Judge: John B. Scherling, Case: 37-2023-00015057-PR-TR-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 14, 2023

12/15/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2023-00015057-PR-TR-CTL IN THE MATTER OF THE LIVING TRUST OF WILLIAM BECKER DATED OCTOBER 17, 2022 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 09/08/2023

Pursuant to Superior Court of San Diego County Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Demurrer filed by Joann Becker is (ROA 13) is SUSTAINED without leave to amend.

DISCUSSION On April 5, 2023, Jeremy Becker ('Petitioner') filed a Petition for Order Confirming Real Property as Trust Asset ('Petition'). (ROA 1.) The Petition alleges that real property identified in the Petition is an asset that belongs to the Decedent's Trust, created by Petitioner as Decedent's agent through a Power of Attorney.

The proof of service Petitioner filed shows personal service on Joann Becker ('Respondent') on October 4, 2023. (ROA 18.) On September 8, 2023, Respondent filed the instant demurrer to the Petition pursuant to CCP § 430.10(e). (ROA 13.) Respondent demurs on the ground that the Petition fails to state facts sufficient to constitute a cause of action to confirm real property as an asset of a trust.

A. Timeliness 'A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.' (CCP § 430.40(a).) Here, the Petition was filed on April 5, 2023, and the demurrer was filed on September 8, 2023, before the date on the proof of service showing personal service of the Petition on October 4, 2023. Thus, according to the proof of service, the date of service is October 4, 2023. There is no proof the Petition was personally served on Respondent earlier than October 4, 2023, although it may be inferred from the filing of the demurrer that Respondent was in receipt of the Petition before September 8, 2023. Based on service of the Petition on October 4, 2023, and no evidence indicating an earlier service date or any objection from Petitioner, the demurrer is timely pursuant to CCP § 430.40.

B. Analysis Respondent argues that the Decedent's Power of Attorney at issue was not acknowledged and is invalid Calendar No.: Event ID:  TENTATIVE RULINGS

3019595 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE LIVING TRUST OF WILLIAM BECKER  37-2023-00015057-PR-TR-CTL under Probate Code § 4402(c), which requires acknowledgment of the principal's signature, and witnessing is insufficient to meet the requirements of § 4402(c).

Respondent further argues that Decedent's Power of Attorney did not expressly authorize the creation of the Trust. Under Probate Code § 4264, an attorney in fact under a power of attorney may create a trust on behalf of the principal only if the power of attorney expressly grants that authority. However, the Power of Attorney in this case provides that the 'Principal SHALL NOT grant any additional powers or instructions to the Agent other than the powers listed under this power of attorney.' (ROA 1, Exh. D, California Durable Power of Attorney, emphasis in original.) Thus, Respondent argues that Petitioner lacked the legal authority to create the Trust on behalf of Decedent, and the Trust is invalid.

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or 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.) Here, the Petition states that the Trust was created by Petitioner under the Power of Attorney, which is attached to the Petition as Exhibit D. A review of the Power of Attorney shows that this document was witnessed, but Decedent's signature is not acknowledged. Thus, the Power of Attorney fails to comply with Probate Code § 4402.

In addition, the Power of Attorney expressly provides that powers not granted in the document shall not be granted, and the Power of Attorney does not specifically grant the power to create a trust. Moreover, as of the date of this ruling, the Court is not in receipt of any opposition or amended petition from Petitioner, who is represented by counsel. Under Local Rule 2.1.19(B), '[t]he court may deem a lack of opposition to be a concession that a motion is meritorious.' Respondent bears the burden of establishing that leave to amend is appropriate, but without any request for leave, the Court finds leave to amend cannot be granted in this case.

Therefore, the demurrer is SUSTAINED without leave to amend.

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

IT IS SO ORDERED.

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