Sep 17, 2021
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TENTATIVE RULINGS
Probate Trust Calendar - TRUSTS

Friday, September 17, 2021              9:30 a.m. – Hon. Jennifer V. Dollard

Courtroom 18 

Probate matters will be heard as follows

 

PLEASE NOTE: In accordance with the Order of the Presiding Judge, a party or representative of a party may appear personally in Courtroom 18 or may appear remotely through Zoom.  Social distancing among members of the public is no longer required and capacity shall be the normal courtroom capacity. 

 

Masks are required at all times, regardless of vaccination status.  Compliant mask coverings do not include; 1) neck gaiters; 2) masks with valves or other holes; 3) bandanas; or 4) face shields.  This order applies to all interior spaces of the courthouse. 

 

CourtCall is not permitted for this calendar.

 

Probate Matters Will be Heard as Follows: 

 

If the tentative ruling does not require appearances, and is accepted, no appearance by Zoom is necessary. 

 

The tentative rulings will become the ruling of the Court unless a party desires to be heard.  If you desire to appear and present oral argument, YOU MUST NOTIFY Judge Dollard’s Judicial Assistant by telephone at (707) 521-6893 and all other opposing parties of your intent to appear, and whether that appearance is in person or via Zoom, no later 4:00 p.m. the court day immediately preceding the day of the hearing.

 

Unless notification of an appearance has been given as provided above, the tentative ruling shall become the ruling of the court at 9:45 a.m. on the day of the hearing, absent an objection from an interested party per Probate Code section 1043.    

 

To Access the Probate Examiner Notes:

 

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To Join “Zoom” Online

D18 – Probate 9:30am Friday

MeetingID: 838—5609—8726

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Guide for Participating in Court Proceedings via Zoom for Dept 18:

 

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-The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.

 

 

 

TRUSTS

 

1.         SPR-093495, Matter of Jorge Lopez Special Needs Trust

 

TENTATIVE RULING:  APPROVED IN PART, DENIED IN PART.  This matter has been continued two times previously.  Most recently, it was continued from July 16, 2021 to the present hearing date, so that the petitioners could file a supplemental pleading or pleadings addressing a number of specified issues.  The supplemental pleadings have satisfactorily addressed all issues, save one.  The Accounting is APPROVED but the request for fees in the sum of $914.50 is DENIED.  The Court’s concern as to this issue remains unresolved.   Petitioners request $914.50 in fees for a period commencing January 7, 2020, and ending September 30, 2021, directing the Court’s attention to an “attached time diary” that allegedly supported the requested fees sought.  (See ¶ 10 of Declaration of Co-Trustees attached to First Account filed on May 17, 2021.)  However, no time diary or diaries have ever been supplied.  The Court previously indicated the “time diary” was needed because, in the absence thereof, it was not readily apparently that payment for work performed during the nine month period where Petitioners did not yet have access to assets of the SNT was justified.  In the supplement, instead of supplying the “time diary,” Petitioners advise that the actual period is December 12, 2019 to December 12, 2020 (not the previously-identified 9-month period).  They further contend they should have stated the “trustee invoice” was categorized by type of service rather than in chronological order and that it covered the entire account period.  In support thereof, Petitioners have directed the Court’s attention to Exhibit “B” attached to the supplemental filing which is purported to be “a true and correct copy of the trustee invoice.”  Unfortunately, Exhibit “B” is a document that appears to be a version of a tentative ruling for the hearing held on December 12, 2019 which, as previously noted by the Court, is not actually a true reflection of the Court’s tentative ruling for December 12, 2019.  This document attached to the Supplemental Filing as Exhibit “B” has no relevance to the current proceeding. 

For the foregoing reasons, the specific request for fees in the sum of $914.50 is DENIED.

The Petitioners are directed to submit a new [proposed] order that conforms to this ruling.

 

2.       SPR-093942, Matter of Michael F. Rorick Special Needs Trust

TENTATIVE RULING:  The Petition for Approval of Account and Report, etc., filed March 18, 2021 is APPROVED.  The Court will sign the Proposed Order submitted on March 18, 2021.

This matter was continued on July 23, 2021, so petitioner could have additional time to do the following:

 

1.    Provide Notice of Hearing and a copy of the June 7, 2021 supplemental declaration to parties who were served notice of the petition and original hearing date.

 

2.    File and serve an additional declaration expressly clarifying whether the November 8, 2019 order was the only order issued by the Napa County Superior Court on the First Account and Report Petition, or whether a subsequent, final order was issued by the Napa County Court after it received petitioner’s November 12, 2019 supplemental declaration.

 

As to the Notice of Hearing issue, Petitioner filed a Proof of Service on August 18, 2021 as well as a Notice of Hearing, both of which satisfy the Court’s directive. Additionally, the Court notes a proof of service is also attached to the most recent Declaration of Erika Copenhaver (referenced above) showing this document was also served on the appropriate individuals. 

 

Petitioner has also filed a Declaration by counsel Erika Copenhaver attesting to being advised by the Clerk of the Court in Napa County there are no Napa orders subsequent to that dated November 8, 2019, which is set forth in the minute order previously submitted.  The Court is satisfied with this attestation.

 

It continues to be the case that no objections have been filed with regard to this matter.

 

 

 

3.         SPR-095499, Matter of Estela C. Fogal, Phillip P. Fogal Trust

 

TENTATIVE RULING:  The Petition for Approval of Settlement of Account; Approval of Trustee’s and Attorney’s Fees; and Final Distribution and Termination of Trust is APPROVED.  The Court will sign the Proposed Order submitted by Petitioner.

 

This matter was CONTINUED from July 16, 2021, with an indication the Court would set it for evidentiary hearing unless the parties demonstrated genuine efforts to meet and confer as required under Local rule 6.2 G.2.  They have complied and have settled their controversies.  The Court is persuaded the outcome is in the best interest of the Trust. 

 

 

 4.         SPR-095704, Matter of Frances Gay Joyce Trust

 

TENTATIVE RULING:  Approved.  The Court will sign the form of order lodged on May 27, 2021.

 

On July 30, 2021, the Court continued this matter to give Petitioner an opportunity to comply with the service requirement of Prob. Code § 851(a) as to Wells Fargo Advisors.

 

The original proof of service filed on July 9, 2021, showed that, on May 28, 2021, Wells Fargo Advisors was served by mail with the Notice of Hearing and Petition.  Because Wells Fargo Advisors is in “possession of” the subject property, Petitioner was and is required under Prob. Code § 851(a),  to serve the Bank in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, namely the method by which a summons is served.

 

Since notice was otherwise proper, the matter was continued to provide Petitioner an opportunity to either obtain a waiver of notice from Wells Fargo Advisors or otherwise provide proof of service in the manner required by Prob. Code § 851(a) and the applicable sections of the Code of Civil Procedure. 

On August 24, 2021, Petitioner filed a waiver of notice executed by a person attesting under penalty of perjury that he is authorized by Wells Fargo Advisors to provide such a waiver.  In light thereof and there being no objection, the petition is approved.

 

 

5.         SPR-095800, Matter of Doroth E. Brown Trust

TENTATIVE RULING: CONTINUED.  This matter comes on calendar for Petitioners’ request for an order confirming that certain real property is an asset of the Trust.  The hearing is continued to 9:30 a.m. on November 12, 2021, in Department 18 for the reasons stated below.

 

The purpose of the continuance is to permit Petitioners the opportunity to cure four defects: 

 

1)   

The petition must be supplemented to include a complete copy of the original Trust document (including attachments, schedules, etc.) as required by Local Rule 6.8A;

2)   

The petition must be supplemented to include a true and correct copy of the deed to which reference is made in ¶ 3 of the Petition;

3)   

The petition must be supplemented to include a legible copy of the original Settlor’s death certificate; and

4)   

Petitioners must comply with the service requirements of Prob. Code § 851(a) and Rule 7.101 of the California Rules of Court.  (See Judicial Council mandatory form DE-115.)

 

Attached to the Petition is a document labeled “Exhibit B” which purports to be a copy of the original trust document; however, it does not appear to the Court to be a complete copy of the said trust document.  The exhibit starts at “Page 9” and ends at “Page 13.”  Other than the allegation in ¶ 12 of the Petition, there is no way for the Court to determine the identity of the beneficiaries and persons entitled to notice.  Therefore, the Petitioners must supplement the pleading to include a true and correct copy of the entire trust document.

 

In paragraph 3 of the Petition, reference is made a deed to the subject real property which is purportedly attached thereto as Exhibit “A.”  However, a copy of the actual deed is not attached (only a copy of the legal description is attached).  Therefore, Petitioners must supplement the pleading to include a copy of the deed to the real property.  There may also be an issue regarding persons entitled to notice given that, without the deed, it is not possible to discern which title holders are entitled to notice.

 

Attached to the Petition is a document labeled “Exhibit C” which purports to be a copy of the original Settlor’s death certificate.  However, Exhibit C is not legible and Petitioners must supplement the pleading to include a copy which is legible.

 

Petitioner’s proof of service shows that on July 13, 2021, Clifford R. Brown and Audry M. Burton (the only living beneficiaries) were served by mail with the Judicial Council Form DE-120 Notice of Hearing – Decedent’s Estate or Trust which included a copy of the Petition, Proof of Service, and Proposed Order.  Use of form DE-120 is not proper in that DE-115 is a mandatory form for use in Petitions filed under Prob. Code § 851(a).  CRC 7.101 specifically provides that “If a petition, an order, or another document to be submitted to the court is one for which the Judicial Council has adopted a mandatory form, that form must be used.” 

 

  

6.         SPR-095813, Matter of Leonard R. Bradshaw & Shirley A. Bradshaw 1997 Family Trust

TENTATIVE RULING:  Continued to November 19, 2021 at 9:30 a.m. in Department 18 to provide Petitioner time to address the following issues:

 

·        

Petitioner alleges that Leonard and Shirley Bradshaw created their 22-page trust in 1997.  However, a copy of the trust is not included with or attached to the Petition.  Local Rule 6.8A requires that every petition include a copy of the entire trust instrument(s) relevant to the action, including all amendments thereto, and all attachments, schedules, and exhibits.  Petitioner must, therefore, supplement her petition to include the required document(s).

 

·        

Petitioner is requesting a number of orders relating to real and personal property, i.e., the Ranch Residence, the Dodge pickup, deposit accounts/extensions of credit, etc.  She has couched her requests in the form of a Petition filed pursuant to Probate Code §17200 and she has used Judicial Council form DE-120 for her Notice of Hearing.  In that Petitioner is seeking possession of these properties and they are currently in the possession of another individual or individuals, her request is more appropriately characterized as a request for an order directing the surrender of property in the possession of others pursuant to Prob. Code §850(a)(3)(B).  That subsection provides for relief when the trustee has a claim to real or personal property in the possession of another.  Petitioner must re-notice the hearing insofar as possession of these properties is concerned and use the mandatory Notice of Hearing (i.e., Judicial Council Form DE-115). 

 

 

·        

Petitioner is asking the Court to confirm the acceptance by Raeanne Mann to act as the Successor Trustee, confirm her actions, “and settling the accounts and passing upon the acts of the Successor Trustee, including the exercise of discretionary powers.” (See p.2 of Petition, ll 9-12; p.9 of Petition, ll 23-26; and, p.2 of Proposed Order After Hearing, ll 14-16.)  And, she seeks declaratory relief directing the surrender of unidentified “funds” alleged to be in possession of others, and enjoining the utilization of the unidentified funds and “credit extensions by [named respondents and or anyone] in possession of checks, debit cards, and other means of check extensions.” (See Petition, p.2. ll 20-23, p.10, ll 7-10.) The Court cannot issue an order with sufficient specificity to be enforceable without Petitioner identifying precisely what “funds” or lines of credit are governed by the order.

 

·        

In a declaration filed on September 10, 2021, Petitioner identifies Wells Fargo Bank as the holder of “savings and checking accounts,” (p.7 ll 17-19) and also identifies credit accounts held by Wells Fargo Bank and Bank of America (p.7, ll 20-22).  If title to these deposit and credit accounts is at issue, notice to the holders of those deposit accounts is necesssary, and it must be done using the proper Notice of Hearing (i.e., JC form DE-115).  Where a bank or other financial institution is in “possession of” the alleged deposit account, notice under Prob. Code § 851(a) is required in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure, namely in the same manner as service of summons.  Alternately, a waiver of notice may be obtained.

 

o  

Local Rule 6.2.D.2, requires that all supporting papers be filed at the time of filing the Petition.  The Court notes that the declarations of Petitioner and her attorney which were filed on September 10, 2021, are noncompliant with this local rule.

 

·        

Petitioner alleges certain persons are using funds on deposit, but provides little detail.  The newly-filed September 10th declaration references only one alleged transaction whereby her sister Pamela transferred funds from the Settlor’s (unidentified) accounts into another owned by Pamela.  As the Trustee, why is Petitioner unable to access the accounts and obtain more specific information? Why is she not able to move funds out of these accounts to an account to which only the Trustee has access?  Why is the Trustee unable to close lines of credit of the settlor? 

 

·        

Petitioner is requesting an order declaring invalid the purported Amendment to the Trust dated December 9, 2003.  To determine the validity of a purported amendment, at a minimum, the original trust instrument itself is necessary.

 

·        

Petitioner is requesting an order directing non-parties to supply an accounting of asssets, obligations, income and distributions of the Trust and the Settlor for a period of four years preceding the filing of the Petition.  No legal authority for this request is cited.

 

·        

Petitioner’s request for an ascertainment of the beneficial interests and distribution of assets upon final or partial distribution and/or termination of the trust is premature and unsupported by the allegations of the Petition.

 

·        

Petitioner’s request for an order fixing the payment of the Trustee’s compensation and/or determining the reasonableness of such compensation is premature and not support by the allegations of the Petition. 

 

 

Petitioner is directed to file and serve a supplement providing legal points and authorities in response to the issues identified by the Court, as well as any additional factual information the Petitioner believes will be helpful to elucidate the issues identified above.  Petitioner is also directed to renotice the Petition in compliance with Probate Code section 851.  Any supplement and proof of service must be filed no later than 16 days before the hearing.  The Court also notes the CRC Rule 2.108 requires lines on each page to be a minimum of one and one-half spaced or double-spaced.  It appears to the Court that the documents filed are single-spaced and they are more difficult to read as a result.

 

 

7.         SPR-095821, Matter of Cheslie E. Donahue Trust

TENTATIVE RULING: Petition for Order Confirming Trustee and Trust Assets is APPROVED.  The [proposed] order lodged on July 9, 2021 will be signed.

 

8.         SPR-095823, Matter of Frank B. Daniels Trust

TENTATIVE RULING:  Continued to November 19, 2021, at 9:30 a.m. in Department 18 to give Petitioner an opportunity to address the following issues:

Petitioner seeks an order deeming a transfer of property pursuant to a settlement agreement in a civil matter (between himself and the Trustee) as a transfer to a beneficiary of the Settlor’s 2012 Trust.  However, no authority for such an order is cited.  Additionally, Petitioner, by his own account, is not a beneficiary under the trust instrument executed after the 2012 Trust, the 2017 First Amendment to the Frank B. Daniels Revocable Trust (Pet. Pg. 2, lines 2-3).  Petitioner is invited to file a supplement providing legal authority supporting the requested relief, including how such an order is supported despite the 2017 amendment. 

 

Also, two documents important to the Court’s review are not attached:  1) the settlement agreement he reached with the Trustee; and 2) a copy of the 2017 First Amendment to Trust.  The absence of the 2017 First Amendment renders the pleading noncompliant with Local Rule 6.8A, which requires a copy of the entire trust instrument (which would necessarily include the 2017 First Amendment to Trust).  A supplement including both items is also invited should petitioner wish to pursue an adjudication on the merits.

 

Any supplement must be filed and served no later than 10 days before the hearing.  If no supplement is filed, the petition will be denied at the next hearing date.

 

 

 

9.         SPR-095824, Matter of Eleanor Marion Evans Trust

 

TENTATIVE RULINGAPPROVED.  The Court will sign the proposed order submitted on July 13, 2021 with modifications.  Specifically, the dollar amounts set forth in page 3, line 17, will be changed to match the correct numbers which are listed in Schedules G and H of the Petition.  Thus, ¶ 8 line 17 shall read as follows:  “period is $1,572,974.01, of which $1,542,974.01 is in cash.”

 

 *This is the end of these Tentative Rulings*

 

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