Judge Olga Alvarez, Case 37-2021-00013279-PR-TR-CTL 2023-12-13 Tentative Ruling

Judge: Olga Alvarez, Case: 37-2021-00013279-PR-TR-CTL, Date: 2023-12-13 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - December 12, 2023

12/13/2023 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) 37-2021-00013279-PR-TR-CTL IN THE MATTER OF THE DALE H BLUST AND ANNE F BLUST TRUST DATED FEBRUARY 27, 1992 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Enforce Settlement, 08/23/2023

Pursuant to San Diego County Superior Court Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Enforce Settlement Agreement filed by Glenn Blust (ROA 52) is GRANTED. The corresponding request for $2,280 in attorney's fees is GRANTED.

The Motion to Enforce Settlement Agreement filed by Bruce Marada, Jr. (ROA 61) is DENIED.

I. Background On March 23, 2021, Successor Trustee of the Dale H. Blust and Anne F. Blust Trust dated February 27, 1992, Glenn Blust ('Petitioner'), filed a petition under Probate Code section 850 ('Petition'), alleging elder financial abuse and seeking double damages, a constructive trust, and attorney's fees and costs.

(ROA 1.) On June 30, 2021, Denise Blust and Bruce Marada, Jr. filed objections to the Petition. (ROA 12, 13.) Thereafter, in August 2022, the parties entered into a settlement agreement ('Agreement'), which was approved by the Court. (ROA 50, Joint Stipulation and Order.) On July 25, 2023, Petitioner filed a motion to enforce the Agreement on the ground that Respondents have not made full payments according to the terms of the agreement. (ROA 52.) Petitioner also moves for $2,280 in attorney's fees and costs for bringing the motion.

On August 23, 2023, Respondent Bruce Marada, Jr. ('Respondent') filed an untimely opposition to Petitioner's motion (ROA 60) and filed his own motion to enforce the Agreement (ROA 61), which was set for December 13, 2023.

On August 28, 2023, Petitioner filed a reply. (ROA 66.) On August 30, 2023, the Court continued Petitioner's motion to December 13, 2023, to be heard with Respondent's motion. (ROA 71.) On November 15, 2023, Petitioner filed an opposition to Respondent's motion. (ROA 72.) Calendar No.: Event ID: TENTATIVE RULINGS

3013096 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DALE H BLUST AND ANNE F BLUST TRUST 37-2021-00013279-PR-TR-CTL II. Discussion A. Compliance with the Rules of Court Respondent's electronic exhibits fail to comply with CRC 3.1100(f)(4), which requires that unless submitted by a self-represented party, the electronic exhibits must include electronic bookmarks with links to the first page of each exhibit, with bookmark titles identifying the exhibit number and briefly describing the exhibit, and with Local Rules, rule 4.3.2.A.4, which requires that '[p]leadings that contain more than one exhibit attached must include electronic bookmarks with links to the first page of each exhibit and titles that identify the exhibit number or letter and briefly describe the exhibit.' (See ROA 60, Resp't Oppo.) Further, no index of exhibits is provided as required under CRC 3.1110(f). (Cal. Rules of Court, rule 3.1110(f) ['An index of exhibits must be provided. The index must briefly describe the exhibit and identify the exhibit number or letter and page number.'].) The Court also notes that Respondent's opposition (ROA 60) was late and served by mail on August 23, 2023, on opposing party for the original hearing on August 30, 2023. Thus, the opposition failed to comply with CRC 3.1300(a) and CCP § 1005(b).

Respondent is admonished that compliance with the Rules of Court is mandatory and failure to comply may be grounds for denial of the motion and sanctions. Respondent is directed to comply with all applicable rules in the future.

Notwithstanding the procedural defects, given the continuance of Petitioner's motion, and finding no prejudice to either party, the Court will rule on the merits of both motions.

B. Merits The material terms of the Agreement are set forth at paragraph 2: - Denise and Bruce Jr. agree to pay Glenn Blust the unpaid principal balance of $74,616.79 plus 4% interest in equal monthly installments over a four-year period.

- Denise and Bruce Jr. agree to pay Glenn Blust $23,000.00 in reimbursement for his attorney's fees payable over the same four-year period without interest.

- 80% of any unpaid balance would be deemed satisfied upon Glenn's passing. The remaining balance due would be owed to Glenn's personal representative or Trustee under the same payment terms.

(ROA 50, Exh. A, emphasis added.) The Agreement also provides for attorney's fees in the event a party is required to bring legal action to enforce the terms of the Agreement. (Id., at ¶ 10.) The Court has jurisdiction to enforce the Agreement pursuant to CCP § 664.6(a).

Petitioner argues that Respondents have breached the Agreement because they have been paying an incorrect amount. Respondents paid $2,095.87 monthly for the first six months. Respondents have been paying $2,163.95 monthly from May 2023 based on interest calculated using an amortization table.

However, the correct monthly payment amount is $2,282.40, calculated using simple interest of 4%. In addition, Petitioner never received payment for April 2023.

Petitioner argues that $74,616.79 x 0.4 x 4 years = $11,939.69 in interest. Plus $23,000 for attorney's fees without interest, the total payment amount is $109,555.47. This total divided by 48 months is $2,282.40 per month ($109,555.47 / 48 = $2,282.40), which is the correct amount.

Petitioner requests the Court order Respondents to pay $2,282.40 per month, and to make up the Calendar No.: Event ID: TENTATIVE RULINGS

3013096 CASE NUMBER: CASE TITLE: IN THE MATTER OF THE DALE H BLUST AND ANNE F BLUST TRUST 37-2021-00013279-PR-TR-CTL difference in any prior monthly payments for less than the full amount.

Respondent opposes Petitioner's motion, and he filed his own motion to enforce the Agreement, arguing that Petitioner is incorrectly calculating the amount owed. Respondent argues that he tendered payment to Petitioner beginning October 15, 2022, through the present. Respondent adjusted the payment amount in April 2023, after consulting with his attorney, to reflect calculations based on an Amortization Schedule, attached as Exhibit B. Pursuant to the calculations contained in Exhibit B, equal monthly payments of $1,684.78 toward the unpaid principal balance plus interest due under the Agreement is $2,163.94 per month. Respondent claims that Petitioner has not cashed the payments from April, July, August 2023, but did cash the May and June 2023 checks.

Respondent argues that Petitioner's assertion is based on his misinterpretation of the repayment agreement, whereas the Amortization Schedule is based upon the specific terms of the agreement made by Respondents and reflects the beginning principal balance of $74,616.79, the 4% interest rate, the 4-year term and the requirement for equal monthly payments.

Here, the express terms of the settlement agreement provide that Respondents 'agree to pay Glenn Blust the unpaid principal balance of $74,616.79 plus 4% interest in equal monthly installments over a four-year period.' The agreement does not provide for the judgment to be amortized over four years, as Respondent proposes, to support an interest calculation based on an amortization schedule. Indeed, the judgment is not a loan that was amortized, and there is no language in the settlement agreement to support such an interpretation.

Respondent argues that the Amortization Schedule is based on the specific terms of the agreement made by Respondents, but there is no evidence the parties agreed to rely on an amortization schedule at the time of settlement. The specific terms of the agreement provide that Respondents would pay 4% interest, without qualification; there is no express agreement to rely on an amortization schedule and no evidence to support this claim. Respondent relies on Exhibit B (submitted with the opposition), but this document is not attached nor incorporated into the Agreement, and it appears to have been unilaterally prepared by Respondent in support of his interpretation regarding the interest calculation. Thus, the Court cannot find that the parties agreed to rely on the Amortization Schedule attached as Exhibit B to Respondent's opposition, to calculate monthly payments at the time of the settlement agreement.

Therefore, Petitioner's motion to enforce the settlement agreement is GRANTED. Respondent is ordered to make $2,282.40 monthly payments to Petitioner.

Petitioner requests $2,280 in attorney's fees based on six hours of attorney time at the billing rate of $325 ($325 x 6 hrs. = $1950), and three hours of paralegal time at the billing rate of $110 ($110 x 3 hrs.

= $330).

The Court finds the billing rates and time expended are reasonable. Petitioner's request for attorney's fees and costs is GRANTED in the amount requested.

Based on the foregoing, Respondent's motion to enforce the settlement agreement is DENIED.

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

IT IS SO ORDERED.

Calendar No.: Event ID: TENTATIVE RULINGS

3013096