Judge: Olga Alvarez, Case: 37-2022-00043361-PR-TR-CTL, Date: 2024-01-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

DEPT.:

EVENT DATE:

EVENT TIME:

CENTRAL COURTHOUSE TENTATIVE RULINGS - January 23, 2024

01/24/2024  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 Summary Judgment / Summary Adjudication (Probate) 37-2022-00043361-PR-TR-CTL IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST DATED 4-23-2002 CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 09/26/2023

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 Valerie J. Van Wieren (ROA 57) is DENIED as to summary judgment. Summary adjudication is GRANTED as to Issues (a), (d)-(f), and DENIED as to Issues (b) and (c).

The Request for Judicial Notice (ROA 62) is GRANTED pursuant to EC § 452(d).

The Court will disregard the evidentiary objections filed by Valerie J. Van Wieren (ROA 98) as untimely.

I. Background The petition involves the Brett and Kathy Wright Family Trust dated April 23, 2002. Petitioner Valerie J.

Van Wieren ('Petitioner') was married to Brett Wright ('Decedent') from July 27, 2017, through June 23, 2023, when Brett passed away.

On October 27, 2022, Petitioner filed a Petition to Determine Entitlement to Share of Decedent's Estate as an omitted spouse ('Petition'). (ROA 1.) On January 17, 2023, Trustee W. Michael Wright, ('Trustee'), filed objections to the Petition. (ROA 12.) On September 26, 2023, Petitioner filed the instant motion for summary judgment, or in the alternative, adjudication. (ROA 57.) Petitioner moves for summary judgment on the ground the undisputed material facts establish that Petitioner is an omitted spouse under Probate Code § 21610 and entitled to a statutory share of the Decedent's estate.

Alternatively, Petitioner moves for summary adjudication of the following issues: a. Respondent's affirmative defense under Probate Code § 21611(a) that Decedent intentionally failed to provide for Petitioner in the Decedent's testamentary instruments, and such intention does not appear from the Decedent's testamentary instruments; b. Respondent's affirmative defense under Probate Code § 21611(b) that Decedent provided for Petitioner outside of the estate passing by Decedent's testamentary instruments, with the intention that Calendar No.: Event ID:  TENTATIVE RULINGS

3030532 CASE NUMBER: CASE TITLE:  IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST  37-2022-00043361-PR-TR-CTL such transfer be in lieu of a provision in said instruments on the ground that the Decedent never provided (actually transferred) any property to Valerie from outside of the estate passing by the Decedent's testamentary instruments during the Decedent's lifetime; c. Respondent's affirmative defense under Probate Code § 21611(c) that Petitioner made a valid agreement waiving the right to share in the Decedent's estate on the grounds that (1) Petitioner made no such agreement; or (2) any agreement by which Petitioner purported to waive the right to share in the Decedent's estate is invalid or unenforceable for lack of compliance with the requirements of Probate Code § 140 et seq.; d. Respondent's affirmative defense of promissory estoppel on the ground it is precluded as a matter of law; e. Respondent's affirmative defense of unclean hands on the ground it is precluded as a matter of law; and f. Respondent's affirmative defense of a waiver on the ground it is precluded as a matter of law.

(ROA 57, Notice of Mot.) On January 10, 2024, Trustee filed an opposition and supporting documents. (ROA 92.) On January 19, 2024, Petitioner filed a late reply and evidentiary objections. (ROA 97, 98) II. Discussion A. Compliance with the Rules of Court Petitioner's memorandum is 16 pages long excluding the captions page, but it does not include a table of contents as required and fails to comply with CRC 3.1113(f) ('A memorandum that exceeds 10 pages must include a table of contents and a table of authorities. A memorandum that exceeds 15 pages must also include an opening summary of argument.').

Further, Petitioner's reply and evidentiary objections (ROA 97, 98) were filed late, and fail to comply with CRC 3.1300(a) and CCP § 1005(b). As such, the Court will disregard the untimely reply and objections.

Even if the Court were to consider them, as discussed, summary judgment, or alternatively, adjudication, is not warranted under the circumstances where triable issues exist as to Decedent's intent to provide (or not) for his spouse, whether he provided for Petitioner outside of his estate, and whether Petitioner agreed to or otherwise waived any right to a share in Decedent's estate.

B. Summary Judgment/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 plaintiff meets their 'burden of showing that there is no defense to a cause of action if that party has Calendar No.: Event ID:  TENTATIVE RULINGS

3030532 CASE NUMBER: CASE TITLE:  IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST  37-2022-00043361-PR-TR-CTL proved each element of the cause of action entitling the party to judgment on the cause of action.' (CCP § 437c(p)(1).) Once the plaintiff meets that burden, 'the burden shifts to the defendant or cross-defendant 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 defendant '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 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.) 'Except as provided in Section 21611, if a decedent fails to provide in a testamentary instrument for the decedent's surviving spouse who married the decedent after the execution of all of the decedent's testamentary instruments, the omitted spouse shall receive a share in the decedent's estate ....' (Prob.

Code, § 21610.) The spouse shall not receive a share of the estate under Section 21610 if any of the following is established: (a) The decedent's failure to provide for the spouse in the decedent's testamentary instruments was intentional and that intention appears from the testamentary instruments.

(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent's testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.

(c) The spouse made a valid agreement waiving the right to share in the decedent's estate.

. . .

(Prob. Code, § 21611(a)-(c).) Petitioner's Separate Statement of Undisputed Material Facts ('SSUMF') identifies seven issues: Petitioner seeks summary judgment, not adjudication, of Issue No. 1, while Issue Nos. 2 through 7 correspond to Issues (a) – (f) as stated in the Notice of Motion. (See ROA 57, 59 ['Issue No. 1: Valerie is Entitled to Summary Judgment on ....'].) Issue (a) (Issue No. 2 in Petitioner's SSUMF) ISSUE NO. 2: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE UNDER PROBATE CODE SECTION 21611(a) THAT THE DECEDENT INTENTIONALLY FAILED TO PROVIDE FOR VALERIE IN THE DECEDENT'S TESTAMENTARY INSTRUMENTS ON THAT GROUND THAT, EVEN ASSUMING ARGUENDO THE DECEDENT INTENTIONALLY FAILED TO PROVIDE FOR VALERIE IN THE DECEDENT'S TESTAMENTARY INSTRUMENTS, SUCH INTENTION DOES NOT APPEAR FROM THE DECEDENT'S TESTAMENTARY INSTRUMENTS.

Here, Trustee objects based on vagueness of the term 'testamentary instruments,' but states that if Petitioner means 'testamentary instruments' as defined by Probate Code § 21610(a), then it is undisputed that Decedent intentionally failed to provide for Petitioner in his testamentary instruments, and Decedent's intention not to provide for Petitioner does not appear from the testamentary instruments. (ROA 93, Separate Statement of Undisputed Material Facts ['SSUMF'] Nos. 1, 3.) As such, there is no dispute as to any facts raised under Issue (a). Therefore, summary adjudication as to Issue (a) is GRANTED.

Issue (b) (Issue No. 3 in Petitioner's SSUMF) Calendar No.: Event ID:  TENTATIVE RULINGS

3030532 CASE NUMBER: CASE TITLE:  IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST  37-2022-00043361-PR-TR-CTL ISSUE NO. 3: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE UNDER PROBATE CODE SECTION 21611(b) THAT THE DECEDENT PROVIDED FOR VALERIE OUTSIDE OF THE ESTATE PASSING BY THE DECEDENT'S TESTAMENTARY INSTRUMENTS WITH THE INTENTION THAT SUCH TRANSFER BE IN LIEU OF A PROVISION IN SAID INSTRUMENTS ON THE GROUND THAT THE DECEDENT NEVER PROVIDED (ACTUALLY TRANSFERRED) ANY PROPERTY TO VALERIE FROM OUTSIDE OF THE ESTATE PASSING BY THE DECEDENT'S TESTAMENTARY INSTRUMENTS DURING THE DECEDENT'S LIFETIME.

Here, the parties dispute whether Decedent provided any property to Petitioner outside of the estate during Decedent's lifetime. (ROA 93, SSUMF No. 2, at p. 11.) Petitioner's position is that Decedent never provided any property for her, while Trustee claims that Decedent provided for Petitioner outside of the estate. The extent of Petitioner's evidence is Trustee's objections to the Petition and Petitioner's discovery responses, which are misstated. (See ROA 61, Singer Decl., Exh. E, Responses to FROG Nos. 20, 21.) On the other hand, Trustee asserts that Decedent provided for Petitioner through beneficiary designations on various accounts 'to be identified and provided to requesting party which are in the possession of the institutions the accounts are held with; email correspondent with Decedent; Letter of Intent in the possession of the Trustee.' (ROA 93, SSUMF No. 2, at pp. 11-12.) The Letter of Intent was provided. (ROA 94, Wright Decl., Exh. 3.) Trustee also cites to Exhibit 6, a copy of Decedent's 401(k) Profit Sharing Plan Statements and Summary of Plan Description, which was provided. (Id., Exh. 6.) Trustee claims documents evidencing transfer outside of the testamentary instruments were provided to Petitioner on October 3, 2023, although it is unclear what was provided.

Notwithstanding, it clear that Petitioner does not present any evidence and fails to meet her burden of proof that Decedent never provided for Petitioner outside of his estate. In contrast, Trustee submitted evidence showing that Decedent intended to and did provide for Petitioner outside of his estate.

Therefore, summary adjudication must be DENIED as to Issue (b).

Issue (c) (Issue No. 4 in Petitioner's SSUMF) ISSUE NO. 4: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE UNDER PROBATE CODE § 21611(c) THAT VALERIE MADE A VALID AGREEMENT WAIVING THE RIGHT TO SHARE IN THE DECEDENT'S ESTATE ON THE GROUNDS THAT (1) VALERIE MADE NO SUCH AGREEMENT; OR (2) ANY AGREEMENT BY WHICH VALERIE PURPORTED TO WAIVE THE RIGHT TO SHARE IN THE DECEDENT'S ESTATE IS INVALID OR UNENFORCEABLE FOR LACK OF COMPLIANCE WITH THE REQUIREMENTS OF PROBATE CODE § 140 ET SEQ.

Here, the parties dispute whether Petitioner orally waived the right to share in Decedent's estate and whether disclosure of the property or financial obligations of the Decedent was ever provided to Petitioner. (ROA 93, SSUMF Nos. 3, 6, 10-24, at p. 14-17.) Petitioner's sole evidence on this issue is her statements in the declaration, and Trustee's objections to the Petition and discovery responses. (Id., SSUMF Nos. 1-8, at pp. 13-14.) In effect, Petitioner did not carry her burden of proof showing that she made no agreement, whether written or oral. Petitioner argues that any agreement is unenforceable for failure to comply with Probate Code § 140 et seq., but there is no requirement under Probate Code § 21611(c) that the agreement be in writing, nor does Petitioner cite to any authority in support of such a proposition.

Trustee submitted his declaration and the declaration of Dorothy Wright, who claim to have been present during one conversation in April 2021 between Decedent and Petitioner, and they can attest to Decedent's intent and what the parties had contemplated and agreed to at the time of discussion. (See ROA 94, W. Michael Wright Decl.; ROA 95 Dorothy Wright Decl.) As such, Trustee presented evidence showing that Decedent did not intend to provide for Petitioner through the Trust, and instead, provided Calendar No.: Event ID:  TENTATIVE RULINGS

3030532 CASE NUMBER: CASE TITLE:  IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST  37-2022-00043361-PR-TR-CTL for her outside of his estate, such as through the 401(k) plan. Therefore, summary adjudication of Issue (c) is DENIED.

Issues (d) – (f) (Issue Nos. 5 - 7 in Petitioner's SSUMF) ISSUE NO. 5: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE OF 'PROMISSORY ESTOPPEL' ON THE GROUND IT IS PRECLUDED AS A MATTER OF LAW.

ISSUE NO. 6: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE OF 'UNCLEAN HANDS' ON THE GROUND IT IS PRECLUDED AS A MATTER OF LAW.

ISSUE NO. 7: VALERIE IS ENTITLED TO SUMMARY ADJUDICATION OF RESPONDENT'S AFFIRMATIVE DEFENSE OF 'OTHERWISE WAIVED TO RIGHT TO SHARE IN THE DECEDENT'S ESTATE' ON THE GROUND IT IS PRECLUDED AS A MATTER OF LAW.

Here, as to Issues (d)-(f), Petitioner argues that these defenses are precluded as a matter of law. (ROA 57, SSUMF No. 1 at pp. 7, 8, under Issue Nos. 5-7.) Petitioner refers to the plain language of Probate Code § 21610 and argues that the only exceptions to § 21610 are found in § 21611, and equitable defenses are not permitted. Petitioner argues that 'precisely because the Legislature has elected not to include in Probate Code section 21611 express exceptions based upon 'promissory estoppel' or 'unclean hands,' or 'otherwise waived the right to share,' [Trustee] is precluded as a matter of law from alleging such defenses to prevent [Petitioner] from receiving her pretermission rights as an omitted spouse under Probate Code section 21610.' (ROA 58, Memo of Ps&As, at p. 16.) Petitioner cites to Estate of Katleman (1993) 13 Cal.App.4th 51 and Estate of Dido (2011) 198 Cal.App.4th 791, in support of the argument that the affirmative defenses based on promissory estoppel, unclean hands, and waiver are precluded as a matter of law. Trustee cites to Estate of Sheldon (1977) 75 Cal.App.3d 364 and generally argues that the Probate Court has authority to apply equitable remedies but concedes that '[Trustee] was unable to find any statutes in the Probate Code that expressly state that equitable estoppel is a valid defense, yet, it clearly is.' (Sic.) (ROA 92, Oppo. at p. 13.) Katleman and Dido make clear that the defenses set forth in Probate Code § 21611 are the exclusive remedy in an action brought under Probate Code § 21610. (Katleman, supra, 13 Cal.App.4th at 66-67 [finding that the exclusions found in former Probate Code § 6561 (predecessor section 21611) are the only exclusions and 'where the Legislature has not provided for an exclusion from section 6560 based upon principles of estoppel, it is not appropriate for us to judicially create one.']; Estate of Dido, supra, 198 Cal.App.4th at 802-803 ['The financial elder abuse allegations have no bearing upon the determination of whether Elenice is an omitted spouse entitled to receive a share of Frank's estate pursuant to sections 21610 and 21611. Section 21610 specifies that an omitted spouse shall be entitled to a share of the estate unless one or more of the exceptions in section 21611 applies. A finding of elder abuse is not one of the listed exceptions. Thus, even if the elder abuse issue had been raised in the prior proceeding, it would have been improper for the court to rely on a determination that Elenice committed financial elder abuse as the basis for denying her entitlement to a share of the estate under section 21610 et seq.'].) Estate of Sheldon, on which Trustee relies in opposition, did not address Probate Code §§ 21610 and 21611. (Estate of Sheldon (1977) 75 Cal.App.3d 364.) In Sheldon, the petitioner claimed there was an antenuptial oral contract between decedent and her husband which qualified under Probate Code § 70 as a marriage contract, and if the agreement did not so qualify under § 70 as an oral contract, it qualified under the provisions of Probate Code § 220, which makes intestate succession under Probate Code § 221 subject to the limitation of any marriage or other contract. (Id. at pp. 371-375.) As such, Trustee fails to show that the affirmative defenses outside of Probate Code § 21611 are not legally barred.

Calendar No.: Event ID:  TENTATIVE RULINGS

3030532 CASE NUMBER: CASE TITLE:  IN THE MATTER OF BRETT AND KATHY WRIGHT FAMILY TRUST  37-2022-00043361-PR-TR-CTL Therefore, summary adjudication as to Issues (d) – (f) is GRANTED.

Based on the foregoing, summary judgment must be DENIED. As framed by the arguments and evidence, disputed issues exist as to whether Decedent executed all of his testamentary instruments after his marriage to Petitioner; whether Decedent provided for Petitioner outside of his estate, and whether Decedent and Petitioner had any agreements, whether written or oral, regarding any provisions to Petitioner by Decedent.

In short, summary adjudication is GRANTED as to Issues (a) and (d)-(f) and DENIED as to Issues (b) and (c). Summary judgment is DENIED.

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

IT IS SO ORDERED.

Calendar No.: Event ID:  TENTATIVE RULINGS

3030532