THE 2006 GARY WISE TRUST

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Department 2, Honorable Amber Rosen, Presiding Audrey Nakamoto, Courtroom Clerk

191 North First Street, San Jose, CA 95113 Telephone 408.882-2120

PROBATE LAW AND MOTION TENTATIVE RULINGS

DATE: September 3, 2026 TIME: 10:00 A.M.

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LINE # CASE # CASE TITLE RULING LINE 1 18PR182953 (lead case, consolidated with 22PR193902 THE 2006 GARY WISE TRUST Click or scroll to line 1 for tentative ruling. Court will issue the final order. LINE 2

Calendar line 1 Case Name: THE 2006 GARY WISE TRUST Case No.: 18PR182953 (lead case, consolidated with 22PR193902

INTRODUCTION

In 2018, Mary Mosher (“Petitioner”), trustee of the 2006 Gary Wise Trust, filed an ex parte petition, which was assigned docket 18PR182953, seeking a determination that the assets of Gary Wise (“Decedent”) were assets of the trust. Under the terms of the trust, the assets were to be held for the health, education, maintenance, and support of Correze Wise (“Respondent”) until age 40, when the balance would be distributed to him. The court granted the petition, finding that Decedent intended that all of his personal property be considered assets of the trust.

In 2023, Respondent filed an ex parte petition for instructions that Petitioner pay for his education expenses out of trust funds. That petition was assigned docket 22PR193902. Petitioner opposed the petition.

In 2024, in docket 22PR193902, Respondent filed a petition for court supervision of the trust, for suspension and removal of Petitioner as trustee, for appointment of a receiver or temporary trustee, to compel an accounting and trust records, for surcharge for breach of fiduciary duty, for double damages and for preliminary distribution. Petitioner opposed the petition. The parties proceeded to mediation, resulting in a settlement agreement as to both petitions filed in docket 22PR193902, which was memorialized via a stipulation and order (“Stipulation”) filed with the court on December 4, 2024 in docket 22PR193902.

The Stipulation provided that “[t]he parties, with assistance of counsel, will select an educational consultant to work with Correze to prepare a plan for his education and locate a suitable educational institution for him.” (Stipulation, ¶ 5(c).) The Stipulation announced a procedure for selecting an educational consultant and stated, “Should the parties fail to come to an agreement or if there is a breakdown in communication with such consultant, the parties shall resolve the dispute as described in section 5(k), below.” (Ibid.)

It further provided, “The parties, with assistance of counsel, will select a person to act as an intermediary or ‘buffer to assist Correze and the Trustee to facilitate necessary communication with regard to the trust and Correze’s needs.” (Stipulation, ¶ 5(d).) It again provided a procedure for selection of the intermediary and indicated, “Should the parties fail to come to an agreement or if there is a breakdown in communication with such intermediary, the parties shall resolve the dispute as described in section 5(k), below.” (Ibid.)

The parties selected Stephen Picone as the special master and, following the procedures in the stipulation, they selected Sarah Bradshaw as the educational consultant and Pilar Hays as the intermediary.

The Stipulation also provided for drug testing of Respondent “if the Trustee has a reasonable, articulable suspicion that Correze is misusing substances” and established a procedure whereby Petitioner would notify Respondent directly of the need for drug testing and Respondent would test within 48 hours of the notification. (Stipulation, ¶ 5(j).) The Stipulation stated, “Should Correze dispute the necessity of any request for drug test, Correze shall notify the intermediary within 48 hours and Trustee shall decide whether to continue requesting the drug test. Should there still be a dispute, the Special Master shall decide as outline [sic] in 5(k), below.” (Ibid.)

Section 5(k) provided, “After an attempt to meet and confer, the parties will engage the services of a special master/private judge to act as the decision-maker with regard to any matters needing immediate attention as to which the parties cannot agree, and will submit such disputes to the special master/private judge for decision. It is anticipated that these will be onetime matters the resolution of which would be untimely and uneconomical to litigate. The decision of the special master/private judge will be binding.” (Stipulation, ¶ 5(k).)

Section 14 of the Stipulation also stated, “The Parties hereby stipulate, acknowledge and agree that the Superior Court of Santa Clara County shall have jurisdiction over the Action for all purposes pertaining to the execution and performance of the terms and conditions set forth herein under the provisions of the California Code of Civil Procedure §664.6[.]” (Stipulation, ¶ 14.)

On March 18, 2026, Petitioner filed a petition for instructions (“Petition for Instructions”) seeking (1) “[a]n order that the office of intermediary, as agreed to in the stipulation and order filed December 4, 2024, be occupied by Ms. Sarah Bradshaw, and Ms. Pilar Hays be removed as said intermediary currently acting” and (2) “[a]n order compelling Correze Wise to submit to a hair follicle drug test pursuant to the mediated agreement, memorialized into a stipulation and order filed with this Court.” (Petition for Instructions, p. 1:19-24.)

On July 27, 2026, the court ordered dockets 18PR182953 and 22PR193902 consolidated with 18PR182953 designated the lead case. Cal. Rules of Court, rule 3.350(b) [“Unless otherwise provided in the order granting the motion to consolidate, the lowest numbered case in the consolidated case is the lead case.”].)

Currently before the court is Respondent’s demurrer to the Petition for Instructions. Petitioner has opposed the demurrer and Respondent has filed a reply.1

DISCUSSION

In the notice of demurrer, the demurrer itself, and the memorandum of points and authorities, Respondent indicates that he demurs to the entirety of the Petition for instructions on the grounds that the court lacks subject matter jurisdiction (Code Civ. Proc., § 430.10, subd. (a) and failure to state a claim. (Code Civ. Proc., § 430.10, subd. (e)).2 As will be discussed further below, in reply, Respondent argues that his arguments in the moving papers that the court lacks subject matter jurisdiction are, in fact, arguments seeking to abate the Petition for Instructions in favor of submission of the claims to a Special Master.

1 The demurrer, opposition, and reply were all filed in docket 22PR193902. Going forward, all documents must be filed in the lead case. (Cal. Rules of Court, rule 3.350(c) [“If the motion is granted for all purposes including trial, any subsequent document must be filed only in the lead case.”].)

2 All further undesignated statutory references are to the Code of Civil Procedure.

I. Respondent’s Request for Judicial Notice

Respondent requests judicial notice of (1) the 2006 Gary Wise Trust, (2) the Stipulation and Order filed in the instant case on December 4, 2024, (3) the Special Master’s Statement of Decision dated September 17, 2025, and (4) the Special Master’s letter dated February 6, 2026. Petitioner contends that Respondent has filed a “speaking demurrer” and seeks to use the request for judicial notice for the improper purpose of asking the court to consider the truth of the matters asserted in the documents.

He also maintains that some of the above documents are not court documents within the meaning of Evidence Code section 452, subdivision (d) because they were not filed with the court. But, the Petition for Instructions indicates that the 2006 Gary Wise Trust, the Stipulation and Order, Special Master’s Statement of Decision, and the Special Master’s letter are attached as Exhibits A through D. The documents are not actually attached to the version of the Petition filed with the court but they are clearly incorporated by reference. “Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be considered on demurrer.” (City of Pomona v.

Superior Court (2001) 89 Cal.App.4th 793, 800.)

In ruling on a demurrer, the court may consider documents attached to the petition. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) “Under the doctrine of truthful pleading, the courts will not close their eyes to situations where a complaint contains allegations of fact inconsistent with attached documents, or allegations contrary to facts which are judicially noticed. [Citation.] False allegations of fact, inconsistent with annexed documentary exhibits [citation] or contrary to facts judicially noticed [citation], may be disregarded ... . [Citations.]” (Y.P. v.

Wells Fargo Co. (2026) 119 Cal.App.5th 1069, 1078-1079, internal quotation marks omitted.) The court finds that Petitioner’s apparently inadvertent failure to attach the documents she relies on in the Petition for Instructions does not distinguish this case from the general rules articulated above. The Court GRANTS judicial notice of the above documents.

II. Legal Background

A demurrer may be utilized by “[t]he party against whom a complaint [] has been filed” to object to the legal sufficiency of the pleading as a whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (§§ 430.10, 430.50, subd. (a).) The court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v.

Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) In ruling on a demurrer, courts may consider matters subject to judicial notice. (Scott v.

JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.) Evidentiary facts found in exhibits attached to a complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.)

III. Merits of the Demurrer

Respondent demurs on the grounds of lack of subject matter jurisdiction (§ 430.10. subd. (a)) and failure to state sufficient facts to constitute a cause of action (§ 430.10. subd. (e)).

A. Lack of Jurisdiction under Section 430.10, Subdivision (a)

As mentioned above, throughout the moving papers, Respondent relies on section 430.10, subdivision (a), which provides that a demurrer may be made on the ground that “[t]he court has no jurisdiction of the subject of the cause of action alleged in the pleading.” (Code Civ. Proc., § 430.10, subd. (a).) Respondent argues that section 5(k) of the parties’ Stipulation requires submission of their disputes to a special master or private judge.

Respondent likens the settlement agreement’s dispute resolution provision to an agreement to arbitrate claims. “The submission of a dispute to private arbitration does not oust the superior court of jurisdiction. [Citations.] . . . [C]ontractual arbitration is in no sense a trial of a cause before a judicial tribunal, nor is it a usurpation or ouster of the judicial power vested in the trial court of this state by our Constitution. [Citation.] As a result, there is nothing to prevent one of the parties to a contractual arbitration provision from resorting initially to an action at law. [Citations.]

The other party, if determined to pursue arbitration, must then take action to compel arbitration. [Citation.] . . . If a party wishes to compel arbitration, he must take active and decided steps to secure that right, and is required to go to the court where the [other party]’s action [at law] lies. [Citation.] Consequently, the party seeking to enforce the contractual arbitration clause must file the section 1281.2 petition in the action at law (or raise it as an affirmative defense in the answer) or else the right to contractual arbitration is waived. [Citations.]” (Dial 800 v.

Fesbinder (2004) 118 Cal.App.4th 32, 44-45.)

Thus, the fact that the parties have agreed to resolution by a special master does not remove subject matter jurisdiction from the court; it, at most, renders the action subject to a petition to compel arbitration. Accordingly, section 430.10, subdivision (a) provides no basis for the demurrer. Appearing to recognize this, despite the citations to that subdivision in the moving papers, Respondent contends that the instant litigation should be abated in favor of submission of the parties’ dispute to the special master.3

Petitioner, on the other hand, argues that if Respondent believed that the matter must be submitted to arbitration, he must file a motion to compel arbitration and that only a stay, not dismissal, is available under statutes related to compelling arbitration. But, “[e]ither a demurrer or a motion for summary judgment offers an appropriate procedural vehicle, in addition to a motion to compel arbitration [citation], for pointing out to the court that the plaintiff has no right to sue because he or she has agreed to arbitrate. [Citation.]” (Schatz v. Allen Matkins Leck Gamble & Mallory LLP (2009) 45 Cal.4th 557, 572; citing Charles J. Rounds Co. v. Joint Council of Teamsters No. 42 (1971) 4 Cal.3d 888, 899.) Accordingly, the court rejects Petitioner’s argument that Respondent may only raise this issue via a motion to compel arbitration.

B. Failure to State a Claim under Section 430.10, Subdivision (e)

3 Generally, a demurrer on the ground of plea in abatement would fall under section 430.10, subdivision (c), which provides for a demurrer where “[t]here is another action pending between the same parties on the same cause of action.” (§ 430.10, subd. (c).) Respondent does not rely on subdivision (c) of section 430.10.

This demurrer also appears to be made on the basis of failure to state facts sufficient to constitute a cause of action. (See § 430.10, subd. (e); Northcutt Lumber Co. v. Goldeen’s Peninsula, Inc. (1973) 30 Cal.App.3d 440, 445 [reversing order overruling general demurrer on ground that case should have been brought to arbitration]; Certified Grocers of Cal. v. San Gabriel Valley Bank (1983) 150 Cal.App.3d 281, 285, fn. 1 [“a demurrer on the ground that a complaint does not state facts sufficient to constitute a cause of action is called a general demurrer”].) As such, the court will address Respondent’s arguments on the merits. (See § 430.60 [A demurrer must distinctly specify the grounds upon which a pleading is objected to; a demurrer lacking such specification may be disregarded.].)

As mentioned above, Respondent argues that section 5(k) of the Stipulation requires submission to the special master of the disputes raised in the Petition for Instructions, namely the request that Sarah Bradshw be both the educational consultant and the intermediary and the request that Respondent be ordered to submit to drug testing. He further argues that no decision-maker may collapse the roles of the educational consultant and the intermediary because to do so would be to modify the parties’ Stipulation.

1. The Drug Test

Respondent contends that, on August 20, 2025, at a hearing at which the special master presided, Petitioner asked him to submit to a drug test. (See Petition for Instructions, ¶ 22.) But, the petition does not allege that the special master was ever asked to decide if Respondent must submit to the drug test and, in fact, no such request was made. Petitioner counters that it is Respondent who failed to comply with the drug test provisions of the Stipulation because Respondent did not test within 48 hours or notify Petitioner within 48 hours of a dispute as to whether Respondent needed to drug test, as required by section 5(j) of the Stipulation.

Thus, Petitioner contends, the instant Petition for Instructions seeks to enforce the term of the Stipulation whereby Respondent would drug test if he did not dispute the need to do so within 48 hours. The Petition for Instructions indicates that, on October 23, 2025, Respondent produced the results of a hair follicle drug test indicating a positive result for THC, indicating marijuana usage. (Petition for Instructions, ¶ 25.) The Petition for Instructions asks only that the court order Respondent to submit to a hair follicle drug test. (Petition for Instructions, p. 1:22-24.)

Petitioner pleads that Respondent provided the results of such a test. (Petition for Instructions, ¶ 25.) Thus, Petitioner is seeking a new drug test, which may be accomplished via the procedures set forth in the Stipulation.

The court finds that the drug test dispute must be submitted to the special master. Here, it is impossible for the terms of the Stipulation to be performed in that Respondent cannot be made to submit to a drug test within 48 hours of the time he was asked to do so on August 20, 2025. Accordingly, Petitioner may simply ask Respondent again to submit to a drug test within 48 hours. Thereafter, Petitioner may dispute that request and, if needed, the dispute can be submitted to the special master. Moreover, the Stipulation provides that the failure to take the drug test within the specified window is considered a failed drug test, thus, triggering the remainder of section 5(j) of the Stipulation, which provides that a failed drug test results in Respondent being unable to receive cash from the trust for six months.

Thus, the Stipulation contemplates the situation herein and resort to the court to order a new drug test for failure to timely test is not one of the remedies specified in the Stipulation. This is not an effort to enforce the terms of the Stipulation as Petitioner contends but rather an attempt to obtain a second drug test without following the procedures of section 5(j) of the Stipulation.

2. The Identity of the Intermediary

Respondent also asserts that, on January 14, 2026, Petitioner asked the special master for an indicated ruling regarding consolidating the roles of educational consultant and intermediary such that Pilar Hays be removed as intermediary and Sarah Bradshaw serve in both roles and Respondent opposed that request. (See Petition for Instructions, ¶¶ 37, 38.) Via letter dated February 6, 2026, the special master declined to make such a ruling. (See Petition for Instructions, ¶ 40.) Respondent contends that the special master denied the request, finding that granting the request would amount to modifying the terms of the stipulation, which requires a separate educational consultant and intermediary.

Section 12 of the Stipulation provides, “No modification or waiver of any of the provisions of this Agreement shall be valid and enforceable unless such modification or waiver is in writing and signed by the Parties, and, unless otherwise stated therein, no such modification or waiver shall constitute a modification or waiver of any other provision hereof (whether or not similar) or constitute a continuing waiver.” (Stipulation, ¶ 12.)

Petitioner contends that the special master did not understand his authority to grant the request and, therefore, court intervention is required to determine the scope of the special master’s authority.

In his letter dated February 6, 2026, the special master stated As I understand it, I have been asked by Mr. Calvert to make a ruling (or order a hearing to be held) on the advisability of terminating the services of Pilar Hays as Correze’s current intermediary and that the roles of intermediary and education consultant both be placed under Sarah Bradshaw’s stewardship. In this regard the stipulation at section 5(d) thereof, directs that an intermediary is to be selected for the purpose of engaging in the ongoing task of acting as a buffer for Correze in communications with the trustee.

This does not appear to be an optional provision but a mandated one. Consequently, I believe that the elimination of the intermediary position as being filled by someone separate and apart from the education consultant would constitute a fundamental alteration of the terms of the settlement agreement. Along these lines, I believe that I would have jurisdiction under this stipulation to make rulings as to whether an intermediary should be replaced due to the intermediary’s incompetent or unsatisfactory behavior, or as the result of the onset of some form of disability.

However, I do not believe that I have the power to simply cancel the existence of the intermediary’s status as someone who is to act in concert with, but who is separate from the education consultant as defined in the stipulation and court order. More specifically, I do not see anything in section 5(k) of the agreement that empowers me to make rulings that serve to cancel any of the clear terms of the agreement. I am therefore declining to rule on this issue, or order a hearing thereon, because I do not believe that the stipulation and order allows me to do so. (Respondent’s Request for Judicial Notice, Ex.

D, italics added.) The Petition for Instructions pleads only the italicized language above. (Petition for Instructions, ¶ 40.) It asks that the court to “interpret the stipulation, and instruct the Special Master as to his authority regarding allowing both roles to be occupied by one person.” (Petition for Instructions, ¶ 41.) In her opposition to the demurrer, Petitioner states that she is not attempting to eliminate the role of intermediary but to have Sarah Bradshaw occupy both roles.

The court finds that the issue of identity of the intermediary is one of the issues over which the special master has authority. The issue was submitted to the special master and he gave a ruling, namely, that the terms of the Stipulation did not allow Sarah Bradshaw to occupy both roles. The special master’s determination is binding. (Stipulation, ¶ 5(k).) Petitioner’s request for the court to interpret the Stipulation does not appear to be a matter of enforcement but an attempt to overrule the decision of the special master. The Stipulation does not provide that the decisions of the special master may be reviewed by the court. It provides that the special master’s decisions are binding. The parties’ reservation of the court’s jurisdiction under section 664.6 does not change this outcome.

“The power of the trial court under Code of Civil Procedure section 664.6...is extremely limited...[in that] nothing in section 664.6 authorizes a judge to create the material terms of a settlement, as opposed to deciding what terms the parties themselves have previously agreed upon.” (Hernandez v. Board of Ed. Of the Stockton Unified School Dist. (2004) 126 Cal.App.4th 1161, 1176, internal quotation marks and citations omitted). This is so because “[a] settlement agreement is simply a contract.” (Ibid.) Thus, “[t]he court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement.” (Ibid.)

Petitioner contends, citing Aragon-Haas v. Family Security Ins. Services, Inc. (1991) 231 Cal.App.3d 232 (Aragon-Haas), that when the petition pleads a reasonable interpretation of a contract, the court must accept that interpretation on demurrer. In that case, the court stated, “ ‘[W]here an ambiguous contract is the basis of an action, it is proper, if not essential, for a plaintiff to allege its own construction of the agreement. So long as the pleading does not place a clearly erroneous construction upon the provisions of the contract, in passing upon the sufficiency of the complaint, we must accept as correct plaintiff’s allegations as to the meaning of the agreement.’ [Citation.]

Whether a contract is ambiguous is a question of law. [Citation.]” (Aragon-Haas, supra, 231 Cal.App.3d at p. 239.) The court went on to state, “Where a complaint is based on a written contract which it sets out in full, a general demurrer to the complaint admits not only the contents of the instrument but also any pleaded meaning to which the instrument is reasonably susceptible. [Citation.] While plaintiff’s interpretation of the contract ultimately may prove invalid, it was improper to resolve the issue against her solely on her own pleading.” (Ibid.)

Here, the Stipulation cannot be read as Petitioner suggests. The Stipulation clearly defined separate roles and separate qualifications for the intermediary and the educational consultant. (Compare Stipulation section 5(c) with section 5(d).) The special master correctly determined that placing the same person in both roles would constitute a modification of the Stipulation, which neither the special master nor the court may accomplish.

CONCLUSION

The demurrer is SUSTAINED in its entirety without leave to amend.