Superior Court, State of California



DATE: January 26, 2024 TIME: 10:00 A.M.

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|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 | 23PR194568 |John F. Bradley Marital Deduction Trust |Click on LINE 1 or scroll down for attached Tentative Ruling. |

|LINE 2 | 23PR194568 |John F. Bradley Marital Deduction Trust |Click on LINE 1 or scroll down for attached Tentative Ruling. |

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Case Name: The John F. Bradley Marital Deduction Trust

Case No.: 23PR194568

Hearing date, time, and department: January 26, 2024 at 10:00 a.m. in Department 1

INTRODUCTION

Decedent settlor John F. Bradley (“Decedent”) executed the John Bradley Trust dated May 2006, as amended December 2012. The terms of that trust created the John F. Bradley Marital Deduction Trust, the trust at issue in this case. Successor trustee and beneficiary John F. Bradley, Jr. (“Petitioner”), Decedent’s son, initiated the action in docket 23PR194568 by filing a petition under Probate Code section 850 alleging that Respondent Christy Snyder Bradley (“Respondent”), Petitioner’s former co-trustee and Decedent’s former wife, breached her fiduciary duties by embezzling money from the trust.

Petitioner also filed a separate probate petition in this court involving the same trust. That, which was assigned docket 23PR194679, also under Probate Code section 850 seeking an order for the trustee to take possession of real property located in Pasadena and certain personal property purportedly belonging to the trust.

Currently before the court is Respondent’s motion to change the venue of both probate actions to Los Angeles County. Also before the court is Respondent’s motion to abate the probate actions. Petitioner has opposed both motions. Respondent has filed replies to both oppositions and Petitioner has filed an objection to Respondent’s reply to the opposition to the motion to abate.

DISCUSSION

I. Motion to Change Venue

A. Timeliness

Petitioner argues that the motion was not timely served for a hearing date of January 26, 2024. Code of Civil Procedure section 1005, subdivision (b), requires that the motion and supporting papers be served 16 court days prior to the hearing.[1] Petitioner contends that an additional two days must be added on for electronic service. (See §§ 1005, subd. (b); 1010.6, subd. (a)(3)(B).) Thus, Petitioner asserts that the motion was required to be served by December 29, 2023 but it was not served until January 3, 2024.

Respondent asserts, without meaningful analysis, that the motion was timely served on the last day for service. She also contends that Petitioner has waived any argument that the motion was untimely by opposing it on the merits. (See, e.g., Moofly Productions, LLC v. Favila (2020) 46 Cal.App.5th 1, 10 [litigant waived any defect in notice by opposing request for sanctions and participating in hearing].)

Here, even if the motion was not timely served, the remedy for such a defect is generally to continue the hearing to allow for the full notice period. But, in this case, Petitioner was able to respond to the motion on the merits. Accordingly, the court will reach the merits of the motion regardless of the timeliness.

B. The Motion is Defective

Respondent secured a hearing date for the instant motion and filed the motion exclusively in docket 23PR194568. However, it appears that she is seeking to change the venue of both of the probate actions currently pending in this court involving the same parties. The motion is not scheduled in docket 23PR194679 and the caption of the motion does not include that docket number.

This provides an additional reason to deny the motion, which will also be denied on the merits as discussed below.

C. Legal Background

“The term ‘venue’ denotes the particular county within the state where a case is to be heard. [Citation.] In [determining] the county (or counties) where venue is proper, the courts generally look to the main relief sought, as determined from the complaint as it stands at the time of the motion for change of venue. [Citation.]” (K.R.L. Partnership v. Superior Court (2004) 120 Cal.App.4th 490, 496-497.) “If a case is filed in a county that is not the proper venue under section 395, the defendant may move to transfer the case to a proper venue. Subdivision (a) of section 396b provides: ‘Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers. Upon the hearing of the motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the action or proceeding transferred to the proper court.’ ” (Id. at p. 397.)

Section 397 provides “[t]he court may, on motion, change the place of trial in the following cases:. . .(a) [w]hen the court designated in the complaint is not the proper court [or] . . . (c) [w]hen the convenience of witnesses and the ends of justice would be promoted by the change.” “ ‘It is a long established rule that a motion for change of venue must satisfy two requirements: (1) It must be shown the action is proper in the county to which the movant seeks transfer; and (2) it must be shown the county in which the action was filed was improper under any applicable theory (Citation).’ [Citation.]”  (Easton v. Superior Court (1970) 12 Cal.App.3d 243, 245-246.)  

Probate Code section 17005, subdivision (a) provides, “The proper county for commencement of a proceeding pursuant to this division is . . .[i]n the case of a living trust, the county where the principal place of administration of the trust is located” or “[i]n the case of a testamentary trust, either the county where the decedent’s estate is administered or where the principal place of administration of the trust is located.” Probate Code section 17002, subdivision (a) provides, “The principal place of administration of the trust is the usual place where the day-to-day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust.” Probate Code section 17002, subdivision (b), on which neither party relies, provides, “If the principal place of administration of the trust cannot be determined under subdivision (a), it shall be determined as follows: [¶] (1) If the trust has a single trustee, the principal place of administration of the trust is the trustee’s residence or usual place of business. [¶] (2) If the trust has more than one trustee, the principal place of administration of the trust is the residence or usual place of business of any of the cotrustees as agreed upon by them or, if not, the residence or usual place of business of any of the cotrustees.”

D. Merits of the Motion

Here, there is currently only one trustee, Petitioner, and he represents that he administers the trust in Santa Clara County. Thus, based on the authority above, it would appear that venue is proper in this county. Nonetheless, Respondent contends that venue in both dockets should be changed to Los Angeles County because the trust was administered in Los Angeles in the past when she was the co-trustee, she resides in Los Angeles, and a large portion of the property owned by the trust is located in Los Angeles. She also asserts that there is a civil action currently in the Los Angeles County Superior Court involving the Bradley Ranch Co-Owners LLC, which is an asset of the trust.[2]

Respondent contends that the trust was administered in Los Angeles in the past when she was the co-trustee. While this may be true, Respondent is no longer the co-trustee and the determination of proper venue occurs at the time of the motion for change of venue. (K.R.L. Partnership v. Superior Court, supra, 120 Cal.App.4th at pp. 496-497.) Thus, whether venue was proper in Los Angeles in the past appears to be irrelevant to the outcome of the instant motion.

Respondent also argues that she is entitle to venue in her county of residence pursuant to section 395. Section 395, subdivision (a) states, “Except as otherwise provided by law and subject to the power of the court to transfer actions or proceedings as provided in this title, the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.” But, in Estate of Ivey (1994) 22 Cal.App.4th 873, 880, the Court of Appeal held that Probate Code section 17005 and not section 395 defines proper venue in the probate actions to which it applies, explaining, “The fact that appellant resided in Sonoma County did not give her the right to change venue under the general rule of Code of Civil Procedure section 395, subdivision (a). That section begins, ‘Except as otherwise provided by law . . ..’ Here, Probate Code section 17005 defined the proper venue.”[3]

Respondent also relies on Rogers v. Rihn (1955) 132 Cal.App.2d 185, 187-189, in which the Court of Appeal affirmed a trial court order transferring a fraud case to the county where the defendants resided pursuant to section 395. She contends that, due to the nature of the allegations in the two Santa Clara County probate actions, which she alleges sound in fraud, she is entitled to venue in her county of residence. But, Rogers v. Rihn was decided in 1955, prior to the enactment of Probate Code section 17005 in 1990. And, under Estate of Ivey, Probate Code section 17005 is the proper authority for determining venue in an action involving a trust such as the two probate cases pending in this court.

Respondent also contends that, because real property is at issue and the real property is located in Los Angeles County, the Santa Clara County probate matters should be transferred to Los Angeles County. Confusingly, she also contends, in reply, that Probate Code section 850 petitions are generally considered “transitory” as opposed to “local” and that local actions involve real property and should be heard in the county in which the real party is located and that transitory actions could have many venues and should be fixed in the county in which the defendant resides pursuant to section 395. These arguments are for the most part unsubstantiated, (See People v. Dougherty (1982) 138 Cal.App.3d 278, 282 [a point asserted without argument or authority in support is without foundation and requires no discussion], and where they are substantiated, the authorities cited rely on section 395, which as discussed above does not govern in this matter.

Accordingly, the court finds that Estate of Ivey is controlling and that venue is proper in Santa Clara County, the current location of the principal place of administration of the trust.

Notably, Respondent asserts that she has the right to a jury trial. Respondent acknowledges Probate Code section 825, which provides, in full, “Except as otherwise expressly provided in this code, there is no right to a jury trial in proceedings under this code.” Thus, in probate there is no right to a jury trial except where a statute affirmatively provides such a right. However, this argument is a red herring because even if the cases were to be transferred to Los Angeles County, this would not change their nature as probate proceedings. The Santa Clara County probate cases have not been coordinated or consolidated with the Los Angeles County civil case, although Respondent has filed a notice of related case, which will be discussed further below. Thus, the effect of changing venue would merely be to cause the two probate cases to be heard in Los Angeles County, not to transform them into civil cases for which the jury trial right might attach.[4]

An additional red herring is the parties’ focus on the notice of related case filed by Respondent and opposed by Petitioner. On October 31, 2023, Respondent filed a notice of related cases notifying the court of her belief that the Los Angeles case is related to the two probate matters pending before this court and that the two pending probate matters are related to each other.[5] On November 1, 2023, Petitioner filed an opposition to the notice of related cases arguing that the notice was untimely filed and that the cases are not related.

A pending civil case is related to another pending civil case, . . . if the cases:

(1) Involve the same parties and are based on the same or similar claims;

(2) Arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact;

(3) Involve claims against, title to, possession of, or damages to the same property; or

(4) Are likely for other reasons to require substantial duplication of judicial resources if heard by different judges.

(Cal. Rules of Court, Rule 3.300(a).)

“If the related cases are pending in more than one superior court on notice to all parties, the judge to whom the earliest filed case is assigned may confer informally with the parties and with the judges to whom each related case is assigned, to determine the feasibility and desirability of joint discovery orders and other informal or formal means of coordinating proceedings in the cases.” (Cal. Rules of Court, Rule 3.300(h)(2)(A), italics added.) The parties assert that this court must rule on the notice of related cases, but it appears that the Los Angeles County case is the earliest filed case. The parties represent that the Los Angeles County case was filed on June 8, 2022, which predates the filing of either probate case pending in this county as both of those actions were filed in 2023. Thus, although a decision should be made as to whether the cases are related, that decision should be made by the Los Angeles County Superior Court. The parties should seek a ruling on the notice of related cases in that court.

The motion to change venue is denied as venue is proper in Santa Clara County.

E. The Parties’ Requests for Sanctions

Both parties request sanctions in connection with the motion to change venue.

i. Respondent’s Request for Attorney Fees

Respondent requests attorney fees against Petitioner and his counsel in the amount of $5,575 under sections 396b, subdivision (b), which provides in full,

In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers, or on the court’s own noticed motion, and after opportunity to be heard.

Here, Respondent did not prevail on the motion. Accordingly, Respondent’s request for sanctions must be denied.

ii. Petitioner’s Request for Attorney Fees

Petitioner also seeks attorney fees in the amount of $4,000 as the prevailing party under section 396b, subdivision (b). He asserts that Respondent should have known that Probate Code sections 17002 and 17005 and not section 395 governs venue in these trust actions. Here, Petitioner is the prevailing party and the court will award sanctions. The court acknowledges that Respondent did seek a stipulation to the change of venue and there is no evidence that Respondent acted in bad faith. However, the court will award sanctions because Respondent should have known that the Probate Code governs in this situation and Petitioner is entitled to be compensated for the time spent in making his opposition.

That said, the court finds sanctions in the amount of $4,000 to be unreasonable. Petitioner contends that this amount is comprised of eight hours of attorney time at a rate of $500 per hour. The court finds that the opposition should not have taken eight hours for an experienced attorney to complete in light of the fact that the motion was relatively short and contained minimal citations to authority. Accordingly, the court will award sanctions in the amount of $2,000. Respondent’s counsel is ordered to pay to Petitioner’s counsel $2,000 within 30 days of the date of the filing of this court’s order.

F. Conclusion

The motion for change of venue is DENIED. Respondent’s request for sanctions is DENIED. Petitioner’s request for sanctions is GRANTED IN PART AND DENIED IN PART. Respondent’s counsel is ordered to pay to Petitioner’s counsel $2,000 within 30 days of the date of the filing of this court’s order.

II. Motion to Abate Probate Actions

A. Petitioner’s Request for Judicial Notice

Petitioner seeks judicial notice of Respondent’s notice of motion and motion to quash out of state deposition subpoenas of non-party deponents William Snyder and Letticia Snyder.

B. Petitioner’s Objection to Respondent’s Reply

Petitioner filed an objection to Respondent’s reply to his opposition to the motion to abate arguing that the reply makes new arguments and provides new evidence for the first time. Petitioner is correct that the reply makes new arguments and it is supported by a declaration and two exhibits that were not included with Petitioner’s initial motion. This argument is well-taken. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers.”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [same]; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [same]; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 783 [points raised in the first time in reply should not be considered].)

The court declines to consider the new arguments and new evidence provided by Respondent in her reply.

C. Timeliness

Petitioner asserts that the motion to abate is untimely for the same reasons as the motion to change venue. For the same reasons, this argument is rejected.

D. The Motion to Abate Is Also Deficient

As with the motion to change venue, Respondent secured a hearing date and filed the motion to abate only in docket 23PR194568 but it appears that she is seeking to abate both Santa Clara County probate dockets 23PR194679 and 23PR194568.

This is an additional reason to deny the motion.

E. Merits of the Motion

Petitioner moves to abate both Santa Clara County probate dockets 23PR194679 and 23PR194568 under Probate Code section 854 because a civil matter, the Los Angeles County case was filed first and, she contends, the civil matter and the probate matters concern the same subject matter. Alternatively, she moves to dismiss the probate matters pursuant to Probate Code section 856.5.

At the outset, the court again notes that it need not make any ruling with respect to Respondent’s assertion of her jury trial right or with respect to the notice of related cases in connection with the motion to abate for the reasons discussed above in connection with the motion to vacate. For the same reasons, the timeliness of the notice of related cases is of no moment to the outcome of the instant motion. Petitioner cites to no authority indicating that a notice of related cases is a prerequisite to seeking abatement under Probate Code section 854.

Probate Code section 854 provides, in full,

If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter this part and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. This section shall not apply if the court finds that the civil action was filed for the purpose of delay.[6]

The apparent purpose of the statute is to prevent duplicative actions.  (Conservatorship of Pacheco (1990) 224 Cal.App.3d 171, 177 [addressing former Probate Code section 2525, repealed and replaced by section 854].)     

Here, both probate actions seek relief under Probate Code section 850, which is contained in the same portion of the Probate Code section 854, and the civil case was filed first. Thus, to the extent the probate and civil cases concern the same subject matter, abatement would be proper.

There is a dearth of authority discussing Probate Code section 854. However, in the context of its predecessor, Probate Code section 2525, the Court of Appeal explained in Conservatorship of Pacheco, supra, 224 Cal.App.3d at pp. 176-177

Probate Code section 2525 does not require that the other action involve ‘the same cause of action’: it provides instead that a petition in the probate court may be abated ‘if a civil action is pending with respect to the subject matter of [the probate court petition.]’ Identity of subject matter is a much more general and less technical requirement than identity of cause of action. Because the Probate Code provides for abatement on account of pending civil actions -- which are procedurally and otherwise different from probate proceedings -- it obviously permits abatement despite the use of technically different causes of action to present similar claims.

In her motion, Respondent contends that the probate actions and the civil action involve the same parties and similar claims. She reiterates her contention that some trust property that is the subject of the probate petition in docket 23PR194679 is located in Los Angeles County.

With respect to the contention that the cases involve the same claims, Respondent did not flesh out her argument or fully explain how the cases involve the same claims and parties. She provides significantly more detail in the reply. However, while it appears that there is some overlap between the probate cases filed in this court and the civil action filed in Los Angeles County, it appears that the Los Angeles County case was filed by the LLC and involves money that was allegedly embezzled by the Respondent from an account belonging to the LLC. The probate cases are filed by the current trustee and seek return of property allegedly belonging to the trust. Respondent asserts that the LLC and the trust are connected and that Petitioner is involved with both the trusts as the trustee and the LLC as a member and its counsel. Under the circumstances, there would appear to be little concern of contradictory orders as the funds that are the subject of the cases come from different sources.

Petitioner goes further in depth as to how the cases are related in her reply, but the court will not consider new argument or evidence raised in the reply as discussed above.

As the motion itself provides insufficient information from which the court can find that the probate petitions should be abated, the motion is denied to the extent it requests that the probate petitions be abated under Probate Code section 854.

Alternatively, Respondent contends that the court should dismiss the petition under Probate Code section 856.5, which provides, “The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action.” Respondent asserts without elaboration that the court should dismiss the petition under that section because the petitions “seek civil recovery and under Probate Code §856.5, the relief sought is inappropriate in probate.” (Motion, p. 3, lns. 10-11.) This argument can be rejected out of hand as unsubstantiated. (See People v. Dougherty, supra, 138 Cal.App.3d at p. 282; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].) Accordingly, this request is also denied.

F. Conclusion

The motion to abate the probate actions or, alternatively, dismiss the probate actions is denied.

CONCLUSION

The motion for change of venue is DENIED. Respondent’s request for sanctions is DENIED. Petitioner’s request for sanctions is GRANTED IN PART AND DENIED IN PART. Respondent’s counsel is ordered to pay to Petitioner’s counsel $2,000 within 30 days of the date of the filing of this court’s order.

The motion to abate or dismiss the probate actions is DENIED.

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[1] All further undesignated statutory references are to the Code of Civil Procedure.

[2] That case is entitled Bradley Ranch Co-Owners LLC v. Christy Bradley Snyder and is assigned Los Angeles County docket number 22AHCV00344.

[3] Although Estate of Ivey held that section 395 did not apply, it still mentioned that the motion to change venue in that case was untimely under section 396b. (See Estate of Ivey, supra, 22 Cal.App.4th at p. 880.) The Probate Code does not provide rules for a motion to change venue in a trust proceeding. However, section 1000 of the Probate Code provides for the application of the Code of Civil Procedure, as follows: “Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, . . . apply to, and constitute the rules of practice in, proceedings under this code.” Section 1000 “provides that the provisions of the Code of Civil Procedure apply when the Probate Code is silent as to a particular rule of procedure. [Citations.]” (Schwartz v. Schwartz (2008) 167 Cal.App.4th 733, 742.) Thus, because the Probate Code is silent as to change of venue, section 396b applies.

[4] The court notes that it is not making a decision as to whether a jury trial is appropriate in the probate cases as this issue is not currently before the court. This discussion is merely to point out that Respondent’s entitlement to a jury trial or lack thereof will be unchanged regardless of whether the Santa Clara County probate cases are transferred to Los Angeles County.

[5] The notice of related case appears in both dockets 23PR194568 and 23PR194679 but it only bears docket number 23PR194568.

[6] No party suggests that the civil matter was filed for the purpose of delay and the court will not so find as there is no evidence to that effect. Additionally, as Respondent points out, the civil action was filed first, so it would make little sense that it would be filed for the purposes of delay.

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