MOTION TO DISMISS
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01506001 Mahler – Trust TENTATIVE RULING
Case: Mahler – Trust 01506001
Calendar No.: 8
Date: 07/01/2026
MOTION TO DISMISS (ROA 17)
Objector and Trustee Roberta Jo Mahler (“Trustee”) moves for an order dismissing the Petition filed by Petitioner David Mahler (“Petitioner”) and/or dismissing the cause of action to order delivery of the decedent’s will.
Trustee’s request for judicial notice (ROA 15) of Exhibit 1 is granted.
This case involves the Arnold Nelson Mahler and Roberta Jo Mahler Family Trust dated 11/11/86 and completely restated on 11/16/23 (the “Trust”).
On 8/21/25, Petitioner filed a “Verified Petition to Compel Production of Trust Documents and Assets; Request for Delivery of Will; and for Accounting of All Estate Assets, Including Non-Trust and Personal Property” (ROA 2)(the “Petition”).
Trustee moves to dismiss the Petition on the grounds that Petitioner lacks standing because the Trust remains revocable. Trustee further moves to dismiss the cause of action to order delivery of the will on the grounds that it is moot since a copy of the will has been filed with the court (OCSC Case No. 30-2025-01459560).
To establish Petitioner’s lack of standing, Trustee relies on extrinsic evidence. Specifically, Trustee relies on relevant portions of the Trust, the declaration of Trustee, and the declaration of the attorney who drafted the Trust. Based on the extrinsic evidence, the Trust provides that, upon the death of the first settlor, the Survivor’s Trust would be revocable and the Residual Trust, if funded by the surviving spouse, would be irrevocable. Trustee is the surviving spouse, and she states that she has not funded the Residual Trust.
A motion to dismiss based on extrinsic evidence is referred to as a nonstatutory speaking motion.
“[N]onstatutory speaking motions have now been superseded by the procedure governing motions for summary judgment contained in section 437c of the Code of Civil Procedure. . . . [¶] Under this section a motion supported by affidavit of a person having knowledge of the facts may be made after answer whenever it is claimed that the action has no merit, and the complaint may be dismissed unless the other party shows facts sufficient to present a triable issue. The remedy afforded by this section is broad enough to cover all situations in which speaking motions have been employed, and there is therefore no longer any need for the nonstatutory procedure.
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In the interests of orderly and efficient administration of justice the litigant should be required to employ the statutory remedy, and a speaking motion to dismiss should be treated as a motion for summary judgment in order to preserve the safeguards provided by the statute.” (Pianka v. State of California (1956) 46 Cal.2d 208, 211-212, fn. omitted: see Veseley v. Sager (1971) 5 Cal.3d 153, 167 [same]; Lavine v. Jessup (1958) 48 Cal.2d 611, 614 fn.2 [same] and Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5 [“The procedure of moving to dismiss an action based on extrinsic evidence is disapproved in California and the motion is permitted only where it complies with the requirements for a motion for summary judgment”].)
Trustee’s motion to dismiss does not comply with procedural requirements of a motion for summary judgment. Thus, it cannot be deemed a motion for summary judgment.
Neither Probate Code section 17202 nor Probate Code 17206 provide a statutory basis for a speaking motion (i.e., a motion that relies on extrinsic evidence to resolve a factual dispute).
Probate Code section 17202 allows the court to “dismiss a petition if it appears that the proceeding is not reasonably necessary for the protection of the interests of the trustee or beneficiary.” However, for dismissal to be made by motion, the lack of necessity must appear from the well-pleaded facts of the petition. Probate Code section 17202 does not allow the court to dismiss a petition for lack of standing by means of a motion supported by extrinsic evidence. “[W]hen a demurrer or pretrial motion to dismiss challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint.
Instead, the court must first determine standing by treating the properly pled allegations as true.” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827.) In short, a “motion to dismiss” pursuant to Probate Code section 17202 is treated as a demurrer or motion for judgment on the pleadings.
Probate Code section 17206 allows the court to “make any orders and take any other action necessary or proper to dispose of the matters presented by the petition.” This gives the court the broad discretion to take remedial actions necessary to preserve trusts and respond to perceived breaches of trust. (Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.) Likewise, the court has “inherent power to decide all incidental issues necessary to carry out its express powers to supervise administration of trusts.” (Ibid., citing Estate of Heggstad (1993) 16 Cal.App.4th 943, 951.) The court’s discretion and power, however, must be exercised within the procedural requirements of law. (Dunlap v. Mayer (2021) 63 Cal.App.5th 419, 427.)
Sections 17202 and 17206 both provide the court with discretion to make orders regarding trusts. (Gregge v. Hugill (2016) 1 Cal.App.5th 561, 567, 204 Cal.Rptr.3d 842.) The court must exercise its discretion within the “ ‘ “limitations of legal principles governing the subject of its action.” ’ ” (Id. at p. 568, 204 Cal.Rptr.3d 842.) A court abuses its discretion if “ ‘it exceeded the bounds of reason or contravened the uncontradicted evidence [citation], failed to follow proper procedure in reaching its decision [citation], or applied the wrong legal standard to the determination.’ ” (Conservatorship of Becerra (2009) 175
Cal.App.4th 1474, 1482, 96 Cal.Rptr.3d 910 (Becerra).)
(Dunlap v. Mayer, supra at pp. 423–424.)
Contested probate proceedings cannot be resolved through affidavits or verified pleadings. (Probate Code §§ 1022 and 1046; Code Civ. Proc. § 2009; Estate of Bennet (2008) 163 Cal.App.4th 1303, 1308-1309; Estate of Wallace (1977) 74 Cal.App.3d 196, 201.) The instant motion to dismiss goes to the ultimate issue contested in this case. Thus, it must be resolved by an evidentiary hearing or by a statutorily permitted dispositive motion. Said motions include a demurrer or motion for judgment on the pleadings, which motions presume the facts pleaded are true, as well as motions for summary judgment or adjudication, which motions must establish that there are no triable issues of material fact.
The court may, and hereby does, treat a nonstatutory motion to dismiss as a nonstatutory motion for judgment on the pleadings. (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) A motion for judgment on the pleadings functions as a general demurrer for failure to state facts sufficient to constitute a cause of action, and the rules governing demurrers apply. (Code of Civ. Proc. § 438(c)(1)(B)(ii); Smiley v. Citibank (1995) 11 Cal.4th 138, 146; Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999); Templo v. State of Calif. (2018) 24 Cal.App.5th 730, 735 [“motion for judgment on the pleadings is equivalent to a demurrer”].)
Demurrers and motions for judgment on the pleadings can be used only to challenge defects that appear within the “four corners” of the pleading – which includes the pleading, any exhibits attached, and matters of which the court is permitted to take judicial notice. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.)
There is nothing in the four corners of the pleading that establishes that Petitioner lacks standing. The Petition alleges that a portion of the Trust is irrevocable, which, if taken as true, triggers the notice requirements of Probate Code section 16061.7. Thus, the court cannot enter judgment dismissing the Petition in its entirety.
Nonetheless, the court takes judicial notice of the fact that the will has been lodged with the court since 2/11/25, rendering the request for production of the will moot. Thus, the court enters judgment dismissing the request to produce the will for failure to state a cause of action.
ORDERS
The court deems Trustee’s motion to dismiss (ROA 17) a motion for judgment on the pleadings.
As to the cause of action for delivery of the will, the motion for judgment on the pleadings is granted.
As to all other causes of action, the motion for judgment on the pleadings is denied as procedurally defective. The court makes no findings as to the merits of any claim by any party, and no part of this ruling prohibits Trustee from seeking the relief requested in a procedurally proper manner.
The court declines to rule on Trustee’s evidentiary objections (ROAs 39 and 40), as the court’s decision was not based on any evidence presented by Petitioner.
0532737 Orona – Trust TENTATIVE RULING
Case: Orona – Trust 0532737
Calendar No.: 9
Date: 07/01/2026
DEMURRER (ROA 22)
Respondent Phyllis Orona (“Respondent”) demurrers to the “Verified Petition to Invalidate the Trust Amendments to Set Aside Second Amended Trust of February 24, 2024 and First Amended Trust of June 17, 2022 of Adeline Orona (deceased) Because Of: 1. Undue Influence 2. Lack of Capacity” (ROA 2) (the “O.C. Petition”) filed by Petitioners Pedro Ricardo Orona and Mark Anthony Orona (collectively, “Petitioners”).
Evidentiary Matters
Respondent’s Request for Judicial Notice (ROA 20) is granted. Respondent requests that the court take judicial notice of 1) the Petition filed on 3/4/25 in Los Angeles County; 2) the Petition filed in this court on 11/26/25; and 3) the Request for Dismissal filed on 3/12/26 in Los Angeles County. The exhibits attached to the request are 1) the Notification by Trustee sent by Respondent’s attorney to Petitioners; 2) the Petition filed on 3/4/25 in Los Angeles