Gerry Burk, Trustee of the 5721 Trust, et al. v. Triple Images, LLC, et al.

Case No.: 22STCV12527 Matter: Motion for Leave to Allow Plaintiff Gerry Burk to Represent 5721 Trust Moving Party: Plaintiff Gerry Burk Responding Party: None Tentative Ruling: Plaintiff Gerry Burk's motion is denied in part and granted in part.

Plaintiff Gerry Burk ("Burk"), as individual and trustee for 5721 Trust ("Plaintiffs"), filed this action against Defendants Triple Images, LLC also known as Triple Image Cosmetic, LLC, Bezad Kahoolyzadeh also known as Bezad Cohen also known as David Cohen, Tessfaye Kinfe, also known as Tess Kinfe, Michael Goland, all persons unknown, claiming any legal or equitable right, title, estate, or interest in the property adverse to plaintiff's interest, or any cloud on Plaintiff's title to that property and Does 1-100.

Plaintiff Gerry Burk moves for leave to represent the 5271 Trust in propria persona and to file a First Amended Complaint ("FAC"). Defendants did not file an opposition.

Legal Standard

The court may, in furtherance of justice, allow a party to amend any pleading upon any terms as may be proper. (Code Civ. Proc., Sec.Sec. 473, subd. (a), 576.)

Courts liberally grant leave to amend based on a strong policy favoring the resolution of all disputes between parties in the same case. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

Thus, requests for leave to amend will generally be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment, and the delay will cause prejudice to the opposing party if leave to amend is granted. (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; see also Armenta ex rel. City of Burbank (2006) 142 Cal.App.4th 636, 642 ["instances justifying the court's denial of leave to amend are rare."].)

Absent prejudice, delay alone is insufficient to deny leave to amend. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)

A party requesting leave to amend must state what allegations in the previous pleading are proposed to be deleted and added, as well as specify where, by page, paragraph, and line number, the changes are located. (Cal. Rules of Court, rule 3.1324(a)(1)-(3).)

The moving party must also attach the proposed amended pleading with a declaration, describing (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) why the request was not made earlier. (Cal. Rules of Court, rule 3.1324(b)(1)-(4).)

Analysis

Motion for Leave

The Court previously continued Burk's motion to allow him to properly serve Defendants. Based on Burk's Proof of Service, the defect has been cured.

Burk's motion is procedurally defective pursuant to California Rules of Court, rule 3.1324(a)-(b). Burk do not specify what changes are being made or attach the required declaration "describing (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) why the request was not made earlier." (Cal. Rules of Court, rule 3.1324(b)(1)-(4).)

"When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys [citations]. Further, the in propria persona litigant is held to the same restrictive rules of procedure as an attorney [citation].' [Citations.]"(Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.)

Plaintiffs must comply with all procedural requirements. Thus, the Court denies Burk's motion for leave.

Burk to Represent 5721 Trust

An executor or personal representative is not permitted to represent a decedent's estate when he is representing "another person or entity's interest in a lawsuit constitutes the unauthorized practice of law." (Aulisio v. Bancroft (2014) 230 Cal.App.4th 1516, 1519 (Aulisio).)

The same limitation applies when a trustee is representing the interests of others and would be engaging in the unauthorized practice of law. (Ibid.)

However, when a "sole trustee is also the trust's sole settlor and beneficiary, the rationale of these cases ceases to apply: no interests are at stake except those of one person." (Aulisio, supra, 230 Cal.App.4th p. 1519.)

Under Aulisio, a sole trustee of a revocable living trust can represent the trust in propria persona when he is the "sole settlor and beneficiary of the trust." (Aulisio, supra, 230 Cal.App.4th p. 1519.)

Here, Burk moves for the Court to allow him to represent 5721 Trust in propria persona.

On November 24, 2026, the Court declined to grant Burk's motion because Burk did not establish that he was the only beneficiary of the trust.

Burk has addressed that defect and presented evidence to support his claim. (Burk Decl., P. 6, Ex. B.)

Thus, Burk may proceed with Plaintiffs' case to represent the interests of 5721 Trust in propria persona.

Conclusion

Plaintiff Gerry Burk's motion for leave to file an FAC is denied.

Plaintiff Gerry Burk's motion to allow him to represent 5721 Trust in propria persona is granted.

Case Number: 24STCV33728 Hearing Date: August 27, 2026 Dept: 516 Judge James I. Montgomery Department 516 Hearing Date: August 27, 2026 Case Name: Scott v. Access Services, et al.