In the Matter of THE W. DONALD HEAD TRUST, dated October 12, 1993

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 13 Honorable Daniel T. Nishigaya R. Belligan, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2240

DATE: August 19, 2026 TIME: 10:00 A.M. TO CONTEST A TENTATIVE RULING, YOU MUST CALL (408) 808-6856 BEFORE 4:00 P.M. ON THE DAY PRIOR TO THE HEARING. You must also inform all other sides to the issue before 4:00 P.M. the day prior to the hearing that you plan to contest the ruling. The Court will not hear argument, and the tentative ruling will be adopted if these notifications are not made. (Cal. Rule of Court 3.1308(a)(1); Civil Local Rule 8.D.)

LINE # CASE # CASE TITLE RULING LINE 1 25PR200726 In the Matter of THE W. DONALD Motion for Sanctions HEAD TRUST, dated October 12, 1993 Ctrl Click (or scroll down) on Line 1 for tentative ruling. LINE 2 25PR200726 In the Matter of THE W. DONALD Amended Cross-Petition HEAD TRUST, dated October 12, 1993

LINE 3 26PR201902 In the Matter of the Beverly P. Riley Motion to Change Venue Trust dated December 8, 1994 OFF CALENDAR. This motion will be heard on September 23, 2026 at 10:00 a.m. in Department 13.

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Case Name: In the Matter of THE W. DONALD HEAD TRUST, dated October 12, 1993 Case No.: 25PR200726

INTRODUCTION Petitioners Robert Michael Scarola (“Scarola”) and Jack Trinton Tough (“Tough”, collectively, “Petitioners”) initiated this action by filing a petition for suspension and removal of the co-trustees of the W. Donald Head Trust, dated October 12, 1993, as amended and restated (“the Trust”), for breach of trust, for invasion of privacy, for elder abuse, for an accounting, and for an order barring the respondents from using Trust funds to pay their legal fees (“the Petition”).

The Petition alleges that Respondents John Doe, Jane Doe, and Dr. Ralph Y. McKay, Jr., Ed. D. (“McKay”) (collectively, “Respondents”) have taken over the lives and finances of four elderly men living at Old Grandview Ranch (“the ranch”) in Saratoga: Dr. W. Donald Head (“Head”), settlor of the Trust; his husband, David Drake Hunt; and Petitioners.1

Thereafter, McKay filed a cross-petition as attorney-in-fact for Head alleging that Scarola committed breaches of trust and that Tough committed elder abuse by spending approximately $400,000 of Trust funds on two greenhouses.

On March 23, 2026, Petitioners filed a cross-cross-petition (“Cross-Cross Petition”) raising claims against McKay, John Doe, and Jane Doe.2 The Cross-Cross Petition alleges two causes of action against Respondents: (1) breach of trustee under a trustee de son tort theory and (2) equitable indemnity. Both causes of action are rooted in Petitioners’ allegations that Respondents were actively involved in and spearheaded the purchase of the two greenhouses.

Currently before the court is John Doe’s motion for sanctions against Petitioners under Code of Civil Procedure section 128.7.3 Scarola and Tough oppose the motion.

DISCUSSION

1 John Doe, McKay, and Scarola were co-trustees of the Trust until John Doe’s resignation during the pendency of this litigation. They are also beneficiaries of the Trust, as is Tough. 2 John Doe and Jane Doe will be referred to herein collectively as Respondents. 3 All further undesignated statutory references are to the Code of Civil Procedure. 3

I. Legal Background Section 128.7, subdivision (b) provides By presenting to the court, whether by signing, filing, submitting, or later advocating, a pleading, petition, written notice of motion, or other similar paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

Section 128.7, subdivision (c) provides, “If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.”

“Under . . . Code of Civil Procedure section 128.7 . . ., there are basically three types of submitted papers that warrant sanctions: factually frivolous (not well grounded in fact); legally frivolous (not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law); and papers interposed for an improper purpose. [Citations.]” (Guillemin v. Stein (2002) 104 Cal.App.4th 156, 167.)

“A trial court is to apply an objective standard in making its inquiry concerning the attorney’s or party’s allegedly sanctionable behavior in connection with a motion for sanctions brought under section 128.7. [Citation.]” (Optimal Markets, Inc. v. Salant (2013) 221 Cal.App.4th 912, 921.)

“[W]hen determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether any reasonable attorney would agree that [the claim] is totally and completely without merit. [Citations.]” (Peake v. Underwood (2014) 227 Cal.App.4th 428, 448, internal quotation marks omitted.)

“[W]hen establishing a claim is factually or legally without merit under Code of Civil Procedure section 128.7, it is not necessary to show the party acted with an improper motive or subjective bad faith.” (Id. at p. 449.)

“Under the explicit language of section 128.7, subdivision (c), the trial court retains the discretion, upon the finding of a violation of subdivision (b), to determine whether a sanction is warranted in the first instance; and, if so, the type and amount of sanctions warranted.” (Kojababian v. Genuine Home Loans, Inc. (2009) 174 Cal.App.4th 408, 422.)

“Section 128.7, subdivision (c) does not require the imposition of monetary sanctions upon the finding of a violation of section 128.7, subdivision (b); rather, it gives the trial court discretion to impose sanctions based on such a finding.” (Ibid.)

“To avoid sanctions under section 128.7, ‘the issue is not merely whether the party would prevail on the underlying factual or legal argument,’ but rather whether any reasonable attorney would agree that the claim is totally and completely without merit. [Citation.] Hence, the evidentiary burden to escape sanctions under section 128.7 is light. [The opposing party] must make a sufficient evidentiary showing to demonstrate that he made a reasonable inquiry into the facts and entertained a good faith belief in the merits of the claim. [The opposing party] need not amass even enough evidence to create a triable issue of fact as would be required if [the moving party] had brought a motion for summary judgment, or allege a valid cause of action, as required to overcome a demurrer. [Citation.]” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)

II. Merits of the Motion John Doe seeks both monetary and terminating sanctions in the form of dismissal of the Cross-Cross Petition under section 128.7 on the grounds that the Cross-Cross Petition is both legally and factually frivolous.

A. Compliance With the 21-Day Safe Harbor

“Under section 128.7, the party moving for sanctions must serve the motion on the opposing party, but the motion ‘shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.’ (§ 128.7, subd. (c)(1).)” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 550.)

“Thus, a party seeking sanctions under sections 128.5 and 128.7 must follow a two-step procedure. [Citation.] First, the moving party must serve on the offending party a motion for sanctions. [Citation.] Service of the sanctions motion triggers the 21-day safe harbor period during which the moving party may not file the motion. [Citation.] That is because the offending party may avoid sanctions by withdrawing the challenged pleading during the 21-day period. [Citation.] Second, if the offending party does not withdraw the challenged pleading during that period, then the moving party may file the sanctions motion. [Citation.]” (Ibid.)

“[T]he law requires strict compliance with the safe harbor provisions. [Citation.] Failure to comply with the safe harbor provisions ‘precludes an award of sanctions.’ [Citations.]” (Id. at p. 551; Zarate v. McDaniel (2023) 97 Cal.App.5th 484, 489 [“If a moving party fails to comply with [the safe harbor provision], the sanctions motion must be denied. [Citation.]”.])

Here, John Doe does not address his compliance with the safe harbor provision of section 128.7. Nonetheless, the Court finds that this mandatory prerequisite has been complied with based on Petitioners’ counsel’s declaration in support of Petitioners’ opposition indicating that she received a copy of the motion on June 15, 2026. (See Declaration of Miriam Behman Brody in Support of Opposition to John Doe’s Motion for Sanctions Under Code of Civil Procedure Section 128.7 (“Brody Decl.”), ¶ 6.) The Cross-Cross Petition has not been withdrawn.

B. Factual Frivolity By filing a pleading with the Court, the filer certifies that “[t]he allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” (§ 128.7, subd. (b)(3).)

The main thrust of John Doe’s factual frivolity argument is that the evidence establishes that, contrary to the allegations in the Cross-Cross Petition, he did not lead the efforts to purchase the greenhouses. Instead, he claims that Tough initiated the discussion regarding purchasing the greenhouses and spearheaded the efforts to purchase them and coordinate their delivery and set up.

The Cross-Cross Petition alleges that the greenhouses were purchased from Hartley Botanic, Inc. (“Hartley”) in March 2024 using Trust funds. (Cross-Cross Petition, ¶ 49.) It further asserts that Respondents initially floated the idea of purchasing one greenhouse for Tough to use, as he is the one who was responsible for landscaping at the ranch, and one for entertaining. (Ibid.)

The Cross-Cross Petition goes on to explain that the greenhouses were never ultimately delivered to the ranch due to logistical issues regarding installation and that the disposition of the greenhouses is currently being arranged by Petitioners. (Id. at ¶ 50.)

Petitioners rely on exhibits O through V to support their claims related to the greenhouses. (Id. at ¶¶ 52-59.) Exhibit O is an email from Anthony Lozano (“Lozano”), then estate manager at the ranch, to both John and Jane Doe at their professional email addresses, discussing the agenda for an upcoming meeting, including information regarding an upcoming contractor site meeting and the construction of the foundation for the greenhouses. (Cross-Cross Petition, ¶ 52, Ex. O.) In the agenda he indicates that the contractor would prepare an invoice for John Doe to approve. (Ibid.)

Exhibit P is an email from Jane Doe responding to Lozano’s email and indicating that she set up an email address for the ranch (“ranch email”). (Cross-Cross Petition, ¶ 52, Ex. P.)

Exhibit Q is an email from a representative of the company that was engaged to perform the foundation work for the greenhouses to Jane Doe at her professional email address and copying John Doe at his professional email address, the ranch email, and Tough. (Cross- Cross Petition, ¶ 53, Ex. Q.)

Exhibit R is another email from the foundation company to Jane Doe at her professional email address, and copying John Doe at his professional email address, the ranch email, and Tough. (Cross-Cross Petition, ¶ 54, Ex. R.)

Exhibit S is Jane Doe’s response to the email in Exhibit R stating, “Thank you. We are going to get other bids and will get back to you if we’d like to move forward.” (Cross-Cross Petition, ¶ 54, Ex. S.)

Exhibit T is an email from Lozano to the ranch email and copying John Doe and Jane Doe, both at their professional email addresses, discussing the greenhouse project. (Cross-Cross Petition, ¶ 55, Ex. T.) Neither Petitioner is included in the email and, in it, Lozano states, “Upon your cost review and approval; I will set up a conference call with Hartley Botanic to create a construction and installation calendar.” (Ibid.)

Exhibit U is a later email from Lozano to the ranch email and copying John Doe and Jane Doe, both at their professional email addresses, discussing the greenhouse project, and not including either Petitioner. (Cross-Cross Petition, ¶ 56, Ex. U.)

Exhibit V, which post-dates the purchase of the greenhouses, consists of meeting minutes from a meeting of the co-trustees, which then included John Doe, wherein it is stated that John Doe would “confer with Hartley Botanic about two previously purchased greenhouses.” (Cross- Cross Petition, ¶ 59, Ex. V.)

The Cross-Cross Petition also alleges that John Doe and Jane Doe personally met with representatives from Hartley and Greenstreak at the ranch and that they wanted to complete the greenhouse project with some urgency before an upcoming event at the ranch. (Cross-Cross Petition, ¶ 57.)

John Doe contends that it was Tough who initially was interested in buying a greenhouse in 2023. He provides text messages from Tough dated June 9 and June 10, 2023 including pictures of greenhouses and information about Hartley. (See Declaration of John Doe in Support of Respondent John Doe’s Motion for Sanctions Under Code of Civil Procedure Section 128.7 (“Doe Decl.”), ¶¶ 2-3, Exs. A&B.) John Doe also asserts that Tough had a meeting with a Hartley representative in June 2023. (Id. at ¶ 4.)

Thereafter, John Doe contends, Tough resumed his efforts to purchase a greenhouse in March 2024, by texting John Doe seeking to show Respondents where he wanted to place the greenhouse. (Id. at ¶ 5, Ex. C.) On March 20, 2024, Tough sent a text message to John Doe with pictures of a greenhouse and stating, “This is the Greenhouse that I am proposing. I think we only need one, because it’s $198,500. That’s not including building the foundation for it. Do you think that’s too extravagant.” (Doe Decl., ¶ 6, Ex. D.) He then requested to talk to John Doe about it later. (Id. at Ex. D.) John Doe responded “Sure, we’ll talk but I don’t think that is extravagant[.]” (Ibid.)

John Doe declares that later that same day Tough asked him if he could put down a deposit on a greenhouse and John Doe responded asking for information. (Id. at ¶ 7.) On March 22, 2024, John Doe received an email from Tough forwarding an email from Hartley indicating that Tough had entered into a contract and put down a deposit. (Id. at ¶ 8, Ex. F.) Tough also requested that John Doe be copied on emails from Hartley and therefore, John Doe was copied on multiple emails. (See id. at ¶¶ 11, 13, 15, Exs. I, K, M.)

John Doe also faults Petitioners for failing to include in the exhibits to the Cross-Cross- Petition the actual contract with Greenstreak, the company that was engaged to lay the foundation for the greenhouses, which he asserts mentions only Tough. Exhibit R to the Cross- Cross-Petition is an email sent from a Greenstreak representative with the subject line “PDF Greenstreak Contract[.]” (Cross-Cross-Petition, Ex. R.) Exhibit R to John Doe’s declaration is the email with the contract. The contract states, “Project Contracting Party’s Name; Old Grandview Ranch-Jack Tough[.]” (Doe Decl., Ex. R.)

In response to the motion, Tough has filed his own declaration, in which he states that a representative from Hartley emailed him two invoices totaling $151,114, that he forwarded them to John Doe, and that John Doe responded “You can write a check for that. I’ll also let Anthony [Lozano] know.” (See Declaration of Jack Trinton Tough in Opposition to John Doe’s Motion for Sanctions Pursuant to Code of Civil Procedure § 128.7, ¶ 2, Ex. A.)

While John Doe correctly contends in reply that he did not state that Tough could write a check from trust funds, the email does appear to suggest that Tough believed he needed permission from John Doe and that John Doe gave permission to pay the invoice.

While the idea to purchase the greenhouses may not have originated with John Doe, it is clear from the above discussed evidence that John Doe was involved with the greenhouse purchase and planning. The fact that John Doe is included in several emails regarding the project, while not alone dispositive, suggests involvement. Moreover, John Doe’s own evidence indicates that Tough asked him if he could put down a deposit for the greenhouses, suggesting at least that Tough believed that John Doe’s approval was necessary. The Court finds that the Cross-Cross-Petition is not factually frivolous.

C. Legal Frivolity

i. First Cause of Action: Breach of Trust Under Trustee De Son Tort Theory It is undisputed that, at the time the greenhouses were purchased in March 2024, John Doe was not yet a co-trustee and Jane Doe has never been a trustee. The first cause of action in the Cross-Cross Petition seeks to hold Respondents liable for breach of trust on a trustee de son tort theory.

A “trustee de son tort [is] a ‘[p]erson who is treated as a trustee because of his wrongdoing with respect to property entrusted to him or over which he exercised authority which he lacked.’ [Citation.] In England v. Winslow (1925) 196 Cal. 260 (England), the Supreme Court explained the common law theory of imposing fiduciary duties on a person who acts as if he or she is a trustee by taking control of trust property, despite lacking the authority to do so.” (King v. Johnston (2009) 178 Cal.App.4th 1488, 1505, fn. omitted (King).)

“[U]nlike a situation involving an appointed trustee who necessarily has a relationship to all of the trust property, a court imposes trustee de son tort liability with respect to an individual’s conduct in relation some particular item or property. This particular item or property might not be coextensive with the trust property as a whole.” (Id. at p. 1506.)

In England, the California Supreme Court explained, “One who has assumed the relation and undertaken to act in the capacity of a trustee and who has thereby come into the possession and control of the money or property of another cannot be heard to deny the validity of the trust under which he has admittedly acted and the benefits of which he has received and holds. [Citation.] ... [A] person may become a trustee by construction by intermeddling with and assuming the management of property without authority, and ... during the possession and management thereof by such constructive trustees they are subject to the same rules and remedies as other trustees, and cannot avoid their liability as such by showing that they were not in fact trustees, nor can they set up the statute of limitations.” (England, supra, 196 Cal. at p. 267.)

It went on to state, “‘It is a well settled rule in the law of trusts that if a person not being in fact a trustee acts as such by mistake or intentionally, he thereby becomes a trustee de son tort. The rule is thus laid down by a recent writer: “A person may become a trustee by construction, by intermeddling with and assuming the management of property without authority. Such persons are trustees de son tort [just] as persons who assume to deal with a deceased person's estate without authority are administrators de son tort ... [.]

During the possession and management by such constructive trustees they are subject to the same rules and remedies as other trustees.” [Citations.] ... It is plain that this branch of the law does not rest on the strict ground of estoppel as usually expounded in the law books. It rather depends upon a principle of public policy connected with the right administration of justice. [Citation.] The principle to be extracted from the cases is that the party acting as trustee shall not be allowed, in a court of justice, to set up, as against parties interested in the administration of the trust, a state of things inconsistent with his assumed character.’” (England, supra, 196 Cal. at pp. 267-268; see also King, supra, 178 Cal.App.4th at p.1506 [“Although England is not recent authority, it appears to still be valid, and the equitable principles on which the notion of a trustee de son tort is based remain relevant today.”].)

John Doe argues that Respondents did not purport to act as trustees in the transactions involving the greenhouses. The Court notes that none of the evidence above shows plainly that John Doe held himself out as a trustee explicitly. It is undisputed that the greenhouses were purchased with trust fund and, as mentioned above, it does appear from the evidence that John Doe was involved in the purchase and planning for the greenhouses.

Nonetheless, the allegations and evidence here appears to be a far cry from the published cases addressing the trustee de son tort theory. There are very few published cases even mentioning the theory, let alone discussing it in depth. As summarized by the King court, “[i]n England, the plaintiff was executrix of Sophia Winslow’s estate, and the defendant was Sophia Winslow’s husband at the time of her death. ([England, supra, 196 Cal.] at p. 263.) After Winslow’s death, the defendant collected the rents from occupants of a building that had been Winslow’s separate property. (Ibid.)

The plaintiff sought an accounting and the payment of all of the money that the defendant had collected from those tenants. (Id. at p. 264.) The court determined that the defendant had essentially become the trustee of those funds by virtue of acting as trustee, by taking control of and managing estate assets. (Id. at p. 267.)”

In King, the alleged tortfeasor clearly held herself out as trustee, even going so far as to collect rent checks on behalf of the trust and to inform the renter that she did not know the whereabouts of the actual trustee. (King, supra, 178 Cal.App.4th at pp. 1493-1494.) The trial court also found that she acted as trustee and took possession of trust funds. (Id. at p. 1506.)

The Court of Appeal stated, “The facts in this case seem to fit precisely with the notion espoused in England that one should not be permitted to assume the character of a trustee and wrongfully benefit from doing so without also having to assume the responsibilities of a trustee.” (King, supra, 178 Cal.App.4th at p. 1506.)

Here, the evidence does not directly suggest a situation where John Doe has expressly held himself out as a trustee and, given the dearth of authority in this area of the law, it is not clear if the trustee de son tort theory would apply on these facts. Nonetheless, it does appear that John Doe was involved in the transactions and planning to some extent and that he either had, or appeared to have, some sort of authority over the project. Because the greenhouses were paid for from trust funds and it does appear that John Doe participated in the purchase of and planning for the greenhouses, even if a trustee de son tort theory ultimately cannot be found on these facts, the Court does not find the Cross-Cross-Petition to be frivolous merely because it includes this theory of liability. (See § 128.7, subd. (b)(2) [a claim is not frivolous if supported “by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law”].)

ii. Second Cause of Action: Equitable Indemnity “Equitable indemnity, which requires no contractual relationship, is premised on a joint legal obligation to another for damages; it is subject to allocation of fault principles and comparative equitable apportionment of loss. [Citation.] The elements of a cause of action for [equitable] indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible. [Citation.]” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 700, internal citations and quotation marks omitted.)

“Equitable indemnity principles govern the allocation of loss or damages among multiple tortfeasors whose liability for the underlying injury is joint and several. [Citations.] Such principles are designed, generally, to do equity among defendants who are legally responsible for an indivisible injury by providing a basis on which liability for damage will be borne by each joint tortfeasor in direct proportion to [its] respective fault. [Citations.] Under comparative indemnity principles, a full range of allocations is possible, from no indemnity to complete indemnity for the amounts paid by the indemnitee. [Citation.]” (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139- 1140, internal citations and quotation marks omitted.)

“[I]f the evidence establishes that a defendant is not a concurrent tortfeasor responsible in any way for the plaintiff’s injuries, another defendant may not pursue a claim for indemnity against that defendant. [Citation.] This principle is often expressed in the shorthand phrase . . . there can be no indemnity without liability. [Citation.]” (Children’s Hospital v. Sedgwick (1996) 45 Cal.App.4th 1780, 1787, internal citations and quotation marks omitted.)

From the above, it is clear that equitable indemnity is based on comparative fault. Here, where it does appear that John Doe may have some responsibility for the purchase of the greenhouses, the Court does not find that the equitable indemnity claim is frivolous. Accordingly, even assuming that a trustee de son tort theory does not fit the facts of this case, the motion, which seeks dismissal of the entire Cross-Cross Petition, must be DENIED.

D. Petitioners’ Request for Monetary Sanctions Petitioners request sanctions under section 128.7, subdivision (c)(1), which provides, “If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion.”

The Court finds that sanctions are not warranted. Although the Court has denied the motion, it does find that Petitioners’ allegations that John Doe was a ringleader as opposed to a mere participant in the transactions related to the greenhouses are exaggerated. Petitioners’ request for sanctions is DENIED.

CONCLUSION The motion is DENIED. Petitioners’ request for sanctions is also DENIED. The Court will prepare the final Order.

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