Judge: Olga Alvarez, Case: 37-2021-00005521-PR-TR-CTL, Date: 2023-12-06 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 05, 2023

12/06/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2021-00005521-PR-TR-CTL IN THE MATTER OF THE LONY VANDERHORST LIVING TRUST DATED OCTOBER 13, 2000, AS AMENDED AND RESTATED [IMAGED] 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: The Petition for Leave to Intervene filed by Deborah Casaburi (ROA 179), deemed a motion to intervene, is DENIED without prejudice.

The Demurrer filed by Alex Vanderhorst (ROA 163) is TAKEN OFF CALENDAR.

I. BACKGROUND Lony Vanderhorst ('Decedent') created the Lony Vanderhorst Living Trust on October 13, 2000 ('Trust'). Decedent died on June 11, 2020. Decedent was survived by her son, Alexander Vanderhorst ('Petitioner').

On February 4, 2021, Petitioner filed a Petition For: (1) Order Invalidating the July 19, 2019 Amendment to the Lony Vanderhorst Living Trust on Grounds of Lack of Capacity; (2) Order Invalidating the July 19, 2019 Amendment to the Lony Vanderhorst Living Trust on Grounds of Undue Influence; (3) Compensatory and Punitive Damages For Financial Elder Abuse; (4) Return of Trust Property and Award of Double Damages and Fees; (5) Removal or Suspension Of Trustee; (6) Accounting; and (7) Order Precluding Trust Assets From Being Used to Fund the Defense of this Action ('Initial Petition').

(ROA 1.) The Initial Petition alleged that Ellen Bruce ('Bruce') and Harry L. Haubert ('Haubert') (collectively 'Respondents') abducted Decedent; Respondents removed approximately $90,000 in cash from Decedent's safety deposit box; and the First Amendment to the Trust is invalid based on Decedent's lack of capacity and undue influence from Respondents.

On August 16, 2021, the Court granted the Initial Petition in part as modified and found that the First Amendment was invalid. (ROA 22.) On September 29, 2021, the Court suspended Bruce as trustee, appointed Petitioner as trustee, and directed the parties to participate in a mandatory settlement conference. (ROA 40.) The settlement conference was held on November 19, 2021, and the parties reached a settlement.

(ROA 47.) The parties and the court executed a Stipulation and Order on November 19, 2021, and the Court retained jurisdiction to enforce the settlement. (ROA 48.) The parties thereafter entered into a Calendar No.: Event ID:  TENTATIVE RULINGS

3044537 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE LONY VANDERHORST LIVING TRUST  37-2021-00005521-PR-TR-CTL Settlement Agreement and Release as required under the Stipulation and Order.

On June 21, 2022, Petitioner sent Respondents a letter purporting to rescind the Stipulation and Order and the Settlement Agreement and Release ('Settlement Documents'). The letter states that Petitioner just discovered that Bruce encumbered the Trust property located at 3059 Oriente Drive, Vista, California 92084 ('Oriente Drive') on February 11, 2021, and that Haubert encumbered Oriente Drive on November 26, 2021. The letter states that the Settlement Documents are rescinded because Respondents misrepresented these facts.

On July 21, 2022, Petitioner filed a Petition For (1) Cancellation of Instrument; (2) Cancellation of Instrument; (3) Return of Trust Property Pursuant to Probate Code Section 850; (4) Quiet Title; (5) Breach of Fiduciary Duty; (6) Aiding and Abetting Breach of Fiduciary Duty; and (7) Elder Abuse ('Cancellation Petition'). (ROA 51.) The Cancellation Petition seeks to cancel the deeds of trust that Respondents recorded against Oriente Drive. The Cancellation Petition also contains some of the allegations from the Initial Petition, including that Respondents abducted Decedent and removed approximately $90,000 in cash from Decedent's safety deposit box.

On August 30, 2022, Petitioner file an ex parte application requesting that he be confirmed as trustee, that Respondents turn over all Trust assets, and that Respondents account for the loans that they secured against Oriente Drive. (ROA 60.) On September 12, 2022, Respondents filed a motion requesting the Court enter judgment pursuant to the Settlement Documents. (ROA 77.) Also on September 12, 2022, Petitioner filed a Petition for: (1) Order Invalidating Second Amendment to the Lony Vanderhorst Living Trust on Grounds of Lack of Capacity; (2) Order Invalidating the Second Amendment to the Lony Vanderhorst Living Trust on Grounds of Undue Influence; and (3) Elder Abuse ('Second Amendment Petition'). (ROA 74.) The Second Amendment Petition alleges that Petitioner discovered the existence of the Second Amendment to the Trust on August 22, 2022, and the Second Amendment to the Trust is invalid based on Decedent's lack of capacity and undue influence from Respondents.

On September 13, 2022, the Court ruled on Petitioner's ex parte application and confirmed Petitioner as the trustee, ordered Respondents to turn over all Trust property to Petitioner, and ordered Respondents to account for the proceeds of all the loans they received while acting or purporting to act as trustee of the Trust, including the loans secured against Oriente Drive. (ROA 91.) On October 3, 2022, Petitioner filed a supplement to the Cancellation Petition. (ROA 96.) The supplement adds a cause of action for declaratory relief that the Settlement Documents are void and that Petitioner properly rescinded them.

On October 19, 2022, the Court denied without prejudice Respondents' motion to enter judgment pursuant to the Settlement Agreement. (ROA 115, Minute Order dated Oct. 19, 2022.) On April 24, 2023, Deborah Casaburi ('Casaburi') filed a Complaint in Intercession to Enforce Estate Documents of Decedent Lony Vanderhorst Pursuant to CCP § 387 ('Complaint in Intercession'). (ROA 149.) The Complaint in Intercession alleges that Casaburi is the stepchild of Decedent and the only remaining eligible beneficiary under the Trust as amended; Casaburi never received official notice of her inclusion in the Trust litigation; Petitioner was disinherited under the amendments to the Trust; and Petitioner committed elder abuse and theft against Decedent.

On July 19, 2023, Petitioner filed a demurrer to the Complaint in Intercession. (ROA 163.) Calendar No.: Event ID:  TENTATIVE RULINGS

3044537 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE LONY VANDERHORST LIVING TRUST  37-2021-00005521-PR-TR-CTL On September 14, 2023, Casaburi filed the instant Petition for Leave to Intervene and to Allow Complaint in Intercession to Enforce Estate Documents of Decedent Lony Vanderhorst pursuant to CCP § 387. (ROA 179.) On October 25, 2023, deeming Casaburi's petition for leave to intervene as a motion to intervene, the Court continued the hearing on the demurrer to December 6, 2023, to be heard after the motion to intervene. (ROA 201.) On November 21, 2023, Petitioner filed an opposition and supporting declaration. (ROA 202.) On December 4, 2023, Casaburi filed 'Points and Authorities for Petition for Leave to Intervene ...' (ROA 212.) II. DISCUSSION Casaburi's motion fails to comply with the applicable Rules of Court and statutes. First, the motion fails to comply with CRC 3.1112, which requires that the papers in support of a motion include '(1) A notice of hearing on the motion; (2) The motion itself; and (3) A memorandum in support of the motion ....' (Cal.

Rules of Court, rule 3.1112(a).) There is no Notice of Motion, stating 'in the opening paragraph the nature of the order being sought and the grounds for issuance of the order,' and no Notice of Hearing. (Cal. Rules of Court, rule 3.1110(a).) There is no Motion, as Casaburi refiled an amended complaint, adding causes of action to the complaint originally filed at ROA 179.

Second, the motion fails to comply with CRC 3.1113(a) and (b) because there is no Memorandum of Points and Authorities. 'A party filing a motion, except for a motion listed in rule 3.1114, must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion ... is not meritorious and cause for its denial ....' (Cal. Rules of Court, rule 3.1113(a); Cal. Rules of Court, rule 3.1113(b) ['The memorandum must contain a statement of facts, a concise statement of the law, evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced.'].) Indeed, Casaburi's filing is devoid of any legal analysis or argument concerning CCP § 387 and the grounds for intervention under the facts of this case.

On December 4, 2023, well past the deadline to file a Memorandum of Points and Authorities, Casaburi filed what purports to be a memorandum. (See ROA 212.) There is no proof of service filed indicating service of this untimely filing on Petitioner or on any other party who has appeared in this case. Thus, the Court will not consider the late filing. Even if the Court were to consider it, as evidenced by the arguments, the memorandum does not address CCP § 387 and the basis for intervention.

Third, there is no proof of service of the moving papers, and thus, the motion fails to comply with CRC 3.1300(c). (Cal. Rules of Court, rule 3.1300(c) ['Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.'].) As such, the motion is procedurally deficient, and given the lack of any arguments or legal analysis discussing CCP § 387 and the grounds for intervention, the Court is unable to review and rule on the merits of the motion. Therefore, the motion is DENIED without prejudice.

In light of the ruling on Casaburi's motion to intervene, the demurrer filed by Petitioner (ROA 163) is taken off calendar.

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

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3044537 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE LONY VANDERHORST LIVING TRUST  37-2021-00005521-PR-TR-CTL IT IS SO ORDERED.

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