In the Matter of The Wilma F. Binder Trust

Schmidt, reflecting the filing of Laurie Binder’s Petition for 25 Dissolution on February 8, 2016. The unopposed request for judicial notice is GRANTED as to 26 all five documents, with the caveat that while the Court is free to take judicial notice of the 27 2 Petitioner contends that this document was filed November 8, 2025 but the file stamp on the 28 version of the document filed with the court indicates it was filed on November 7, 2025.

1 existence of a document in a court file, the Court may not take judicial notice of the truth of 2 hearsay statements contained therein. (See Evid. Code, § 452, subd. (d); Lockley v. Law Office of 3 Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) 4 ii. Respondent’s Request for Judicial Notice 5 Respondent’s request for judicial notice is attached to her Evidence in Support of Motion 6 for Summary Adjudication. 3 She requests judicial notice of (1) the Petition for Instructions, filed 7 December 27, 2024 in docket 24PR197661; (2) the Response and Objection to Petition for 8 Instructions Regarding Trust Construction, filed on February 21, 2025, in docket 24PR197661; 9 (3) the Reply to Lesie Binder’s Response and Objection to Petition for Instructions Regarding 10 Trust Construction, filed on March 3, 2025 in docket 24PR197661; (4) Warren’s death 11 certificate, (5) Wilma’s death certificate.

The unopposed request for judicial notice is 12 GRANTED with the same caveat mentioned above. (See Evid. Code, § 452, subd. (d); Sacks v. 13 FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 956 [taking judicial notice of a death 14 certificate].) 15 B. Issues with Respondent’s Separate Statement 16 Petitioner argues that Respondent’s separate statement fails to list the causes of action or 17 issues to be adjudicated in violation of Rules of Court, rule 3.1350(b), which provides, “If 18 summary adjudication is sought, . . . the specific cause of action, affirmative defense, claims for 19 damages, or issues of duty must be stated specifically in the notice of motion and be repeated, 20 verbatim, in the separate statement of undisputed material facts.” 21 Respondent asserts that she is seeking summary adjudication regarding an issue of trust 22 interpretation.

Generally, the court may not adjudicate issues that are not issues of duty. Code of 23 Civil Procedure section 437c, subdivision (f)(1) 4 provides, “A party may move for summary 24 adjudication as to one or more causes of action within an action, one or more affirmative 25 3 “Any request for judicial notice must be made in a separate document listing the specific items 26 for which notice is requested and must comply with rule 3.1306 (c).” (Cal. Rules of Court, rule 27 3.1113(l).) Respondent is admonished to comply with all applicable procedural rules in the future. 28 4 All further undesignated statutory references are to the Code of Civil Procedure.

1 defenses, one or more claims for damages, or one or more issues of duty . . . . A motion for 2 summary adjudication shall be granted only if it completely disposes of a cause of action, an 3 affirmative defense, a claim for damages, or an issue of duty.” (Italics added.) Here, Respondent 4 claims that granting of the motion would result in disposition of the sole cause of action in 5 Petitioner’s Petition for Instructions. (See Petition for Instructions, Prayer for Relief [seeking 6 instruction regarding article XII(B) of the Binder Trust].)

Respondent argues that there is only 7 one issue before the court and, therefore, compliance with Rules of Court, rule 3.1350(b) is 8 unnecessary. The court finds that the failure to comply with Rules of Court, rule 3.1350(b) does 9 not interfere with the court’s consideration of the motion. Accordingly, it will not deny the 10 motion on this ground. 11 Petitioner also contends that Respondent’s separate statement contains legal conclusions 12 and statements that do not amount to facts. While the court agrees, Respondent’s separate 13 statement contains all necessary facts to establish that there is no dispute as to the language of 14 the Binder Trust instrument (although the parties clearly dispute the meaning of that language). 15 Accordingly, the court will consider the separate statement. 16 Finally, Petitioner argues that Respondent’s citations in her separate statement do not 17 comply with Rules of Court, rule 3.1350(d), which provides, “Citation to the evidence in support 18 of each material fact must include reference to the exhibit, title, page, and line numbers.”

Here, 19 Respondent cites paragraphs of the declarations she provides in support of her motion. Again, the 20 court declines to deny the motion on this ground and it will consider the separate statement. This 21 error does not affect readability of the separate statement. 22 C. Evidentiary Objections 23 Both parties have submitted evidentiary objections to the other’s evidence. The court 24 declines to rule on the objections because they are immaterial to the outcome of the motion. (See 25 § 437c, subd. (q).) 26 II.

Legal Background 27 Any party may move for summary judgment. (§ 437c, subd. (a); Aguilar v. Atlantic 28 Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the

1 papers submitted show that there is no triable issue as to any material fact and that the moving 2 party is entitled to a judgment as a matter of law.” (§ 437c, subd. (c); Aguilar, supra, at p. 843.) 3 The object of the summary judgment procedure is “to cut through the parties pleading” to 4 determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.) 5 “A defendant or cross-defendant has met his or her burden of showing that a cause of 6 action has no merit if the party has shown that one or more elements of the cause of action, even 7 if not separately pleaded, cannot be established, or that there is a complete defense to the cause 8 of action.

Once the defendant or cross-defendant has met that burden, the burden shifts to the 9 plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as 10 to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon 11 the allegations or denials of its pleadings to show that a triable issue of material fact exists but, 12 instead, shall set forth the specific facts showing that a triable issue of material fact exists as to 13 the cause of action or a defense thereto.” (Code Civ.

Proc., § 437c, subd. (p)(2).) 14 “A defendant seeking summary judgment must show that at least one element of the 15 cause of action cannot be established, or that there is a complete defense to the cause of 16 action...The burden then shifts to the plaintiff to show there is a triable issue of material fact on 17 that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 18 66, 72, internal citations omitted; emphasis added.) 19 If the moving party makes the necessary initial showing, the burden of production shifts 20 to the opposing party to make a prima facie showing of the existence of a triable issue of material 21 fact. (Code of Civ.

Proc., 437c, subd. (c); Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of 22 material fact exists “if, and only if, the evidence would allow of reasonable trier of fact to find 23 the underlying facts in favor of the party opposing the motion in accordance with the applicable 24 standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the party opposing summary 25 judgment presents evidence demonstrating the existence of a disputed material fact, the motion 26 must be denied. (Id. at p. 843.) 27 “Summary adjudication works the same way, except it acts on specific causes of action or 28 affirmative defenses, rather than on the entire complaint. (§ 437c, subd. (f).)

A summary

1 adjudication is properly granted only if a motion therefor completely disposes of a cause of 2 action, an affirmative defense, a claim for damages, or an issue of duty. (§ 437c, subd. (f)(1).) 3 Motions for summary adjudication proceed in all procedural respects as a motion for summary 4 judgment. (§ 437c, subd. (f)(2).)” (Hartline v. Kaiser Foundation Hospitals (2005) 132 5 Cal.App.4th 458, 464.) 6 Throughout the process, the trial court “must consider all of the evidence and all of the 7 inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.)

The moving party’s 8 evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.) 9 III. Merits of the Motion 10 Respondent contends that she is entitled to summary adjudication because the section 11 XII(B) of the Binder Trust unambiguously allowed her, as trustee, to distribute the trust assets to 12 herself and Laurie outright and free of trust as of February 17, 2016, 120 days after October 20, 13 2015, the date of Wilma Binder’s death. Thus, at that time, any interest Petitioner may have had 14 in the trust terminated.

Petitioner counters that sections XII(D) and XII(E) provide for shares to 15 the children of the Settlors’ children (i.e., the Settlors’ grandchildren) and thus, the trust assets 16 are not to be distributed to Respondent and Laurie outright. Instead, they are to be held in trust 17 for the benefit of the grandchildren. Petitioner also points to alleged inconsistencies in the Binder 18 Trust language that she contends renders the trust at least ambiguous on this point. 19 A. Trust Interpretation 20 “ ‘The interpretation of a written instrument, even though it involves what might properly 21 be called questions of fact [citation], is essentially a judicial function to be exercised according to 22 the generally accepted canons of interpretation so that the purposes of the instrument may be 23 given effect. [Citations.]

Extrinsic evidence is ‘admissible to interpret the instrument, but not to 24 give it a meaning to which it is not reasonably susceptible’ [citations], and it is the instrument 25 itself that must be given effect. [Citations.] It is therefore solely a judicial function to interpret a 26 written instrument unless the interpretation turns upon the credibility of extrinsic evidence.’ 27 [Citations.]” (Trolan v. Trolan (2019) 31 Cal.App.5th 939, 948 (Trolan).) 28

1 Probate Code section 21102 provides: “(a) The intention of the transferor as expressed in 2 the instrument controls the legal effect of the dispositions made in the instrument. [¶] (b) The 3 rules of construction in this part apply where the intention of the transferor is not indicated by the 4 instrument. [¶] (c) Nothing in this section limits the use of extrinsic evidence, to the extent 5 otherwise authorized by law, to determine the intention of the transferor.” “The words of an 6 instrument are to receive an interpretation that will give every expression some effect, rather than 7 one that will render any of the expressions inoperative.” (Prob.

Code, § 21120.) “All parts of an 8 instrument are to be construed in relation to each other and so as, if possible, to form a consistent 9 whole. If the meaning of any part of an instrument is ambiguous or doubtful, it may be explained 10 by any reference to or recital of that part in another part of the instrument.” (Prob. Code, § 11 21121.) 12 “If the language of the instrument clearly sets forth the intent, the court does not consider 13 extrinsic evidence; it only looks to extrinsic evidence in the event of an ambiguity. [Citations.] 14 The trial court can consider extrinsic evidence to reveal a latent ambiguity. [Citations.]

The court 15 can also consider extrinsic evidence regarding the circumstances under which the trust was 16 made, in order to interpret the trust instrument, but not to give it a meaning to which it is not 17 reasonably susceptible. [Citations.] However, if the court can ascertain the testator’s intent from 18 the words actually used in the instrument, the inquiry ends. [Citation.] Where the terms of [the 19 instrument] are free from ambiguity, the language used must be interpreted according to its 20 ordinary meaning and legal import and the intention of the testator ascertained thereby. 21 [Citation.]” (Trolan, supra, 31 Cal.App.5th at p. 949.) 22 B.

Language of the Binder Trust 23 The language of the Binder Trust is undisputed although the parties’ interpretations of 24 that language differ. The parties agree that, pursuant to Article VII of the Binder Trust, upon the 25 death of Warren Binder, all trust assets were to be allocated amongst three subtrusts, the 26 Spouse’s Trust, the Marital Trust, and the Family Trust. (See Separate Statement of Undisputed 27 Material Facts (“UMF”), No.17.) The Marital and Family Trusts were irrevocable from their 28 inception and balance assets of those Marital Trust would be added to the Family Trust and

1 administered pursuant to the terms of the trust upon the death of the surviving spouse. (UMF 2 Nos. 21-22, 30.) The Spouse’s Trust was to be funded with Wilma’s separate property and her 3 share of the community property estate, and her quasi-community property interest in separate 4 property acquired by Warren. (UMF No. 18.) Wilma, as the surviving spouse, maintained a 5 power of appointment over the Spouse’s Trust, to be exercised via will or codicil. (UMF Nos. 6 24-25.) Wilma’s 2012 will purported to exercise the power of appointment over the Spouse’s 7 Trust. (UMF, No. 18.) 8 The main thrust of the dispute centers around the following language from section XII: 9 XII.

DISPOSITION OF THE SPOUSE’S TRUST 10 Upon the death of the surviving spouse, the Trustee shall distribute the balance then remaining, if any, of the Spouse’s Trust, including any undistributed income, 11 to such one or more persona or entities, including the surviving spouse’s own estate, and on such terms and conditions either outright or in trust, as the 12 surviving spouse shall appoint by a Will or codicil thereto specifically referring to 13 and exercising this general testamentary power of appointment.

In the absence of such an effective appointment, the balance then remaining of the Spouse’s 14 Trust shall be added to the Family Trust and shall be administered in accordance 15 with the provisions hereinafter set forth:

16 A. DIVISION INTO SEPARATE SHARES The Trustee shall divide the balance of Trust Estate into as many equal shares as 17 there are children of the Trustors then living and children of the Trustors then 18 deceased leaving issue then surviving. The Trustee shall allocate one such equal share to each living child of Trustors and one such equal share to each group 19 composed of the living issue of a deceased child of Trustors. Each said share shall be distributed, or retained in trust, as hereafter provided. 20 B.

ADMINISTRATION OF SHARE IN SEPARATE TRUST 21 Each share allocated to a living child shall be retained and administered by the 22 Trustee as a separate trust as follows: 23 The Trustee shall pay to or apply for the benefit of the child the entire net income of the child’s Trust quarter-annually or at more frequent intervals. If the Trustee 24 deems the income to be insufficient, the Trustee shall also pay to or apply for the 25 benefit of the child as much of the principal of the child’s trust as the Trustee, in the Trustee’s discretion, deems necessary for the child’s proper support, 26 maintenance, health and education, after taking into consideration, to the extent the Trustee deems advisable, any income or other resources of the child, outside 27 the child’s trust, known to the Trustee and reasonably available for these 28 purposes.

Each such separate trust shall be distributed to said child, if said child survives the surviving spouse for one hundred twenty (120) days.

D. DEATH OF A CHILD BEFORE FULL DISTRIBUTION OF HIS 1 SEPARATE TRUST 2 If a child dies before becoming entitled to receive distribution of his entire trust, 3 the undistributed balance of that child’s trust shall be distributed to the deceased child’s issue then living, by right of representation, or if there are none, to the 4 Trustors’ living issue, by right of representation; provided, however, that if a part 5 of that balance would otherwise be distributed to any person for whose benefit a trust is then being administered under this trust agreement, that part shall instead 6 be added to that trust and shall thereafter be administered according to its terms, except that any addition to a partially distributed trust shall augment 7 proportionately the distributed and undistributed portion of that trust. 8 E.

TRUST FOR LIVING ISSUE OF A DECEASED CHILD OF THE 9 TRUSTORS 10 Each share allocated to a group composed of the living issue of a deceased child of the Trustors shall be distributed, or retained in trust, as follows 11 1. If, at the time the trust estate is divided into separate shares, no child of such a 12 deceased child is living who is under age twenty-one (21), the share shall thereupon be distributed, free of trust, to the issue then living of the deceased 13 child, by right of representation. 14 2.

If a child of such a deceased child is then living who is under age twenty-one (21), the share shall be retained by the Trustee as a separate trust for the 15 benefit of the deceased child’s living issue as a group, including those age twenty-one (21) or older. The Trustee shall pay to or apply for the benefit of 16 the issue, of whatever degree, living from time to time, including those whose 17 ancestor or ancestors are still living, as much of the net income and principal of the trust as the Trustee in the Trustee’s discretion deems necessary for their 18 proper support, maintenance, health and education after taking into consideration, to the extent the Trustee deems advisable, any other income or 19 resources of such issue known to the Trustee and reasonably available for 20 these purposes.

Any net income not distributed shall be accumulated and added to principal. In exercising the discretion granted by this subparagraph, 21 the Trustee may pay more to or apply more for some beneficiaries to the exclusion of others. Any payment or application of benefits pursuant to this 22 subparagraph shall be charged against the trust as a whole rather than against 23 the ultimate distributive share of the beneficiary to whom or for whose benefit the payment is made. 24 3. The trust shall terminate as soon as no child of the deceased child is living who is under age twenty-one (21).

Upon termination, the remaining balance of 25 the trust shall be distributed, free of trust, to the then living issue of the 26 deceased child, by right of representation, or if there are none, to the Trustors’ then living issue, by right of representation, provided, however, that if a part 27 of that balance would otherwise be distributed, free of trust, to any person for 28 whose benefit a trust is then being administered under this trust agreement, that part shall instead part be added to that trust and shall thereafter be

administered according to its terms, except that any addition to a partially 1 distributed trust shall augment proportionately the distributed and 2 undistributed portion of that trust.

3 (Evidence in Support of Motion for Summary Adjudication, Declaration of Estate Planning 4 Attorney Nicholas C. Fedeli, Ex. A [the original Binder Trust instrument], pp. 14-16.) 5 5 C. The Parties’ Arguments Based on the Language of the Trust 6 It is undisputed that Respondent and Laurie are the surviving children of the Settlors and 7 that they survived Settlors by more than 120 days. (See UMF Nos. 34, 60-61.) Respondent takes 8 the position that the italicized language above means that the surviving children of the Settlors, 9 Respondent and Laurie, became entitled to distribution of the trust assets, outright and free of 10 trust once they survived Wilma for 120 days. 11 Petitioner contends that, based on the above language and several other provisions of the 12 trust, such a reading is untenable and instead, the assets should remain in trust and that Petitioner 13 and Megan Jellinek, the Settlors’ grandchildren, are remainder beneficiaries.

Petitioner first 14 asserts that the above italicized language does not explicitly indicate that the trust assets should 15 be distributed “outright” or “free of trust,” language that was used elsewhere in the trust 16 instrument to clearly indicate such a disposition; nor does it state that the trust terminates after 17 the distribution to be made 120 days after death of the surviving settlor. She also maintains that, 18 if the italicized language meant when Respondent says it does, article XII(D) would refer to the 19 failure of a child of the Settlors to survive for 120 days rather than the failure of a child to 20 survive until distribution, which, she contends, suggests entitlement to trust distributions beyond 21 the 120-day survivorship period.

She further contends that Respondent’s construction of article 22 XII would render the provisions for continuing administration and quarterly income payments 23 meaningless. Petitioner alleges that the language of article XII(E) creates trusts for the children 24 of deceased children of the settlors, namely, herself and Megan, upon Leslie’s death. 25 Petitioner also argues that certain other trust provisions conflict with the notion that the 26 trust assets should be fully distributed 120 days after the death of the surviving settlor.

She points 27 to Article X, which provides, “To the extent the Trustee receives no notice of claims against the 28 5 The trust instrument does not contain an article XII(C).

1 trust estate within one hundred eighty (180) days after the death of the surviving spouse, the 2 Trustee shall be fully protected in making distributions provided herein. She also points to article 3 XVI, which states, “Attached hereto as Exhibit B and made an integral part hereof by reference 4 are various provisions relating to trust administration.” Section 54 of Exhibit B then states “In 5 any case where the trust instrument directs the Trustee to make a distribution of any interest in a 6 trust hereunder, or a division of the trust estate trust hereunder, at the death of any trustor or any 7 other person, . . . the Trustee must make the must make the actual division or distribution within 8 a reasonable time, but shall not in any case be required to make any actual division or 9 distribution for a period of six (6) months following the date of death of the trustor or other 10 person in question[.]” 11 The court finds that the trust language is not ambiguous and that it must be read as 12 Respondent asserts.

The children of the Settlors became entitled to the trust assets once they 13 survived the surviving settlor for 120 days. The 120-day provision is a condition precedent to 14 vesting of the Settlor’s children’s shares. It is not a timeframe by which the distribution must be 15 made. Thus, all of the other statements regarding timelines for distribution of shares or protection 16 from creditors do not render the trust language ambiguous. 17 The trust cannot be read as Petitioner contends. Because Respondent, the only child of 18 the Settlors with living children of her own, survived Wilma by 120 days, no trust was created 19 for Respondent’s children.

In other words, articles XII(D) and XII(E) never became operative 20 because Respondent and Laurie’s right to distribution of their shares outright and free of trust 21 vested when they survived Wilma for more than 120 days. Petitioner and Megan have no right to 22 any of the Binder Trust assets. Moreover, the absence of language in article XII(B) indicating 23 that the trust would terminate when the shares were distributed to the Settlors’ children is of no 24 moment because, it is possible that one of the settlors’ children who had issue may not have 25 survived the surviving spouse for 120 days and, therefore, the trust would not necessarily 26 terminate but would then be administered pursuant to articles XII(D) and XII(E). 27 Additionally, the absence of the language “outright and free of trust” in article XII(B) 28 does not convince the court that the term “distribute” in the italicized language means anything

1 other than distribute outright and free of trust. In Trolan, the Sixth District Court of Appeal 2 concluded that the following language clearly and unambiguously required the distribution of 3 trust assets and termination of the trust when all beneficiaries had reached the age of 30 and the 4 surviving settlor had died: “ ‘Distributions of principal shall be made as follows: [¶] ... [¶] 5 Whenever any beneficiary for whom a trust is then held shall have attained the age of twenty- 6 five (25) years the Trustee shall distribute to such beneficiary one-half (1/2) of the principal of 7 the trust held for him; upon having attained the age of thirty (30) years the Trustee shall 8 distribute to such beneficiary the balance of his or her trust.’ ” (Trolan, supra, 31 Cal.App.5th at 9 pp. 943-944.)

Here, similarly, once the 120-day survival condition precedent was met, the vested 10 beneficiaries, Respondent and Laurie were entitled to distribution. 11 Finally, Respondent contends that, if the court finds any ambiguity in the trust language, 12 it should be attributed to scrivener’s error. Petitioner contends that this is a concession that there 13 is an ambiguity in the trust. The court disagrees. The motion argues that the meaning of the trust 14 language is unambiguous and only states, alternatively, that if the language is susceptible to a 15 meaning other than the intended meaning, an error has occurred.

The court finds that the trust 16 language is not ambiguous. 17 D. Section 437c, Subdivision (e) 18 Respondent relies on the declaration of the Settlors’ estate planning attorney, Nicholas C. 19 Fedeli, Jr., who drafted the Binder Trust and Wilma’s 2012 estate planning documents, who 20 generally agrees with Respondent’s interpretation of the italicized language. 6 Petitioner contends 21 that the sole evidence Respondent relies on in support of the motion is the decades’ old 22 recollection of Mr.

Fedeli and that the court should deny the motion under section 437c, 23 subdivision (e) for this reason. Section 437c, subdivision (e) provides, 24 If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment shall not be denied on grounds of credibility or for want of 25 cross-examination of witnesses furnishing affidavits or declarations in support of 26 the summary judgment, except that summary judgment may be denied in the discretion of the court if the only proof of a material fact offered in support of the 27 6 28 The declaration is attached to Respondent’s Evidence in Support of Motion for Summary Adjudication.

summary judgment is an affidavit or declaration made by an individual who was 1 the sole witness to that fact; or if a material fact is an individual’s state of mind, or 2 lack thereof, and that fact is sought to be established solely by the individual’s affirmation thereof. 3 The court disagrees that the sole evidence Respondent relies on is Mr. Fedeli’s 4 declaration because Respondent also relies on the language of the Binder Trust itself. 5 Accordingly, the court will not deny the motion based on section 437c, subdivision (e).

Instead, 6 the court finds that Respondent has met her burden at the first step of the summary adjudication 7 analysis because the plain language of the Binder Trust instrument cannot be read as Petitioner 8 contends. 9 E. Extrinsic Evidence 10 When the burden shifts to Petitioner, Petitioner argues that Mr. Fedeli is not credible 11 because he claims that he drafted Wilma’s 2012 estate planning documents to protect the 12 family’s assets from Laurie’s ex-husband because he was told that she was going through a 13 divorce but Laurie did not actually file for divorce until 2016.

Petitioner also faults Respondent 14 for not providing contemporaneous estate planning materials to establish the Settlors’ intent. But, 15 the trust itself is the best evidence of the Settlors’ intent. (See Ammerman v. Callender, supra, 16 245 Cal.App.4th at p. 1073 [the paramount consideration in interpreting a trust is to determine 17 intent from the trust language itself in accordance with the law].) Mr. Fedeli’s declaration is 18 unnecessary to determine the outcome of the motion because the trust language cannot be read as 19 Petitioner interprets it. 20 Petitioner also contends that Respondent’s own administration establishes at least that the 21 trust language is ambiguous.

She points to the fact that Respondent did not send out the trustee’s 22 notice under Probate Code section 16061.7 until May 1, 2024, nearly nine years after Wilma’s 23 death. She also argues that Respondent did not distribute the assets of the trust to Respondent 24 and Laurie 120 days after Wilma’s death, suggesting that Respondent herself did not believe that 25 distribution was required at that time. Petitioner also points to several handwritten notations on 26 the copy of the trust Respondent’s counsel sent to her counsel, including a question mark in the 27 margin next to article XII(B) and an underline of the word “retained” in that article. (See Leslie 28

1 Binder’s Response to Lindsey Jellinek’s Separate Statement of Additional Undisputed Material 2 Facts (“AUMF”), Nos. 108-109.) 3 Respondent does not dispute these facts but she indicates that she and Laurie agreed to 4 defer these distributions and contends that the notations on the trust instrument are immaterial 5 because it is unknown who placed them there and when. (See AUMF, Nos. 108-109, 113.) The 6 court agrees with Respondent that the issue here is the Settlors’ intent and not what actually 7 happened with the administration. (See Ammerman v.

Callender (2016) 245 Cal.App.4th 1058, 8 1079-1080 [“But again the question is whether [settlor] Donald intended the Trust to use the 9 changing fraction method, not whether the Trustees administered the Trust in that fashion.”].) 7 10 The court also agrees that the marks on the trust instrument are immaterial because it is not clear 11 who put those marks on the document or when. Accordingly, the court rejects these arguments. 12 When the burden shifted to Petitioner to show a triable issue of material fact, she has not 13 done so.

Accordingly, the motion is GRANTED. 14 CONCLUSION 15 The motion is GRANTED as to the cause of action for construction of the Binder Trust in 16 the Petition for Instructions filed December 27, 2024. 17 18 19 20 21 22 23 24 25 26 27 7 28 To the extent Petitioner contends that the manner of administration may have been a breach of trust, that is outside the scope of this motion.

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