Petition for Instructions
March 16, 2026 Dept. 9 Probate Tentative Rulings
13. 22PR0301 ESTATE OF VISMAN Petition for Instructions
The Petitioner was issued Letters of Administration for decedent’s estate with full authority on March 13, 2023. Petitioner is an officer, director and shareholder of the El Dorado Orchards, Inc. (“EDO”), as are Petitioner’s brothers, Michael and Mark Visman. EDO has notified Petitioner that it has a claim against the estate based on an indemnification agreement. Petition, Exhibit A. Petitioner seeks the Court’s instructions, given that he has a potential conflict of interest as between his role as Administrator and his position with EDO.
EDO has not filed a creditor claim against the estate. EDO claim arises out of a federal trademark litigation against EDO that commenced on November 29, 2029, and alleged that decedent and EDO had violated the plaintiff’s trademarks. This included the decedent’s registration of a domain name and development and publication of a website using the contested trademark. This litigation is ongoing.
EDO argues that an oral statement made by decedent at a May 9, 2022, EDO Board meeting that he would indemnify EDO for financial damages. That statement, as reflected in the EDO Board meeting minutes is attached to the Petition as Exhibit C:
10:15 am Lawsuit update Apple Hill Growers v. El Dorado Orchards, Inc. Everyone discusses. Mason answers questions about what’s going on. Updates about Growers not having any of their (sic) evidence turned in. We talked about liability. If there are any financial damages to El Dorado Orchards Mason agreed to pay for all financial damages, attorney fees, etc.
Petitioner argues that decedent was an employee of EDO and as such, must be indemnified by his employer pursuant to Labor Code § 2802(a):
An employer shall indemnify his or her employee for all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties, or of his or her obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying the directions, believed them to be unlawful.
Petitioner further argues that any purported indemnification undertaken by decedent is null and void pursuant to Labor Code § 2804
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Any contract or agreement, express or implied, made by any employee to waive the benefits of this article or any part thereof, is null and void, and this article shall not deprive any employee or his personal representative of any right or remedy to which he is entitled under the laws of this State.
March 16, 2026 Dept. 9 Probate Tentative Rulings
Although Petitioner points to W2s issued to decedent between 2012-2016 as evidence of his employment status, EDO’s demand letter indicates that decedent was issued 1099 forms as an independent contractor between 2018-2022, and he received neither a W2 nor a 1099 in 2017. According to the Petition, decedent’s role as an employee was marketing and advertising, the same activities that underlie the federal trademark litigation. This included registering the website domain name in 2014, when he was a W2 employee, and managing the website content thereafter. This is the same time period that is the subject of the federal Complaint. Petition, Exhibit B.
Petitioner further asserts that EDO’s claim is not valid because EDO claimed ownership of the digital assets created by decedent and secured those rights through a Probate Code § 850 petition to this Court, which was granted. Petition, Exhibit F. Petitioner asserts that EDO is prevented by judicial and equitable estoppel from denying decedent’s employment status when it claimed ownership of the digital assets in the Probate Code § 850 petition on the basis that decedent created them in the course and scope of his employment.
Finally, EDO has not submitted a creditor claim against the estate, and the time for filing such a claim has now expired.
Proof of service of notice of the Petition was filed on February 13, 2026. No objection to the Petition has been filed as of March 13, 2026.
1. Finding that the actions of decedent complained of in the lawsuit brought by Apple Hill Growers in case #2:17- cv-02085-TLN-CKD filed in the United States District Court for the Eastern District of California, arose out of the course and scope of decedent’s employment with El Dorado Orchards, Inc. and decedent was therefore entitled to the protections of Labor Code Sections 2802 and 2804; 3. Finding that any agreement by decedent to indemnify El Dorado Orchards, Inc. is null and void; 4. Finding that more than four months have elapsed since the date letters were first issued to petitioner and the time for filing creditors’ claims expired on July 13, 2023; 5.
Finding that the one-year statute of limitations provided under Section 366.2 of the Code of Civil Procedure expired on November 11, 2023 and thus that no action may now be brought against decedent on a theory of liability, whether arising in contract, tort, or otherwise;
March 16, 2026 Dept. 9 Probate Tentative Rulings
6. Instructing petitioner, as personal representative of the estate, to therefore deny any claim of indemnity against the estate presented by El Dorado Orchards, Inc.
TENTATIVE RULING #13: ABSENT OBJECTION THE PETITION IS GRANTED AS REQUESTED. ANY PERSON WHO HAS AN OBJECTION MAY MAKE IT ANY TIME, EVEN ORALLY AT THE HEARING (PROBATE CODE § 1043).
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