Trusts

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 9:45 a.m. on the day of the hearing.  

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1. Matter of Patricia Joann Kitsman Trust
   25PR00024
   Third Amended Petition to Determine Ownership to Property

Tentative Ruling: APPEARANCES REQUIRED for trial setting. Discovery has been ongoing in this matter for some time, the original petition was filed in January of 2025, and there have been a number of prior meet and confer efforts related to the demurrers. Now that the pleadings are settled the Court is inclined to set the matter for trial. The Court is also inclined to select a trial date that gives the parties enough time to complete discovery and explore alternative dispute resolution. Counsel for the parties should be prepared to discuss trial availability and estimates for length of trial.

2. Matter of Richard B. Iverson Trust
   26PR00045
   Thomas Iverson’s Petition for Instructions

Tentative Ruling: Per the petitioner’s statement of issues filed June 8, 2026, the only issues raised by this petition that remain in dispute are (1) the petitioner’s request for reimbursement of costs of suit, and (2) the request to require Wendy Sue Iverson to pay fair market rent during her occupancy of the trust owned real property, and the amount of rent that should be paid.

The petitioner’s request for reimbursement of costs of suit is DENIED. Costs can be awarded in favor of the petitioner, to be paid by any party to the proceedings, or out of the assets of the estate, as justice may require. California Probate Code §1002. Here, the petitioner has not been successful in vindicating any rights as a beneficiary and has not otherwise caused any benefit to the trust. Therefore, justice does not require reimbursement of his costs and the petitioner shall bear his own costs of suit.

The petitioner’s request that Wendy Sue Iverson be required to pay rent is DENIED. See the Court’s ruling on the Petition filed 4/17/26 by the trustee, below.

3. Matter of Richard B. Iverson and Barbara A. Iverson Family Trust
   26PR00045
   Verified Counter Petition for Instructions and Reformation

Tentative Ruling: The petition before the Court is focused exclusively on the intent of one of two settlors.  The petition fails to account for the intent of the first settlor to die, expressed as part of the trust that became irrevocable upon her death.  The trustee has apparently taken unilateral action despite this expression of intent and despite the Court’s prior ruling in case 25PR00371 that the surviving settlor’s scheme related to the distribution of 1098 Orchard Street is invalid.  While the petitioner now characterizes that ruling by the Court as preliminary, it was in fact unequivocal.  The Court adopted its tentative ruling as the ruling of the Court, but offered the parties an opportunity to present briefing to address the ruling.  Rather than take that opportunity the petitioner dismissed the case without prejudice.  There was, therefore, no amendment or change to the ruling of the Court.

The trustee, having acted to distribute the real property as if the amendment was valid, now asks for instructions from the Court essentially approving this fait accompli.  The Court declines to do so.  The Court restates and adopts its finding from the prior case.

The surviving settlor’s scheme related to the distribution of 1098 Orchard Street is invalid.  After the death of the deceased settlor, the surviving settlor had the power to revoke or amend only the survivor’s trust. See Trust Art. I (I). The residuary trust, which became irrevocable at the death of the deceased settlor, contains the provisions related to final distribution of the remainder of the trust, including the residue of the survivor’s trust, which passes to the residuary trust at the death of the surviving settlor. See Trust Art. IV. Said provisions are simple – one equal share goes to each of the settlors’ four children. Id. All four children are living.  The real property at issue here is an asset of the survivor’s trust. Therefore, the surviving settlor’s unilateral amendments to the trust after the deceased settlor’s death would apply to the administration of this asset. However, the surviving settlor’s scheme is an attempt to diverge from the irrevocable terms related to distribution of the residue as stated at Trust Art. IV, and thus is invalid. The Court also finds that the valid and invalid provisions of the settlor’s scheme are inseparably blended, such that severing the invalid provisions would destroy the main intent of the trustor and work a manifest injustice to the other beneficiaries. Davenport v. Davenport Foundation (1950) 36 Cal.2d 67, 74. Therefore, the entire gift fails, and the real property will pass to the residual trust, to be divided evenly between the four children.

The Court does note that it would appear the trustee alternately relied on Article V, Section L to make non pro-rata distributions to the beneficiaries, asserting that the respective assets distributed to the beneficiaries have equivalent or proportionate fair market value.  No objection has been filed to the present petition contesting this claim.  As the Court finds the distribution of the house to Wendy was not as a result of the invalid amendment, she theoretically could be ordered to pay rent.  However, the petition asserts that even if she paid fair market value rent, the amount distributed to the other beneficiaries already more than compensates them for that amount.  As there is no objection to the present petition, the Court accepts that this is true and finds that the payment of rent is rendered moot by the non pro-rata distribution to the beneficiaries and the relative values of the assets distributed as set forth in the petition.

As to the request to modify the trust pursuant to Probate Code §15404, a modification of the residuary distribution provisions pursuant to that section would require the consent of the deceased settlor, and there is no evidence that the deceased settlor intended the trust to be administered per the proposed modification.

For the above stated reasons, the Petition is DENIED except as to the following.  The Court finds that in light of the non pro-rata distribution of assets and their respective values, Wendy is not responsible to the Trust for any fair market rental value for any period during which she occupied the Orchard Street Property following Richard’s death and this relief is GRANTED.

All parties shall bear their own costs, fees, and other expenses associated with this action.

 Counsel for the petitioner is directed to submit an updated proposed order that conforms to this ruling.

4. Matter of the Mark J. Burris Trust
   26PR00462
   Petition for: (1) Removal of Successor Trustee; (2) Accounting; (3) Breach of Trust; (4) Invalidation of Transfer-on-Death Beneficiary Designation; (5) Imposition of Constructive Trust; (6) Breach of Fiduciary Duty; (7) Disinheritance for Abuse of Dependent Adult; and (8) Declaratory Relief

Tentative Ruling: This matter is CONTINUED to October 2, 2026 at 9:30 a.m. in Department 12 to allow the petitioner an opportunity to correct the defects noted below and in the probate examiner notes posted May 6, 2026.

1. Use of the DE-115 notice of hearing form is mandatory in the context of California Probate Code (“Prob C”) §850 petitions. The petitioner has used the incorrect notice of hearing form here, the DE-120 form.

2. The notice of hearing does not include a description of the subject property, as required by Prob C §851(c)(1).

3. The asset at issue is an Edward Jones account. However, Edward Jones, the entity in possession of the account, has not been served as required by Prob C §851(a)(2). Petitioner should note that Prob C §851(a) requires service of the notice of hearing and a copy of the petition in the manner provided by California Code of Civil Procedure §413.10 et seq. (i.e. in the manner of a summons.)

4. There is no proof of service to respondents Michael Gerald Burris and Sharon Burris.

5. All trust beneficiaries are entitled to notice of this proceeding pursuant to California Probate Code §851, but not all beneficiaries named in the trust have been served.

5. Matter of the Inez B. Hensley Trust
   26PR00476
   Petition for Removal of Trustee, Account, and Appointment of Successor Trustee

Tentative Ruling: The petition is GRANTED as set forth herein. Joseph C. Hensley (Joseph) is removed as trustee. Sharon McLaughlin is appointed successor trustee, to serve without bond. Joseph is also ordered to clean the property of all debris and trash within 45 days of the date of this Order, and to make all further real property tax and insurance payments on the property and to maintain the property in a clean condition, making such repairs as may be reasonably necessary to retain the property's value.  California Civil Code §840. If he fails to perform any of the foregoing requirements after 30 days written notice to cure, his right of occupancy of the property under the trust shall be terminated and the trustee may institute legal proceedings to obtain possession of the property.

As for the money damages requested related to taxes paid on the trust real estate and other maintenance, repair, expenses, loss of value, or waste related to the property, evidence will need to be presented to this Court before a decision can be rendered. Therefore, this matter is CONTINUED to October 2, 2026, at 9:30 a.m. in Department 12.  The purpose of the continuance is to allow the petitioner time to conduct her own investigation if necessary and prepare to present written evidence to the Court and respondent regarding the amount of any damages/surcharge claimed. Unless the petitioner needs and requests more time, the petitioner should file and serve written evidence supporting the damages sought at least 10 days before the hearing. In the absence of any objection, the Court may decide the question based solely on the written evidence submitted.  However, if there is an objection, or if the Court determines it requires live testimony, it may set an evidentiary hearing. 

The Court finds this structure is necessary as the respondent may yet contest the amounts sought despite his failure to file an objection to the underlying petition. As an analogy, the Court points to the structure in civil cases for damages following a default. There, the amount of damages that may be awarded are limited by the allegations of the complaint, even where a statement of damages is served prior to entry of default. As discussed in the case of Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267:

We begin with the basic guidelines for analyzing the legal effect of a default. “Substantively, ‘[t]he judgment by default is said to “confess” the material facts alleged by the plaintiff, i.e., the defendant's failure to answer has the same effect as an express admission of the matters well pleaded in the complaint.” (Steven M. Garber & Associates v. Eskandarian (2007) 150 Cal.App.4th 813, 823, 59 Cal.Rptr.3d 1, second italics added.) The “well-pleaded allegations” of a complaint refer to “ ‘ “all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” ’ ” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, 40 Cal.Rptr.3d 205, 129 P.3d 394, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591, 96 Cal.Rptr. 601, 487 P.2d 1241.) Because the default confesses those properly pleaded facts, a plaintiff has no responsibility to provide the court with sufficient evidence to prove them—they are treated as true for purposes of obtaining a default judgment. (Ostling v. Loring (1994) 27 Cal.App.4th 1731, 1746, 33 Cal.Rptr.2d 391.) But that is all the default does. There is no penalty for defaulting. “A defendant has the right to elect not to answer the complaint. (Greenup v. Rodman (1986) 42 Cal.3d 822, 829 [231 Cal.Rptr. 220, 726 P.2d 1295].) Although this may have been a tactical move by defendant, it is a permissible tactic.” (Stein v. York (2010) 181 Cal.App.4th 320, 325, 105 Cal.Rptr.3d 1.) And if the well-pleaded allegations of the complaint do not state any proper cause of action, the default judgment in the plaintiff's favor cannot stand. On appeal from the default judgment, “[a]n objection that the complaint failed to state facts sufficient to constitute a cause of action may be considered.” see (Martin v. Lawrence (1909) 156 Cal. 191, 103 P. 913; Bristol Convalescent Hosp. v. Stone (1968) 258 Cal.App.2d 848, 859, 66 Cal.Rptr. 404.)

Id. at 281–282 (italics in original). Damages following a default are generally limited to those demanded in the complaint:

[Plaintiff’s] complaint also fails to set forth any clear demand for damages, let alone one which would support the enormous judgment he obtained from the trial court. As this court has iterated and then reiterated, Code of Civil Procedure section 580 prohibits the entry of a default judgment in an amount in excess of that demanded in the complaint. [Citations omitted.] Moreover, we have also made it clear that a statement of damages cannot be relied upon to establish a plaintiff's monetary damages, except in cases of personal injury or wrongful death. “Statements of damages are used only in personal injury and wrongful death....[Citation.] In all other cases, when recovering damages in a default judgment, the plaintiff is limited to the damages specified in the complaint. [Citations.]” (Sole Energy Co. v. Hodges, supra, 128 Cal.App.4th at p. 206, fn. 4, 26 Cal.Rptr.3d 823….)

Id. at 286.

While this is not a civil action, the concern, based in due process, exists equally.  That is the amount of damages to be claimed in the future are not entirely apparent from the allegations of the petition. Rather, the basis for the amount of damages will necessarily be known in the future. The petition therefore fails to provide notice to the respondent that a judgment against him for a specific amount would result from his failure to object to the petition. Of course, at any future hearing, the respondent may not contest any of the allegations of the petition, but he is entitled to be given an opportunity to present evidence and argument responsive to any claim for a specified amount of damages then raised.

Regarding the request for costs of suit associated with the petition and any prove-up hearing, they may be claimed pursuant to a memorandum of costs filed with the court and subject to a motion to tax at the conclusion of the matter.  Any request for attorney’s fees must be by noticed motion and include the authority for an award, as well as support for the amount requested.

6. Matter of the Sally L. Rowley Trust
   26PR00479
   Petition for: 1. Construction of Trust Instrument and Determination of Ineffectiveness of Fifth Amendment (Prob. Code § 17200(b)(1), (b)(3)); 2. Determination of Trustee Status and Declaratory Relief (Prob. Code § 17200(b)(1), (b)(10)); 3. Ineffectiveness of Fifth Amendment for Failure of Delivery (Alternative) (Prob. Code § 17200(b)(1)); 4. Undue Influence – Set Aside Fifth Amendment; 5. Breach of Trust, Improper Administration, and Elder Financial Abuse (Prob. Code §§ 16000, 16040; Welf. & Inst. Code § 15610.30 et seq.); 6. Recovery of Property and Double Damages (Prob. Code §§ 850, 859); and 7. Disinheritance and Forfeiture of Beneficial Interest (Prob. Code, § 259.)

Tentative Ruling: This matter is CONTINUED to September 18, 2026 at 9:30 a.m. in Department 12 to be heard along with the competing trust petition for instructions filed by Jefferey Rowley on June 1, 2026, and to allow the petitioner an opportunity to address the notice defect, noted below.

An amended pleading or an amendment to a pleading requires the same notice of hearing (including publication) as the pleading it amends. California Rule of Court Rule 7.53. An amended pleading was filed on the afternoon of June 15, 2026, just three days before the hearing. An amended notice of hearing was filed but there is no proof of service for that amended notice of hearing, so the petitioner has not complied with California Rule of Court Rule 7.53. Filing the amended petition three days before the hearing also deprives the Court of an opportunity to fully review the amended petition, which includes substantial attachments. The petitioner is ordered to timely serve code compliant notice of the continued hearing to all necessary people.

7. Matter of The Robert Andrew Ellis Trust
   26PR00481
   Petition for Modification of Grandchildren’s Trusts

Tentative Ruling: The petition is GRANTED. The Court will sign the proposed order lodged April 17, 2026.

8. Matter of Lisa A. Bricker
   26PR00484
   Petition for Order Authorizing Particular Transactions

Tentative Ruling: The petition is GRANTED. The Court will sign the proposed order lodged April 17, 2026.

***End of Tentative Rulings***