Judge: Olga Alvarez, Case: 37-2020-00019715-PR-TR-CTL, Date: 2023-11-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 28, 2023

11/29/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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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, 08/01/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the Court's tentative ruling is as follows: The Motion for Relief From Matter Admitted filed by Karolyn Kovtun (ROA 703) is DENIED.

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; (2) Fraud in the Procurement; and (3) Lack of Legal Mental Capacity ('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 clarifies that she is seeking to challenge the entire Trust and all subtrusts created thereunder. (ROA 631.) 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 Calendar No.: Event ID:  TENTATIVE RULINGS

3003705 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY  37-2020-00019715-PR-TR-CTL 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. In addition, Karolyn has 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 August 1, 2023, Karolyn filed the instant motion for relief from matters admitted pursuant to CCP § 2033.300(b). (ROA 703.) On November 14, 2023, Gordon filed an opposition to the motion and supporting exhibits. (ROA 750.) II. DISCUSSION Karolyn moves on the ground that Requests for Admission ('RFA'), Nos. 10, 33, 35, 41, and 52 were erroneously admitted as a result of mistake, inadvertence, or excusable neglect. Each of these RFAs corresponds to an email sent by Jay to Karolyn (on March 23, 2008, July 7, 2008, July 6, 2008, September 11, 2008, and May 4, 2009, respectively). Karolyn claims that she admitted the emails were authentic because she did not realize they were fabricated at the time of her responses.

Karolyn argues that the emails appear authentic when viewed out of context, and she did not consider the possibility that the emails were inauthentic at the time of her responses. Karolyn argues that she noticed a pattern in the subject emails in or around May 2023 and realized they may have been drafted by Gordon based on the particularly aggressive tone and progressively longer lengths compared to the other emails Jay had sent her over the decades.

In opposition, Gordon argues that Karolyn received and responded to these emails 15 years ago and admitted to their genuineness two years ago. Gordon argues that 'Karolyn's new theory that Gordon hijacked his father's email account 15 years ago in preparation for this trust contest and fraudulently sent just two of the many strings of emails between Jay and Karolyn over these years has no substance.' (ROA 750, Oppo. at p. 2.) Gordon argues that Karolyn knows these emails are not fabricated because Jay admitted to authoring them during his deposition, and Jay handwrote the email messages before sending them to Karolyn.

Gordon further argues that he will be substantially prejudiced if Karolyn's motion is granted because Jay is deceased, and trial is two months away.

'The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party's action or defense on the merits.' (CCP § 2033.300(b).) Here, on April 16, 2021, Karolyn admitted the authenticity of the five emails at issue. (ROA 751, Blea Decl., Exh. 2.) Karolyn now claims she did not realize the emails were fabricated by Gordon until May 2023. However, Karolyn offers no evidence these emails were fabricated or any offer of proof to even create an inference of fraud, other than her own self-serving declaration. Thus, Karolyn fails to make a prima facie showing that she is entitled to relief pursuant to CCP § 2033.300(b). Indeed, the motion does not even identify the 'mistake, inadvertence, or excusable neglect,' which would warrant relief. Rather, Karolyn makes a very serious claim that Gordon engaged in fraud through the discovery process without any evidentiary basis, which is not well taken. Further, Karolyn fails to address any prejudice to Gordon if the motion were granted, particularly in light of Jay's unavailability at trial and the impending trial.

On the other hand, Gordon submits Jay's handwritten notes on three of the five emails, evidencing the authenticity of the emails at issue, as well as excerpts of Jay's deposition testimony regarding one of the emails (email dated March 23, 2008). (Id., Exhs. 3, 4.) The Court is not in receipt of any reply from Karolyn rebutting Gordon's arguments and evidence. Thus, the Court finds Karolyn failed to carry her Calendar No.: Event ID:  TENTATIVE RULINGS

3003705 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE KOVTUN FAMILY TRUST, DATED FEBRUARY  37-2020-00019715-PR-TR-CTL burden and to show that she is entitled to relief under CCP § 2033.300(b).

Therefore, the motion is DENIED.

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

IT IS SO ORDERED.

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