MOTION TO DETERMINE INTEREST IN PERSONAL PROPERTY
TENTATIVE RULINGS
DEPT. CM7
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Date: 07/29/2026
Case # Case Name Tentative
01425412 McElroy – Trust Case: McElroy – Trust 01425412
Calendar No: 1 Date: 07/29/26
MOTION TO DETERMINE INTEREST IN PERSONAL PROPERTY (ROA 57)
Petitioner Kimberly Pierce (“Petitioner”) moves for an order compelling Respondent Sandra McElroy (“Respondent”) to transfer certain items of personal property of decedent Phillip McElroy (“Decedent”) to Petitioner as Trustee of Decedent’s trust and to confirm that Respondent has no interest in certain items of personal property belonging to Decedent.
On 8/20/24, Petitioner filed a “Verified Petition for Instructions to Trustee Regarding Ownership of Personal Property” pursuant to Probate Code sections 17200(b)(6) and 850 (the “Petition”). (ROA 2.) The Petition prays for an order determining that certain items of personal property are trust assets. On 11/21/24, Petitioner supplemented the Petition and revised the list of assets in the prayer for relief. (ROA 8.)
On 1/16/25, Respondent filed a “Verified Response and Objection” (the “Objection”) to the Petition. (ROA 13.) In the Objection, Respondent claims that certain items of personal property are her separate property or community property; Respondent further claims that the Petition overvalues certain assets and includes assets that were disposed of during Decedent’s lifetime. (Id. at 3:2-7:25.) Attached to the Objection, is Respondent’s “Comprehensive Review” of Exhibits A through D of the Petition, in which Respondent identifies and proffers the “proper characterization” for each
asset that Petitioner seeks to confirm as trust assets. (Id. at ¶ 6 and Ex. 1.) In the Objection, Respondent also states that she is unable to confirm whether she is a beneficiary or joint owner of certain assets because Petitioner has impeded her access to bank and financial accounts; Respondent reserves the right to supplement her Objection to include any jointly held accounts. (Id. at ¶¶ 4 and 22, and Ex. 1, Fn. 1.)
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By this motion, Petitioner asks the court to issue an order determining that Respondent has no interest in certain assets and requiring Respondent to transfer certain other assets to Petitioner. The motion is made pursuant to Probate Code section 17206 and is based on representations made by Respondent in her Objection and at her deposition.
The motion is opposed by Respondent and Tiffany Marlene Terra, who is a co-Respondent in the related case (O.C.S.C. 30-2024-01383747) (collectively, “Respondents”). (ROA 63.) Respondents argue that the instant motion amounts to a procedurally defective Motion for Summary Adjudication and that it should be denied for failure to comply with Code of Civil Procedure section 437c. Opposition is further made on the merits by raising numerous factual disputes.
In Reply, Petitioner argues that, since Respondent did not assert a claim to certain items of personal property in her Objection or at her deposition, the court can grant the relief requested by this motion pursuant to Probate Code section 17206. (ROA 66.) Petitioner further argues that Probate Code section 17206 gives the court “broad equitable powers to expedite the resolution of trust issues” and that Code of Civil Procedure section 437c is inapplicable. (Id. at 4:26-27.)
Petitioner misunderstands the scope and purpose of Probate Code section 17206.
Probate Code section 17206 states in full as follows:
“The court in its discretion may make any orders and take any other action necessary or proper to dispose of the matters presented by the petition, including appointment of a temporary trustee to administer the trust in whole or in part.” Case law recognizes that the power conferred by Section 17206 “comprises ‘only the “inherent power to decide all incidental issues necessary to carry out [the court’s] express powers to supervise the administration of the trust”’” (Dunlap v. Meyer (2021) 63 Cal.App.5th 419, 426, citing Schwartz v. Labow (2008) 164 Cal.App.4th 417, 427.) Section 17206 does not give the court the power to make a final determination as to a contested proceeding without an evidentiary hearing. (Id. at p. 427.)
Probate Code section 17206 gives the court 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.) The court’s discretion and power under Section 17206, however, must be exercised within the procedural requirements of law. (Dunlap v. Mayer, supra at 423-424, citing Gregge v. Hugill (2016) 1 Cal.App.5th 561, 567.)
Here, Petitioner is not asking the court to decide issues that are incidental to the Petition or to make interim orders to protect the trust. Rather, Petitioner is asking the court to decide the ultimate issues presented by the Petition, i.e., to determine the trust’s interest in specified items of personal property. Ultimate issues in a contested proceeding must be resolved by an evidentiary hearing (Prob. Code § 1046). Alternatively, ultimate issues may be decided by a statutory dispositive motion that does not require resolution of factual disputes (i.e., demurrer, motion for judgment on the pleadings, and motions for summary judgment and/or adjudication).
Petitioner is requesting that the court determine the trust’s interest in real property as prayed for in the Petition based on “admissions” made in Respondent’s verified Objection. However, statutory and case law are clear that contested probate proceedings must be resolved through an evidentiary hearing and cannot be resolved through affidavits or verified pleadings. (Probate Code §§ 1022 [“An affidavit or verified petition shall be received as evidence when offered in an uncontested proceeding under this code.”] and 1046 [“The court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.”]; 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.)
Petitioner further requests that the court determine the trust’s interest in certain personal property based on Petitioner’s deposition testimony. However, Probate Code 17206 does not provide a statutory basis for a speaking motion (i.e., a motion that relies on extrinsic evidence to resolve a factual dispute). “[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. (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”]; see also Key v. Tyler (2019) 34 Cal.App.5th 505, 521, recognizing that motions for summary judgment are commonplace in probate proceedings.)
In short, Probate Code section 17206 provides a legal basis for the court to make orders affecting matters raised in a Petition, but it does not provide an independent procedural mechanism for parties to request such orders to be made. Moreover, no part of Section 17206 indicates that it is meant to be an exception to Probate Code sections 1022 and 1046 which require an evidentiary hearing to resolve contested probate proceedings.
Based on the foregoing, the motion is DENIED as procedurally defective. This motion is without prejudice to Petitioner’s right to seek the relief requested in a procedurally appropriate manner. The court makes no finding on the merits.
Counsel for Petitioner is ordered to file and serve a Notice of Ruling.
01216587 Althoff – Probate TENTATIVE RULING
Case: Althoff – Probate 01216587
Calendar No: 5 Date: 07/29/26
MOTION TO BE RELIEVED AS COUNSEL (ROA 140)
Attorney Andrea E. Hamud seeks to be relieved as counsel for Administrator Agnes Kathleen Kalajain.
An attorney’s right to withdraw as counsel is conditioned upon compliance with California Rules of Court, Rule 3.1362 and, where applicable, Orange County Local Rule 601.21. Counsel has not complied with either.
Counsel has not filed and served all three forms (i.e., MC- 051, MC-052, and MC-053) required by California Rules of Court, Rule 3.1362. Specifically, Counsel has not filed and served a Declaration in Support of Attorney’s Motion to Be Relieved as Counsel – Civil (MC-052). All three mandatory forms must be filed and served on the client and on all persons who have appeared in this action. The proof of