In the Matter of THE LIBERATO FAMILY TRUST

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: September 2, 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 1-2 18PR184370 In the Matter of THE LIBERATO Motion for Sanctions; Motion for Protective FAMILY TRUST Order

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Case Name: In the Matter of THE LIBERATO FAMILY TRUST Case No.: 18PR184370

INTRODUCTION

The Liberato Family Trust (“the Trust”) was created by Rafael Liberato and Asuncion Liberato (“Asuncion”) in 1994, and restated and amended by Asuncion in 2015 following her husband’s death. Asuncion has also since passed away. This action was initiated by trust beneficiary Annabelle Jinkins (“Petitioner”), the settlors’ daughter, with the filing, in 2018, of the Petition to Compel Accountings and to Determine Validity of Purported 2015 Restatement and Amendment to Surviving Spouse’s Survivor’s Trust.

Petitioner claimed that her sisters, former trustee Carolina Liberato (now deceased) and current trustee and Norina Sharpe (“Respondent”), procured the 2015 restatement of the Trust and amendment thereto by fraud and undue influence when their mother lacked mental capacity. She also complained about mismanagement of the Trust and its substrusts, including the failure to provide accountings. Petitioner prayed for judgment invalidating the 2015 instruments, an accounting, and punitive damages.

Respondent subsequently filed a petition to disinherit Petitioner, claiming her action triggered the Trust’s no contest clause. She also filed accountings for two the subtrusts and petitions for approval of same.

Petitioner filed a petition for removal of Respondent as trustee and related relief, claiming Respondent has embezzled approximately $250,000 in Trust funds for her personal benefit.

The parties proceeded to trial before the Honorable Rafael Sivilla-Jones. Judge Sivilla- Jones issued a written order on March 25, 2022 (“the 2022 Order”). That order was affirmed on appeal on April 2, 2024 (“the 2024 Opinion”).

At this time, the issue of approval of Respondent’s various accountings remains pending. In late 2025, the parties filed competing motions for appointment of referee, which differed significantly as to the issues to be decided by the referee. The Court suggested that the parties submit certain threshold issues to the court for adjudication on the law and motion calendar to save the parties the expense of a referee if possible. On May 11, 2026, the Court issued its Order Re: (1) Motion Regarding Threshold Issues; and (2) Motion for an Order.

On May 8, 2026, Petitioner filed a petition to compel distribution of the Liberato Bypass Trust, for relief under Probate Code section 850, and for an award of attorney fees and costs (“Petition to Compel Distribution”).

Currently before the Court are Respondent’s motion for sanctions and motion for a discovery protective order. Petitioner has filed oppositions1 and Respondent has filed replies.

DISCUSSION I. MOTION FOR SANCTIONS

Respondents seeks sanctions in the amount of $35,358.50, to be paid jointly and severally by Petitioner, Annabelle Jinkins, and her attorney, Daniel Murphy, Esq. under Code of Civil Procedure sections 128.5 and 128.7 for Petitioner’s allegedly frivolous filing of the Petition to Compel Distribution. A. RESPONDENT’S REQUEST FOR JUDICIAL NOTICE

In connection with her motion, Respondent requests judicial notice of the following: 1. THE ORDER ON A SUBMITTED MATTER STATEMENT OF DECISION AND JUDGMENT, FILED MARCH 25, 2022.

2. THE FEBRUARY 19, 2025 MINUTE ORDER IN THE INSTANT CASE.

3. MAY 11, 2026, ORDER RE: (1) MOTION REGARDING THRESHOLD ISSUES; AND (2) MOTION FOR AN ORDER. Respondent’s request for judicial notice is GRANTED pursuant to Evidence Code section 452, subdivision (d). B. LEGAL BACKGROUND

Code of Civil Procedure section 128.52 states, in pertinent part, “A trial court may order a party, the party’s attorney, or both, to pay the reasonable expenses, including attorney’s fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” (§ 128.5, subd. (a).) “ ‘Actions or tactics’ include, but are not limited to, the making or opposing of motions or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading.

The mere filing of a complaint without service thereof on an opposing party does not constitute ‘actions or tactics’ for purposes of this section.” (§ 128.5, subd. (b)(1).) “ ‘Frivolous’ means totally and completely without merit or for the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).) “ ‘To meet this standard, a party requesting the award must show that “any reasonable attorney would agree the [action taken] was totally devoid of merit.” ’ ” (Brubaker v. Strum (2023) 87 Cal.App.5th 497, 511.)

1 Respondent argues that the opposition to the motion for sanctions is overlong and requests that the court decline to consider it. (See Rule of Court, rules 3.1113(c) [“Except in a summary judgment or summary adjudication motion, no opening or responding memorandum may exceed 15 pages.”]; 3.1113(g) [“A memorandum that exceeds the page limits of these rules must be filed and considered in the same manner as a late-filed paper.”]; 3.1300(d) [Court may decline to consider late-filed papers].) The Court will consider the opposition but it admonishes Petitioner to follow all applicable procedural rules as failure to do so may result in the Court declining to consider Petitioner’s filings. 2 All further undesignated statutory references are to the Code of Civil Procedure. 4

“Expenses pursuant to this section shall not be imposed except on notice contained in a party’s moving or responding papers or, on the court’s own motion, after notice and opportunity to be heard. An order imposing expenses shall be in writing and shall recite in detail the action or tactic or circumstances justifying the order.” (§ 128.5, subd. (c).) “If, after notice and a reasonable opportunity to respond, the court issues an order pursuant to subdivision (a), the court may, subject to the conditions stated below, impose an appropriate sanction upon the party, the party’s attorneys, or both, for an action or tactic described in subdivision (a). In determining what sanctions, if any, should be ordered, the court shall consider whether a party seeking sanctions has exercised due diligence.” (§ 128.5, subd. (f)(1).)

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.)

“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.)

“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.) C. COMPLIANCE WITH THE SAFE HABOR

Sections 128.5 and 128.7 provide for a 21-day safe harbor in which to withdraw the offending filing. (See §§ 128.5, subd. (f)(1)(B) [“If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”]; 128.7, subd. (c)(1) [“A motion for sanctions under this section shall be made separately from other motions or requests . . . . Notice of motion shall be served as provided in Section 1010, but 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.”].)

“[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.]” (Transcon, supra, 81 Cal.App.5th at p. 550.) “[T]he law requires strict compliance with the safe harbor provisions. [Citation.] Failure to comply with the safe harbor provisions ‘precludes 6

an award of sanctions.’ [Citations.]” (Transcon, supra, 81 Cal.App.5th 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, Respondent does not establish that the safe harbor provisions of sections 128.5 and 128.7 have been followed. The proof of service attached to the notice of motion shows that the motion for sanctions was served and filed on the same day, July 22, 2026. But, in Petitioner’s counsel’s declaration in support of the opposition to the motion, counsel declares that he met and conferred with Respondent’s counsel and he attaches to the declaration a meet and confer letter he sent dated July 7, 2026. This suggests that Respondent received the motion to July 7, 2026. The Court also notes that Petitioner does not assert that the safe harbor period was not provided. Accordingly, although the motion must be denied because it has not been established that the safe harbor was provided, the Court will go on to address the merits of the motion. D. MERITS

Even assuming the motion complied with the safe harbor provisions discussed above, the Court finds that the motion does not meet Respondent’s burden to demonstrate the frivolousness of the Petition to Compel Distribution. Respondent contends that the Petition to Compel Distribution is time barred and barred by the doctrine of laches, that the Court may not compel distribution until Respondent’s various accountings have been approved, and that many of the claims in the Petition to Compel Distribution should have been raised in objections to Respondent’s accountings or should be raised in response to future accountings.

The Petition to Compel Distribution is partially based on3 Petitioner’s argument that the terms of the Bypass Trust required Respondent to distribute the trust assets within six months after the death of the surviving settlor. Respondent argues that the accounts she served and filed on Petitioner, triggered the statute of limitations contained in Probate Code section 16460, which provides, “If a beneficiary has received an interim or final account in writing, or other written report, that adequately discloses the existence of a claim against the trustee for breach of trust, the claim is barred as to that beneficiary unless a proceeding to assert the claim is commenced within three years after receipt of the account or report.

An account or report adequately discloses existence of a claim if it provides sufficient information so that the beneficiary knows of the claim or reasonably should have inquired into the existence of the claim.” (Prob. Code, § 16460, subd. (a)(1).) Respondent asserts that it has been seven years since Petitioner received an account that showed that the trust estate had not been distributed within six months from Asuncion’s death. The Court accepts Respondent’s statute of limitations argument for the purposes of this motion and, thus, does not address the latches argument or the argument that the Court cannot order distribution at this time.

The problem with Respondent’s presentation in support of the motion is that she does not sufficiently address the remaining claims in the Petition to Compel Distribution. As discussed above, Respondent must establish that no reasonable attorney would have filed the Petition. As to the claims other than the one for distribution, Respondent states only “The claim that Norina breached her fiduciary duty by paying her attorney fees from Bypass Trust

3 The Petition to Compel Distribution is not separated into causes of action. 7

property: (a) is premature as it relates to the sixth accounting that yet to be filed; and (b) has been rendered moot by this Court’s recent ruling that Norina is permitted to use Bypass Trust property to pay her administrative/litigation costs. [¶] The remainder of the claims raised in the Petition to Compel are duplicative and/or are attempts to amend accounting objections Annabelle filed long ago, without leave of Court.” (Motion, ¶¶ 45-46.) Respondent does not state which claims in the Petition to Compel Distribution are duplicative, she does not indicate which objections they are duplicative of, and she does not request judicial notice of or even identify the objections on which this argument is based.

The Court is not required to comb through the record to match up the claims in the Petition to Compel Distribution with the objections Petitioner has filed. (See Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934 [stating that the trial court is not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”].)

The motion for sanctions is DENIED. II. MOTION FOR PROTECTIVE ORDER

Respondent moves for a protective order under section 2033.080, subdivision (b) that she need not respond to Petitioner’s requests for admission, set 14, numbers A11 through A14 and A16 through A17. A. RESPONDENT’S REQUEST FOR JUDICIAL NOTICE

Respondent requests judicial notice of (1) Request for Admissions, Set No.14; (2) Petitioner’s Objections to Norina Sharpe’s Third-Amended First Account and Report of the Liberato Bypass Trust for the Period of 10/24/2016 to 04/30/2019, filed November 16, 2025; (3) Petitioner’s Proposed Statement of Decision, filed January 12, 2022; (4) Appellant and Cross Respondent Annabelle Jinkins’s Opening Brief, filed with the Court of Appeal on May 4, 2023; (5) Petitioner’s Petition to Remove Norina Sharpe as Trustee of Both Liberato Family Trusts, filed July 17, 2019; (6) The Court’s Order on a Submitted Matter Statement of Decision and Judgment, filed March 25, 2022; (7) The Court of Appeal Opinion in docket H050098, filed April 2, 2024.

The Court GRANTS judicial notice of items 2 through 7. (See Evid. Code, § 452, subd. (d).) As to the set of requests for admission, it is not a court document and Respondent provides no other basis for the court to take judicial notice of same. Accordingly, the request for judicial notice is DENIED as to item 1 but the Court will nonetheless consider the requests for admission as it must do so to determine the outcome of the motion. B. LEGAL BACKGROUND

“When requests for admission have been made, the responding party may promptly move for a protective order.” (§ 2033.080, subd. (a).) “The court, for good cause shown, may make any order that justice requires to protect any party from unwarranted annoyance, embarrassment, oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . That the set of admission requests, or particular requests in the set, need not be answered at all.” (§ 2033.080, subd. (b)(1).)

C. MERITS

Respondent seeks an order that she need not respond to Petitioner’s requests for admission, set 14, numbers A11 through A14 and A16 through A17 on the grounds that the requests do not seek relevant evidence and are unlikely to lead to relevant evidence and they are propounded to harass Respondent.

At the outset, the Court notes that, Respondent contends that requests A15, A18, A19, A20, A21, and A22 were withdrawn during meet and confer. In opposition, Petitioner contends that she voluntarily withdrew the entirety of her requests for admission, set 14, on July 17, 2026 but that Respondent filed her motion anyways. She now asks that the Court order that Respondent respond to the entirety of her requests for admission, set 14. In reply, Respondent maintains that the motion is moot as the offending requests for admission have been withdrawn. She asserts that the only issue for the court’s decision is sanctions.

The Court finds that the motion is MOOT because requests for admission, set 14, has been withdrawn. The Court declines to “reimpose” the request for admission as requested by Petitioner. The motion before the Court seeks a protective order regarding certain specified requests for admission and that is all the Court will address.

As to the requests for sanctions, “[t]he court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order under this section, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (§ 2033.080, subd. (d).)

Respondent contends that she was required to make the instant motion to obtain the withdrawal and, therefore, she is entitled to sanctions. Petitioner counters that the motion was made despite the fact that the requests for admission had been withdrawn and, therefore, she is entitled to sanctions. The parties also squabble over when Respondent filed her motion. Petitioner takes the position it was filed on July 22, 2026. Respondent contends it was filed July 17, 2026. Court records reveal that the motion was filed twice, once on July 17, 2026 and again on July 22, 2026. A proof of service attached to the motion filed on July 17, 2026 indicates that the motion was served on that date. But, a proof of service attached to the motion filed on July 22, 2026 indicates that the motion was served on that date. Thus, the Court concludes that the motion was filed and served on both dates.

Petitioner’s counsel’s meet and confer email in which all of the requests for admission were withdrawn is dated July 17, 2026. (Petitioner’s Evidence in Support of Opposition, Ex. G.) Respondent asserts that the motion was filed July 17, 2026 at 3:29 p.m. but Petitioner’s counsel did not send his withdrawal until July 17, 2026 at 6:06 p.m. (Declaration of Ann Kavanaugh in Support of Reply, p. 2:16-24, Ex. B.)

The Court finds that Petitioner acted with substantial justification in opposing the motion because the discovery requests at issue had been withdrawn. At the same time, the Court finds that Respondent acted with substantial justification in filing the motion as the requests had not yet been withdrawn at the time she filed the motion. Accordingly, the Court DENIES both parties’ requests for sanctions. 9

CONCLUSION

The motion for sanctions is DENIED.

The motion for protective order is MOOT because requests for admission, set 14, has been withdrawn. The Court declines to “reimpose” the request for admission as requested by Petitioner. Both parties’ requests for sanctions are DENIED.

The Court will prepare the final order.

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