BMW Bank of North America vs. Serna

legal title to the cause.” (Saks v. Damon Raike & Co. (1992) 7 Cal.App.4th 419, 427.) “The corollary to this rule is that the beneficiary of a trust generally is not the real party in interest and may not sue in the name of the trust. A trust beneficiary has no legal title or ownership interests in the trust assets; his or her right to sue is ordinarily limited to the enforcement of the trust, according to its terms.” (Ibid.) “Thus, absent special circumstances, an action prosecuted for the benefit of a trust estate by a person other than the trustee is not brought in the name of a real party in interests and is demurrable.” (Ibid.)

“However, ‘where a trustee cannot or will not enforce a valid cause of action that the trustee ought to bring against a third person, a trust beneficiary may seek judicial compulsion against the trustee. In order to prevent loss of or prejudice to a claim, the beneficiary may bring an action in equity joining the third person and the trustee.’” (Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753-754.)

Similarly, “[t]he beneficiary can maintain a suit in equity against the tortfeasor only if the trustee improperly refuses or neglects to bring an action, or if the trustee cannot be subjected to the jurisdiction of the court, or if there is a vacancy in the office of trustee.” (Estate of Bowles (2008) 169 Cal.App.4th 684, 692.)

As noted above, Janie L. Mulrain “is the Successor Trustee of the Zinchefsky Trust.” (¶31 of FAC; See also ¶24, ¶42 of FAC [ROA No. 62].) Additionally, the allegations in the Complaint indicate it is not yet clear whether Ms. Mulrain will pursue the claims sought to be asserted herein by Plaintiff. (See ¶24, ¶77, ¶78, ¶82, ¶86-¶88 and ¶91 of FAC [ROA No. 62].)

Consequently, Plaintiff has not alleged sufficient facts to support standing, with respect to the Second through Fourth Causes of Action.

While the above defects are potentially curable, it does not appear that Plaintiff can allege sufficient facts to demonstrate the personal representative and trustee has improperly failed to act, until resolution of the Petition for Instructions, currently pending within the Probate Proceeding.

Based on representations from Counsel, this Petition is not scheduled to be heard until September 15, 2026. (Reply: 5:14-16 [ROA No. 97].)

Rather than provide Plaintiff with four months leave to amend, the Court is inclined to stay this action, pending resolution of the above, pursuant to its inherent authority. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 141.)

The Court will set a status conference for October 2, 2026, at 8:30 a.m. in Department C16. Plaintiff is granted 20 days leave to amend; however, this 20- day period will not commence until the stay is lifted.

56 BMW Bank of North America vs. Serna

25-01526562 Application/Request & Motion - Other

Plaintiff BMW BANK OF NORTH AMERICA, a Utah industrial bank, by and through its servicer, BMW FINANCIAL SERVICES NA, LLC, a Delaware limited liability company’s unopposed Application for Writ of Possession against Defendants Shelley M. Serna and Manuel T. Villagrana II for the 2021 BMW X7 M50i motor vehicle, Serial No. 5UXCX6C08M9F15693 (the “Vehicle”) is GRANTED.

The Court ORDERS Defendants Shelley M. Serna and Manuel T. Villagrana II to turn over to Plaintiff the Vehicle which is believed to be located at Extra Space Storage, Space Number J373, at 15875 Laguna Canyon Rd., Irvine CA 92618. The failure to turn over the Vehicle to Plaintiff may subject Defendants to being held in contempt of court. The Court waives the requirement for Plaintiff to post an undertaking since the amount owed is higher than the estimated value of the Vehicle.

Defendants’ re-delivery bond shall be $95,000.

Moving Party is to give notice.

58 Iwanaga vs. Global Financial Data Incorporated

19-01094012 Motion for Pretrial Determination of Admissibility of Evidence

Defendant and Cross-Complainant Global Financial Data Incorporated (“GFD”), Defendant Michelle Huff Kangas, and Defendant Bryan Taylor’s motion for an order to exclude evidence of Kangas’s alleged comments about her criminal case or conviction for any purpose is DENIED.

“Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) Relevant evidence is that which has “any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) Defendants contend Kangas’s alleged comments about her criminal case and conviction are irrelevant or marginally because the comments were not directed at Plaintiffs and that any alleged harassment was not based on sex.

Plaintiffs Kevin Iwanaga, Lindsay Amendola, and Pierre Gendreau allege they were subjected to a sexually hostile work environment in violation of the California Fair Employment and Housing Act (“FEHA”). FEHA “recognize[s] two theories of liability for sexual harassment claims ... ‘... quid pro quo harassment, where a term of employment is conditioned upon submission to unwelcome sexual advances ... [and] hostile work environment, where the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive work environment.’ ” (Herberg v. California Institute of the Arts (2002) 101 Cal.App.4th 142, 149; Hughes v. Pair (2009) 46 Cal.4th 1035, 1043.)

“[A] hostile work environment sexual harassment claim requires a plaintiff employee to show she was subjected to sexual advances, conduct, or comments that were (1) unwelcome [citation]; (2) because of sex [citation]; and (3) sufficiently severe or pervasive to alter the conditions of her employment and create an abusive work environment [citations]. In addition, she must establish the offending conduct was imputable to her employer.” (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 279.) “To plead a cause of action for [hostile work environment] sexual harassment, it is only necessary to show that gender is a substantial factor in the discrimination, and that if the plaintiff had been a man she would not have been treated in the same manner.

Accordingly, it is the disparate treatment of an employee on the basis of sex-not the mere discussion of sex or use of vulgar language-that is the essence of a sexual harassment claim.” (Id. at p. 280 [internal quotation marks and citations omitted].)

“ ‘ “[W]hether an environment is ‘hostile’ or ‘abusive’ can be determined only by looking at all the circumstances [including] the frequency of the