Halverson v. Vallone, H032376 (Cal. App. 4/24/2009)

• Decision Date: 24 April 2009
• Docket Number: H032376
• Court: California Court of Appeals Court of Appeals
• Parties: TERRY HALVERSON, Plaintiff and Appellant, v. CATHERINE M. VALLONE, et al., Defendants and Respondents.

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TERRY HALVERSON, Plaintiff and Appellant, v. CATHERINE M. VALLONE, et al., Defendants and Respondents.

H032376

Court of Appeals of California, Sixth Appellate District.

April 24, 2009

Not to be Published in Official Reports

Appeal from the Santa Clara County, Super. Ct. No. 1-05 PR157375.

ELIA, J.

This case involves a petition by appellant Terry Halverson ("Halverson"), the nephew and surviving heir¹ of Bernice I. Negri, to set aside Negri's amended revocable trust (entitled "First Amendment to the Bernice I. Negri Revocable Trust (Complete Amendment)") and her complementary pour-over will that she executed in 2004 (2004 Trust and 2004 Will), on the grounds that Negri failed to comply with the trust's requirements for amendment, she lacked legal capacity to execute the documents, and the documents were obtained by undue influence. The trial court granted summary judgment in favor of respondents Catherine M. Vallone and Ludd Dias, the 2004 Trust's named beneficiaries and co-trustees and Negri's longtime personal friends.

On appeal, Halverson challenges the grant of respondents' motion for summary judgment. We conclude that the judgment must be reversed.

A. Standard of Review of Summary Judgment Motion

"On appeal from the granting of a motion for summary judgment, we examine the record de novo . . . ." (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) "In performing our de novo review, we must view the evidence in a light favorable to plaintiff as the losing party (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 . . . ), liberally construing her evidentiary submission while strictly scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor. [Citations.]" (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768-769.) We consider "all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . ." (Code Civ. Proc., § 437c, subd. (c).)

A moving defendant has met the burden of showing that a cause of action has no merit "if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (Code Civ. Proc., § 437c, subd. (p)(2).) "When the defendant moves for summary judgment, in those circumstances in which the plaintiff would have the burden of proof by a preponderance of the evidence, the defendant must present evidence that would preclude a reasonable trier of fact from finding that it was more likely than not that the material fact was true ([Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,] 851 . . . ), or the defendant must establish that an element of the claim cannot be established, by presenting evidence that the plaintiff `does not possess and cannot reasonably obtain, needed evidence.' (Id. at p. 854 . . . .)" (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "Unless the moving party meets its burden, summary judgment cannot be ordered, even if the opposing party does not respond sufficiently or at all. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60 . . . .)" (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)

"Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Code Civ. Proc., § 437c, subd. (p)(2).) "There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, fn. omitted.)

"The burden of persuasion remains with the party moving for summary judgment. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850, 861 . . . .)" (Kahn v. East Side Union High School Dist., supra, 31 Cal.4th at p. 1003.) A motion for summary judgment must be granted "if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c).) "[S]ummary judgment may not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact." (Ibid.) Of course, in examining the record, the reviewing court does not weigh the evidence or assess credibility as it would if it were sitting as trier of fact. (See Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 856.)

Appellant asserts that section 1022 "limits use of affidavits to `uncontested proceedings' " and since this Probate "proceeding was fully contested," an evidentiary hearing was required. The implication of this argument is that summary judgment was precluded in this proceeding.² Section 1022 states: "An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under [the Probate Code]."

In ruling on a summary judgment motion, there is no requirement that any fact be proved "to the satisfaction of the court itself as though it were sitting as the trier of fact. [Citation.]" (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850, fn. 11; see id. at p. 845, fn. 4.) "The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. [Citation.]" (Id. at p. 843.) Appellant has failed to cite any authority showing that section 1022's limitation on the use of affidavits alters summary judgment procedure, which involves burdens of persuasion, not proof (id. at pp. 845, fn. 4, 850, fn. 11).

B. Pleadings and Procedural Background

On May 4, 2005, respondents, as co-trustees of Negri's trust, filed a formal proposed notice to creditors with the court, initiating the creditor claims procedure. On September 14, 2005, appellant filed a petition seeking court orders invalidating the 2004 Trust, imposing a constructive trust, removing the co-trustees, requiring an accounting, and awarding attorney fees and costs.

"The pleadings define the issues to be considered on a motion for summary judgment. (Sadlier v. Superior Court (1986) 184 Cal.App.3d 1050, 1055 . . . .)" (Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248, 252.) Appellant's petition alleged that his aunt Bernice Negri failed to follow the procedures set forth in the "Negri Revocable Trust" established in 1990 (hereinafter "1990 Trust") for amending the instrument, Negri lacked the mental capacity necessary to execute the 2004 Trust, and its execution was procured by respondents' undue influence.

According to appellant's petition, the chief procedural defects in amending Negri's trust were the alleged lack of delivery of the amended trust to the trustee and lack of acceptance or execution by the trustee. The petition stated that the 1990 Trust named Negri as both trustor and trustee. It alleged that the 1990 Trust provided: "Amendments During Settlor's Life: Settlor, may at any time, amend any of the terms of this trust by a written document delivered to the Trustee. . . . The Trustee need not abide by the terms of the Amendment until it is accepted." The petition further alleged that the 1990 Trust stated that the settlor's powers to revoke or amend the trust were personal to the settlor and no other person could exercise those powers. The petition asserted without specificity that there were "numerous other procedural and documentation errors which will be shown at trial according to proof and will substantiate the invalidation of the amendment and cause it to be void ab initio."

As to mental capacity, the petition alleged that the "Trustor was not of sound and disposing mind." It stated that the "Trustor did not have sufficient mental capacity to (i) understand the nature of Trustor's actions in executing the purported trust, (ii) understand and recollect the nature and situation of Trustor's property, or (iii) remember or understand Trustor's relations to Trustor's family members."

The petition also alleged that the amendment of the trust was procured by respondents' undue influence in that (1) respondents had a confidential relationship with the Trustor, who "reposed trust and confidence in them," (2) respondents easily influenced and controlled the Trustor as a result of the Trustor's physical and mental infirmities, (3) respondents actively procured the trust amendment, and (4) the amended trust conferred an undue benefit on respondents. It further alleged that respondents took over the Trustor's financial affairs, they " `moved-in' on Trustor during the last weeks of [her] life" and took "complete control of her life." It did not allege that the respondents qualified as prohibited transferees under section 21350, which statutorily invalidated the 2004 Trust.

At a hearing on respondents' objections to appellant's petition on various grounds including lack of standing, the trial court granted appellant's oral motion to amend his petition to include an allegation to set aside a 2004 Will as well as the 2004 Trust and ordered the amendment effective as of the filing date.³ The court dismissed the petition based upon appellant's lack of standing and appellant appealed.

On February 16, 2007, following...