Judge Olga Alvarez, Case 37-2015-00005991-PR-LA-CTL 2023-12-13 Tentative Ruling

Judge: Olga Alvarez, Case: 37-2015-00005991-PR-LA-CTL, Date: 2023-12-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 12, 2023

12/13/2023 10:30:00 AM 503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate Letters Of Administration Summary Judgment / Summary Adjudication (Probate) 37-2015-00005991-PR-LA-CTL ESTATE OF JOHN R DUNSTAN [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 08/01/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Summary Judgment filed by U.S. Specialty Insurance Company ('USSIC') is DENIED.

USSIC's Request for Judicial Notice (ROA 809) is GRANTED pursuant to Evidence Code section 452(d) as a court record.

DISCUSSION This case concerns the estate of John R. Dunstan ('Decedent'), who died on March 28, 2013. On April 14, 2015, the Court appointed Janice K. Hall ('Hall') as the administrator with the will annexed. (ROA 14.) USSIC has provided bonds for Hall in the amounts of $225,000, $2,657,640, and $525,000. (ROA 15, 30, 76.) Decedent was married to Respondent Guadalupe Lopez ('Guadalupe'). Prior to his death, Decedent changed title to some of the real properties from Decedent, individually, to Decedent and Guadalupe, as joint tenants.

On January 26, 2022, USSIC filed a Petition to Establish Estate's Claim of Ownership to Property, For Order Directing Its Transfer to Estate, and for Double Damages Pursuant to Probate Code Section 859 ('Petition'). (ROA 427.) The Petition alleges that Guadalupe and Leon Lopez ('Leon') obtained Decedent's accounts and real property through undue influence and financial elder abuse; Guadalupe improperly transferred Decedent's real property to her sons Saul Torres ('Saul') and Salvador Torres ('Salvador'); Guadalupe, Leon, Saul, and Salvador have collected rental income from real property belonging to the estate; Leon improperly transferred real property to Sandra Garcia, trustee of the Sandra L. Garcia Living Trust ('Garcia'); Hall has not included all of the estate's potential property in the inventories that she has filed; and Petitioner could be liable as the surety if Hall were surcharged.

On June 10, 2022, in response to the Probate Examiner's notes, USSIC filed an amended petition ('FAP') which specifically identified the real property and accounts that USSIC sought to be returned to the estate. (ROA 530.) Calendar No.: Event ID: TENTATIVE RULINGS

3004174 CASE NUMBER: CASE TITLE: ESTATE OF JOHN R DUNSTAN [IMAGED] 37-2015-00005991-PR-LA-CTL On February 9, 2023, USSIC filed a motion for leave to file a second amended petition ('SAP') to name Victor Torres ('Victor'), another of Guadalupe's sons, as a respondent and assert allegations with respect to Victor. (ROA 703.) The Court granted this motion on May 24, 2023. (ROA 776, Minute Order filed May 24, 2023.) On May 26, 2023, USSIC filed the SAP. (ROA 779.) On July 26, 2023, Guadalupe and Saul (collectively 'Respondents') filed a demurrer to the SAP (ROA 800), which the Court sustained with leave to amend. (ROA 869, Minute Order dated Nov. 1, 2023.) On August 1, 2023, USSIC filed the instant motion for summary judgment. (ROA 806.) The Notice of Motion states that USSIC is moving 'for an order granting summary judgment in favor of USSIC on the ground that there is no triable issue as to any material fact in the Petition, and USSIC is entitled to judgment as a matter of law.' (Id., emphasis added.) On November 17, 2023, USSIC filed a Third Amended Petition ('TAP'). (ROA 886.) Here, the Notice of Motion ambiguously refers to 'the Petition' without specificity. Given the multitude of petitions and amended petitions filed in this case and the extensive record, the Court can only assume that the motion is directed against one of the section 850 petitions, but this is not clearly stated in the notice. '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 3.1110(a); Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545, citations and quotation marks omitted ['It is elemental that a notice of motion must state in writing the grounds upon which it will be made. Only the grounds specified in the notice of motion may be considered by the trial court.'].) The Notice of Motion should clearly identify the petition that is the subject of the motion, preferably identifying the petition by ROA number.

USSIC states in the memorandum of points and authorities that it 'filed one of the 850 Petitions against Respondent, among others, seeking an order that Respondent deliver assets belonging to the estate to the court appointed administrator, Janice Hall. Mr. Torres has not done so and thus summary judgment should issue.' (ROA 805, Memo of Ps & As, at p. 2.) Thus, it is clear the motion seeks summary judgment on USSIC's petition, but the only operative document on file is the TAP since the demurrer to the SAP was sustained. However, the instant motion was filed prior to the TAP. USSIC did not file an amended motion since the TAP was filed. Therefore, the motion is procedurally defective for failure to clearly state in the notice which petition the motion is attacking. Moreover, in so far as the motion is challenging the SAP, the SAP is no longer the operative document.

The Court is not in receipt of any opposition from Respondents.

Thus, the motion is DENIED unless the parties present arguments and/or evidence at the hearing to support a different result.

Counsel for Respondents is directed to serve written notice of ruling on all parties in accord with the provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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3004174