Fazzio Family Trust

II. Merits of the Motion

Petitioners’ move to amend to add Henry DeCruz and Vanessa DeCruz, Respondent’s siblings, as respondents to the first cause of action for invalidation of the 2019 trust instruments due to undue influence and Decedent’s alleged lack of capacity and the second

cause of action for financial elder abuse. The amended petition would add a third cause of action to invalidate the 2019 trust instruments based on Respondent’s position as a caregiver for Decedent, a fourth cause of action to invalidate Respondent’s and Decedent’s marriage, a fifth cause of action for return of trust property, and a sixth cause of action under the Uniform Voidable Transactions Act (Civ. Code, §§ 3439-3439.14) (“UVTA”), which will name as respondents the current Respondent Fidelis Campion, Henry DeCruz, Vanessa DeCruz, and Respondent’s counsel, the Crosby Law Firm. Petitioners assert that the amendment will consolidate the claims raised in the instant case and those they raised in docket 25PR199934.1

At the outset, the court notes that the motion to amend does not comply with Rules of Court, rule 3.1324(b), which states “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” Specifically, Petitioners’ counsel’s declaration in support of the motion does not indicate when the facts giving rise to the amended allegations were discovered nor does it explain the reasons why the request for amendment was not made earlier.2 Given that Respondent does not object on this basis, the court will overlook it but advises Petitioners to comply with the Rules of Court moving forward.

Respondent argues that Petitioners unreasonably delayed in seeking to amend approximately two months before trial when they were aware of the claims to be added 18 months prior and that prejudice will result from allowing the amendment at this late date, including additional discovery, delay of trial, and added costs. Although Petitioners contend that no new discovery will be necessary, Respondent correctly points out that the new respondents will likely need to pursue discovery themselves as they were not previously parties to the action.

Further, Respondent asserts that the deadline to serve written discovery by mail will pass a mere one day after the hearing on the instant motion to amend. Additionally, beneficiary Philip Keifer maintains that he will suffer prejudice due to the delay of trial because he is ill and unable to work and the delay of trial will delay his distribution from the trust.

Petitioners contend that “the parties have been on notice of these allegations from the outset and extensive discovery has been conducted.” (Memorandum of Points and Authorities in Support of Motion, p. 8:10-11.) Yet, they assert that they did not raise these new claims earlier because they wanted to ensure they had sufficient evidence to make their case and they did not want to amend in a piecemeal fashion. They argue that they made this motion only two months after Vanessa DeCruz’s deposition wherein, they assert, Vanessa DeCruz admitted to stealing funds.

The court does not find these reasons for the delay in filing for leave to amend particularly compelling given that Petitioners knew of Vanessa and Henry’s involvement, even if not the specific facts, since the inception of the case. They have also known of the Crosby 1 Petitioners indicate that they filed a petition in Contra Costa County, which was transferred to this court and assigned docket 25PR199934. No proceedings have occurred in that case in Santa Clara County. 2 The proposed amended petition is attached to the notice of motion.

Law Firm’s actions since those actions were taken over one year ago. Nor is it true that the parties “have been on notice” of these allegations given that it is new parties being added. Moreover, it is highly likely that the trial will need to be continued if the motion to amend is granted. Notably, the court agrees with Respondent that the new parties will need to be served with the amended petition, they may certainly wish to pursue discovery, and motions practice will be likely. Further, Petitioners seek to add a cause of action against Respondent’s counsel, which has the potential to disqualify counsel.

Yet, “[c]ourts must apply a policy of liberality in permitting amendments at any stage of the proceeding, including during trial, when no prejudice to the opposing party is shown. [Citation.] However, even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. [Citations.]” (P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345, internal quotation marks and citations omitted [denial of leave to amend sought after trial readiness conference upheld.)

But many of the cases where denial of leave to amend was upheld involve cases where the amendment is sought on the eve of trial, not several months before trial. See, e.g., P&D Consultants, 190 Cal.App.4th at 1345 (after trial readiness conference); Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 488 [denial of amendment on the eve of trial upheld]; Green v. Rancho Santa Margarita Mortgage Co. (1994) 28 Cal.App.4th 686, 692 [denial upheld where defendant sought to amend answer after the first trial, on remand from appeal].

Here, the trial is set to occur in two months and Respondent does not claim that, for example, she has subpoenaed her witnesses for the trial date or spent resources preparing for trial that will be lost due to any delay in trial, nor does she contend that any witness or evidence will be unavailable if the trial is continued. Further, it would be a waste of resources for the newly added claims to be litigated separately when they, for the most part, concern the same operative facts as the claims already at issue in this case. The court’s discretion in allowing leave to amend “should be exercised liberally in favor of amendments, for judicial policy favors resolution of all disputed matters in the same lawsuit. [Citation.]” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1047.)

Additionally, Respondent contends that Petitioners new UVTA cause of action fails, at least in part, because a disclaimer may not be the subject of an UVTA claim. One of the instruments Petitioners seek to void with their UVTA cause of action is Respondent’s disclaimer, executed on May 9, 2024, which Petitioners describe as disclaiming the Bypass Trust’s right to 50 percent of real property in Campbell. (See Proposed First Amended Petition, ¶ 34.) Respondent maintains that a disclaimer may not be voided via UVTA, citing Probate Code section 283, which provides, “A disclaimer is not a voidable transfer by the beneficiary under the Uniform Voidable Transactions Act (Chapter 1 (commencing with Section 3439) of Title 2 of Part 2 of Division 4 of the Civil Code).”

Respondent also relies on Patow v. Marshack (In re Patow) (Bankr.9th Cir. 2021) 632 B.R. 195, 202-203, in which the Ninth Circuit Court of Appeals, stated that “California law specifically provides that a disclaimer of a beneficial interest is not a fraudulent transfer under the [UVTA]. Cal. Prob. Code § 283.”].) It is not clear that Probate Code section 283 prevents someone other than the disclaiming beneficiary from challenging a disclaimer under the UVTA. (See Prob. Code, § 283 [“A disclaimer is not a voidable transfer by the beneficiary . . .”], italics added.)

And, the UVTA cause of action seeks to void more instruments than just the disclaimer. Accordingly, the court cannot find that UVTA claim is barred as a matter of law such that leave to amend should be denied. (See IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 654 [The court does not abuse

its discretion by denying leave to amend where the facts stated do not constitute a cause of action.].)

The motion for leave to amend is GRANTED.