In the Matter of: Maria Luz Altieri-Ortiz

A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Court’s Approved Official Reporter Pro Tempore list.

Once the form is signed it must be filed with the clerk. If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/25/2024 Hearing on Motion for Summary Judgment in Department 53

will forward the form to the Court Reporter’s Office and an official reporter will be provided.

TENTATIVE RULING:

Respondent Robert G. Nielsen’s (“Respondent”) motion for summary judgment is DENIED.

Background

Petitioner in pro per Maria Luz Altieri-Ortiz (“Petitioner”) commenced this action, filed in the Sacramento Superior Court’s general civil division on October 19, 2023. Her case-initiating filing is entitled “Petition to Invalidate Trust Based on Undue Influence; and for Damages for Elder Abuse.” Petitioner has entitled her case-initiating filing as a “petition” as opposed to a civil “complaint.” The Petition apparently seeks to invalidate the Donna Marie Altieri Revocable 1997 Trust (“the Trust”). Petitioner also appears to bring a cause of action for financial elder abuse against Respondent.

The Petition avers that Petitioner’s mother, Donna Marie Altieri (“Decedent”), created the Trust in 1997. The Petition alleges that from the start, Decedent was pressured into creating the Trust by Respondent. (Petition at ¶4.) It also alleges that Respondent, who was in a “confidential marriage” with Decedent, along with several others, pressured, manipulated, and drugged Decedent for over three decades. (Petition at ¶10.a.) It further avers that Respondent coerced Decedent to amended the Trust one last time in 2021, a year before she passed away. (Petition at ¶¶10.c, 17.) As best the Court can determine, Petitioner seeks a declaratory judgment invalidating the Trust and for damages against Respondent as a result of financial elder abuse against Decedent.

Respondent now brings the instant motion for summary judgment. Petitioner opposes.

Evidentiary Matters

Respondent requests the Court take judicial notice of various court documents. The request is DENIED as the documents are not relevant to the disposition of the instant motion. (See, e.g., Gabriel v. Wells Fargo Bank, NA. (2010) 188 Cal. App. 4th 547, 557 fn.9 [denying request for judicial notice of irrelevant materials]; Silverado Modjeska Recreation & Parks Dist. v. City of Orange (2011) 197 Cal. App. 4th 282, 307 n.18 [“There is a precondition to the taking of judicial notice in either its mandatory or permissive form - any matter to be judicially noticed must be relevant to a material issue.”].)

Respondent also filed 60 separate objections to Petitioner’s “compendium of evidence.” The Court does not rule on the objections as they are not material to the disposition of this motion. (Code Civ. Proc., § 437c, subd. (q).)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/25/2024 Hearing on Motion for Summary Judgment in Department 53

Legal Standard

In evaluating a motion for summary judgment or adjudication, the Court engages in a three-step process.

First, the Court identifies the issues framed by the pleadings. The pleadings define the scope of the issues on a motion for summary judgment or summary adjudication. (FPI Dev. Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.) Because a motion for summary judgment or summary adjudication is limited to the issues raised by the pleadings (Lewis v. Chevron (2004) 119 Cal. App. 4th 690, 694), all evidence submitted in support of or in opposition to the motion must be addressed to the claims and defenses raised in the pleadings.

The Court cannot consider an unpled issue in ruling on a motion for summary judgment or summary adjudication. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 541.) The papers filed in response to a motion for summary judgment or summary adjudication may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings. (Tsemetzin v. Coast Federal Savings & Loan Assn. (1997) 57 Cal.App.4th 1334, 1342.) Indeed, it has often been noted that “[i]t would be patently unfair to allow plaintiffs to defeat [defendant’s] summary judgment motion by allowing them to present a ‘moving target’ unbounded by the pleadings.” (Melican v.

Regents of University of California, (2007) 151 Cal. App. 4th 168, 176-177.)

Next, the Court must determine whether the moving party has met its burden. A defendant moving for summary judgment or summary adjudication bears the burden of persuasion that one or more elements of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850, quoting Code Civ. Proc. § 437c(p)(2).) A defendant is not required to conclusively negate one or more elements of the plaintiff’s cause of action. (Saelzer v.

Advanced Group 400 (2001) 25 Cal.4th 763, 780-781). Rather, to meet its burden, the defendant is required to show only that the plaintiff cannot prove an element of its cause of action, i.e., that the plaintiff does not possess and cannot reasonably obtain evidence necessary to show this element. (Aguilar, supra, 25 Cal.4th at 853-855.) Further, the initial burden requires a showing that the plaintiff “could not prevail on any theory raised by the pleadings.” (Hawkins v. Wilton (2006) 144 Cal. App. 4th 936, 939-940.)

At the same time, a defendant cannot shift the burden to the plaintiff simply by suggesting the possibility that the plaintiff cannot prove its case; a moving defendant must still make 'an affirmative showing' in support of its motion. (See Aguilar, supra, 25 Cal.4th at 854-855 n.23; Addy v. Bliss & Glennon (1996) 44 Cal.App.4th 205, 214.)

Once the moving party has met its burden, the burden shifts to the opposing party to show that a material factual issue exists as to the cause of action alleged or a defense to it. (Code Civ. Proc. § 437c(p); see generally Bush v. Parents Without Partners (1993) 17 Cal. App. 4th 322, 326-327.)

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/25/2024 Hearing on Motion for Summary Judgment in Department 53

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Finally, the Court reminds the parties of the “Golden Rule” of summary judgment or adjudication: “If it is not set forth in the separate statement, it does not exist.” (See Zimmerman, Rosenfeld v. Larson (2005) 131 Cal.App.4th 1466, 1477 [italics in original].) Moreover, according to Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, a moving party’s inclusion of facts in its separate statement effectively concedes each fact’s “materiality,” whether intended or not, and if there is a triable dispute relating to any one of these facts, the motion must be denied. (Id. at 252 [citing Weil & Brown, Civil Procedure Before Trial, Ch.10:95.1].)

In ruling on the motion, the Court must consider the evidence and inferences reasonably drawn from the evidence in the light most favorable to the party opposing the motion. (Aguilar, supra, 25 Cal.4th at 843.)

Discussion

At the outset, the Court notes that Respondent moves for summary judgment only. However, in its Notice of Motion, Respondent states two separate issues as follows:

Issue No. 1: The Petition to Invalidate the Trust Based on Undue Influence is Time Barred Under the Statute of Limitations.

Issue No. 2: Petitioner Does Not Have Standing to Bring a Claim for Elder Abuse.

(Notice 2:3-5.) As stated and comparted with Petitioner’s operative pleading, these issues appear to be directed to separate claims – that is, “Issue No. 1” seeks adjudication of the Petition insofar as it attempts to invalidate the trust due to a statute of limitations bar, and “Issue No. 2” seeks adjudication of the claim for elder abuse on grounds that Petitioner does not have standing. However, nowhere in Respondent’s Notice of Motion does it expressly state that it seeks summary adjudication of any particular “cause of action within an action,” “claims for damages,” or other issue allowed for summary adjudication under Code of Civil Procedure section 437c(f)(1).

Although Respondent attempts to identify two issues for the Court’s consideration, summary judgment may not be granted unless the motion disposes of all causes of action in the action. As the Court of Appeal has explained, “[t]he language in Code of Civil Procedure section 437c subdivision (f) makes it clear that a motion for summary adjudication cannot be considered by the court unless the party bringing the motion duly gives notice that summary adjudication is being sought.” (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1545-1546 [emphasis added].)

While Respondent identifies two issues, one for each cause of action, Respondent has noticed solely a motion for summary judgment, and failed to notice

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/25/2024 Hearing on Motion for Summary Judgment in Department 53

and move, in the alternative, for summary adjudication. Thus, to whatever extent Respondent intended to seek summary adjudication of the issues labeled as “Issue No. 1” and “Issue No. 2,” such intended motion for summary adjudication is DENIED.

Because Respondent’s motion fails as a motion for summary adjudication, it may only be construed as a motion for summary judgment against all claims against it that is reliant upon all asserted UMFs 1-12. As explained herein, Respondent’s motion for summary judgment is DENIED. The Court finds that Respondent has failed to satisfy its initial burden in moving for summary judgment.

The Court begins with that part of Respondent’s motion which references “Issue No. 2” as it is dispositive of the entire motion. Respondent argues that Petitioner does not have standing to bring a claim for Elder Abuse on behalf of Decedent. In support of this argument, Respondent presents a single asserted undisputed material fact (“UMF”) in support of this issue: “Although Maria Luz Altieri-Ortiz is an heir of Donna Marie Altieri, she is not a beneficiary of the Altieri Trust.” (UMF 12.) Even if this UMF were supported by evidence, it is insufficient, as stated, to dispose of the second cause of action for elder abuse. As Respondent concedes, a Decedent’s personal representative may bring a cause of action for elder abuse after their death. (MPA 5:6- 14.)

Respondent presents no specific UMF that establishes Petitioner is not a personal representative of Decedent, regardless of whether she is a heir of Donna Marie Altieri or a beneficiary of the Trust. While this deficiency is fatal, the Court also notes that Respondent cites to no evidence in asserted UMF 12 that actually establishes Petitioner is not a personal representative of Decedent. The sole evidence cited indicates that “for all purposes hereunder,” Decedent is “specifically not making any provision for [her] daughter [Respondent] or for her issue (if any).” (Declaration of Daniel A.

Hunt, Exhs. A and B, Trust Instrument at p. 20, ¶6.F.(10).) While Decedent may not have made any provisions for Respondent under the Trust, this statement, alone, does not also establish as undisputed material fact that Respondent may not act as Decedent’s personal representative for a cause of action for financial elder abuse. Indeed, the elder abuse allegations in the Petition, while focused on the Trust, are not limited to actions related to the Trust. (See Petition at ¶¶1-3, 5-6.) UMF 12 does not establish that Petitioner is not Decedent’s personal representative for all purposes or that Petitioner lacks standing to sue.

Thus, the Court finds that Respondent has not met his initial burden of persuasion as to what is presented under “Issue No. 2,” directed to the second cause of action for elder abuse.

As noted above, Respondent moves for summary judgment only. As Respondent has failed to meet his initial burden on the second cause of action, summary judgment as to the entire complaint must also be DENIED.

Disposition

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 07/25/2024 Hearing on Motion for Summary Judgment in Department 53

Respondent’s motion for summary judgment is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or other notice is required.