Motion to change venue
1 2 3 4 5 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CLARA 10 11 12 IN THE MATTER OF: Case No. 26PR201928 13 14 RAE J. DUVALL LIVING TRUST ORDER RE MOTION TO TRANSFER VENUE 15 16 The above-entitled action came on for hearing before the Honorable Lori E. Pegg on May 17 22, 2026 at 10:00 a.m. in Department 7. The matter having been submitted, the court finds and 18 orders as follows: 19 INTRODUCTION 20 On February 13, 2026, Marnie A. Scharmer and Jeanne Scharmer (“Petitioners”), as 21 attorney in fact and co-trustee respectively of the RAE J.
DU VALL LIVING TRUST dated 22 March 31, 2009, filed in the instant case a petition to remove co-trustee Joanna Fujimoto and 23 appoint Marnie A. Scharmer as successor co-trustee. On April 1, 2026, Joanne Fujimoto 24 (“Respondent”) filed a motion to change venue to Contra Costa County. Petitioners filed an 25 opposition on May 14, 2026. Respondent filed a reply to Petitioners’ opposition on May 15, 26 27 28
1 2026. Petitioners then filed an unauthorized sur-reply on May 18, 2026. 1 Though Petitioners’ 2 opposition was untimely, Respondent’s motion to change venue is DENIED. 3 FACTUAL AND PROCEDURAL BACKGROUND 4 Rae Jeannette DuVall (“Conservatee”) is an initial trustee of the Rae J. DuVall Living 5 Trust (“the Trust”). On April 15, 2025, Marnie A. Scharmer (“Scharmer”) and Max H. Corrales 6 filed a petition to be appointed as co-conservators of Conservatee. On June 25, 2025, Respondent 7 filed a competing petition seeking to be appointed conservator.
Both petitions were filed in Santa 8 Clara Superior Court. 2 Parties met and conferred on September 19, 2025, after which 9 Respondent submitted a request for dismissal of her petition. On October 7, 2025, Marnie A. 10 Scharmer and Max H. Corrales were appointed as co-conservators of the person and estate of 11 Rae J. DuVall. On December 12, 2025, Respondent filed a petition in Contra Costa Superior 12 Court seeking to remove Jeanne Scharmer as co-trustee. 13 DISCUSSION 14 I. Timeliness of the Opposition 15 Petitioners’ Objection to Respondent’s Motion to Change Venue was untimely.
Code of 16 Civil Procedure section 1005, subdivision (b) requires parties to file opposition papers nine court 17 days before the date of hearing. The date of hearing is May 22, 2026 and Petitioners missed their 18 May 11, 2026, deadline to file opposing papers. Petitioners claim their Objection was timely 19 filed by citing to Probate Code section 1043, subdivision (a). However, the rules of practice 20 applicable to civil actions apply to probate matters unless the Probate Code has an applicable 21 rule. (Prob.
Code § 1000, subd. (a).) Petitioners cite to a general section of Probate Code and 22 Probate Code does not have a specific applicable rule here. Thus, the Code of Civil Procedure 23 establishes Petitioners’ deadline to file an Objection. Though Petitioners missed the deadline, the 24 1 The Code of Civil Procedure contemplates only the filing of moving papers, opposition, and a reply brief and 25 consequently parties have no right to file a sur-reply. (See
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The court will still consider Petitioners’ sur-reply. (See Bozzi v. Nordstrom, Inc. 26 (2010) 186 Cal.App.4th 755, 765 [court has discretion to consider unauthorized briefs].)
27 2 On its own motion, the court takes judicial notice of the fact that the April 15, 2025 Petition for Appointment of Probate Conservator of the Person and Estate filed by Marnie A. Scharmer and Max H. Corrales No. 25PR199794 as 28 well as the June 25, 2025 Petition for Appointment of Probate Conservator of the Person and Estate filed by Joanne Fujimoto No. 25PR199794 were both filed in Santa Clara County Superior Court. (Evid. Code, § 452, subd. (d).)
1 court will consider Petitioner’s Objection. (Cal. Rules Ct., rule 3.1300(d) [court has authority to 2 consider untimely papers]; Bozzi v. Nordstrom, Inc., supra, 186 Cal.App.4th at p. 765 [same].) 3 II. Merits of the Motion 4 Respondent moves to transfer venue pursuant to Code of Civil Procedure section 396, 5 subdivision (b) on the basis that the Trust is being administered in Contra Costa County and that 6 Contra Costa County has already assumed jurisdiction. Respondent further asserts that 7 Petitioners intentionally filed the instant petition in the wrong venue and moves for sanctions. 8 However, Respondent’s motion neglects to mention that parties, including Respondent, have 9 already filed in conservatorship proceedings regarding Rae J.
DuVall in Santa Clara Superior 10 Court. More saliently, the moving party fails to present any evidence showing that the Trust is 11 being administered in Contra Costa County. Rather, the record indicates that the Trust’s sole 12 asset is a property located in Santa Clara County, supporting an inference that the proper venue 13 for hearing matters related to the Trust is in Santa Clara County. In addition, contrary to 14 Respondent’s assertions, the Superior Court of Contra Costa County has not yet taken 15 jurisdiction over the matter and has instead continued proceedings pending this court’s resolution 16 of the venue issue. 17 Probate Code section 17005 establishes that the proper venue for commencement of a 18 proceeding regarding a living trust is “the county where the principal place of administration of 19 the trust is located.”
Probate Code section 17002, subdivision (a) defines a trust’s principal place 20 of administration as the “usual place where the day-to-day activity of the trust is carried on by 21 the trustee or its representative who is primarily responsible for the administration of the trust.” 22 Respondent argues that the Trust’s principal place of administration is in Contra Costa County 23 because the day-to-day business of trustee’s representative (namely, Respondent’s counsel) 24 occurs in Contra Costa County.
However, Respondent fails to acknowledge that there is more 25 than one trustee here, and that at the time of the motion, Joanne Fujimoto and Jeanne Scharmer 26 serve as co-trustees. 27 Where the principal place of administration cannot be determined and there is more than 28 one trustee, the principal place of administration is the “residence or usual place of business of
1 any of the cotrustees as agreed upon by them, or if it not, the residence of usual place of business 2 of any of the cotrustees.” (Prob. Code § 17002, subd. (b).) Here, there are two co-trustees 3 (Joanne Fujimoto and Jeanne Scharmer) and the residence or usual place of business of either is 4 an appropriate venue. Among the residences and usual places of businesses of the co-trustees, the 5 strongest (and potentially only) connection between the Trust and Contra Costa County is that 6 Respondent’s attorney is based in Walnut Creek. 3 Co-trustees live in Moreno Valley and 7 Manteca, neither of which is in Contra Costa County. 4 Though Contra Costa County may be the 8 usual place of business for the Respondent’s attorney, Respondent does not point to any actual 9 administration of the Trust that she or her legal representative have performed in Contra Costa 10 County. 11 Petitioners assert that the sole asset in the name of the Trust is a condominium located in 12 San Jose, California. 5 Petitioners further state that through Rae.
J. DuVall’s attorney in fact, 13 Marnie A. Scharmer performs the day-to-day activity of maintaining the property at the location 14 of the property. Because Scharmer is not a co-trustee, her activity cannot be considered trust 15 administration and cannot shed light on where trust administration is taking place. However, 16 Petitioners also present evidence that co-trustee Jeanne Scharmer is involved in trust 17 administration by staying in contact with Marnie A. Scharmer regarding property maintenance 18 and bill payments and has visited the property.
The court takes note that Respondent did not 19 refute Petitioners’ assertion that Respondent lives 400 miles away and has never visited the 20 property. In the absence of any actual evidence from Respondent about where trust 21 administration is taking place, it is reasonable to infer that day-to-day activity of the trust is 22 being performed at the location of the sole asset in the Trust in Santa Clara County. 23 24 25 3 The court takes judicial notice of the fact that Walnut Creek, California is located in Contra Costa County on its own motion. (Evid.
Code, § 452, subd. (g).) 26 4 The court takes judicial notice of the facts that Moreno Valley and Manteca are not located in Contra Costa County 27 on its own motion. (Evid. Code, § 452, subd. (g).)
28 5 The court takes judicial notice of the fact that San Jose, California is located in Santa Clara County on its own motion. (Evid. Code, § 452, subd. (g).)
1 Respondent claims the Superior Court of Contra Costa County has already assumed 2 jurisdiction of the Trust matter. Generally, where two courts have concurrent jurisdiction, the 3 court that heard the matter first has exclusive and continuing jurisdiction. (See Plant Insulation 4 Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786-787.) Respondent has not shown that 5 Contra Costa County has assumed jurisdiction. Respondent states that the Superior Court of 6 Contra Costa has already issued an Order on Ex Parte Petition to Suspend Co-Trustee and 7 includes the Order as Exhibit A in her Reply.
Petitioners contend in their sur-reply that the only 8 hearing on the matter in the Superior Court of Contra Costa County was on May 5, 2026, at 9 which time Respondent’s Ex Parte Petition was not yet before the court. Petitioners further argue 10 that at the hearing on May 5, the Superior Court of Contra Costa continued proceedings until 11 July 21 pending this court’s resolution of the venue issue. The Superior Court of Contra Costa 12 County does not appear to have assumed jurisdiction because it has not, to date, heard or 13 adjudicated the matter.
The Order Respondent points to appears not to be a judgment of the court 14 after hearing arguments, but rather a denial without prejudice of Respondent’s Ex Parte Petition 15 in light of ongoing proceedings in this court. Moreover, the rule of exclusive continuing 16 jurisdiction “should not be a rigid inflexible principle.” (Williams v. Superior Court (2007) 147 17 Cal.App.4th 36, 53.) Venue is proper in Santa Clara County. 18 “[T]he county where the complaint was filed is presumptively the proper county for a 19 trial of the action, and the burden of proving otherwise rests with the party moving to change 20 venue[.]” (Black Diamond Asphalt, Inc. v.
Superior Court (2003) 109 Cal.App.4th 166, 170.) 21 Respondent has not met this burden. The motion is DENIED. 22 Respondent also moves for sanctions under Code of Civil Procedure section 396, 23 subdivision (b), which provides, “In its discretion, the court may order the payment to the 24 prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the 25 motion to transfer whether or not that party is otherwise entitled to recover his or her costs of 26 action.” Here, Respondent did not prevail on her motion.
Accordingly, her request for sanctions 27 is DENIED. Petitioners also seek attorney’s fees under Code of Civil Procedure section 396, 28 subdivision (b) for costs incurred in opposing Respondent’s Motion for Change of Venue. The
1 court notes Petitioners’ allegations of bad faith conduct on the part of Respondent’s counsel, but 2 the request for attorney’s fees is DENIED on the ground that the conduct alleged is largely 3 outside the scope of the motion currently before the court. 4 CONCLUSION 5 The motion is DENIED. Respondent’s request for sanctions and Petitioners’ request for 6 attorney’s fees are also DENIED. 7 IT IS SO ORDERED. 8 9 Dated: ___________, 2026 ________________________________ HON. LORI E. PEGG 10 JUDGE OF THE SUPERIOR COURT 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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