should sustain the demurrer for each of the four aforementioned causes of action.' (Id., at p. 13.) Thus, the Court finds Respondent, as the moving party, failed to meet the burden on the demurrer.

Therefore, the demurrer is OVERRULED.

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

IT IS SO ORDERED.

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