Judge: Olga Alvarez, Case: 37-2021-00044064-PR-TR-CTL, Date: 2023-08-30 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - August 29, 2023

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

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Motion Hearing (Probate) 37-2021-00044064-PR-TR-CTL IN THE MATTER OF THE O.W. AND MILDRED O. MOORMAN COMMUNITY PROPERTY TRUST DATED JANUARY 29, 1989 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 05/18/2023

Pursuant to San Diego Superior Court Local Rule, rule 4.23.7, the court's tentative ruling is as follows: The unopposed Motion to Bifurcate and Specially Set Trial Date filed by Tami M. Davis and Amy L.

Haddad, Petitioners/Beneficiaries, is GRANTED.

Tami M. Davis and Amy L. Haddad (Petitioners/Beneficiaries) move to bifurcate and specially set a trial prior to trial on the other issues, the issue of whether Respondents Marcheta Mae Shoemaker and/or Dawn M. Kealaluhi were acting as agents, third parties, or trustees de son tort, and undertook the duties of a trustee and conducted trust transactions for the Bypass Trust and Marital Trust, from December 17, 2007, through November 3, 2019, as to Ms. Shoemaker, and December 17, 2007 through October 26, 2021, as to Ms. Kealaluhi.

The motion is made pursuant to CCP §§ 1048(b) and 598, on the grounds that separate trials will promote judicial economy and avoid undue prejudice to the moving parties.

DISCUSSION Petitioners argue they initiated this action, among other things, for Respondents to account from 2008 to the present, for an equitable lien or constructive trust on property improperly transferred by any sub-trust of the O. W. and Mildred O. Moorman Community Property Trust, establishing the trust's ownership of property, to confirm breaches of fiduciary duties by Mildred O. Moorman, and Respondents Shoemaker and Kealaluhi, and for surcharges and damages.

Petitioners argue that if the finding that Respondents acted in a fiduciary capacity, and therefore, have a duty to account, is not made until after a trial on all pending issues, any accounting which Respondents will be compelled to deliver will be delivered after trial on the issues of breach and damages. As such, Petitioners will suffer prejudice if the issue of whether Respondents acted as third-party individuals, agents, or trustees de son tort is not tried prior to all other issues, because they will then have to bring other legal actions concerning the accountings. Further, any breaches later revealed by accountings may be barred as res judicata.

Here, Petitioners filed a petition to remove Respondents as trustees and/or agents of trustees. (ROA 1.) The petition alleges, among other claims, that Respondents breached their fiduciary duties by misappropriating assets and unduly enriching themselves with funds from the Bypass Trust and Marital Trust, established under the O.W. and Mildred O. Moorman Community Property Trust dated January Calendar No.: Event ID:  TENTATIVE RULINGS

2977845 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE O.W. AND MILDRED O. MOORMAN  37-2021-00044064-PR-TR-CTL 29, 1989.

As such, a salient and preliminary issue in this case is whether Respondents were acting as agents, third parties, or trustees de son tort such that they may be held liable as fiduciaries and under agency theories. Thus, the Court finds that bifurcating this issue and setting it for trial prior to trial on the other issues will promote expediency and avoid prejudice to Petitioners.

The Court is not in receipt of any opposition. Under Local Rules, rule 2.1.19(B), '[t]he court may deem a lack of opposition to be a concession that a motion is meritorious.' Therefore, the motion to bifurcate and to specially set trial is GRANTED.

Counsel for Petitioners 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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2977845