Johnson – Trust

4 Johnson – Trust; 30-2024-01427023 Johnson – Trust (2024-01427023) #4 Demurrer, MJOP, Motion to Quash, & Motion for Fees

Respondent Amy Lynn Bromley’s Demurrer to Petition (ROA 59) is OVERRULED.

Respondent Amy Lynn Bromley’s Motion for Judgment on the Pleadings (ROA 61) is DENIED.

Respondent Amy Lynn Bromley’s Motion to Quash All Petitioner-Initiated Subpoenas and for Stay of All Petitioner-Initiated Discovery Pending Ruling on Demurrer (ROA 60) is DENIED as moot.

Respondent Amy Lynn Bromley’s Motion for Attorney Fees and Costs Pursuant to Probate Code §17211 (ROA 62) is DENIED.

Respondent Amy Lynn Bromley’s Request for Judicial Notice (ROA 53) is GRANTED as to items 1, 2, and 3 and DENIED as to items 4 and 5.

This proceeding arises out of the Patricia J. Johnson Revocable Trust dated February 11, 2019 (Trust). According to the petition, the settlor of the Trust, Patricia J. Johnson, passed away on January 8, 2023. (ROA 1 at 5:16-17.) Thereafter, her daughter Amy Lynn Bromley (Amy) became trustee. Pursuant to the terms of the Trust when it was created, Amy was to receive 50% of the Trust assets and her brothers Steven Edward Johnson (Steven) and Russell Phillip Johnson would each receive 25%. (ROA 2 at 3:18-27.) Under the terms of a document entitled “Chattel Schedule,” executed in October 2019, Amy allegedly was to receive receive 100% of the real property (the primary Trust asset), while Steven and Rusell would receive “Proceeds of Unsecured Promissory Note in the Sum of $500,000 from Amy.” (ROA 2 at 4:23-5:14.)

In September 2024, Steven’s wife, Petitioner Tricia M. Johnson (Tricia), filed a petition (Petition) seeking, in part, to void the Chattel Schedule on the grounds of the undue influence and diminished capacity. Steven had been diagnosed with dementia, so Tricia filed on his behalf pursuant to a financial power of attorney. (ROA 2 at 2:10-14.)

Amy filed this demurrer and motion for judgment on the pleadings (MJOP), challenging the Petition on the following grounds: (1) the Petition is timebarred because it was filed more than 120 days after service of notice of the trust administration pursuant to Probate Code section 16061.7; (2) Tricia lacks standing to pursue the Petition because the power of attorney pursuant to which she filed it is void based on Steven’s incapacity (and Tricia did not seek to substitute in as a successor in interest following Steven’s death); and (3) Tricia prosecuted the Petition in bad faith after Steven’s death, when her authority as attorney in fact was terminated by operation of law.

Because the demurrer and motion for judgment on the pleadings are based on identical grounds, the court does not address the potential procedural problems of the demurrer but proceeds to address the legal theories upon which the demurrer and MJOP rest.

Both a demurrer and an MJOP must be based on grounds that appear on the face of the pleading and/or in matters that may be judicially noticed. (Simple Avo Paradise Ranch, LLC v. Southern California Edison Co. (2024) 102 Cal.App.5th 281, 298–299 [“A demurrer can be used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable. [Citations.] ‘To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action.’ [Citation.] The demurrer admits the truth of all material facts properly pleaded, including all ultimate facts alleged, but not contentions, deductions or conclusions of fact or law”];

Spencer v. City of Palos Verdes Estates (2023) 88 Cal.App.5th 849, 861 [“Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations.] The grounds for the motion must appear on the face of the complaint, and in any matters subject to judicial notice. [Citation.] The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts”].)

Amy’s arguments that: (1) Tricia lacks standing to file the petition because the power of attorney was void and (2) Tricia prosecuted the petition in bad faith after Steven’s death rely on evidence outside of the Petition, which are not subject to judicial notice. Accordingly, as to those grounds, the demurrer is OVERRULED and the MJOP is DENIED.

The argument that Tricia did not properly seek to substitute in as successor in interest also relies on evidence outside of the Petition. Amy, however, made no request that the court take judicial notice of any documents regarding the substitution. In any case, the court substituted Tricia into the proceeding as Steven’s successor in interest on December 29, 2025. (ROA 28.) Accordingly, as to that ground, the demurrer is OVERRULED and the MJOP is DENIED.

This leaves only the time-bar argument. Amy argues she served sufficient notice under Probate Code section 16061.7 on or about March 1, 2023 so the Petition, which was filed more than 120 days later, is time-barred. While the Petition acknowledges notice was sent on March 1, 2023, it asserts that notice was deficient. (ROA 2 at ¶ ¶ 38-42.) In deciding the demurrer and the MJOP, the court must accept the assertion of deficient notice as true. “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. In order for the bar ... to be raised by demurrer, the defect must

clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred.”] (Coalition for an Equitable Westlake/MacArthur Park v. City of Los Angeles (2020) 47 Cal.App.5th 368, 376, internal quotation marks and citations omitted.)

Amy suggests the court should decide the issue as a matter of law. It cannot. First, the notice is not attached to the Petition, so it is outside the Petition and is not subject to judicial notice (which was not requested). Second, the Petition alleges the notice was defective because it did not set forth certain statutory language required by Probate Code section 16061.7 (h). If that allegation is correct, the notice was deficient. The Demurrer is OVERRULED and the MJOP is DENIED on the time-bar grounds.

The demurrer is OVERRULED. The MJOP is DENIED. The associated motion for attorney fees and costs is also DENIED.

Tricia is directed to give notice.

5 Rutherford - Trust; 30-2025-01532759 Rutherford – Trust (2025-01532759) #5 Demurrer & Motion to Strike

Respondent John M. Rutherford’s Demurrer (ROA 9) is OVERRULED in part and SUSTAINED in part as set forth below.

Respondent John M. Rutherford’s Motion to Strike (ROA 10) is DENIED.

I. PETITION

This proceeding arises out of a family trust created by settlors John R. Rutherford and Mona Lee Rutherford on March 21, 2001 (Trust). John Rutherford passed away on August 30, 2011. Mona Lee Rutherford passed away on October 6, 2024. Upon Mona’s passing, the settlors’ children, Petitioner Robin Lee Nesteruk and Respondent John M. Rutherford, became acting successor co- trustees of the Trust. Under the terms of the Trust, Petitioner and Respondent were to receive equal distributions of Trust Assets.