Judge: Olga Alvarez, Case: 37-2023-00023251-PR-OP-CTL, Date: 2024-02-07 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - February 06, 2024

02/07/2024  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Other Probate Matter Motion Hearing (Probate) 37-2023-00023251-PR-OP-CTL IN THE MATTER OF THE DURABLE POWER OF ATTORNEY OF DAVID G. PRESS, DATED JANUARY 29, 2023 [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 10/27/2023

Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Order Respondents' Objection or Response Waived for Failure to File by Due Date filed by Debra Press (ROA 19) is DENIED.

I. BACKGROUND On May 30, 2023, Debra Press ('Petitioner') filed a 'PETITION TO: 1) REVOKE POWER OF ATTORNEY DATED JANUARY 29, 2023 2) SURCHARGING ATTORNEY IN FACT 3) FINANCIAL ELDER ABUSE.' (Sic.) (ROA 1.) This petition is set for hearing on February 7, 2024, to trail the motion.

(ROA 27, Minute Order filed Oct. 31, 2023.) Petitioner is the surviving spouse of David G. Press ('Decedent') who was the principal. David C. Press and Louise Bedsworth ('Respondents') are the children of Decedent.

On August 15, 2023, the Court ordered as follows: 1. The Court orders the appointment of Guardian Ad Litem for David C. Press. [¶] 2. All objectors are advised that pursuant to CRC 7.801, if they fail to serve and file a timely objection or response due not later than 10/24/2023, the Court may deem such objection or response waived. [¶] 3.

Attorney Greco waives personal service to his clients and accepts electronic service.

(ROA 16, Minute Order filed Aug. 15, 2023, emphasis added.) On October 27, 2023, the Guardian Ad Litem ('GAL') filed a report. (ROA 18.) On October 27, 2023, Petitioner filed the instant motion for an order that Respondents' response or objection to the Petition is waived for failure to file pursuant to CRC 7.801, because written objections or responses have not been filed as ordered by this Court. (ROA 19.) On October 30, 2023, Respondents filed a Response and Objections to the Petition. (ROA 23.) On January 25, 2024, Respondents filed an opposition to the motion. (ROA 30.) Calendar No.: Event ID:  TENTATIVE RULINGS

3045917 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DURABLE POWER OF ATTORNEY OF DAVID  37-2023-00023251-PR-OP-CTL On January 29, 2024, Petitioner filed a reply. (ROA 31.) II. DISCUSSION A. Compliance with the Rules of Court Respondents' opposition (ROA 30) fails to comply with CRC 3.1112(c), where the papers in support of the motion were combined into one pleading without separately specifying these items in the caption.

(Cal. Rules of Court, rule 3.1112(c) ['The papers filed under (a) and (b) may either be filed as separate documents or combined in one or more documents if the party filing a combined pleading specifies these items separately in the caption of the combined pleading.'].) Further, there is no index of exhibits provided as required under CRC 3.1110(f)(1). Instead, the exhibits are attached to the end of the motion, after Respondent Louise Bedsworth's declaration, which does not reference the exhibits.

Petitioner's evidence attached to the reply fails to comply with CRC 3.1306(a), which requires that '[e]vidence received at a law and motion hearing must be by declaration or request for judicial notice without testimony or cross-examination, unless the court orders otherwise for good cause shown.' (Cal.

Rules of Court, rule 3.1306(a); see ROA 31, Reply.) Compliance with the Rules of Court is mandatory. The parties are expected to comply with all applicable rules in the future.

B. Motion The Petition at issue was filed on May 30, 2023. (ROA 1.) On August 15, 2023, the Court advised that the Court may deem an objection or response to the Petition waived pursuant to CRC 7.801 if they were not served and filed by October 24, 2023. (ROA 16, Minute Order filed Aug. 15, 2023.) Thus, while Respondents oppose the motion, arguing at length various issues involving discovery and gamesmanship by Petitioner's counsel, it is plain to the Court that Respondents were on notice that a failure to serve and file a timely objection or responses to the Petition could be deemed a waiver of the objection or responses by the Court. Respondents do not, and indeed cannot, point to any part of the record or legal authority that would excuse their failure to timely serve and file an objection or responses to the Petition. Even if the Petition will likely need amending, Respondents were not relieved of their deadline, particularly where, as Respondents argue, there was insufficient communications between the parties. Respondents also appear to shift the blame to Petitioner for filing the motion without warning, but Petitioner was not obligated to inform Respondents or meet and confer prior to filing the motion.

Notwithstanding, a courtesy meet and confer call or email would have likely obviated the need for unnecessary motion practice and added to the litigation costs. Further, the objection/responses were due by October 24, 2023, and they were filed less than a week later, on October 30, 2023, from which the Court finds no prejudice to Petitioner, particularly in view of the early procedural posture of this case and consistent with the liberal policy of resolving petitions on the merits. Granting the instant motion would dispose of the Petition on a technical ground, depriving Respondents of their day in Court and a determination of the disputed issues on the merits, which the Court finds is not warranted under the circumstances and is inconsistent with notions of substantial justice between the parties.

Therefore, the motion is DENIED.

Counsel for Respondents is directed to serve written notice of ruling on all parties in accordance with the provisions of CCP § 1019.5(a) IT IS SO ORDERED.

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3045917 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE DURABLE POWER OF ATTORNEY OF DAVID  37-2023-00023251-PR-OP-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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