Revoke Attorney-in-Fact; Compel Accounting; Recover Trust Assets
July 20, 2026 Dept. 9 Probate Tentative Rulings
8. 25PR0285 IN THE MATTER OF CERWONKA LIVING TRUST PETITION HEARING
On October 17, 2025, Petitioner, Gerald F. Cerwonka (“Petitioner”) filed a Petition to 1) Revoke Attorney-in-Fact Pursuant to Probate Code § 4541(d); 2) Compel Accounting by Attorney-in-Fact Pursuant to Probate § 4541(c); and 3) Recover Trust Assets Pursuant to Probate Code § 850. Respondent, Jennifer Peterson (“Respondent”) filed a Response and Objection on February 9, 2026. At the hearing on April 20, 2026, the Parties requested a continuance to allow time to meet and confer. A Reply to Respondent Jennifer Peterson’s Responses and Objections to Petitioner Gerald F.
Cerwonka’s Petition to Revoke Respondent’s Attorney in Fact, Compel Accounting, and Recover Trust Assets was filed on July 5, 2026. The Trust at issue was established on March 21, 2000, and amended in 2011, by Janette Cerwonka ("Mrs. Cerwonka"), Respondent's mother, and Petitioner, Janette Cerwonka's husband. See Petition, Exhibit A. Mrs. Cerwonka and Petitioner are the current trustees and the only beneficiaries of the Trust during their lifetimes. When Mrs. Cerwonka was diagnosed with Alzheimer's in 2018, all three parties agreed to appoint Respondent as Mrs.
Cerwonka's attorney-in-fact. See Petition, Exhibit B. This gave Respondent’s authority to manage Trust assets, giving rise to a conflict between Petitioner as Trustee and Respondent as attorney-infact. Petitioner asserts that he believed that the power of attorney was only for health care decisions, not for financial decisions. Among the actions of Respondent that are contested by Petitioner: 1. Retitling the principal bank account from the name of the Trust to the joint names of Mrs. Cerwonka and Respondent, and thereafter using the account in a manner to which Petitioner objects; 2.
Refinancing Trust real property assets, which increased indebtedness and monthly payment amounts; 3. Transferring $535,000 to Mrs. Cerwonka's sister, Patricia Macklin in what was represented as a loan repayment; 4. Making payments to the Department of the Treasury and the California Franchise Tax Board ($13,500 in total) without explanation; 5. Making payment to an orthodontist for the benefit of Respondent's daughter ($5,082.00) Petitioner asserts that Mrs. Cerwonka's health now meets the statutory standard for incapacity pursuant to
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Petitioner further requests the power of attorney to be revoked for conflict of interest, actions in excess of Respondent's authority under the instrument and in violation of her duties
July 20, 2026 Dept. 9 Probate Tentative Rulings
pursuant to Probate Code §§ 4230, 4232(a) and 4233, including retitling the bank account and refinancing the real properties. Gomez v. Smith (2020) 54Cal.App.5th 1016. Petitioner requests the Court to order recovery of twice the value of any loss of the value of the Trust property, profits realized by Respondent, and lost profits of the Trust resulting from the breach of Respondent's duties, pursuant to Probate Code §§ 4231.5 and 859. Petitioner further requests the Court to revoke Respondent's power of attorney, compel an accounting and return Trust property to the Trust pursuant to Probate Code § 850.
The Objection to the Petition is filed by decedent's daughter and Petitioner's stepdaughter. Respondent counters that the Trust document lists all Trust assets as either the separate property of Mrs. Cerwonka or the separate property of Petitioner, without designating any community property assets. Mrs. Cerwonka's separate property assets were all to be distributed to Respondent upon Mrs. Cerwonka's death, with the exception of a life estate granted to Petitioner to live in the settlors' primary residence during his lifetime.
According to Schedule C of the Trust, attached to the Objection as Exhibit 1, the separate property assets of Mrs. Cerwonka include:
• All Bank of America Accounts, including the Account ending in -09834. • 1431 Plateau Circle, South Lake Tahoe, CA 96150 • 926 Macinaw Road, South Lake Tahoe, CA 96150 • 948 Tallac Street, South Lake Tahoe, CA 96150 • 888 San Jose, South Lake Tahoe, CA 96150 • 696 San Francisco, South Lake Tahoe, CA 96510 The Third Amendment to Trust, see Objection, Exhibit 2, grants to Petitioner: (1) an interest in the net income from 926 Macinaw Road for his lifetime;and (2) an exclusive right to possess and occupy 1431 Plateau Circle during his lifetime following Ms.
Cerwonka's death, subject to the condition that he would be responsible for the mortgage payments and other expenses. According to Respondent, Mrs. Cerwonka asked Respondent to undertake the power of attorney in 2018. See Objection, Exhibit 3. The Objection asserts that Mrs. Cerwonka was able to manage her own finances without support from Respondent until 2022, which included the 2021 refinancing of the real properties in order to pay off a promissory note for a debt owed to her sister, which is documented in Exhibit 4 to the Objection.
The timing of the refinance was determined because of historically low interest rates at the time, and an impending due date for repayment of the loan. Respondent notes that Petitioner consented to these refinancings, as evidenced by his execution of the resulting grant deeds. Objection, Exhibit 5. Further, Respondent argues that the refinancing of the rental property (926 Macinaw Road) resulted in
July 20, 2026 Dept. 9 Probate Tentative Rulings
reducing monthly payments, reducing the interest rate and shortening the life of the loan. For the other property, the primary residence of the settlors (1431 Plateau Circle), the refinancing reduced the interest rate and made possible the early repayment of the loan on the Macinaw Road rental property. Respondent notes that she received no benefit from these transactions. Respondent notes that Petitioner never objected to Respondent's activities with respect to her mother's financial affairs until 2025, when Petitioner's son requested a copy of the power of attorney, which she provided to him.
The Petition was filed in October 2025, claiming that he is a beneficiary of the separate property assets of Mrs. Cerwonka, contrary to the provisions of the Trust, and that he had no knowledge of the refinancings, which is belied by his signatures on the grant deeds. Respondent argues that the demand for termination of her power of attorney based on fraud or undue influence in its creation is barred by the statute of limitations, given that the Petition admits that Petitioner received a copy of that document in 2018 (Petition, para. 5).
Similarly, the retitling of the bank account was accomplished in 2019, from which Petitioner received 95 checks between 2019 and 2025 totaling $78,036.40, which checks reflected that the ownership of the account was then held by Respondent and her mother jointly. Respondent asserts that Petitioner is also suffering from cognitive decline such that he no longer has capacity to act as trustee of the Trust. Finally, Respondent notes that whether or not Petitioner is able to afford mortgage payments is a hypothetical question because Mrs.
Cerwonka is still living and is still paying the mortgage on the property through the mortgage payments that are contested by the Petition. Hypothetically speaking, Petitioner may predecease Mrs. Cerwonka, rendering this argument moot, and further, he has assets of his own as his separate property and the right to rental income from the 926 Macinaw property. Accordingly, this issue is not ripe for adjudication. TENTATIVE RULING #8: APPEARANCES ARE REQUIRED AT 8:30 A.M. ON MONDAY, JULY 20, 2026, IN DEPARTMENT NINE.
IF A PARTY OR PARTIES WISH TO APPEAR REMOTELY, INSTRUCTIONS FOR REMOTE APPEARANCES CAN BE FOUND ON THE COURT’S WEBSITE.
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