Demurrer; Motion to Strike
5 Collins – Trust; 30-2024-01430606 Motion to Compel
CONTINUED to 11/18/2026 at 09:00 AM in Department CM08
6 Miller – Trust; 30-2025-01511291 Demurrer Motion to Strike
Trustee Paul Miller’s Demurrer to Petitioner Heather Dye’s Petition for: 1) Order Compelling Trustee to Account; 2) Removal and/or Suspension of Trustee; (3) Redress of Trustee Breaches; 4) Order Appointing Successor Trustee; 5) Disallowance of Fees; and 6) Attorney Fees and Cost (ROA 12) is OVERRULED.
Trustee Paul Miller’s Motion to Strike Petitioner Heather Dye’s Petition for: 1) Order Compelling Trustee to Account; 2) Removal and/or Suspension of Trustee; (3) Redress of Trustee Breaches; 4) Order Appointing Successor Trustee; 5) Disallowance of Fees; and 6) Attorney Fees and Cost (ROA 15) is DENIED.
I. PETITION
On September 12, 2025, Heather Dye (Petitioner) filed a petition (Petition) arising out of the Revocable Trust Agreement of Miller Living Trust Dated April 18, 2013 (Trust) created by her mother Joann Miller (Decedent). According to the Petition, Decedent had four children, Petitioner, Respondent Paul Miller (Respondent), Donald Joseph Lawrence Miller, and Danny Miller, each of whom was a beneficiary of the Trust.
Petitioner alleges Decedent became incapacitated in 2018 and Respondent took over as trustee of the Trust under a Durable Power of Attorney (DPOA). She asserts that between the time he took over as trustee and Decedent’s passing in February 2025, Respondent harmed the beneficial interests of the beneficiaries by wasting Trust assets
through his improper care of Decedent and failing to collect rental income from Trust property as required by the Trust. Petitioner also alleges Respondent’s improper care of Decedent contributed to and hastened the deterioration of Decedent’s health.
Based on these allegations, Petitioner seeks: (1) an order compelling Respondent to provide an accounting for the period of 2018 through Decedent’s passing and thereafter; (2) removal or suspension of Respondent as trustee; (3) an award of damages Respondent’s alleged breach of fiduciary duty; (4) an order appointing a successor trustee; (5) an order prohibiting Respondent from receiving compensation for his services as trustee; and (6) an award of fees and costs.
II. DEMURRER
Respondent demurs to the request for an accounting on the ground that Petitioner, as a beneficiary of a revocable trust, is not entitled to any accounting for the period preceding Decedent’s death and, further, that any claim for a pre-death accounting would be time-barred under Probate Code section 16460 and/or barred by the doctrine of laches. He argues her request for an accounting following Decedent’s death was premature at the time it was made and is now moot because, after the Petition was filed, Respondent filed an accounting (ROA 23).
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Respondent demurs to the breach of trust claim on the ground that the Petition acknowledges the Trust funds were spent on Decedent’s care and, accordingly, could not be a breach of trust. He also argues the breach of trust claim fails to the extent it is based on his alleged failure to provide an accounting.
Respondent demurs to the remaining claims and requests for relief on the ground they flow from the request for an accounting and claim for breach of trust and must fails because those claims must fail.
A. Request for an Accounting
Petitioner seeks an order compelling Respondent to provide an accounting from December 3, 2018 through the present. Respondent’s demurrer splits the request for an accounting into two, separate
claims—a claim for a pre-death accounting and a claim for a post-death accounting. “[A] party may not demur to a portion of a cause of action.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1681.) Accordingly, so long as Petitioner sufficiently states a claim to an accounting in any respect, the demurrer must be overruled.
Petitioner, as a beneficiary, is entitled to accountings following Decedent’s death. Respondent argues Petitioner’s request for an accounting during the post-death period was premature when made and is now moot because he filed an accounting on April 9, 2026. That accounting covered the period February 12, 2025 (date of Decedent’s death) through February 12, 2026. Respondent is still trustee, however, and his duty to account has continued beyond February 12, 2026. Accordingly, Petitioner’s request for an accounting is sufficient to state a claim at this pleading stage.
Respondent’s demurrer to the request for an accounting is OVERRULED.
B. Breach of Trust Claim
Respondent demurs to Petitioner’s breach of trust claim on the ground the Petition “acknowledges that Trustee used the Trust funds solely for Trustor’s care – which is not a breach of fiduciary duty.” That argument misstates the allegations of the Petition, which asserts Respondent “wasted Trust assets by neglecting and improperly caring for [Decedent],” “Respondent’s waste harmed the Trust’s beneficiaries by depleting the Trust’s liquid estates,” “Respondent also failed to collect rental income for the Trust’s beneficiaries as required by the mandatory language of [the Trust],” “Respondent mismanaged [Decedent’s] assets by using Trust assets for improper and harmful medical treatment/healthcare.” (ROA 2 at 3:20-25, see also 5:4-9, emphasis deleted.) Petitioner also alleges Trustee breached his duty to keep Petitioner informed after Decedent died. (ROA 2 at 14:24-15:15.)
The allegations are sufficient to state a breach of trust claim and the demurrer is OVERRULED.
C. Remaining Requests and Claims
Respondent argues the remaining requests and claims fails because they are based on the request for an accounting and breach of trust claim. Because those claims are sufficient at this pleading stage, Respondent’s demurrer to the remaining claims is OVERRULED.
III. MOTION TO STRIKE
Pursuant to Code of Civil Procedure section 436, Respondent moves to strike the entire Petition on the ground the allegations therein are “not only false but irrelevant and improper as to the stated causes of action and demands for relief.”
Code of Civil Procedure section 436 reads, in full:
The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.
(Emphasis added.)
For purpose of § 436, “pleading” is defined as a “demurrer, answer, complaint, or cross-complaint.” (Code of Civ. Proc., § 435(a)(2).) A petition is not one of the pleadings subject to a motion to strike.
Even if a motion to strike could be directed at a petition, this motion would fail. A motion to strike under § 436 is authorized in two situations. First, under subdivision (a), a party may seek to strike “irrelevant, false, or improper matter.” Respondent attacks the entire Petition, not just the allegedly irrelevant, false, or improper allegations. “[The] purpose [of Section 435(a)] is to authorize the excision of superfluous or abusive allegations. ‘[M]atter that is essential to a cause of action should not be struck and it is error to do so.’” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.)
Second, under subdivision (b), a party may seek to strike a pleading that is “not in conformity” with the law. “While this language might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect. Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro, supra, 161 Cal.App.4th at p. 528.) Respondent’s motion to strike is not based on improprieties in form or procedures.
Finally, use of motions to strike “should be cautious and sparing.” (PH III Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.)
The motion to strike is DENIED.
Petitioner is directed to give notice.
7 Watton – Trust; 30-2023-01325567 Motion to Be Relieved as Counsel
Messina & Hankin, LLP’s Motion to Be Relieved as Counsel for Stephen Watton (ROA 176) is GRANTED.
The court will sign the Proposed Order. Moving counsel is ORDERED to give notice to all parties to this action and file proof of service of the court’s order as entered. Withdrawal will be effective upon filing of proof of service of the order.
8 Anderson/Callahan – Trust; 30-2024-01389721 Motion for Summary Judgment
At the request of Mr. Anderson, the Motion for Summary Judgment set for 8/5/2026 and 8/19/2026 at 9:00 AM in Department