Sansky - Trust

Moreover, Petitioner correctly argues that the attorney notes and Client Information Report ("Report") from attorney Todd Litman are inadmissible, as there is no supporting declaration. Even documents obtained by subpoena must be supported by a Declaration of Custodian of Records. (Evid. Code §§ 1561-1562 and 1271.) The cover letter provided by Mr. Litman is insufficient to authenticate the documents or to establish the applicability of the business records exception to the hearsay rule. Moreover, the attorney notes and Report consist of double hearsay.

The business records exception may apply to the attorney's notes and Report themselves, but it would not apply to the hearsay statements within the notes. Respondent claims that the statements within the notes are admissible pursuant to the state of mind exception to the hearsay rule. (Evid. Code § 1250.) However, there is no evidence as to who the declarant is since both Bonnie Sansky ("Decedent") and Michael Sansky were present at the time the notes were taken. Likewise, there is no evidence as to who completed the Report.

Merits of the Motion

Setting aside the procedural deficiencies, and assuming for the sake of argument that all of the evidence proffered in support of this motion is admissible, the motion would still be denied.

A party may move for summary judgment in an action if it is contended that the action has no merit or that there is no defense to the action. (Code Civ. Proc., § 437c, subd. (a)(1).) Similarly, a party may move for summary adjudication as to one or more causes of action within an action if the party contends that the cause of action has no merit. (Code Civ. Proc., § 437c, subd. (f)(1).)

“A [defendant] has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., §437c, subdivision (p)(2).) Once that burden is met, the burden shifts to Plaintiff “to show that a triable issue of one

or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can submit evidence (such as discovery admissions and responses) that demonstrates that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his or her cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854- 855; Union Bank v.

Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)

Merely “pointing out the absence of evidence to support a plaintiff’s claim is insufficient to meet the moving defendant’s initial burden” on a motion for summary judgment. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) “The defendant must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid, citing Aguilar at p. 855, fn. 23).

Here, Respondent has not met her initial burden of making a prima facie showing that Petitioner cannot establish one or more elements of any cause of action in the Petition. There is nothing in Mr. Litman's notes to establish that they reflect statements made by Decedent as to her intent. The notes could reflect statements made by Michael Sansky or merely reflect Mr. Litman's own impressions. Even if the notes reflect statements made by Decedent, such statements alone do not conclusively establish that Decedent was acting of her own free will. Mr. Litman's notes are simply evidence that must be weighed against other evidence of undue influence, e.g., Decedent's vulnerability, Michael Sansky's authority, tactics used, and the equity of the result.

Respondent has also failed to establish that Petitioner does not possess and cannot reasonably obtain evidence to establish any cause of action in the Petition. Respondent has simply summarized Petitioner's response to Requests for Admission nos. 3-11 and 13-15. Such admissions, if accurately summarized, establish only the following:

- That Petitioner was not present when the Trust was executed;

- That Petitioner does not have in her possession any documentary evidence that the Trust was revoked or improperly executed; - That Petitioner does not have in her possession any documentary evidence that details Decedent's specific mental or physical condition at the time the Trust was executed; - That Petitioner has not provided any documents supporting her claims that Decedent was subject to undue influence, that Decedent lacked capacity, or that execution of the trust was the result of mistake of fact; - That Petitioner has no professional training to assess Decedent's mental or physical capacity; - That Decedent never expressed an intention to revoke the Trust; and - That Decedent never expressed an intention to leave Petitioner an interest in the primary asset of the Trust at any time after the Trust was executed.

Respondent has not established that Petitioner would be unable to obtain or provide any of the documents that Petitioner admits are not currently in her possession. Respondent has not established that she requested Petitioner to provide any documents to support the claims in the Petition. And, importantly, Respondent has not established that Petitioner's discovery responses are devoid of any facts or witnesses that would support her claims.

A defendant's discovery responses establish a lack of evidence when they are "factually devoid." (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.) Here, Respondent has merely established that the discovery responses admit a lack of documentary evidence. Respondent has not presented any evidence as to whether she propounded any discovery that requested Petitioner to state facts or identify witnesses in support of a claim, much less evidence that Petitioner failed to identify any such facts or witnesses. In short, the admission of having no documents is conclusive on that narrow point only.

A defendant relying on a plaintiff's factually devoid discovery responses in support of a motion for summary judgment must establish that the discovery propounded was drafted in a way to elicit the necessary evidence that was not provided by the plaintiff. (Scheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81.) Here, Respondent states in her moving papers that "[a]s of May 12, 2026, [Petitioner] has not provided a single document, testimony, report, record, or any other evidentiary support for the claims asserted in her Petition." (ROA 26, P&A, ¶ 36.) However, Respondent has presented no evidence that she propounded any discovery that would elicit such information.

While documentary evidence might be more credible than testimonial evidence, the court is not concerned with the strength or weight of plaintiff's evidence when ruling on a motion for summary judgment. (Harding v. Mac Dougal (1969) 275 Cal.App.2d 396, 399 [“[t]he purpose of the summary judgment is to weed out nonlitigable cases, not to pretry and dispose of doubtfully successful ones.”])

On the record presented, the court cannot find that Respondent has established that Petitioner does not have and cannot reasonably obtain evidence in support of her claims.

Since Respondent has failed to meet her prima facie burden, the motion can be denied on such grounds alone, and the burden need not shift to Petitioner to show the existence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

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TENTATIVE RULING

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