Judge John B. Scherling, Case 37-2023-00019976-PR-TR-CTL 2023-10-13 Tentative Ruling

Judge: John B. Scherling, Case: 37-2023-00019976-PR-TR-CTL, Date: 2023-10-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 12, 2023

10/13/2023 02:00:00 PM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Trust Proceedings Motion Hearing (Probate) 37-2023-00019976-PR-TR-CTL IN THE MATTER OF SILVER LIVING TRUST, DATED AUGUST 20, 1984, AS AMENDED, AND ITS SUBTRUSTS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Change of Venue, 07/27/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Change of Venue filed by Patricia Aronsson is DENIED.

The Motion to Consolidate Cases filed by Alanna Beth Light is DENIED.

The Request for Judicial Notice filed Patricia Aronsson (ROA 33) is GRANTED pursuant to EC § 452(c) as court records.

The Request for Judicial Notice filed by Alanna Beth Light (ROA 13) is GRANTED pursuant to EC § 452(d) as court records. The remaining requests (ROA 15 and 21) are duplicates of the request at ROA 13. Thus, these requests are DENIED as moot.

I. Background Ruth and Alvin Silver created the Silver Living Trust dated August 20, 1984, as amended and restated ('Trust'). Ruth died on June 8, 2004, survived by Alvin, who died on February 7, 2022. The settlors were survived by their two children: Alanna Beth Light ('Petitioner'), the successor trustee of two of the three subtrusts under the Trust (the Marital Deduction Trust and Bypass Trust) and Arthur Lamont Silver.

Patricia Aronsson ('Respondent') is the successor trustee of the Survivor's Trust, the third subtrust under the Trust, and nominated executor of Alvin's estate under his Will. The petition arises from a disagreement between Petitioner and Respondent regarding the allocation of assets between the three subtrusts of the Trust.

On May 10, 2023, Petitioner filed a 'Petition to Determine and Establish Ownership of Trust Assets (Real Property and Personal Property) and Allocation Between Subtrusts; Petition for Instructions,' ('Petition'). (ROA 1.) On May 15, 2023, Respondent filed a 'Petition to Determine Existence of Trusts and to Confirm Appointment of Successor Trustee; and to determine ownership of real or personal property, title or possession of which is in the trustee of the Survivor's Trust of the Silver Living Trust and the property, or some interest, is claimed to belong to the trustee of the Marital Deduction and Bypass Trust of the Silver Living Trust; and to establish an equitable division of property between sub-trusts; and to Confirm title to Calendar No.: Event ID: TENTATIVE RULINGS

3003214 CASE NUMBER: CASE TITLE: IN THE MATTER OF SILVER LIVING TRUST, DATED AUGUST 20, 1984, 37-2023-00019976-PR-TR-CTL other trust property' (Sic.) in Santa Clara County Superior Court, in Case No. 23PR194947, of which the Court takes judicial notice.

The Petition alleges that after Ruth died in 2004, and by its terms, the Trust was to be divided into three subtrusts: the Marital Trust, Bypass Trust, and Survivor's Trust. (ROA 1, Pet., ¶ 1.) However, the three subtrusts were never properly funded by Alvin. (Id.) The Petition alleges that from the death of the predeceased trustor (Ruth) in 2004 until his death in February 2022, the surviving trustor (Alvin) sold and acquired assets, transferred title to assets, made gifts, and generally treated the entire trust estate as his own without any regard to what assets belonged to what subtrust, and what income should be allocated to each subtrust. (Id., ¶ 2.) As a result, the Trust estate grew substantially from 2004 to 2022, but in one trust instead of three smaller subtrusts, and a significant portion of the trust estate assets are held in the Lucky Children, LLC., which the trustors created in 2004 shortly before Ruth's death. (Id.) On July 26, 2023, Petitioner filed a motion to consolidate cases. (ROA 23.) Petitioner moves for an order transferring to this Court the petition filed and pending in Santa Clara County Superior Court, in Case No. 23PR194847 (filed by Respondent on May 15, 2023), consolidating that action with this case.

On September 29, 2023, Respondent filed an opposition to the motion to consolidate. (ROA 55.) On October 6, 2023, Respondent filed a reply. (ROA 62.) On July 27, 2023, Respondent filed a motion for change of venue, seeking to transfer this case from San Diego County Superior Court to Santa Clara County Superior Court. (ROA 30.) The motion is made pursuant to CCP §§ 397(a) and (c), 395.1, 392(a)(1) and Probate Code §§ 17200.1 and 850, et seq., on the grounds that the court designated in the petition is not the proper court, and the convenience of witnesses and the ends of justice would be promoted by the change. (ROA 30.) On October 2, 2023, Petitioner filed an opposition to the motion for change of venue. (ROA 59.) On October 5, 2023, Respondent filed a reply. (ROA 60.) II. Discussion A. Motion for Change of Venue Respondent is the Trustee of the Survivor's Trust, which is one of three subtrusts under the Trust.

Petitioner is the Trustee of the Marital Deduction Trust and Bypass Trust, two of the three subtrusts under the Trust. The primary beneficiary of the Survivor's Trust is a charitable fund, while the primary beneficiaries of the Marital Deduction and Bypass Trusts are settlor's children. Concurrently with the drafting of the Fifth Amendment to the Trust, settlors formed a California limited liability company called Lucky Children, LLC ('Lucky Children'), primarily for the purpose of managing real property and holding other assets for investment purposes. Lucky Children is based in San Diego. Petitioner manages Lucky Children. The three subtrusts hold 98% interest in Lucky Children, which holds title to four parcels of real property in Santa Clara County. The parties disagree regarding the allocation of the Trust assets between the three subtrusts.

Petitioner filed a petition in this Court on May 10, 2023, seeking a determination of ownership of Trust assets and allocation of the assets between the three subtrusts. The Petition states venue is proper pursuant to Probate Code § 17005 because the named trustee of the Marital Deduction Trust and Bypass Trust resides in San Diego County, and the principal place of trust administration is in San Diego County. (ROA 1, Pet., ¶ 12.) Respondent thereafter filed a petition in the Superior Court of Santa Clara County on May 15, 2023, to determine, inter alia, ownership of the Trust assets and establish an equitable division of the assets between the subtrusts. Thus, in substance the two petitions involve the same parties, issues, and Calendar No.: Event ID: TENTATIVE RULINGS

3003214 CASE NUMBER: CASE TITLE: IN THE MATTER OF SILVER LIVING TRUST, DATED AUGUST 20, 1984, 37-2023-00019976-PR-TR-CTL underlying facts.

Respondent moves for change of venue to Santa Clara County on the ground that the convenience of witnesses and the ends of justice would be promoted by the change. Respondent argues that Trust real property is located in Santa Clara County, and witnesses and records crucial to a determination of the issues in the petitions are also located in Santa Clara County. Respondent argues the only connection to San Diego County of the issues in the petitions is that Petitioner is a resident of San Diego County.

1. Analysis On a motion, the court may change the place of trial 'when the court designated in the complaint is not the proper court' or '[w]hen the convenience of witnesses and the ends of justice would be promoted by the change.' (CCP § 397(a)(1), (3).) a. Proper Venue 'The proper county for commencement of a proceeding pursuant to this division is ... [i]n the case of a living trust, the county where the principal place of administration of the trust is located.' (Prob. Code, § 17005.) Petitioner is seeking a determination of ownership of Trust assets and their allocation between the three subtrusts. As the trustee of the Marital Deduction and Bypass subtrusts under the Trust, Petitioner was permitted to file the Petition in San Diego County where these trusts are administered.

There is no dispute the Marital Deduction and Bypass Trusts are administered in San Diego County.

Further, it cannot be disputed that a determination of the ownership of Trust assets and division of property will necessarily involve evaluation of all three subtrusts under the Trust.

Based on the allegations in the Petition, Respondent is not being sued in her official capacity and there is no 'defendant' in this probate proceedings. (Prob. Code, § 395.1 ['Except as otherwise provided in Section 17005 of the Probate Code pertaining to trustees, when a defendant is sued in an official or representative capacity as executor, administrator, guardian, conservator, or trustee on a claim for the payment of money or for the recovery of personal property, the county which has jurisdiction of the estate which the defendant represents shall be the proper county for the trial of the action.' Emphasis added].) Thus, CCP § 391.5 does not apply.

In addition, given Petitioner's allegations that real property held by the Trust has been sold (or is currently under sale) or converted into cash, and interest in the remaining properties is otherwise held via the subtrusts' respective ownership interests in Lucky Children, presumably the Trust assets may not be located in Santa Clara County. (See ROA 59, Oppo. at pp. 1-2.) Respondent does not dispute these allegations. (See ROA 62, Reply.) As such, even if the action could properly be deemed to be an action for the recovery of real property in the first place, CCP § 392(a)(1) would weigh in favor of Petitioner and maintaining the action in San Diego. (CCP § 392(a)(1) ['Subject to the power of the court to transfer actions and proceedings as provided in this title, the superior court in the county where the real property that is the subject of the action, or some part thereof, is situated, is the proper court for the trial of ...

actions: [f]or the recovery of real property, or of an estate or interest therein, or for the determination in any form, of that right or interest, and for injuries to real property.'].) Thus, as to the Petition, jurisdiction and venue is proper in San Diego County, and CCP § 397(a) does not apply.

b. Convenience of Witnesses and Ends of Justice The issue is whether under CCP § 397(c), based on the convenience of witnesses and promotion of the ends of justice, the matter should be transferred to Santa Clara County for resolution along with the petition filed by Respondent. The Court finds that change of venue is not warranted under the circumstances, notwithstanding any inconvenience that may arise for trial purposes given that some witnesses and evidence appear to be located in Santa Clara County. Records located in Santa Clara County may be obtained without undue burden, and witness testimony may be taken by deposition or presented via electronic means. Petitioner resides in San Diego and has been administering the Marital Calendar No.: Event ID: TENTATIVE RULINGS

3003214 CASE NUMBER: CASE TITLE: IN THE MATTER OF SILVER LIVING TRUST, DATED AUGUST 20, 1984, 37-2023-00019976-PR-TR-CTL Deduction and Bypass Trusts in San Diego. Thus, evidence and witnesses necessary for resolution of both petitions are also found in San Diego. Moreover, as Petitioner notes, Respondent resides in Washington, D.C., from where she has been administering the Survivor's Trust for some time. As noted above, the Trust real property does not appear to be located in Santa Clara County presently, and Lucky Children, which holds title to property belonging to the Trust, is located and managed in San Diego.

Thus, records and witnesses regarding the administration of two of the three subtrusts and Lucky Children are in San Diego County.

As the moving party, Respondent bears the burden on the motion. (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 836 ['A moving party under section 397, subdivision (c) must demonstrate the transfer will promote both the convenience of witnesses and the ends of justice.'].) From the arguments and evidence presented, the Court does not find that Respondent has met her burden to establish that the convenience of witnesses or the ends of justice support a change of venue.

Therefore, the motion for change of venue is DENIED.

B. Motion to Consolidate Petitioner moves to consolidate this case with the case filed in Santa Clara County pursuant to CCP § 404.1, which set forth the standard for evaluating cases for coordination of cases, not consolidation.

(CCP § 404.1 ['Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.'].) However, '[w]hen civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties [sic] plaintiff or defendant in any such action.' (CCP § 404.) Thus, Petitioner mistakenly filed her motion for consolidation in this court, rather than filing a petition for coordination with the Chairperson of the Judicial Council after obtaining permission from the presiding judge or all the parties, or by filing a motion for consolidation under the proper legal standard. However, CCP § 1048, regarding consolidation, does not apply where the cases to be consolidated have not been filed in the same court. (See Cal. Rules of Court, rule 3.350 ['Consolidation of cases.'].) Therefore, the motion to consolidate cases is DENIED.

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

IT IS SO ORDERED.

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