Judge: Olga Alvarez, Case: 37-2023-00034035-PR-OP-CTL, Date: 2024-01-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - January 30, 2024

01/31/2024  10:30:00 AM  503 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Olga Alvarez

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Probate  Other Probate Matter Motion Hearing (Probate) 37-2023-00034035-PR-OP-CTL IN THE MATTER OF KERRY WHEELER [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion to Dismiss, 09/20/2023

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 Dismiss filed by LaBresia Wheeler (ROA 33) is DENIED.

On August 10, 2023, Robert Wheeler ('Robert') filed an 'Ex Parte Application to Request That All Processes Stop to Cremate the Remains of Deceased Kerry Wheeler At Tulip Crematorium.' (ROA 1.) The Court granted in part and denied in part this ex parte application, setting a hearing on August 17, 2023, and ordering as follows: '2. Petitioner to give notice to all parties, in particular LaBresia Wheeler.

[¶] 3. The Court grants only the injunction to stop the removal or any movement of the decedent's remains from Greenwood Mortuary including cremation at Tulip Cremation until further order of the court.' (ROA 11, Minute Order filed Aug. 11, 2023.) The hearing set for August 17, 2023, was continued to August 29, 2023. (ROA 17, Minute Order filed Aug. 17, 2023.) On August 29, 2023, the parties stipulated: 'to the terms listed below that are now orders of the court.

The Court orders as follows: 1. Mr. Robert Wheeler to provide the death certificate to be given to LaBresia Wheeler not later than 09/29/2023. [¶] 2. LaBresia Wheeler to be included in the obituary as the only child. [¶] 3. Mr. Robert Wheeler to pay the transfer fees from Tulip Crematorium to Greenwood Mortuary. [¶] 4. At request of Mr. Wheeler his petition his [sic] withdrawn and dismissed with prejudice.' (ROA 22, Minute Order filed Aug. 29, 2023, emphasis added.) On September 20, 2023, LaBresia Wheeler ('LaBresia') filed the instant motion to dismiss. (ROA 33.) Although unclear from the allegations, it appears that LaBresia is claiming that Robert has not complied with the Court's orders issued on August 29, 2023. (Id. ['All the orders made for Kerry Layne Wheeler have not been followed willfully. I believe I've given ample time and tried to act in good faith to dismiss the case to move forward but the plaintiff refuses to do so. He requested a 'direct burial' and no obituary.'].) LaBresia complains of lack of service by certified mail, as agreed to by Robert, and that Robert's address for service is invalid. The motion requests that the Court '[v]acate prior agreement; excluding to moving costs as the defendant choose to do so without following the judge's order to dismiss the case on 08/29/2023. [¶] 2. I request the court dismiss the case with prejudice in my favor, so I may finish Calendar No.: Event ID:  TENTATIVE RULINGS

3023067 CASE NUMBER: CASE TITLE:  IN THE MATTER OF KERRY WHEELER [IMAGED]  37-2023-00034035-PR-OP-CTL processing the remains of Kerry Layne Wheeler. He has had ample time to do. [¶] 3. Order the plaintiff file all notices of service attempts made upon me and continue to do with each filing.' (ROA 33, Mot. at 'Request for Relief.') On October 20, 2023, the Court heard from the parties and granted in part Robert's ex parte application for Issuance of Nunc Pro Tunc Order and Amended Order (ROA 58). (ROA 64, Minute Order filed Oct.

20, 2023.) The Court held: Upon agreement by both parties the Court modifies the stipulated agreement issued via Court Order on August 29, 2023, ROA #22. The Court orders as follows: [¶] 1. Mr. Robert Wheeler to provide the death certificate to be delivered to Ms. LaBresia Wheeler by certified mail not later than November 1, 2023, to Ms. Wheeler's address provided on the record. [¶] 2. Ms. LaBresia Wheeler to be included in the obituary as the only child. [¶] 3. Mr. Robert Wheeler to pay the transfer fees from Tulip Crematorium to Greenwood Mortuary. [¶] 4. Mr. Robert Wheeler possesses the disposition of authority for interment for the body of the decedent, Kerry Wheeler. [¶] 5. Mr. Robert Wheeler is to provide notice of the date, time and place for ALL funeral or memorial services to Ms. LaBresia Wheeler at least 10 days prior to the first event. [¶] 6. At request of Mr. Wheeler his petition his [sic] withdrawn and dismissed with prejudice.

(Id., emphasis added.) Robert has filed subsequent ex parte applications (ROA 24, 29, 38, 53), which have all been denied without prejudice. (See ROA 27, 36, 42, and 56.) LaBresia has also filed ex parte applications (ROA 43, 48), which have all been denied without prejudice (ROA 47, 62.) As such, there is no petition filed by either party currently pending in this matter, and thus, no pleading to be dismissed. (See ROA 64, Amended Order issued on October 20, 2023.) Therefore, the motion is DENIED as moot.

IT IS SO ORDERED.

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