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Probate Trust Calendar
Friday January 22, 2021 9:30 a.m. – Hon. Jennifer V. Dollard
Courtroom 18 via Zoom
The Probate matter listed below will be heard as follows:
PLEASE NOTE: In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 18. CourtCall is not permitted for this calendar.
If the tentative ruling is accepted, no appearance by Zoom is necessary unless otherwise indicated. You must notify the probate clerk at (707) 521-6893 if you wish to be heard in response to the tentative ruling. Any interested party who wishes to be heard in opposition to a petition must notify all other parties of the intent to appear. Both notifications must be completed no later than 4:00 p.m. on the court day immediately preceding the day of the hearing.
Unless notification to the probate clerk has been given as provided above, the tentative rulings shall become the rulings of the court at 8:30 a.m. on the day of the hearing.
D18 – Probate 9:30am Friday
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
Guide for participating in court proceedings via Zoom for Department 18.
-After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
-Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
-Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
-If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
-Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
-Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.
1. SPR-09374, Matter of Della Mae McCarty Trust
TENTATIVE RULING: Trustee Heidi Darling’s Petition filed on September 10, 2020 is continued to April 16, 2021 at 9:30 a.m. in Department 18. An objection has been filed, therefore, pursuant to Local Rule 6.2 (G)(2), the parties are directed to meet and confer and make a reasonable and good faith attempt to informally resolve the controversy at a face-to-face conference (which is deemed to include video platforms such as Zoom), if possible, otherwise by telephone conference. The parties are encouraged to use the court’s settlement panelist program, and may do so by calling the court’s judicial assistant at 707-521-6723. If the matter has not resolved, the parties shall each file statements of issues no later than seven (7) court days before the continued hearing date. (Local Rule 6.2 (G)(3).)
2,3. SPR-094593, Matter of Richard L. Holmes and Jacqueline B. Holmes Trust
TENTATIVE RULING: The Angus mac Lir Petition to Invalidate First Restatement of Trust and Subsequent Amendment on the Basis of Undue Influence, Mistake, and Lack of Mental Capacity; to Confirm Validity of the 1998 Declaration of Trust; for an Accounting; for an Award of Attorneys' Fees and Costs; and for an Order Prohibiting Payment of Attorneys' Fees and Costs from the Trust During Litigation is continued to April 23, 2021 at 9:30 a.m. in Department 18 for the purpose of allowing the parties to address the following:
-Whether separate Guardians ad Litem (GAL) should be appointed for the settlors, and whether the GAL(s) should be someone other than the Trustee. While there has been no formal “finding” of incapacity, the Court is satisfied based on the information provided to it thus far by all parties, that appointment of a GAL is necessary for the protection of the rights of the settlors now. The Court is also of the opinion that the settlors are not clearly able to waive any conflict that might arise in the event of joint representation. Having reviewed the pleadings and issues raised in this matter, it is the Court’s tentative view that each settlor should have separate counsel appointed as GAL (other than the Trustee), and that the GAL should be empowered to make all decisions necessary to pursue, defend or compromise litigation in the best interests of their charge. The parties are directed to meet and confer on this issue and if they can come to an agreement as to the identity of counsel willing to act as GAL for each settlor, as well as the scope of that appointment, may submit a request for their appointment as a drop off ex parte at any time prior to the next hearing, in order to move things along. If the parties are unable to agree on whom should be appointed, or disagree even with the premise that separate counsel should be appointed as GAL for each settlor, they shall include a statement of their position and the reasons for it in a statement of issues filed at least seven (7) court days prior to the next hearing. The statement may also include nominations of individuals willing to serve as GAL(s) from which the Court may chose at the next hearing in the absence of an agreement or change in the tentative views of the Court.
-Whether the Court should grant the order prohibiting the use of Trust funds to prosecute or defend litigation in this matter. It is the Court’s tentative view that such an order is not appropriate as to the settlors, or the trustee of their trust. It is their money after all.
-Upon resolution of the above issues, the Court intends to set the Petition for trial. However, if new GAL(s) are appointed the Court would not set a trial date until they had sufficient time to become oriented to the case. Thus, any agreement on this point the parties can reach prior to the next hearing, the more likely it is the Court can set the matter for trial then.
The Gilbert Michael HolmesPetition for Transfer of Property in Trustee’s Possession is continued at Petitioner’s request to April 23, 2021 at 9:30 a.m. in Department 18.
4. SPR-094632, Matter of Bill J. Mondino Trust
TENTATIVE RULING: This matter is continued to April 16, 2021 at 9:30 a.m. in Department 18 in order for the parties to engage in discovery and further attempts to resolve their dispute outside of court. If the case has not resolved by the next hearing date, the parties shall file statements of issues at least seven court days before the hearing.
5. SPR-094779, Matter of the Nancy Barr Recoable Trust of 2015
TENTATIVE RULING: Objections to the Petition have been filed. Therefore, this matter is continued to April 16, 2021 at 9:30 a.m. in Department 18 in order for the parties to conduct discovery and attempt to resolve this matter, and to allow the Motion to Quash presently set for hearing February 19, 2021, to be determined. Pursuant to Local Rule 6.2 (G)(2), the parties are directed to further meet and confer and make a reasonable and good faith attempt to informally resolve the controversy at a face-to-face conference (which is deemed to include video platforms such as Zoom), if possible, otherwise by telephone conference. The parties may also use the court’s settlement panelist program, and may do so by calling the court’s judicial assistant at 521-6723. If the matter has not resolved, the parties shall each file statements of issues no later than seven (7) court days before the continued hearing date. (Local Rule 6.2 (G)(3).)
6. SPR-094917, Mater of the Willy Koch 2012 Revocable Trust, dated March 1, 2012
TENTATIVE RULING: This matter is continued to April 9, 2021 at 9:30 a.m. in Department 18 in order for Petitioner to provide notice pursuant to Probate Code §851 by use of the mandatory Judicial Council Form DE-115.
Petitioner can avoid the continuance and obtain an order granting the Petition at the present hearing date (assuming no objection is made at the hearing) by calling to indicate that an appearance will be made in response to this tentative ruling and by filing waivers of notice, from all those entitled to notice, in advance of the hearing.
7. SPR-094920, Matter of the Bernard Carl Wetzel & Gail Dolores Wetzel Revocable Trust
TENTATIVE RULING: Opposition to the Petition to Determine Validity of Trust Provisions and for Instructions and to Modify Trust has been filed. Therefore, this matter is continued to April 9, 2021 at 9:30 a.m. in Department 18 in order for the parties to conduct discovery and attempt to resolve this matter. Pursuant to Local Rule 6.2 (G)(2), the parties are directed to further meet and confer and make a reasonable and good faith attempt to informally resolve the controversy at a face-to-face conference (which is deemed to include video platforms such as Zoom), if possible, otherwise by telephone conference. The parties are encouraged to use the court’s settlement panelist program, and may do so by calling the court’s judicial assistant at 521-6723. If the matter has not resolved, the parties shall each file statements of issues no later than seven (7) court days before the continued hearing date. (Local Rule 6.2 (G)(3).)
If a party seeks an order relating Sonoma Court case SCV-267528 (or any other Sonoma Court cases) to this probate case, the party must proceed according to California Rule of Court 3.300. Presently, no Notice of Related case has been filed in this action or in SCV-267528, but the Court would entertain relating the cases if such notice were properly filed. The Court notes that relating cases does not have the same effect as consolidating them.
8. SPR-094921, Matter of Robert G. Bogner & Arla Mae Bogner Trust
TENTATIVE RULING: No proof of service has been filed and the notice fails to fully comply with Probate Code §851(c)(1) in any event. Therefore, the petition is continued to April 16, 2021 at 9:30 a.m. in Department 18 in order for Petitioners to serve notice identifying all the property that is the subject of the petition, not just the real property located at 148 W. Brookside Drive, Cloverdale.
Proof of service of the notice shall be filed at least five court days before the continued hearing date.
The Court notes it is inclined to deny the Petition as to 148 W. Brookside Drive. The property is not identified specifically in the Trust or on Schedule A attached to the Trust. Nor does the Petition allege that decedent had a pour over will.
Moreover, decedent Arla Mae Bogner amended the Surviving Grantor’s Trust in 2003 – years after she purchased the W. Brookside Drive house – and at that time she did not update Schedule A to identify the property as a trust asset and/or change title to reflect the property is held in the Trust.
9. SPR-095090, Matter of the Carmody Family Living Trust dated 1/18/91 as Amended
TENTATIVE RULING:Approved. The Court will sign the proposed order submitted on October 28, 2020, except that the Court will strike the language “nunc pro tunc.” A nunc pro tunc order may not change the terms of a document after the fact, but only correct a clerical error. (“ … amendments to judgments can only be made for the purpose of making the record conform to the truth, and not for the purpose of revising and changing the judgment. Black on Judgments, section 156.” Felton Chemical Co. v. Superior Court, (1939) 33 Cal.App.2d 622, 627.) Essentially, the phrase nunc pro tunc cannot be used as a time machine. If the thing did not happen in the past the use of the phrase does not make it so. Rather, the term is for the purpose of correcting the record to reflect what were actually the facts of the event, but were not properly recorded. That is not the situation presented here. This principle was also stated in Barkelew v. Barkelew, (1946) 73 Cal.App.2d 76, 79:
The law is well settled that a clerical error (the definition of which has been considerably expanded in the more recent decisions) in a judgment appearing on the face of the record may be corrected by a nunc pro tunc order and that such correction may be made at any time Estate of Goldberg, 1938, 10 Cal.2d 709, 76 P.2d 508. The purpose of this procedure is 'to make the judgment as entered conform to the judicial decision actually made.' Benway v. Benway, 1945, Cal.App.2d 159 P.2d 682, 684.
Another case addressing inappropriate use of a nunc pro tunc order is Hamilton v. Laine, (1997) 57 Cal.App.4th 885. In that case, the trial court entered an order approving a compromise and settlement between property owners and a minor who had suffered severe brain damage arising out of a swimming pool accident. The settlement included a lump sum payment of $400,000 ordered placed into a medical trust fund, and an additional $100,000 was used to purchase an annuity for the minor's benefit. All the funds held in trust were consumed in payments to the state Department of Developmental Services for expenses in connection with the minor's care in a state facility. Ten years after entry of the original order, the trial court established a special needs trust to receive the $5,000 monthly annuity payments relating back nunc pro tunc to the date of the original order, thereby extinguishing the outstanding claim of the department for unreimbursed expenses. The Court of Appeal reversed and reinstated the order originally entered by the trial court. The court held that the trial court had no authority to grant the minor's request for an order nunc pro tunc. There was no written or oral evidence that the trial court, in entering the original order approving the settlement, intended to authorize a trust that would function like the special needs trust in the corrected nunc pro tunc order. The court held it is not proper to amend an order nunc pro tunc to correct judicial inadvertence, omission, oversight, or error, or to show what the court might or should have done as distinguished from what it actually did.
And see Golba v. Dick's Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1265-66, for a summary of the California Supreme Court’s view:
The California Supreme Court has circumscribed the grounds on which an order may be entered nunc pro tunc. “A court can always correct a clerical, as distinguished from a judicial error which appears on the face of a decree by a nunc pro tunc order. [Citations.] It cannot, however, change an order which has become final even though made in error, if in fact the order made was that intended to be made.... ‘The function of a nunc pro tunc order is merely to correct the record of the judgment and not to alter the judgment actually rendered—not to make an order now for then, but to enter now for then an order previously made. The question presented to the court on a hearing of a motion for a nunc pro tunc order is: What order was in fact made at the time by the trial judge?’ ” (Estate of Eckstrom (1960) 54 Cal.2d 540, 544, 7 Cal.Rptr. 124, 354 P.2d 652.) “It is only when the form of the judgment fails to coincide with the substance thereof, as intended at the time of the rendition of the judgment, that it can be reached by a corrective nunc pro tunc order.” (Id. at p. 545, 7 Cal.Rptr. 124, 354 P.2d 652; see Estate of Careaga (1964) 61 Cal.2d 471, 475, 39 Cal.Rptr. 215, 393 P.2d 415 [court may correct an order nunc pro tunc if “[s]uch a correction does not change the meaning or legal effect of the decree”]; Mather v. Mather (1943) 22 Cal.2d 713, 719, 140 P.2d 808 [purpose of nunc pro tunc order is to correct and to express the true intention of the court as of the earlier date “and thus conform to verity”].)
Here, the language of the Trust as established was in fact correctly stated in the original document. The modification the Court grants today is effective only as of the date of the Court’s order.
10. SPR-094658, Matter of Berit Brandt Trust
TENTATIVE RULING: Based on stipulation of the parties, this matter continued to February 5, 2021 at 9:30 a.m. in Department 18.
*This is the end of these Tentative Rulings*