Motion for Leave to Amend
In Re: Sylvia June Asavis, 20PR-0152
Hearing: Motion for Leave to Amend
Date: May 20, 2026
This probate matter involves The Sylvia June Asavis (June) Trust dated May 22, 2015. On May 27, 2020, Petitioners Rick Asavis and Beverly Smith (Petitioners) filed a petition to invalidate an amendment to the Trust that named as successor trustees Respondents John Dougherty, Carolyn Dougherty, and Kim R. Kunz (collectively Respondents). Petitioners generally allege that Respondents took advantage of June, for whom Respondents were care custodians, during the last month of June’s life and coerced her into changing her estate plan to leave the bulk of the estate to Respondents, whom she had recently met, and wrongfully appropriated funds from her Trust. There is a related civil action (San Luis Obispo Superior Court Case No. 21CVP-0002) filed January 8, 2021, by Petitioners herein against the same Respondents.
After a demurrer to their answer was sustained with leave to amend, the three Respondents filed a first amended answer to the verified petition on August 4, 2021. Petitioners filed a First Amended Petition (FAP) without leave of court on March 29, 2022. On May 8, 2026, Respondents filed an objection to the FAP.
Trial is set to begin on August 4, 2026. The five-year deadline to bring the action to trial under Code of Civil Procedure section 583.310 is August 31, 2026.1 A motion for summary adjudication filed by the Dougherty Respondents against Petitioner Beverly Smith is set for hearing on September 16, 2026.
Petitioners now seek leave to file a proposed second amended petition (SAP). No opposition to the motion was filed by the Dougherty Respondents. Respondent Kunz filed an opposition.
Petitioners seek leave to amend the FAP to delete certain allegations (Mtn., p. 12, l. 13—p. 13, l. 7) and to include new facts (Mtn., p. 13, l. 9—p. 17, l. 2). Generally, Petitioners seek to allege Respondent Kunz financially abused June far earlier than the events surrounding her death by “borrowing” from her and then failing to repay $350,000; negligently drafting June’s Will to name himself as executor when he testified that June wished to name someone else as her executor and that he was unaware the Will named him as executor; and negligently drafting a durable power of attorney naming Respondent John Dougherty as June’s attorney in fact when Respondent Kunz
1 In February 2025, the parties stipulated to continue the five-year statutory deadline to January 30, 2026, and the Court entered the order on February 24, 2025. On October 22, 2025, the parties stipulated on the record in open court, entered into the minutes, to extend the five-year statutory deadline to June 30, 2026. On November 13, 2025, the parties entered into a written stipulation to continue the five-year statutory deadline to August 31, 2026, and the Court entered the order on November 24, 2025. (
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testified the intention behind the document was to be a springing power of attorney granting Respondent John Dougherty authority only if June was incapacitated. Petitioners also seek to allege a new cause of action for Intentional Interference with Expected Inheritance against all three Respondents. (See Notice of Errata filed April 23, 2026.)
Respondent Kunz contends that the proposed SAP sets forth what is in essence a new cause of action against him claiming there is a balance owed to the Trust from Respondent Kunz of $95,280. Respondent Kunz contends that this claim was not alleged in the original petition or the FAP. Respondent Kunz admits that there was a loan for $350,000 made by June to himself, as well as his wife as co-trustees of the Oakview Gardens Trust. The note was secured by a deed of trust which was recorded as Document No.: 2008015196 on March 26, 2008. (Ex. A to Opp.) However, Respondent Kunz contends that the note was paid in full by January 25, 2019, on which date June signed a Deed of Full Reconveyance stating that all sums under the deed of trust had been paid. (Ex. B to Opp.) Respondent Kunz therefore contends there is no basis for the claim as to any amount due.
Respondent Kunz further contends he would be prejudiced by having to prepare for trial regarding these new allegations within this short period of time and requests that if leave to amend is granted, that the trial date be vacated. In addition, Respondent Kunz argues that the relevant statute of limitations has run (four years from January 25, 2019 under Code of Civil Procedure section 337), and that because this note was never pleaded previously, this claim does not relate back to the filing of the original petition. However, Respondent Kunz provides no authority that Code of Civil Procedure section 337 is the correct statute of limitations to apply to a breach of trust claim under the Probate Code.
Petitioners respond that the claim is not barred under the discovery rule, as Petitioners only recently learned that Respondent Kunz was unable to provide any bank records to support payments made on the $95,280.50 of principal of the Promissory Note, and that Respondent Kunz claimed that bank records would indicate that he fully repaid the Note. Petitioners cross-checked bank records and found no evidence of the payments. (See Declarations of Jonas Bailey I.S.O. Mtn., Reply.) Moreover, the FAP alleges the $350,000 loan and the deed of trust. (FAP, ¶ 16.) The Court cannot say that this claim is necessarily barred by the statute of limitations.
As to prejudice, Respondent Kunz claims he will be prejudiced but fails to explain how. Kunz highlights no evidence he is lacking, and it appears any relevant evidence would be within his own possession, custody or control.
Leave to amend is liberally granted. (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 939.) “[T]here is a strong policy in favor of liberal allowance of amendments.” (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296; see also Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 488-89.)
“[I]t is an abuse of discretion to deny leave to amend where the opposing party was not misled or prejudiced by the amendment.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; see also Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) “[I]t is a rare case in which “a court will be justified in refusing a party leave to amend his pleadings so that he may properly present his case.” (Morgan v. Superior Court of Cal. In and For Los Angeles County (1959) 172 Cal.App.2d 527, 530 [citations omitted].)
The Court finds leave to amend to be proper. Petitioners’ motion is granted. Petitioners shall file and serve their SAP by May 22, 2026.
Respondents shall file and serve their objections to the SAP by June 19, 2026.
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