Motion to Strike
In re The Robert J. PeBenito and Patricia PeBenito Revocable Living Trust, 25PR-0050
Hearing: Motion to Strike
Date: August 5, 2026
On February 13, 2025, Adriel PeBenito (Petitioner) filed a petition under Probate Code section 17200 naming Rosell Martini and Renee Estrada (Respondents) as respondents. Respondents are named both individually and as co-trustees of the Robert J. PeBenito and Patricia PeBenito Revocable Living Trust, dated September 2, 2020 (the Trust). The petition seeks to remove Respondents as the trustees for breach of fiduciary duties, to surcharge Respondents for the alleged breaches, and a full accounting of trust assets. Respondents filed an objection to the petition in October 2025.
On February 24, 2026, Petitioner filed a supplement reporting the Trust had received a distribution from the Estate of Russ Benito, and that Roselle had distributed the funds “to everyone except Petitioner.” (First Supp., ¶ 8.) Petitioner filed a second (unverified) supplement on March 2, 2026 in response to the Court’s probate notes reporting he did not have possession of the settlors’ wills and clarifying he sought an accounting covering the period September 14, 2021 to the present. 1
Respondents move to strike the two supplements on the ground they seek to amend the original petition and Petitioner did not seek leave to amend under Code of Civil Procedure section 473(a).
Prior to filing a motion to strike, “the moving party shall meet and confer in person, by telephone, or by video conference with the party who filed the pleading that is subject to the motion to strike for the purpose of determining if an agreement can be reached that resolves the objections to be raised in the motion to strike.” (Code Civ. Proc., § 435.5.) Respondents’ counsel reports he sent an email to opposing counsel. The email stated only: “You cannot file an amendment to your petition without leave from the Court after an answer has been filed, as in our case.
See CCP 472. Please withdraw this amendment or we will file a motion to strike. Let me know before March 10 if you will withdraw. Thank You.” (Bailey Decl., ¶ 2, Ex. A.) Nor does Respondents’ counsel report he replied to opposing counsel’s response discussing the difference between a supplement and an amendment. This is not a sufficient meet and confer by the moving party.
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(2) “Pleading” means a contest, answer, petition, application, objection, response, statement of interest, report, or account filed in proceedings under the Probate Code.
1 Petitioner fixed the verification issue on April 17, 2026.
(3) “Amended pleading” means a pleading that completely restates and supersedes the pleading it amends for all purposes.
(4) “Amendment to a pleading” means a pleading that modifies another pleading and alleges facts or requests relief materially different from the facts alleged or the relief requested in the modified pleading. An amendment to a pleading does not restate or supersede the modified pleading but must be read together with that pleading.
(5) “Supplement to a pleading” and “supplement” mean a pleading that modifies another pleading but does not allege facts or request relief materially different from the facts alleged or the relief requested in the supplemented pleading. A supplement to a pleading may add information to or may correct omissions in the modified pleading. 2
Respondents argue “The First Supplement introduces entirely new allegations relating to a separate probate proceeding involving the Estate of Russ Benito, including claims regarding lack of notice, failure to receive distributions, and alleged misconduct by the trustee in connection with that proceeding. (Bailey Decl. ¶ 4, Ex. C.)” (Mtn., p. 5:23-26.)
Petitioner argues the First Supplement is like a Notice of Related Case. That assertion is contravened by the fact the First Supplement states it is a supplement to the petition and then concludes with, “The above-stated supplemental information are the only amendments Petitioner makes at this time and all other contents in their Petition remain.”
The Court strikes the First Supplement. To the extent, Petitioner seeks to add allegations to the petition, he may seek leave to do so under either Code of Civil Procedure section 472 (amended pleading) or section 464 (supplemental pleadings).
As for the Second Supplement, prior to the hearing on March 3, 2026, the Court posted the following relevant probate notes:
1. The original will of Robert J. PeBenito has not yet been lodged with the Court. (Prob. Code, 8200.)
2. The original will of Patricia PeBenito has not been lodged with the Court. (Prob. Code, 8200.)
3. The period of the accounting requested is needed.
4. The name of a proposed Trustee is needed. What would bond be for this trustee?
2 This differs from Code of Civil Procedure section 464 which states a supplemental pleading alleges facts material to the case which occurred after the former pleading was filed. Any such supplemental pleading may be allowed on motion.
The Second Supplement does not raise new facts or seek new relief. While the Second Supplement also states the “supplemental information are the only amendments Petitioner makes at this time ...,” it also clarifies that it was submitted “in response to the Probate notes for March 3, 2026.” The Court denies the motion to strike the Second Supplement.
ORDER
The motion to strike the First Supplement is granted. The motion to strike the Second Supplement is denied.
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