Judge: Olga Alvarez, Case: 37-2020-00019715-PR-TR-CTL, Date: 2023-08-16 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - August 15, 2023

08/16/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

CASE NO.:

CASE CATEGORY:

EVENT TYPE:

CASE TITLE: CASE TYPE:

Probate  Trust Proceedings Motion Hearing (Probate) 37-2020-00019715-PR-TR-CTL IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY 19, 1976, AS AMENDED [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/11/2023

Pursuant to San Diego Superior Court Rule 4.23.7, the court's tentative ruling is as follows: Karolyn Kovtun's Motion to Continue the Trial Date (ROA 677) is granted.

I. Background: Jay Kovtun ('Jay') and Lael Kovtun ('Lael') established the Kovtun Family Trust on February 19, 1976 ('Trust'), which was subsequently amended numerous times. Jay and Lael have two children: Karolyn Kovtun ('Karolyn') and Gordon Kovtun ('Gordon'). Lael died on April 5, 2020, resulting in the Trust being divided into two subtrusts: Trust A, which was revocable by Jay, and Trust B, which is irrevocable.

Gordon is the current trustee of the Trust.

On August 5, 2020, Karolyn filed a Petition for Instructions Regarding Validity of Trust Amendments Arising from: 1. Undue Influence (Civ. Code § 1575 & Prob. Code §§ 86, 6104); 2. Fraud in The Procurement (Civ. Code §§ 1709, et seq.); and 3. Lack of Legal Mental Capacity (Prob. Code §§ 810-812) ('Contest Petition'). (ROA 6.) The Contest Petition seeks an order invalidating the Sixth, Ninth, Tenth, and Eleventh Amendments to the Trust based on undue influence from Gordon. The Contest Petition also seeks an order invalidating the Eleventh Amendment based on fraud by Gordon and Lael's lack of capacity.

On April 1, 2021, Gordon filed a Petition to: 1) Enforce The Trust's No Contest Clause and Disinherit Karolyn Kovtun; and 2) In The Alternative, Allocate Costs of Trust Dispute to Karolyn Kovtun's Share ('No-Contest Petition'). (ROA 149.) The No-Contest Petition seeks an order that Karolyn has violated the Trust's no-contest clause by filing the Contest Petition. Alternatively, the No-Contest Petition seeks an order that all attorney fees and costs expended by Jay individually or by the trustee of the Trust be charged against Karolyn's share of the Trust.

Jay died on December 5, 2021, making Trust A irrevocable.

On January 30, 2023, Karolyn filed a supplement to the Contest Petition in which she adds the allegation that the entire Trust became irrevocable upon Jay's death and she clarifies that she is seeking to challenge the entire Trust and all subtrusts created thereunder. (ROA 631.) On February 27, 2023, the court set a target trial date of October 9, 2023, for the Contest Petition and No-Contest Petition. (ROA 653, 660.) Trial is estimated to last 10 days.

Calendar No.: Event ID:  TENTATIVE RULINGS

2973478 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY  37-2020-00019715-PR-TR-CTL Karolyn has also filed two other petitions in this matter which are currently stayed. (ROA 594, 595.) The first is a Petition for Orders: (1) Suspending and Removing Trustee; and (2) Compelling Trustee to Provide Information; and to Account (ROA 1), which seeks an order removing Jay as trustee and Gordon as successor trustee. The second is a Petition for Damages Arising from Financial Elder Abuse of Jay Kovtun (ROA 520), which alleges that Gordon committed financial elder abuse against Jay.

Karolyn has also filed a separate civil action alleging that Gordon committed financial elder abuse against Lael, which has been stayed pending the outcome in this case. (SDSC Case No.

37-2020-00045966-CU-MC-CTL.) On May 11, 2023, Karolyn filed the current motion to continue trial, seeking a continuance of approximately 90 to 180 days. (ROA 677, reply at ROA 714.) She argues that a continuance is necessary because her attorneys are scheduled to have trial in three unrelated cases around the same time as trial in this matter. Karolyn also contends that the pleadings in this case are unsettled because Gordon contends the Contest Petition only applies to Lael's subtrust, while Karolyn contends it applies to the Trust and all subtrusts. Karolyn claims the unsettled nature of the pleadings has prevented her from completing discovery on her allegations concerning Jay's execution of the disputed amendments and her defense of the No-Contest Petition.

On July 25, 2023, Karolyn filed a supplemental brief in support of her motion. (ROA 700.) The supplemental brief asserts that trial should also be continued on the ground that Karolyn has been unable to obtain the deposition testimony of Annika Kovtun ('Annika') despite reasonable efforts.

Gordon opposes the motion. (ROA 709.) He argues that Karolyn's supplemental brief is procedurally defective and cannot be considered by the court, and Karolyn's claimed need and efforts to depose Annika do not justify continuing trial. Gordon also asserts that the 'Jay Kovtun contest and elder abuse petition (ROA #520) is and should remain stayed until the Lael contest is decided,' and the trials in the nonrelated cases do not prevent Karolyn's attorneys from being able to try this case as currently set.

Finally, Gordon claims that he will be prejudiced by a continuance because it will increase his expenses.

II. Analysis: A. Judicial Notice: Gordon requests judicial notice of various court records and a list of participating member-nations in the Hague Service Convention. (ROA 710.) This unopposed request is granted pursuant to Evidence Code section 452(d), (f), and (h).

B. Supplemental Brief: The parties dispute whether Karolyn's supplemental brief was authorized, but the court does not need to resolve that dispute. The only issue that the supplemental brief added was a request to continue trial based on the inability to depose Annika. Even if Karolyn prevailed on this issue, it would not warrant continuing trial more than the 120-day continuance granted below, so the supplemental brief is irrelevant.

C. Continuance: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits, and the court may grant a continuance on an affirmative showing of good cause. (California Rules of Court, Rule 3.1332(c).) 'A motion for continuance is addressed to the sound discretion of the trial court. [Citation.] However, '[t]he trial judge must exercise his discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]'' (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) Calendar No.: Event ID:  TENTATIVE RULINGS

2973478 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY  37-2020-00019715-PR-TR-CTL In the context of a discovery motion, Gordon argued that Karolyn lacked the ability to challenge Trust A because at the time the Contest Petition was filed, Jay was still alive and had the power to revoke Trust A. Gordon was correct (Probate Code § 15800; Babbitt v. Superior Court (2016) 246 Cal.App.4th 1135, 1145–1146), and on February 6, 2023, the discovery referee agreed with Gordon and recommended that Karolyn not be able to conduct discovery into Jay's mental capacity. (ROA 643.) The court then entered an order approving the discovery referee's recommendation. (ROA 643.) Although discovery was limited in this fashion, the court made no orders restricting trial on this issue, which creates confusion as to the scope of trial currently set for the Contest Petition.

Additionally, the circumstances have changed as a result of Jay's death. Karolyn now has standing to challenge Trust A, and the allegations and prayers for relief in the Contest Petition and the supplement filed on January 30, 2023, make clear that Karolyn is challenging the disputed amendments as they apply to the entire Trust, including both subtrusts thereunder.

It would be impractical to have one trial on the Contest Petition for Trust A and a separate trial for Trust B. The disputed amendments apply to both subtrusts, they were executed by both Lael and Jay, and the allegations regarding their invalidity are intertwined and based on the same circumstances. Trial is also set for the No-Contest Petition, and the same analysis applies to that petition. A no-contest clause may only be enforced against a contest brought without probable cause, which exists 'if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.' (Probate Code § 21311(b).) The determination of Karolyn's probable cause in filing the Contest Petition naturally includes an assessment of her contest as it applies to both Trust A and Trust B.

Counsel for Gordon has acknowledged that it would be more efficient to have one trial for both Trust A and Trust B regarding the Contest Petition and the No-Contest Petition. (ROA 679, Exhibit H.) While this will prolong this matter and require additional discovery, it will still be more efficient than having a separate trial for each subtrust.

Based on the foregoing, the court will set aside prior discovery orders limiting Karolyn's ability to conduct discovery regarding Jay in relation to the Contest Petition and the No-Contest Petition.[1] Karolyn may seek discovery of Jay's mental capacity and the allegations of undue influence as to Jay to the extent that such matters are within the scope of discovery for the Contest Petition and the No-Contest Petition.

Additionally, trial on the Contest Petition and the No-Contest Petition will involve the allegations as they relate to both settlors and the entire Trust, including both Trust A and Trust B.

Because the court has clarified the scope of discovery and trial, there is good cause to continue trial, and the motion is granted. The court intends to set a target trial date at the hearing of approximately 120 days from the current trial date, which would be February 6, 2023. The court also intends to extend all trial related cutoffs based on the new trial date.

As for the other grounds for a continuance asserted in the motion, they do not justify a continuance of more than 120 days.

Regarding the other petitions in this case that have been stayed (ROA 1 and ROA 520), those matters remain stayed. Gordon appears to contend that ROA 520 includes a contest of Trust A, and that the court's order staying ROA 520 stayed any contest of Trust A. This is inaccurate. ROA 520 only alleges financial elder abuse, and it does not seek to invalidate any portion of the Trust. As noted above, the court has not previously entered any order staying trial on a contest of Trust A.

The minutes constitute the order of the court, and no formal order is required.

Counsel for Karolyn is directed to serve notice of this ruling in accordance with the provisions of Code of Calendar No.: Event ID:  TENTATIVE RULINGS

2973478 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY  37-2020-00019715-PR-TR-CTL Civil Procedure § 1019.5(a).

IT IS SO ORDERED.

/n [1] The court may reconsider prior orders on its own motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107.) Calendar No.: Event ID:  TENTATIVE RULINGS

2973478