Judge: Olga Alvarez, Case: 37-2023-00026008-PR-TR-CTL, Date: 2023-11-28 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - November 14, 2023

11/15/2023  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Trust Proceedings Demurrer / Motion to Strike (Probate) 37-2023-00026008-PR-TR-CTL IN THE MATTER OF THE SURVIVOR'S TRUST UNDER THE E.K. BAUMER FAMILY TRUST [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 07/28/2023

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 Strike filed by Michael Baumer (ROA 7) is DENIED.

I. Background This case involves The Survivor's Trust under the E.K. Baumer Family Trust, created by Carol Baumer ('Decedent') and her husband. Decedent and her husband had two children: Michael Baumer and Stephen Baumer. Decedent and Eltinge Brown ('Petitioner') met after Decedent's husband passed away in 1997. The couple lived together for 24 years until Decedent's passed away in August 2022.

Petitioner is a named beneficiary under the Survivor's Trust.

Michael ('Trustee') became trustee of the Survivor's Trust in June of 2022.

On June 22, 2023, Petitioner filed a Petition: (1) to Instruct the Trustee; (2) for Damages for Breach of Fiduciary Duty; (3) for Suspension and/or Removal of Trustee; and (4) for an Order Precluding Trust Assets From Being Used to Fund the Defense of the Trustee ('Petition'). (ROA 1.) On July 28, 2023, Trustee filed the instant motion to strike, seeking to strike the following in the Petition pursuant to CCP § 436(a) and (b): Paragraphs 27, 28, 29, 30, 31, 34, 35, and 44(b)-(h), and Exhibits B and C, as confidential settlement communications protected from disclosure under EC §§ 1152 and 1154. (ROA 7, Notice of Mot., at p. 2.) On November 1, 2023, Petitioner filed an opposition to the motion. (ROA 23.) On November 7, 2023, Trustee filed a reply. (ROA 26.) II. Discussion Trustee argues that Petitioner attached as Exhibits B and C confidential settlement communications between the parties and described the settlement communications in detail in Paragraphs 27, 28, 29, 30, 31, 34, 35, and 44(b)-(h), improperly relying on these communications to prove liability against Trustee.

Trustee argues that Petitioner violated EC § 1152 by disclosing the payments Trustee offered Petitioner Calendar No.: Event ID:  TENTATIVE RULINGS

3003202 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE SURVIVOR'S TRUST UNDER THE  37-2023-00026008-PR-TR-CTL as a compromise of his claims to the Trust, and thus, Petitioner is attempting to use the confidential settlement communications to prove liability against Trustee. Trustee argues Petitioner also violated EC § 1154 by using the confidential settlement communications to show that Trustee offered to discount his claim for damages against Petitioner.

Petitioner opposes the motion, arguing that Trustee seeks to apply rules of trial admissibility at the pleading stage. Petitioner argues that even if the Evidence Code applied in a motion to strike at the pleading phase, Trustee misapplies the Evidence Code to the documents he seeks to strike. Petitioner argues that matters essential to a cause of action should not be struck.

Petitioner argues that given that the threats contained in the exhibits attached to the Petition form the basis, in large part, for Petitioner's claims for breach of the trustee's fiduciary obligations, as well as for his removal or suspension, it would be error for this Court to strike those allegations from the Petition.

A. Analysis On motion by a party or 'at any time in its discretion,' the court may strike out any 'irrelevant, false, or improper matter inserted in any pleading,' or '[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state ...' (CCP § 436(a), (b).) 'Evidence that a person has, in compromise or from humanitarian motives, furnished or offered or promised to furnish money or any other thing, act, or service to another who has sustained or will sustain or claims that he or she has sustained or will sustain loss or damage, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove his or her liability for the loss or damage or any part of it.' (Evid. Code, § 1152, subd. (a), emphasis added.) 'Evidence that a person has accepted or offered or promised to accept a sum of money or any other thing, act, or service in satisfaction of a claim, as well as any conduct or statements made in negotiation thereof, is inadmissible to prove the invalidity of the claim or any part of it.' (Id., § 1154, emphasis added.) Here, it is undisputed that under the terms of the Trust, Petitioner has a right to occupy the property located at Folsom Drive, La Jolla, California. The negotiations described in the Petition at Paragraphs 27-31, 34, 35, and 44(b)-(h), and in Exhibits B and C, evidence efforts by the parties to address Petitioner's right to occupy vis-a-vis the Trust's ability (or lack thereof) to continue to fund Petitioner's occupancy, in light of the various costs of keeping and maintaining the property.

The claim in the Petition is for breach of trust and breach of fiduciary duty, not for damages based on the settlement negotiations. In other words, Petitioner is not arguing liability based on the terms of Trustee's offers to Petitioner but based on Trustee's treatment of Petitioner as a trust beneficiary. Thus, the Court is not persuaded that EC §§ 1152 and 1154 apply here where Petitioner is not trying to prove 'liability for the loss or damage' based on Trustee's offers with respect to his right to occupy, or to prove the invalidity of any claim(s) he may have against the Trust.

Rather, Petitioner seeks orders instructing the Trustee to abide by the Trust terms by covering the expenses related to the Folsom Drive property, or alternatively, purchasing substitute property for Petitioner. Indeed, Trustee asserts he made certain offers to Petitioner in compromise of his claims to the Trust. However, the claims in the Petition are not raised against the Trust; they are raised against the Trustee in his fiduciary capacity.

Therefore, the motion to strike 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.

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3003202 CASE NUMBER: CASE TITLE:  IN THE MATTER OF THE SURVIVOR'S TRUST UNDER THE  37-2023-00026008-PR-TR-CTL Calendar No.: Event ID:  TENTATIVE RULINGS

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