Rick Asavis, et al. v. John Dougherty, et al.

Rick Asavis, et al. v. John Dougherty, et al., 21CVP-0002

Hearing: Motion for Summary Adjudication

Date: July 29, 2026

On January 8, 2021, Plaintiffs Rick Asavis and Beverly Smith (Smith) (collectively Plaintiffs) filed a lawsuit against Defendants John Dougherty and Carolyn Dougherty, individually and as Successor co-Trustees of the Sylvia June Asavis (June) Trust dated May 22, 2015 (Trust) (collectively Defendants), and Kim R. Kunz, individually and as trustee of the Trust (Kunz).

There is a related probate action (San Luis Obispo Superior Court Case No. 20PR-0152) filed May 27, 2020, by Plaintiffs herein against the same Defendants. As in the probate action, Plaintiffs allege that Defendants took advantage of June during the last months of her life.

On March 23, 2021, the Court overruled Defendants’ demurrer. Defendants filed an answer on April 2, 2021. Plaintiffs filed a verified First Amended Complaint without leave of court on March 29, 2022 (FAC). On May 8, 2026, Defendants John and Carolyn Dougherty filed an answer to the FAC. On May 22, 2026, Plaintiffs filed a Second Amended Complaint (SAC). Trial is set to begin on August 4, 2026.

The SAC alleges causes of action for 1) financial elder abuse; 2) physical elder abuse; 3) neglect; 4) isolation; 5) undue influence; 6) breach of fiduciary duties; and 7) negligence.

Defendants now bring a motion for summary adjudication (MSA) of each cause of action in the SAC alleged by Smith on the grounds that they have been released by Beverly. 1 Defendants’ answer filed on May 8, 2026, alleges a valid and enforceable release agreement as their seventh affirmative defense.

Smith opposes the motion.

I.

Legal Standard

Summary adjudication may be had as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, where the motion completely disposes of the cause of action, affirmative defense, claim for damages, or issue of duty. (Code Civ. Proc., § 437c (f)(1).)

1 The MSA was filed prior to the SAC being filed, but the parties agreed that it would apply to the SAC. The Court further notes that the sixth cause of action in the SAC is accidentally titled as “fifth” and the seventh is titled as the “sixth”. 1

Defendants, as the moving parties, have the initial burden to make a prima facie showing that there are no triable issues of material fact and that they are entitled to adjudication as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) In particular, Defendants bear “the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto.” (Id., at p. 850, citing Code Civ. Proc., § 437c(p)(2).)

Defendants can satisfy their burden by presenting evidence that conclusively negates an element of Smith’s claim, or by showing through evidence that Smith does not possess, and cannot reasonably obtain, needed evidence. (Id., at p. 854-855.) If Defendants make a prima facie showing, then the burden shifts to Smith to produce admissible evidence showing a triable issue of material fact exists. (Id., at p. 850; Code Civ. Proc., § 437c(p)(2).)

The Court’s sole function on a motion for summary judgment is issue-finding, not issuedetermination; the Court must simply determine from the evidence submitted whether there is a “triable issue as to any material fact.” (Code Civ. Proc., § 437c (c); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2026) ¶ 10:270.) “The pleadings define the issues to be considered on a motion for summary judgment.” (Lowe v. Cal. League of Prof. Baseball (1997) 56 Cal.App.4th 112, 122.)

II.

Factual Background

It is undisputed that June died in January 2020. (Defendants’ Separate Statement (UMF) 5; see also Ex. 1 to Smith’s RJN.) John 2 declares that in February 2020, Kunz, as trustee of the Trust, authorized him to act on his behalf and deliver a check for $10,900 to Smith in Tennessee to compensate her for what she claimed was owed her for June’s care. 3 (Declaration of John Dougherty (John Decl.), ¶ 2.) Kunz also authorized him to “settle the matter” with Smith if he could, so that the check would foreclose any claims Smith might have against the estate or the parties. (Ibid.)

Kunz declares that the Trust at paragraph 8.24 allows that any “agent or agents the Trustees may consider necessary or desirable in the administration” to act on behalf of the Trustee.” (Declaration of Kim R. Kunz (Kunz Decl., ¶ 9.) He further declares that he authorized John to act on his behalf as described. (Id. ̧ at ¶ 11.)

John declares that while in Tennessee, he met with Smith, and she agreed to release the Trust, Kunz, himself and his wife Carolyn from any claims she might have regarding or relating to the Trust, in return for payment of $10,900 to herself and $2,000 to her son Corey Smith. John drew

2 The first names of the parties are used to avoid confusion; no disrespect is intended.

3 Smith objects to the John and Kunz declarations, contending that they are judicially estopped from asserting that John was acting with authority to bind the Trust at the time he signed the Release Agreement, because it contradicts previous assertions made in the litigation. As set forth below, the Court finds a triable issue of material fact even if John had authority, therefore the question of John’s authority was immaterial to its decision here. 2

up the agreement and Beverly signed it. (Dougherty Decl., ¶ 3; Ex. A [Release Agreement].) John delivered to Beverly the check for $10,900 that Kunz, as trustee, had given him and Beverly accepted it. (Dougherty Decl., ¶ 4.) Kunz declares that Beverly had demanded more than $10,900 that she claimed she was owed for June’s care, and that she wanted to pursue legal action due to her omission as a beneficiary. (Kunz Decl., ¶ 11.)

The Release Agreement is a handwritten note dated February 18, 2020. (Dougherty Decl., Ex. A.) The full text reads as follows:

By accepting this check in the amount of $10,900.00 along with a check for $2,000.00 to Corey that will be mailed this week, you are agreeing that there will be no further claims against the Sylvia Asavis Trust or any parties involved.

The Release Agreement is signed by John and Smith. (Dougherty Decl., Ex. A.)

Smith declares that she did not become aware of the extent of mistreatment against June by Defendants or their interference with June’s affairs immediately upon her death, and that at the time she signed the agreement she did not know of the elder abuse or undue influence. (Declaration of Beverly Smith (Smith Decl.), ¶ 7.) Smith declares that her attorney did a lot of investigation in order to bring the lawsuit. (Ibid.)

Smith further declares that at the time she signed the Release Agreement with John, she did not know that Kunz had failed to repay June for the loan he had taken from her while she was alive. (Smith Decl., ¶ 8.)

Corey Smith declares that when John came to Tennessee after June died, he and Smith met Defendants at a restaurant. (Decl. of Corey Smith (Corey Decl.), ¶ 3.) Corey declares that John appeared uneasy, and he slid approximately $2,000-$3,000 cash across the table to him. Corey pushed the money back and told John that he didn’t want it. He felt like John and Carolyn were trying to buy him off; he hadn’t done anything to receive that cash, but John insisted he take the money, which he ended up doing. (Ibid.)

Corey later received a check in the mail from Kunz for $2,000 from June’s Trust for care Corey provided to June. (Corey Decl., ¶ 4.)

III.

Discussion

Defendants contend that the Release Agreement is a general release that forecloses any claims against Defendants or Kunz. “A valid compromise agreement has many attributes of a judgment, and in the absence of a showing of fraud or undue influence is decisive of the rights of the parties thereto and operates as a bar to the reopening of the original controversy. [Citation.]” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677.)

Defendants argue that each cause of action alleged is a claim against the Trust as stated in the Release Agreement because it concerns the creation of the third amendment to the Trust, and it concerns the Trust’s property.

The Release Agreement is ambiguous as to the parties purportedly released. Defendants contend that Smith identified the parties involved as Defendants and Kunz. (UMF 11.) However, the portion of the deposition transcript cited by Defendants shows that Smith identified Defendants and Kunz as the only parties she sued as they were the “parties that were involved.” (Declaration of Clay Schroeder, Ex. 2, 65:12-21.) There is no discussion in the portion of the transcript that is cited of the Release Agreement or the parties thereto.

Smith raises numerous arguments in opposition, including that Kunz never authorized to act as trustee, and that the agreement is ineffective because it was obtained by fraud, misrepresentation, or undue influence, amongst many others. Defendants anticipate and address some of those arguments in their points and authorities.

The Court need not address all of Smith’s arguments; at a minimum, the Court finds a triable issue of material fact with regard to the Release Agreement’s scope. First, as set forth above, the Release Agreement is ambiguous as to the released parties. Second, Smith and Corey both declare that they were owed money for their caretaking of June, and the language of the Release Agreement does not specify whether Smith waived the claims alleged in her SAC.

To the extent that the Release Agreement is a broad, general release:

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.

(Civ. Code, § 1542.)

The Release Agreement does not specifically waive unknown claims or the protections of Civil Code section 1542.

Smith was not represented by counsel at the time she signed the Release Agreement and was seeking recovery of money she was owed for caretaking June. (Id., ¶¶ 5-6.) The Release Agreement was executed shortly after June died, and Smith declares that John did not disclose and she did not understand the scope of Defendants’ and Kunz’s alleged wrongdoing at the time she signed the Release Agreement. (Smith Decl., ¶¶ 5, 7, 8.)

In reply, Defendants do not directly address Civil Code section 1542, but they maintain that Smith’s SAC does not allege that she did not waive unknown claims, and that she is bound by her pleadings. (SAC, ¶ 54.) Smith does allege the Release Agreement and refers to it consistently throughout her complaints. The Release Agreement is alleged as “one of several examples of

Defendant Kunz negligently and in breach of trust permitting Respondent John Dougherty to hold himself out as having the authority to transact on behalf of the Trust after June’s death.” (SAC, ¶ 54.) Smith does not seek to enforce the Release Agreement, and the fact that she alleged it in her SAC does not shift the burden of proving its enforceability onto her. Rather, it is Defendants who seek to enforce the Release Agreement as a pleaded affirmative defense, and therefore they bear the burden of showing its applicability to the claims here.

The Court finds that given the ambiguity of the released parties, and the factual question with regard to the scope of the Release Agreement and unknown claims, Smith has shown a triable issue of material fact as to whether the purported Release Agreement bars her claims here. (Neubauer v. Goldfarb (2003) 108 Cal.App.4th 47, 59 [triable issue of fact whether plaintiff's purported release of liability covered his claims for breach of fiduciary duty, fraud and negligence]; Butler v. Vons Companies, Inc. (2006) 140 Cal.App.4th 943, 950 [scope of a waiver of unknown claims was a question of fact].)

IV. Evidentiary Objections

Smith filed evidentiary objections to the declarations of John and Kunz. The Court overrules all nine objections for purposes of this motion.

As set forth above in footnote three, to the extent that the objections are based on whether John and Kunz can assert now that John had authority to bind the Trust, that evidence was immaterial to the Court’s decision.

V.

Conclusion

Defendants’ motion for summary adjudication is denied as to all seven causes of action in the SAC.

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