Judge Nick A. Dourbetas, Case 2021-01195800 2022-12-09 Tentative Ruling

Judge: Nick A. Dourbetas, Case: 2021-01195800, Date: 2022-12-09 Tentative Ruling

1. Ex Parte

2. Order to Show Cause re: Preliminary Injunction

Motion 1:

Defendant Gina Courtade’s (Courtade) ex parte application for leave to file cross-complaint is GRANTED.

The Court ORDERS Courtade’s proposed cross-complaint attached as exhibit 4 to the declaration of her counsel (Jones Decl. ¶ 3, Ex. 4) DEEMED served and filed as of this date.

Courtade is ORDERED to file her cross-complaint as separate document within two days, so that it is properly indexed in the court record.

Plaintiff Candice P. Smith’s (Smith) contention that this motion should be denied because Courtade’s claims belong in probate is better raised on demurrer or a motion for stay (which either party may still bring). At this time, however, the argument fails because Smith fails to show that the probate court has exclusive jurisdiction over Courtade’s proposed claims. Indeed, the Probate Code provides that its remedies for a transfer on death (TOD) deed contest are not exclusive (see Prob. Code, § 5698); and, at least technically speaking, a quitclaim deed granting a joint tenancy with the right of survivorship passes out of probate. (See, e.g., Estate of Bibb (2001) 87 Cal.App.4th 461, 469 [joint tenancy interests pass outside of probate and thus are not party of the probate estate].) This is not to say that the probate court does not have jurisdiction over these claims, but rather, that Smith has failed to show the probate court has exclusive jurisdiction over them such that Courtade is precluded from bringing her cross-complaint.

Courtade’s request for judicial notice (ROA No. 227) is GRANTED. (See Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 924 & fn. 1; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [court may take judicial notice of the existence and legal effect of recorded deeds].)

Motion 2:

Defendant Courtade’s request for preliminary injunction is GRANTED. (See Integrated Dynamic Solutions, Inc. v. VitaVet Labs, Inc. (2016) 6 Cal.App.5th 1178, 1183-1184 [factors].)

Courtade has demonstrated a probability of prevailing on her causes of action for cancellation of instruments against Smith. The evidence shows that the subject deeds appear likely to be a product of fraud/undue influence, in that Smith obtained them via the undue influence/elder abuse of Albert Onesti, at a time he was suffering from Alzheimer’s disease. (See Civ. Code, § 3412 [cancellation of instruments]; Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 294 [cancellation of instruments, elements]; Prob. Code, § 21380, subd. (a)(3); Welf. & Inst. Code, § 15610.30, subd. (a)(1)-(3), (c), (d) [financial elder abuse, standing]; Keading v. Keading (2021) 60 Cal.App.5th 1115, 1125 [standing]; see also Courtade Decl. ¶¶ 4-12, Ex. 3; RJN at Exs. 1-2; FAC ¶¶ 10, 20; Compl. at Ex. C [power of attorney]; Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1155 [judicial admissions of fact are conclusive against the pleader].) Smith has failed to submit any competent evidence refuting Courtade’s showing.

Courtade has also shown that the balance of interim harms weighs in favor of issuance, as Smith would need only maintain the status quo as to her ownership interest in the property, but Courtade stands to lose her inheritance and interest in the property as Onesti’s rightful heir thereto. (See Courtade Decl. ¶ 12.)

A bond is mandatory. (Code Civ. Proc., § 527, subd. (a).) The parties are ORDERED to be ready to discuss the amount of the bond at the time of the hearing on this matter. Neither side has yet addressed the issue of a bond or suggested an amount. (See Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1061-1062, and Abba Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14-15 [considerations in setting bond amount].)

Courtade’s request for judicial notice (ROA No. 223) is GRANTED. (See Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919, 924 & fn. 1; Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [court may take judicial notice of the existence and legal effect of recorded deeds].)

Courtade’s objections (ROA No. 296) to Smith’s supplemental declaration (ROA No. 290) are SUSTAINED. (See Code Civ. Proc., § 2015.5; see also Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 610-611 [requirements of section 2015.5 are not pointless or optional; “[t]o the contrary, courts may not excise words from statutes”].)

Courtade shall give notice of all of the above.