Judge John B. Scherling, Case 37-2023-00023693-PR-TR-CTL 2023-09-05 Tentative Ruling

Judge: John B. Scherling, Case: 37-2023-00023693-PR-TR-CTL, Date: 2023-09-05 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - September 01, 2023

09/05/2023 10:30:00 AM 502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2023-00023693-PR-TR-CTL IN THE MATTER OF THE PETER AD MARILYN HOIJER TRUST, ESTABLISHED 1991 CAUSAL DOCUMENT/DATE FILED: Demurrer, 07/19/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the court's tentative ruling is as follows: Trustees David Rutter and Deborah Rutter's Demurrer is SUSTAINED without leave to amend.

Trustees' Request for Judicial Notice (ROA 22) is GRANTED. Trustees seek judicial notice of Petitioner's exhibits 1-3 and 5-7 at ROA 9. Notice is appropriate pursuant to EC § 452(d).

Petitioner's Request for Judicial Notice (ROA 52) is GRANTED as to Exhibits 2-5 pursuant to EC § 452(d) and (h). The request is DENIED as to Exhibit 1, as a matter not proper for judicial notice.

I. Background On November 29, 1991, Peter and Marilyn Hoijer, trustors, established The Peter and Marilyn Hoijer Trust. Peter passed away on August 24, 2017. Marilyn passed away on September 8, 2022.

On June 7, 2023, Petitioner Jeffrey Hitz (Petitioner) filed a petition entitled 'HOIJER TRUST(S) - TRUSTEE FAILURE TO NOTIFY BENEFICIARY CAUSES HARM.' (ROA 1.) The petition alleges that several family trusts are involved, including The Peter and Marilyn Hoijer Trust, which has been amended several times. The petition alleges that '[t]wo of the amendments, Seventh and Eighth, are faulty and invalid for a number of reasons, including trustor dementia, fraudulent fiduciary failure of trustee including actions and inactions during the conceiving, creating, approving and executing the two amendments.' (Sic.) (ROA 1, Pet. at p. 2.) The petition also alleges purported violations by the trustees that caused Petitioner harm. (Id., at pp. 2-4.) The petition seeks an annulment of the seventh and eighth amendments and an order directing the trustees to execute a tenth amendment to the trust. (Id., Prayer for Relief, Option A.) On July 19, 2023, David Rutter and Deborah Rutter, Trustees (Trustees), filed a demurrer to the petition.

(ROA 20.) Trustees demur to the entire petition on the ground the pleading does not state facts sufficient to support a cause of action. (CCP § 430.10(e).) Moving parties contend the petition fails to state a cause of action because it is time barred, and as a disinherited beneficiary, Petitioner lacks standing to bring the remaining cause of action for breach of fiduciary duty against Trustees. (ROA 21, Memo of Ps & As, at pp. 4-5.) Moving parties further contend the deficiencies may not be cured to render the pleading legally sufficient, and thus, the demurrer should be sustained without leave to amend. (Id., at p. 6.) Calendar No.: Event ID: TENTATIVE RULINGS

2999966 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE PETER AD MARILYN HOIJER TRUST, 37-2023-00023693-PR-TR-CTL Petitioner filed an untimely opposition on August 24, 2023. (ROA 48.) Trustees filed their reply on August 28, 2023. (ROA 53.) Notwithstanding the untimeliness of the opposition, the Court finds no prejudice to moving parties and will consider the arguments.

On August 7, 2023, Petitioner moved to strike 'Relief Option A' from the petition (as discussed further below), and the Court granted this motion. (ROA 36, Minute Order dated Aug. 11, 2023.) II. Discussion As a preliminary matter, the Court notes that Trustees' electronic exhibits fail to comply with CRC 3.1100(f)(4), which requires that unless submitted by a self-represented party, the electronic exhibits must include electronic bookmarks with links to the first page of each exhibit, with bookmark titles identifying the exhibit number and briefly describing the exhibit. (See also Super Ct. San Diego County, Local Rules, rule 4.3.2(A)(4) ['Pleadings that contain more than one exhibit attached must include electronic bookmarks with links to the first page of each exhibit and titles that identify the exhibit number or letter and briefly describe the exhibit.'].) The parties are expected to comply with all applicable rules in the future.

A. 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.) 1. Statute of Limitations After notification by a trustee is served pursuant to Probate Code § 16061.7(a)(1), 'whether the notice is served on the person within or after the time period set forth in subdivision (f) of Section 16061.7 ...,' an action to contest the trust cannot be brought 'more than 120 days from the date the notification by the trustee is served upon the person, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to the person during that 120-day period, whichever is later.' (Prob.

Code, § 16061.8.) Here, Trustees served the trustees' notice under Probate Code § 16061.7 pertaining to Marilyn Hoijer's death on October 4, 2022. (ROA 22, RJN Exhs. A-C.) Trustees served a separate trustees' notice pertaining to Peter Hoijer's death on October 7, 2022. (Id., RJN Exhs. D-F.) The 120-day time limit, as provided in Probate Code § 16061.8, measured from October 7, 2022, was February 4, 2023, a Saturday. (Prob. Code, § 16061.8.) Thus, the last day to file a trust contest was on February 6, 2023.

(CCP §§ 12, 12a & 12b.) Petitioner filed his petition contesting the trust and alleging breach of fiduciary duties on June 7, 2023, well past the deadline to file a petition contesting the trust.

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2999966 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE PETER AD MARILYN HOIJER TRUST, 37-2023-00023693-PR-TR-CTL Petitioner opposes the demurrer arguing the statute of limitations is three years and the petition is timely.

The petition alleges the 120-day limitations period does not apply, the contest windows should be aggregated for a total contest period of 360 days, and the statute of limitations for breach of trust is four years. (ROA 1, at pp. 14-16.) However, Petitioner does not cite to any authority for these propositions, and the petition fails to plead factual allegations to overcome the statute of limitations. Indeed, Probate Code section 16061.8 specifically provides the 120-day timeframe applies, 'whether the notice is served on the person within or after the 60-day period prescribed in section 16061.7(f).' Even if the petition was exempt from the 120-day limitations period based on any failure to send the trustee's notice within 60 days, Peter passed away in 2017. Thus, the three years to contest the trust would have run in 2020 (or 2021 if the limitations period was four years). Therefore, the petition is untimely.

2. Standing 'Standing is a threshold issue necessary to maintain a cause of action, and the burden to allege and establish standing lies with the plaintiff.' (Mendoza v. JPMorgan Chase Bank, N.A. (2016) 6 Cal.App.5th 802, 810.) When a plaintiff claims to be a rightful beneficiary of a trust if the challenged amendments are deemed invalid, the plaintiff has standing to petition the probate court to determine the internal affairs of a trust. (Barefoot v. Jennings (2020) 8 Cal.5th 822, 828.) '[W]hen a demurrer ... 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.' (Id. at 827.) Only those individuals 'whose well-pleaded allegations show that they have an interest in a trust – because the amendments purporting to disinherit them are invalid...,' may petition the probate court under Probate Code § 17200(a). (Id. at 828.) Here, the petition does not plead facts establishing Petitioner's standing to bring the remaining cause(s) of action against the trustees based on purported violations of their fiduciary duties. First, at Petitioner's request, the Court struck 'Relief Option A' in the prayer (annulment of the seventh and eighth amendments to the trust) when Petitioner moved to strike. (ROA 36, Minute Order dated Aug. 11, 2023.) No amended petitions have since been filed. Thus, the petition does not seek to invalidate the seventh and eighth amendments, and no other provisions under which Petitioner could be a beneficiary are identified.

Second, the petition generally states the seventh and eighth amendments to the trust are invalid on several grounds, but it fails to plead sufficient facts to support the claim of invalidity. Conclusory allegations of fact or law are not permitted. The petition fails to establish Petitioner's standing.

3. Leave to Amend A demurrer tests the sufficiency of the pleadings in the petition, treating the material factual allegations as true; it does not test the veracity of the allegations or resolve evidentiary issues. Petitioner does not cite to the petition and point to factual allegations in the petition establishing the timeliness of the petition and Petitioner's standing to bring claims against the trustees as a purported beneficiary of the trust(s). A trial court does not err in sustaining a demurrer without leave to amend where the complaint discloses on its face the action is barred by the statute of limitations. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1204.) The plaintiff bears the burden to show there is a reasonable possibility the defective pleading may be cured. (Blank v. Kirwan, supra, 39 Cal.3d 311, 318.) Critically with regard to leave to amend, Petitioner fails to show how the defects noted may be cured by amendment.

Therefore, the demurrer is SUSTAINED without leave to amend.

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

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2999966 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE PETER AD MARILYN HOIJER TRUST, 37-2023-00023693-PR-TR-CTL IT IS SO ORDERED.

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