Probate Law & Motion

Advisements

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. You must inform the clerk concerning your appearance choice: Zoom or in person. 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 3:15 p.m. on the day of the hearing. 

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Guide for Participating in Court Proceedings via Zoom for Dept 12:

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Tentative Rulings

Honorable Jennifer V. Dollard
August 6, 2026, at 3:00 p.m.  

  1. Estate of Philip David Kwait
    24PR00905
    Motion for Summary Adjudication

Tentative Ruling: The motion is GRANTED.

The first step when analyzing a case involving the internal affairs of a Limited Liability Company (LLC) is to examine the LLC agreement to determine whether it addresses the issue.In re Coinmint, LLC (Del. Ch. 2021) 261 A.3d 867, 900–901. If the agreement covers the issue, the agreement controls unless it violates one of the Act's mandatory provisions.Id. If the agreement is silent, then the Court must look to the Act to see if one of its default provisions apply. Id.

Section 4.1 of the Company’s Operating Agreement gives the “Manager” (not the members) the right to operate, conduct, and control the Company. Documents executed on behalf of the Company shall be signed by the Manager, an officer, or other person authorized by the Manager. Operating Agreement Section 4.4. The “Majority Member” is designated as the Manager. Operating Agreement Section 4.1(b). The preamble to the operating agreement specifically names Philip Kwait (the decedent) as the “Majority Member” and David Jensen as the “Minority Member.” Schedule A to the operating agreement shows Philip Kwait as 85% percent owner with David Jensen holding 15%.

“The Manager may not be replaced (or a vacancy in the office of the Manager filled) except by the affirmative consent of the Majority Member.” Operating Agreement Section 4.1(b). The Operating Agreement “shall be construed in accordance with and governed by the local laws of the State of Delaware.” Operating Agreement section 15.9. “If a member who is an individual dies [. . . ], the member's personal representative may exercise all of the member's rights for the purpose of settling the member's estate or administering the member's property [. . . ].” 6 Del. C. §18-705. Therefore, the movant, as personal representative of Philip Kwait’s estate, is the only person with the power to designate the Manager of the Company, and David Jensen’s purported self-appointment as Manager is void. While the estate is only an assignee, this has no impact on the personal representative’s management rights, because of 6 Del. C. §18-705. Gurney-Goldman v. Goldman (Del. Ch. 2024) 321 A.3d 559, 577–578.

The requests for declaratory relief can be summarily adjudicated

The argument at section III(C) of the opposition (that the issues at hand cannot be summarily adjudicated under the applicable statute,) is incorrect. The petition specifically seeks “declaratory relief invalidating David Jensen’s unlawful self-appointment as Manager of the Company and confirming the Estate’s right to exercise governance rights, including appointing a new Manager, for purposes of overseeing the Estate’s Majority Membership interest in the Company and facilitating the administration and settling of the Estate.” This claim is stated in the first full paragraph of the petition and is stated in paragraphs 1 and 2 of the prayer to the petition. The requests for declaratory relief are argued at sections II(B) and (C) of the petition. A court may properly grant summary adjudication of a claim for declaratory relief. Dollinger DeAnza Associates v. Chicago Title Ins. Co. (2011) 199 Cal.App.4th 1132, 1156. Summary adjudication of a cause of action for declaratory relief is not precluded merely because the issues subject to declaratory relief are present in other causes of action. Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 845, as modified on denial of reh'g (Sept. 7, 1995). Parties will not be allowed to misuse the declaratory relief cause of action in an attempt to subvert the requirement that a summary adjudication must completely dispose of a cause of action. Southern Cal. Edison Co. v. Superior Court (1995) 37 Cal.App.4th 839, 846, as modified on denial of reh'g (Sept. 7, 1995). Here, there has been no misuse of the declaratory relief cause of action, and the summary adjudication will completely dispose of the requests for declaratory relief. The requests for declaratory relief are clearly stated in the petition and are the proper subjects of a motion for summary adjudication.

The Court also finds the other arguments made in opposition to be unpersuasive. Issues related to the ‘triggering event” and whether there was a buyout of David Jensen’s interest form no part of this motion for summary adjudication and are irrelevant.

Evidentiary Objections

Evidentiary Objection Number 1 is OVERRULED. A statement is not made inadmissible by the hearsay rule when offered against the declarant in an action to which he is a party. California Evidence Code (Evid C) §1220. Also, the material objected to is a proper supporting paper pursuant to California Code of Civil Procedure (CCP) §437c(b)(1).

Evidentiary Objection Number 2 is OVERRULED. Statements made by agents authorized to act on behalf of a party are admissible against that party. Evid C §1222. An adequate foundation must be laid to substantiate the authorization, but absent unusual circumstances this burden can ordinarily be met in the case of an attorney acting within the scope of his client's representation. Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1492–1493.

Evidentiary Objection Number 3 is SUSTAINED. The motion shall be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken[. . .].” CCP §437c(b)(1). The subject of the objection, a letter from the movant’s counsel, is an improper supporting paper.

Evidentiary Objection Number 4 is OVERRULED. The document is properly authenticated. Also see the discussion of Evid C §1222 and Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1492–1493, above.

Evidentiary Objection Number 5 is SUSTAINED because the motion shall be supported by “affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken[. . .].” CCP §437c(b)(1). The subject of the objection, a letter from the movant’s counsel, is an improper supporting paper.

Evidentiary Objection Number 6 is OVERRULED. The document is properly authenticated. The document, a verified pleading filed in this matter, is the proper subject of judicial notice. The document is not barred by the hearsay rule because it is not offered to prove the truth of the matters asserted therein.

Evidentiary Objection Number 7 is OVERRULED. The document is properly authenticated. Also see the discussion of Evid C §1222 and Volkswagen of America, Inc. v. Superior Court (2006) 139 Cal.App.4th 1481, 1492–1493, above.

Evidentiary Objection Number 8 is OVERRULED. The subject statement is not offered as evidence.

Evidentiary Objection Number 9 is OVERRULED. The declaration of Anne Sloan establishes her personal knowledge of the content of the statement. Evid C §§403(a)(2) and 702.

Evidentiary Objection Number 10 is SUSTAINED. The statement is irrelevant.

Evidentiary Objection Number 11 is OVERRULED. The declaration of Anne Sloan establishes her personal knowledge of the content of the statement. Evid C §§403(a)(2) and 702. As for the hearsay objection, hearsay evidence—especially written statements—may serve as the sole or primary evidence of relevant facts in the context of motions for summary adjudication. See Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609.

Evidentiary Objection Number 12 is OVERRULED. The statement is implicitly within the personal knowledge of the declarant. Evid C §§403(a)(2) and 702. As for the hearsay objection, see the discussion of Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609, above. The statement is not a legal conclusion and is not an opinion.

Evidentiary Objection Number 13 is SUSTAINED. The statement is not relevant.

Evidentiary Objection Number 14 is SUSTAINED. The statement is not relevant.

Evidentiary Objections Number 15 is SUSTAINED. The statement is not relevant.

Evidentiary Objection Number 16 is SUSTAINED. The statement is not relevant.

Evidentiary Objection Number 17 is SUSTAINED. The statement is not relevant.

Evidentiary Objection Number 18 is SUSTAINED. The statement is not relevant.

Evidentiary Objection Number 19 is SUSTAINED. The statement is not relevant.

Requests for Judicial Notice

The movant’s requests for judicial notice filed July 10, 2026 are GRANTED subject to the following qualifications: For those documents that contain hearsay or otherwise contain disputable facts, even those that are part of the court record, the existence of those documents is noticed but the truthfulness and proper interpretation of the contents of the documents are not noticed. As for orders, findings of fact and conclusions of law, and judgments, the court takes judicial notice of the existence of those documents, as well as the truth of facts asserted in those documents. See Day v. Sharp (1975) 50 Cal. App. 3d 904, 914.

Counsel for the moving party is directed to lodge an updated proposed order that conforms to this ruling. The Court will file a written order.

 

***End of Tentative Ruling***