Judge Olga Alvarez, Case 37-2022-00043145-PR-TR-CTL 2023-10-25 Tentative Ruling

Judge: Olga Alvarez, Case: 37-2022-00043145-PR-TR-CTL, Date: 2023-10-25 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - October 24, 2023

10/25/2023 10:30:00 AM 503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate Trust Proceedings Summary Judgment / Summary Adjudication (Probate) 37-2022-00043145-PR-TR-CTL IN THE MATTER OF SAMUEL W. MILTON LIVING TRUST DATED MARCH 6, 2006 CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 03/24/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the court's tentative ruling is as follows: The Motion for Summary Judgment, or in the Alternative, Summary Adjudication filed by Trustee Emilia Murcia (ROA 58) is DENIED.

Trustee's Request for Judicial Notice (ROA 63) is GRANTED pursuant to EC §§ 451(a) and 452(d).

Trustee's evidentiary objections (ROA 118) are OVERRULED.

I. Background This case concerns the Samuel W. Milton Living Trust Dated March 6, 2006 ('Trust'). Decedent died on September 5, 2022. Emilia Murcia is named as the successor trustee ('Trustee') of the Trust. Kimberlee Tussing ('Petitioner') is Decedent's biological niece and a named beneficiary under the Trust. The Trust was amended in July 2021 such that Trustee became the main beneficiary under the Trust.

On October 26, 2022, Trustee filed a Petition for Order: (1) Confirming Petitioner's Status as Trustee; (2) Confirming Trust Ownership of Personal Property; and (3) Transferring Title to Such Personal Property to the Trust. (ROA 1.) This petition was supplemented at ROA 41.

On December 22, 2022, Petitioner filed a Petition for Orders on: (1) Invalidation of Trust on Grounds of Incapacity and Undue Influence; (2) Removal; (3) Compelling Trustee to Report and Account; (4) Compelling Attorney-in-Fact to Report and Account; (5) Breach of Fiduciary Duties; (6) Surcharge; (7) Financial Elder Abuse; (8) Probate Code § 850; (9) Civil Theft; (10) Constructive Trust; and (11) Allocate Charges to Distributive Share. (ROA 7.) These petitions are currently set for a case management conference on October 25, 2023.

On March 24, 2023, Trustee filed the instant motion for summary judgment, or in the alternative, summary adjudication and supporting documents, challenging the petition at ROA 7. (ROA 58, Notice of Mot. and Mot. filed Mar. 24, 2023.) Thus, for purposes of this motion, all references to the 'Petition' are to the petition at ROA 7 unless otherwise stated.

On April 4, 2023, the Court granted relief numbers 3 and 4 sought in the petition at ROA 1, and Calendar No.: Event ID: TENTATIVE RULINGS

3010925 CASE NUMBER: CASE TITLE: IN THE MATTER OF SAMUEL W.

MILTON LIVING TRUST DATED 37-2022-00043145-PR-TR-CTL amended the orders made on March 28, 2023 (ROA 79). (ROA 97, Minute Order filed Apr. 4, 2023.) On May 26, 2023, Trustee filed an Amended Notice of Motion and Motion. (ROA 105, Amended Notice of Mot. and Mot.) On August 9, 2023, Petitioner filed an opposition to the motion and supporting documents. (ROA 107.) On August 18, 2023, Trustee filed a reply and supporting documents. (ROA 115.) II. Discussion A. Compliance with the Rules of Court As a preliminary matter, the Court notes that Petitioner's electronic exhibits fail to comply with CRC 3.1110(f)(4) and Superior Court of San Diego County, Local Rules, rule 4.3.2(A)(4), which require the electronic bookmarks to include bookmark titles that identify the exhibit number or letter and briefly describe the exhibit. (See ROA 137.) Further, as to the motion for summary adjudication, Trustee's Notice of Motion as amended (ROA 105), and Separate Statement (ROA 64) fail to comply with CRC 3.1350(b), 3.1350(d)(1) and (2), and CCP § 437c(b)(1). If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts. (Cal. Rules of Court, rule 3.1350(b), emphasis added.) 'It is elemental that a notice of motion must state in writing the grounds upon which it will be made. Only the grounds specified in the notice of motion may be considered by the trial court. This rule has been held to be especially true in the case of motions for summary adjudication of issues.' (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545, citations and quotation marks omitted.) Here, the Amended Notice of Motion raises 14 issues for summary adjudication. Issue Nos. 4-14 are directed at each of the 11 causes of action in the Petition. Thus, the amended notice identifies specific causes of action that are the subject of the motion. However, as to Issue Nos. 1-3, the amended notice states the following: ISSUE ONE: THERE ARE ONLY TWO LEGALLY COGNIZABLE CAUSES OF ACTION EMBODIED IN THE PETITION AND WHICH ALLEGE VIOLATIONS OF PRIMARY RIGHTS, AND THE NUMBERED COUNTS MERELY SET FORTH THEORIES OF RECOVERY OR REQUESTS FOR REMEDIES BASED ON THOSE TWO PRIMARY RIGHTS VIOLATIONS.

ISSUE TWO: THE CAUSE OF ACTION BASED ON THE ALLEGED VIOLATION OF SETTLOR'S RIGHT TO TRANSMIT HIS ASSETS FROM UNDUE INFLUENCE, FRAUD AND/OR LACK OF MENTAL CAPACITY LACKS MERIT BECAUSE THOSE ELEMENTS OF THE ALLEGED VIOLATION CANNOT BE PROVEN BY ADMISSIBLE EVIDENCE.

ISSUE THREE: THE OTHER CAUSE OF ACTION IN THE PETITION, WHICH IS 24 BASED ON ALLEGED VIOLATIONS BY RESPONDENT (IN HER CAPACITIES AS 25 SUCCESSOR TRUSTEE AND AS ATTORNEY-IN-FACT) OF SETTLOR'S RIGHT TO 26 HAVE HIS ASSETS ADMINISTERED AS HE INTENDED, LACKS MERIT BECAUSE THE 27 ELEMENTS OF THAT CLAIM CANNOT BE PROVEN BY ADMISSIBLE EVIDENCE.

(ROA 105, Amended Not. of Mot. and Mot, at p. 2, emphasis added.) Based on this language, notice is unclear and uncertain as to Issue Nos. 1-3. Issue No. 1 presents legal issues that appear to be an affirmative defense or issues related to duty, but this is unclear. Issue No. 2 refers to 'the cause of action' without specificity, and to the extent the issue refers to several causes of Calendar No.: Event ID: TENTATIVE RULINGS

3010925 CASE NUMBER: CASE TITLE: IN THE MATTER OF SAMUEL W.

MILTON LIVING TRUST DATED 37-2022-00043145-PR-TR-CTL action, that needs to be made clear in the notice. Issue No. 3 also vaguely refers to 'the other cause of action,' and fails to state the issue with specificity. On a motion for summary adjudication, 'the issue should be clear and unambiguous and its scope should be apparent.' (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 333.) As such, the notice of motion is deficient.

Likewise, the Separate Statement in support of a motion must separately identify each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion. (Cal. Rules of Court, rule 3.1350(d)(1)(A).) 'The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.' (Cal. Rules of Court, rule 3.1350(d)(2), emphasis added.) 'The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed.' (CCP § 437c(b)(1), emphasis added.) Here, Trustee's Separate Statement includes matters that are not undisputed material facts. (ROA 64, Separate Statement of Undisputed Material Facts ['SSUMF'].) For instance, SSMUF Nos. 1 and 2 under Issue No. 1 are not material facts, but argument. Similarly, SSUMF No. 2 and 3 under Issue No. 1 state conclusions of fact or law, not material factual allegations. (See also SSUMF Nos. 1, 2 under Issue No.

3, at p. 5; SSUMF No. 2-4 under Issue No. 4, at p. 7; SSUMF No. 1, under Issue No. 5 at p. 8; SSUMF Nos. 1-3, under Issue No. 6 at p. 9; SSUMF Nos. 2-4, 6, 7, 8, and 9 under Issue No. 8 at pp. 11-13; SSUMF Nos. 1-2 under Issue No. 9 at p. 14; SSUMF Nos. 2-4, 6 and 7, under Issue No. 10 at p. 16; and SSUMF Nos. 2-4, 6, 7, and 8 at p. 18.) Therefore, the Notice of Motion as amended and Trustee's Separate Statement are procedurally defective, and the motion may be denied on this basis. Notwithstanding the deficiencies, the Court considers Trustee's Separate Statement and all arguments, and will rule on the merits of the motion as discussed below.

On the merits, Trustee failed to carry her burden.

B. Motion for Summary Adjudication In ruling on a summary judgment, the trial court must first identify the issues framed by the pleadings, since the pleadings set the boundaries of the issues to be resolved, and the materiality of disputed facts.

(Conroy v. Regents of University of Cal. (2009) 45 Cal.4th 1244, 1250; Nativi v. Deutsche Bank National Trust Company (2014) 223 Cal.App.4th 261, 289-90; Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 858.) The court then determines whether the moving party has established facts justifying judgment in its favor, and if the moving party has carried its initial burden, decide whether the opposing party has demonstrated the existence of a triable issue of material fact. (Serri, supra, at p. 858.) The Court must 'liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.' (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) The defendant meets its 'burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.' (CCP § 437c(p)(2).) Once the defendant meets that burden, 'the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.' (Ibid.) The plaintiff 'shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.' (Ibid.) 'A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.' (CCP § 437c(f)(2).) A party may move for summary adjudication against 'one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of Calendar No.: Event ID: TENTATIVE RULINGS

3010925 CASE NUMBER: CASE TITLE: IN THE MATTER OF SAMUEL W.

MILTON LIVING TRUST DATED 37-2022-00043145-PR-TR-CTL duty.' (CCP § 437c(f)(1).) The motion may be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (Id.) Here, as discussed above, Issue Nos. 1-3 as stated in the Amended Notice of Motion are unclear.

Further, it is also unclear that resolution of Issue Nos. 1-3 will completely dispose of a cause(s) of action, affirmative defense, or an issue(s) of duty. Moving party cites to Bay Cities Paving & Grading, Inc. v. Lawyer's Mutual Ins. Co. (1993) 5 Cal.4th 854, 860, fn. 1 ('Bay Cities'). (ROA 59, Memo of Ps & As, at p. 11.) However, Bay Cities dealt with a professional malpractice action brought by a general contractor, wherein the California Supreme Court found that under the primary rights theory, the contractor had a single cause of action against their attorney based on a single injury. Moving party cites to a footnote in Bay Cities where the Court observed that the terms 'cause of action' and 'counts' are often used imprecisely and indiscriminately. Thus, the motion does not rely on any holding from Bay Cities, but on dicta immaterial to this case. As such, Trustee's reliance on Bay Cities as cited is misplaced.

Therefore, the motion for adjudication is DENIED as to Issue Nos. 1-3.

As to the remaining issues, Issue Nos. 4-14, the Separate Statement essentially relies on the same arguments or conclusory statements as to all 11 causes of action. (See generally ROA 64, SSUMF.) The material facts in the case, such as the authenticity of the Certificate of Independent Review by attorney Green (Decedent's estate planning attorney who drafted the Trust amendment at issue in the Petition), the extent of Trustee's involvement in Decedent's care and more specifically, the amendment to the Trust, the circumstances surrounding the amendment to the Trust, Decedent's mental capacity or lack thereof at the time of the Trust amendment, whether Trustee exerted undue influence, and whether Trustee breached her fiduciary duties are all issues disputed by Petitioner. (See ROA 111, Pet.'s SSMUF.) Petitioner submitted evidence that show triable issues of material fact as to the disputed matters. (See ROA 112, Whitman Decl., Exhs. A-J.) Further, as drafted, even if Trustee's SSUMF was entirely undisputed, the SSUMF fails to set forth ALL material facts necessary for the resolution of the causes of action, and thus, summary adjudication of the issues would not be warranted given the arguments and evidence presented. In support of the motion, Trustee presented the declarations of attorney Green, attorney Stender, and Trustee, and no other reliable evidence, such as contemporaneous and independent third-party records, except for the Certificate of Independent Review by attorney Green. With respect to the Certificate of Independent Review and attorney Green's declarations authenticating this Certificate, as Trustee notes, 'an important issue in this case is whether there was a valid Certificate of Independent Review.' Based on attorney Melvin's declaration (ROA 137) and supporting evidence, the authenticity of the Certificate of Independent Review is indeed an issue. Thus, Trustee has not presented sufficient evidence to shift the burden of production on Petitioner. Nevertheless, Petitioner presented sufficient evidence to controvert the factual issues raised by the moving party and to establish that triable issues exist. (ROA 137, Melvin Decl., Exhs. A-G; ROA 108, Keblish Decl.) Moving party argues Petitioner cannot prove her claims through admissible evidence, but this is not the standard on a motion for summary judgment or adjudication. The standard is whether the moving party, who has the initial burden of production and bears the ultimate burden of persuasion, can establish that one or more elements of the cause(s) of action cannot be established, or that there is a complete defense to the cause of action; and not whether sufficient evidence exists to prove the claims in the Petition.

Therefore, the motion for summary adjudication is DENIED as to Issue Nos. 4-14.

Based on the above, the motion for summary judgment is DENIED.

Attorney for Kimberlee Tussing is directed to serve notice of ruling in accordance with the provisions of CCP § 1019.5(a).

Calendar No.: Event ID: TENTATIVE RULINGS

3010925 CASE NUMBER: CASE TITLE: IN THE MATTER OF SAMUEL W.

MILTON LIVING TRUST DATED 37-2022-00043145-PR-TR-CTL IT IS SO ORDERED.

Calendar No.: Event ID: TENTATIVE RULINGS

3010925