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 12/04/2024 Hearing on Motion for Summary Adjudication 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 motion for summary adjudication is granted.

Respondent’s unopposed request for judicial notice is granted for the limited purposes permissible for judicial notice.

Self-represented Petitioner Maria Luz Altieri-Ortiz filed her “Petition to Invalidate Trust Based on Undue Influence; and for Damages for Elder Abuse” on October 19, 2023. 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. Petitioner alleges that her mother, Donna Marie Altieri (“Decedent”), created the Trust in 1997. Petitioner alleges that from the start, Decedent was pressured into creating the Trust by Respondent. (Petition ¶ 4.)

Petitioner 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. (Id. ¶ 10.a.) Petitioner also alleges that Respondent coerced Decedent to amend the Trust one last time in 2021, a year before she passed away. (Id. ¶¶ 10.c, 17.) Petitioner seeks a declaratory judgment invalidating the Trust and for damages against Respondent as a result of financial elder abuse against Decedent.

Respondent moves for summary adjudication as to the first cause of action seeking to invalidate the Trust based on undue influence. Respondent argues that the cause of action is barred by the statute of limitations. Respondent does not challenge the elder abuse cause of action.

In evaluating a motion for summary judgment or summary 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 unpleaded 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 defendant's 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.

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 12/04/2024 Hearing on Motion for Summary Adjudication in Department 53

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 UCI'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 C.C.P § 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, 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, 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.) 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, 25 Cal.4th at 843.)

Summary adjudication requires disposition of an entire cause of action or claim for damages. (Code Civ. Proc. § 437c(f)(1); Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1256.)

Respondent’s separate statement includes the following facts claimed to be undisputed. The Decedent executed the Restated Amendment to the Trust on June 30, 2021. (UMF 1) The Decedent died on October 14, 2022. (UMF 2) Respondent became the sole trustee of the Trust. (UMF 3) On February 3, 2023, Decedent, through his attorney, mailed a Notification by Trustee, to Petitioner at 1625 Baywood Lane, in Davis, CA. (UMF 4, 5) The Notification by Trustee was mailed to Petitioner a

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 12/04/2024 Hearing on Motion for Summary Adjudication in Department 53

second time on March 30, 2023, using three separate addresses including 1640 Tiburon Boulevard, #12, in Tiburon, CA. (UMF 6) Petitioner resided at 1640 Tiburon Boulevard, #12, in Tiburon, CA for a period of more than five years prior to December 22, 2023. (UMF 7) The Notification of Trustee, which attached a copy of the Trust, included a notice that an action to contest the Trust could not be brought more that 120 days from the date the notification was served upon her. (UMF 8) On August 10, 2023, Petitioner filed a Petition to Invalidate the Trust in the Probate Court in case no. 23PR001064. That Petition was denied on October 11, 2023. (UMF 9, 10) Petitioner filed the petition in this action on October 19, 2023. (UMF 11)

As noted above, Respondent moves for summary adjudication as to the first cause of action on the basis that it is barred by the statute of limitations. Specifically, Respondent argues that the first cause of action is barred by Probate Code § 16061.8. “Section 16061.8 sets forth the applicable statute of limitations for petitions that contest a trust.” (Bridgeman v. Allen (2013) 219 Cal.App.4th 288, 293.) “A person upon whom the notification by the trustee is served pursuant to paragraph (1) of subdivision (a) of Section 16061.7, whether the notice is served on the person within or after the time period set forth in subdivision (f) of Section 16061.7, shall not bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon the person, or 60 days from the date on which a copy of the terms of the trust is delivered pursuant to Section 1215 to the person during that 120-day period, whichever is later.” (Prob.

Code § 16061.8.) A trustee must serve a notification to the beneficiaries and heirs when a revocable trust becomes irrevocable after the settlor of the trust dies. (Prob. Code § 16061.7(a)(1).) The notification must be served by mail to the last known address, pursuant to Probate Code § 1215, or by personal delivery. (Id. § 16061.7(e).) Under the Probate Code, “[d]elivery by mail is complete when the notice or other paper is deposited in the mail. The period of notice is not extended.” (Prob. Code § 1215(a)(4).)

Code of Civil Procedure § 1013’s five-day extension for service by mail does not apply to Probate Code § 16061.8 to extend the 120-day period to file a petition to contest a trust. (Bridgeman v. Allen (2013) 219 Cal.App.4th 288, 290-291.)

As seen from Respondent’s evidence, a Notification of Trustee was sent to Petitioner on February 3, and March 30, 2023, by Respondent’s counsel. The Notifications, which attached a copy of the Trust, and which Petitioner seeks to invalidate, were mailed to various addresses, including the 1640 Tiburon Boulevard, #12, in Tiburon, CA. Petitioner identified this address in her discovery responses as her present address for more than five years. (UMF 3-8) Each Notification included a proof of service which complied with CCP § 1013a(1) in that it included “[an] affidavit setting forth the exact title of the document served and filed in the cause, showing the name and residence or business address of the person making the service, showing that he or she is a resident of or employed in the county where the mailing occurs, that he or she is over the age of 18 years and not a party to the cause, and showing the date and place of deposit in the

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 12/04/2024 Hearing on Motion for Summary Adjudication in Department 53

mail, the name and address of the person served as shown on the envelope, and also showing that the envelope was sealed and deposited in the mail with the postage thereon fully prepaid.” (UMF 4-6) “A proof of service that such mailing occurred raises a presumption the mailing was received by the addressee.” (Conservatorship of Wyatt (1987) 195 Cal. App. 3d 391, 396.) 120 days from March 30, 2023, was July 28, 2023. However, Petitioner did not file her petition in Probate Court until August 10, 2023, after the 120 day limit in Probate Code § 16061.8 expired.

That petition was denied by the Probate Court on October 10, 2023, and Petitioner then filed the instant petition on October 19, 2023, which is also after the 120-day limit. As a result, Respondent’s evidence shows that the first cause of action which seeks to invalidate the Trust is untimely pursuant to Probate Code § 16061.8. Respondent’s evidence is sufficient to demonstrate that he is entitled to judgment as a matter of law on the first cause of action and sufficient to shift to Petitioner the burden of demonstrating the existence of a triable issue of material fact.

Petitioner has not filed any document labeled as an opposition to the instant motion. Rather she filed declarations on October 10, 2024, and November 8, 2024. These handwritten declarations appear to contain Petitioner’s version of why she believes that Respondent abused the Decedent and Petitioner. Petitioner attached numerous letters from her medical provider indicating that she was receiving treatment for stress which Petitioner believed was caused by Respondent’s abuse. There also appear to be letters that Petitioner’s previous counsel sent to Respondent in 2011 and 2021 asking that he not contact Petitioner and that any contact go through counsel’s office.

There is no discussion of the timeliness of her petition in the first instance, which is the only issue raised by Respondent’s current motion for summary adjudication. Also, while not necessary to its ruling here, the Court will note that on December 2, 2024, it denied as untimely Petitioner’s ex parte application to continue hearing on this matter so that Petitioner could conduct discovery including obtaining declarations and/or testimony of various individuals purportedly needed to oppose this motion.

To the extent Petitioner stated reasons for allegedly needing such discovery, none of them pertained to addressing the timeliness of her petition. Petitioner had the opportunity address this issue in opposition and if there could be any relevant discovery, to have pursued it prior to opposing. Petitioner failed to do so.

The Court also notes that Petitioner failed to file any responsive separate statement as required by CCP § 437c(b)(3). “The failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.” (Id.) A self-represented party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. (Williams v. Pacific Mutual Life Ins. Co. (1986) 186 Cal. App. 3d 941, 944) Thus, as is the case with attorneys, self-represented litigants must follow correct rules of procedure. (Nwosu v. Uba (2004) 122 Cal. App. 4th 1229, 1246-1247; see also

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23CV010116: IN THE MATTER OF: MARIA LUZ ALTIERI-ORTIZ 12/04/2024 Hearing on Motion for Summary Adjudication in Department 53

Rappleyea v. Campbell (1994) 8 Cal. 4th 975, 984.) The failure to file a responsive separate statement is a sufficient basis in this instance to support granting the motion. This is so because the separate statement in support of the motion sets forth facts related to Petitioner being provided Notification by Trustee as required by the Probate Code and filing the petition after the 120-day time limit set forth in Probate Code § 16061.8. In any event, apart from the failure to file a responsive separate statement, Petitioner has not submitted any evidence that the Notification of Trustee was not in fact properly served on her at her last known address as required by the Probate Code. Thus, Petitioner has failed to raise a triable issue of material fact with respect to the timeliness of the first cause of action to invalidate the Trust.

As a result, Respondent’s motion for summary adjudication directed to the first cause of action to invalidate the Trust in the Petition is granted. Respondent met his burden to demonstrate that the first cause of action is untimely pursuant to Probate Code § 16061.8 and Petitioner failed to meet her burden to demonstrate the existence of a triable issue of material fact.

Again, Respondent did not challenge the cause of action for elder abuse.

Respondent’s evidentiary objections are overruled. Even if the Court considers all of the material objected to, specifically, all of the letters and material attached to Petitioner’s declarations, the above result would not change.

Respondent shall submit an order pursuant to CRC 3.1312 and CCP § 437c.