Saba v. Tayyan

If good cause is shown by the moving party, the burden then shifts to the responding party to justify any objections made to document disclosure— the same as on motions to compel responses to interrogatories or deposition questions. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Here, Plaintiff has not met its initial burden of establishing good cause. The declaration of Kevin Faulk, counsel for Plaintiff, fails to address the requests for production at issue and why good cause exists to justify the discovery being sought. Why the moving memorandum may have addressed the requests for production at issue, arguments made in the moving papers does not constitute admissible evidence to meet Plaintiff’s good cause burden. Because Plaintiff failed to meet his initial burden, the burden failed to shift to Defendant to justify any objections.

For these reasons, the motion is DENIED as to requests for production, set one.

Plaintiff to give notice.

5 Saba v. Tayyan Motion for Summary Judgment, or, alternatively, Summary Adjudication

Plaintiffs George Saba and Jack Saba’s motion for summary judgment is DENIED. Plaintiffs’ alternative motion for summary adjudication is DENIED.

Request for Judicial Notice

Plaintiff requests judicial notice of the following:

1. Notice of related case in the probate matter, Case no. 2022- 01295368, filed on 8/30/23; 2. Declaration of Attorney Cuevas in support of Respondent’s Motion for an Order Requiring Petitioner George Saba to Furnish Security on the Ground that Petitioner is a Vexatious litigant, filed in the probate action; 3. Declaration of L. Joseph Hudak in support of Respondent’s Motion for Summary Judgment in the Probate action; 4. Declaration of L. Joseph Hudak filed in the probate action on 4/24/25; 5. Ruling on matters taken under submission on June 17, 2024 in the probate action.

The court GRANTS the request pursuant to Evid. Code §452, subd. (d). However, with regards to the declarations (nos. 2, 3, and 4), the Court may not take judicial notice of the truth of the matter stated in these declarations. (Richtek USA, Inc. v. uPI Semiconductor Corp. (2015) 242 Cal.App.4th 651, 659-660.)

Jurisdiction

First, the court notes that Plaintiffs in this matter are presenting issues that were presented in the related probate matter, case no. 2022- 01295368. (See Defendant’s Request for Judicial Notice, Exs. 1 and 5).

Generally, the probate court has exclusive jurisdiction to probate and interpret a will, determine entitlement to distribution, and administer and distribute a decedent’s estate. (Prob. Code, §§ 8200-8272, 21120- 21122, 11700-11705, 9600 et seq., 11600 et seq.) The probate court also has exclusive jurisdiction over proceedings concerning the “internal affairs” of trusts. (Prob. Code, § 17000, subd. (a).) This is true even if the trust is administered outside of probate. (See e.g., Estate of Heggstad (1993) 16 Cal.App.4th 943, 951 (Trustee's petition for instructions invoked probate court's jurisdiction to determine whether property was part of estate or was trust property).

The probate code defines “internal affairs of a trust” to include: (1) Determining questions of construction of a trust instrument. (2) Determining the existence or nonexistence of any immunity, power, privilege, duty, or right. (3) Determining the validity of a trust provision. (4) Ascertaining beneficiaries and determining to whom property shall pass or be delivered upon final or partial termination of the trust, to the extent the determination is not made by the trust instrument. (5) Settling the accounts and passing upon the acts of the trustee, including the exercise of discretionary powers. (6) Instructing the trustee.

(Prob. Code, § 17200(b)(1)-(6)).

As the court held in Estate of Bowles (2008) 169 Cal.App.4th 684, 696, “[t]he probate court has exclusive jurisdiction over the first amended section 17200 petition concerning the internal affairs of the trust.”

However, Defendant does not object to the court’s jurisdiction in her opposition to the instant motion. Therefore, the court will proceed.

And while Defendant demonstrates that Jack Saba (and John Saba, now deceased) lack standing to contest the trust pursuant to the Ruling on Matters Taken Under Submission on June l7, 2024 in the probate matter, Defendant does not otherwise argue the doctrines of collateral estoppel or res judicata in her Opposition.

Failure to Comply with Cal. R. Ct., rule 3.1350

Defendant contends that Plaintiffs failed to comply with Cal. R. Ct., rule 3.1350, subd. (i) which provides the following:

“On request, a party must within three days provide to any other party or the court an electronic version of its separate statement. The electronic version may be provided in any form on which the parties agree. If the parties are unable to agree on the form, the responding party must provide to the requesting party the electronic version of the separate statement that it used to prepare the document filed with the court. Under this subdivision, a party is not required to create an electronic version or any new version of any document for the purpose of transmission to the requesting party.”

Plaintiffs do not contest that they failed to comply with this requirement.

However, Defendant did not explain how Plaintiff’s failure to comply with this rule impaired her ability to Oppose. (See Truong v. Glasser (2009) 181 Cal.App.4th 102, 118 [“Plaintiffs have not explained how any alleged deficiency in Glasser's Separate Statement of Material Facts impaired Plaintiffs' ability to marshal evidence to show that material facts were in dispute as to the proper application of the statute of limitations.”]).

Nevertheless, the court admonishes Plaintiffs for their failure to comply with this rule.

Objections

Defendant’s Objections

The court SUSTAINS the following objections to Plaintiffs’ separate statement of undisputed material facts (UMF): 1.8 (Evid. Code §310-question of law); 2.1 (Evid. Code §310-question of law); 2.2 (Evid. Code §310-question of law); 2.10 (Evid. Code § 310 -question of law); 3.2 (Evid. Code § 310 -question of law);

3.3 (Evid. Code § 310 -question of law); 3.6 as to “attempted” (Speculation); 3.8 as to “Trustee's failure to comply with Article 15, §10(C)” (Evid. Code §310-question of law); 4.9 (speculation and Evid. Code §310); 4.10 (speculation); 5.8 (Speculation); 5.9 (speculation); 5.12 as to “negligent” (Evid. Code §310-question of law); 6.4 (lacks personal knowledge); 6.4 (lacks personal knowledge and lacks foundation); 6.7 (Evid. Code § 310- question of law); 6.10 (Evid. Code §310 -question of law); 7.4 (lacks personal knowledge and lacks foundation); 8.3 (lacks personal knowledge and lacks foundation); 8.4 (lacks personal knowledge and lacks foundation); 8.5 (lacks personal knowledge and lacks foundation); 8.6 (lacks personal knowledge and lacks foundation); 9.1 (Evid.

Code §310 -question of law); 9.13 (lacks personal knowledge and lacks foundation); 9.14 (speculation); 10.2 (Evid. Code § 310 -question of law); 10.4 (Evid. Code § 310 -question of law); 10.5 (Evid. Code § 310 -question of law); 11.7 (lacks personal knowledge and lacks foundation); 12.1 (Evid. Code § 310 -question of law); 12.6 (lacks personal knowledge and lacks foundation).

The court declines to rule on objections to UMF nos. 13.1-13.14 pursuant to Code Civ. Proc. §437c, subd. (q).

The court OVERRULES the remaining objections.

Plaintiff’s objections:

The court OVERRULES the objections to Decl. of Shane Duncombe, ¶ 6; “RJN Exhibits 1-5”; and “RJN Ex. 5 (“Jack predeceased .... “).

The court declines to rule on the remaining objections pursuant to Code Civ. Proc. §437c, subd. (q).

Motions for Summary Judgment and/or Adjudication standard

“Summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c).) A “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact . . . .” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at 851.)

Where plaintiff seeks summary judgment, the burden is to produce admissible evidence on each element of a “cause of action” entitling plaintiff to judgment. (Code Civ. Proc § 437c, subd. (p)(1); see also

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.). If the moving party carries this burden of production, the moving party causes a shift, and the opposing party is subject to a burden of production to make a prima facie showing of the existence of a triable issue of material fact. (Aguilar, supra, 25 Cal.4th at 850). Affidavits or declarations on a motion for summary judgment must be directed to the issues raised by the pleadings. (Keniston v. American Nat. Ins. Co. (1973) 31 Cal.App.3d 803, 812). Therefore, Plaintiff has to produce admissible evidence for each element of the causes of action for which summary adjudication is sought.

In ruling on a motion for summary judgment, “the court must ‘consider all of the evidence’ and ‘all’ of the ‘inferences’ reasonably drawn therefrom, and must view such evidence and such inferences in the light most favorable to the opposing party.” (Aguilar, supra, 25 Cal.4th at 843, citations omitted.) Courts “‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’” (Unilab Corp. v.

Angeles-IPA (2016) 244 Cal.App.4th 622, 636, quoting Seo v. All–Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201–1202.) A court may not make credibility determinations or weigh the evidence on a motion for summary judgment, and all evidentiary conflicts are to be resolved against the moving party. (McCabe v. American Honda Motor Corp. (2002) 100 Cal.App.4th 1111, 1119.) “The court . . . does not resolve issues of fact. The court seeks to find contradictions in the evidence, or inferences reasonably deducible from the evidence, which raise a triable issue of material fact.” (Johnson v.

United Cerebral Palsy, etc. (2009) 173 Cal.App.4th 740, 754, citation omitted.) “[S]ummary judgment cannot be granted when the facts are susceptible [of] more than one reasonable inference . . .” (Rosas v. BASF Corp. (2015) 236 Cal.App.4th 1378, 1392.)

Issues for summary adjudication

Plaintiffs move for summary judgment, or, alternatively, summary adjudication as to each cause of action.

Plaintiffs also move for summary adjudication as to various issues other than the causes of action (such as, for example, “whether the trustee breached the duty of impartiality under Probate Code §16003”, and “whether the trustee’s cumulative breaches warrant removal.”).

However, Code Civ. Proc. § 437c, subd. (f), provides:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

(2) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”

Code Civ. Proc. § 437c, subd. (t), provides:

“Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision. (1) (A) Before filing a motion pursuant to this subdivision, the parties whose claims or defenses are put at issue by the motion shall submit to the court both of the following: (i) A joint stipulation stating the issue or issues to be adjudicated. (ii) A declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement. (B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion. (2) Within 15 days of receipt of the stipulation and declarations, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed. In making this determination, the court may consider objections by a nonstipulating party made within 10 days of the submission of the stipulation and declarations.”

Plaintiff’s motion for summary adjudication on issues that do not completely dispose of a cause of action, an affirmative defense, a claim for damages, or an issue of duty are improper as Plaintiffs did not provide the requisite joint stipulation pursuant to Code Civ. Proc. §437c, subd. (t).

Breach of Written Contract

The elements for a cause of action for breach of contract follows: (1) the existence of the contract, (2) plaintiffs’ performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821).

“A summary judgment motion is directed to the issues framed by the pleadings”. (Canales v. Wells Fargo Bank, N.A. (2018) 23 Cal.App.5th 1262, 1268).

Plaintiffs allege the following in their Complaint: “On October 26, 2015, Settlor was over the age of 90. Trustee, Tayyan, motivated by greed, and unhappy and unsatisfied with the distribution of Settlor's assets as set forth in Exhibit ‘A"’ took Settlor to the Law Office of G. Steven Cuevas to prepare a Restatement Trust (the "2015 Restatement Trust").” (Compl., ¶ 47). Article Fifteen Section 10 and subsection (c),

page 15-13 of Exhibit "B" entitled NOTICES provide notice is required by personal delivery or mailing notice by certified United States mail. (Compl., ¶ 48). Defendant breached the written agreement in Exhibit "B" when she failed to serve Plaintiffs with a copy of the 2015 Restatement Trust by Certified Mail and also failed to serve Plaintiff, George A Saba regarding any of the terms of the Restatement Trust. (Compl., ¶ 50).

Plaintiffs set forth the following in their separate statement of undisputed material facts (UMF): The 2015 Restatement Trust is a written contract. (UMF 1.1). Article 15, §10(c) of the Trust requires all notices to be served either (a) by personal delivery with written receipt, or (b) by certified U.S. mail, return receipt requested. (UMF 1.2). Trustee did not personally deliver any notice to George Saba. (UMF 1.3) The Trustee’s notice was sent to the wrong address (2521 Glenbush Circle), which is not George Saba's residence. (UMF 1.5). Because Trustee did not serve notice by either method required under Article 15, §10(c), she did not comply with the written contract. (UMF 1.7).

The 2015 Restatement Trust exhibit attached to the declaration of George Saba provides the following under §10(c): NOTICES ... All notices required to be given in this Agreement shall be made.... Mailing notice by certified United States mail, return receipt requested, to the last known address of the party requiring notice. The effective date of the notice shall be the date of the written receipt or the date of the return receipt, if received, or if not, the date it would have normally been received via certified mail, provided there is evidence of mailing.

(Decl. of George Saba, Ex. AA).

With regards to the element of damages, Plaintiffs’ UMF does not set forth damages under this issue, but Plaintiffs’ state the following under the third issue (3rd COA for bad faith): “Trustee’s failure to comply with Article 15, §10(c) prevented George Saba from receiving notice required to enforce his rights under the Trust, and that his contractual rights were frustrated under the Trust.” (UMF 3.8, 3.9).

George Saba sets forth the following in his declaration: “As a proximate result of this breach, Plaintiffs, and each of them suffered damages in the sum of $164,017.98.” (Decl. of George Saba, ¶ 7). Elsewhere in his declaration, he states: “’Exhibit F,’ is an escrow closing statement by Pickford Escrow Company, showing that the net proceeds from the sale of my mother's home were $656,071.92. Dividing that amount by the four (4) beneficiaries results in $164,017.98 per beneficiary.” (Decl. of George Saba, ¶ 29 (d)). However, Plaintiffs fail to set forth why their failure to receive notice of the 2015 Restatement Trust caused them to be damaged in the amount of $164,017.98. “Declarations supporting motions for summary judgment must contain evidentiary, rather than ultimate facts, or conclusions.” (Sheppard v. Morgan Keegan & Co. (1990)

218 Cal.App.3d 61, 67). Plaintiffs cannot obtain summary judgment on a breach of contract cause of action without establishing their damages. (See Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241-242).

Accordingly, the court finds that Plaintiffs failed to meet their burden as to this cause of action.

Failure to serve Plaintiffs with documents pursuant to Probate Code Section 16061.7

Probate Code §16061.7 provides as follows:

(a) A trustee shall serve a notification by the trustee as described in this section in the following events: (1) When a revocable trust or any portion thereof becomes irrevocable because of the death of one or more of the settlors of the trust, or because, by the express terms of the trust, the trust becomes irrevocable within one year of the death of a settlor because of a contingency related to the death of one or more of the settlors of the trust. (2) Whenever there is a change of trustee of an irrevocable trust. (3) Whenever a power of appointment retained by a settlor is effective or lapses upon death of the settlor with respect to an inter vivos trust which was, or was purported to be, irrevocable upon its creation.

This paragraph shall not apply to a charitable remainder trust. For purposes of this paragraph, “charitable remainder trust” means a charitable remainder annuity trust or charitable remainder unitrust as defined in Section 664(d) of the Internal Revenue Code.1 (4) The duty to serve the notification by the trustee pursuant to this subdivision is the duty of the continuing or successor trustee, and any one cotrustee may serve the notification. (b) The notification by the trustee required by subdivision (a) shall be served on each of the following: (1) Each beneficiary of the irrevocable trust or irrevocable portion of the trust, subject to the limitations of Section 15804.

In their Complaint, Plaintiffs allege that Defendant’s attorney at the time, L. Joseph Hudack, falsely claimed that on 4/27/2022, he served George Saba via certified mail, at his residence located at 2521 Glenbush Circle, Corona, CA 92882, an address which does not belong to George Saba. (Compl., ¶ 52).

As to the alleged service on Plaintiff, Jack Saba, attorney Hudack also falsely claims in a cover letter addressed to Plaintiff, Jack Saba, dated April 27, 2022, that on that date, he was serving a copy of the Trustee Notice and a copy of the 2015 Restatement Trust on him by Certified Mail. (Compl., ¶ 57). George Saba emailed counsel in November of 2022. (Compl., Ex. D). Plaintiff, Jack Saba received for the first time, Hudack's cover letter, the Notification by Trustee, the 2015 Restatement Trust, and the Proof of Service via Priority Mail on or about July 23, 2022, and not on or about April 27, 2022, as claimed on the Proof of Service. (Compl., ¶ 57).

Plaintiffs now set forth the following in their UMF:

Trustee did not serve the Notification by Trustee on George Saba or Jack Saba. (UMF 2.3, 2.4). Trustee did not serve a copy of the trust instrument on George Saba after written request. (UMF 2.5). Trustee did not notify George Saba of the Senior's death. (UMF 2.6). Trustee mailed documents to the wrong address (2521 Glenbush Circle), which is not George Saba’s address. (UMF 2.7). Because Trustee did not serve the Notification by Trustee or trust documents as required, the statutory 120-day contest period never began to run. (UMF 2.10).

However, neither the Complaint nor Motion set forth what type of remedies Plaintiffs seek by way of this violation. The UMF asserts that violation of this section would mean that the 120-day period to contest the trust has not yet begun. (See Straley v. Gamble (2013) 217 Cal.App.4th 533, 537: “The timeframe in which to bring an action to contest a trust is delineated by statute. Section 16061.8 provides, in relevant part: ‘No person upon whom the notification by the trustee is served pursuant to this chapter ... may bring an action to contest the trust more than 120 days from the date the notification by the trustee is served upon him....’”). However, this is not a cause of action to contest the trust. (See, on the other hand, the probate court’s Ruling On Matters Taken Under Submission, which discusses this claim and made a determination as to Jack Saba [RJN, Ex. 5]).

In the declaration of George Saba, Mr. Saba sets forth the following damages in support of Defendant’s violation of this Probate Code Section: “As a proximate result of this breach, Plaintiffs and each of them suffered damages in the sum of $164,017.98.” (Dec. of George Saba, ¶ 7). But as previously mentioned under the analysis for the first cause of action: “Declarations supporting motions for summary judgment must contain evidentiary, rather than ultimate facts, or conclusions.” (Sheppard, supra, 218 Cal.App.3d at 67).

At most, George Saba establishes that the 120-day contest period has not begun. But this does not establish that Plaintiffs would have received any specific sum that they contend they would be entitled to if they had successfully contested the trust in probate.

The court finds that Plaintiffs have not established that they are entitled to the damages they seek under this cause of action, and, therefore, they failed to meet their burden.

Breach of the implied covenant of good faith and fair dealing

The implied covenant of good faith and fair dealing rests upon the existence of some specific contractual obligation. (See Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031).

“[A]llegations which assert such a claim must show that the conduct of the defendant, whether or not it also constitutes a breach of a consensual contract term, demonstrates a failure or refusal to discharge contractual responsibilities, prompted not by an honest mistake, bad judgment or negligence but rather by a conscious and deliberate act, which unfairly frustrates the agreed common purposes and disappoints

the reasonable expectations of the other party thereby depriving that party of the benefits of the agreement.” (Careau & Co. v. Security Pacific Business Credit (1990) 222 Cal.App.3d 1371, 1395).

Here, Plaintiffs failed to establish that Defendant breached the contract under the first cause of action. Accordingly, the court finds that they failed to meet their burden under this cause of action as well.

Fraud and deceit

The essential allegations for a fraud claim include “(a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.” (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.). Plaintiff must establish “how, when, where, to whom and by what means the representations were tendered.” (See Lazar v. Superior Court (1996) 12 Cal.4th 631, 645).

Plaintiffs allege the following in their Complaint: Defendant, Tayyan represented to Settlor that the new trust would include new terms so that she would take care of Settlor when Settlor's health deteriorated or worsened, that Defendant, Tayyan was to have Settlor live at her home. Defendant, Tayyan also represented to Settlor that the 2015 Restatement Trust would not change the amount of disbursements to the Beneficiaries as stated in the 2008 Irrevocable Trust. (Compl., ¶ 67). Settlor was ignorant of the falsity of Defendant, Tayyan’s representations and believed them to be true. (Compl., ¶ 68). In reliance on these representations, Settlor was induced to execute and to sign the 2015 Restatement Trust. (Compl., ¶ 70).

Now, in support of their motion for summary judgment, Plaintiffs allege that the Trustee knowingly filed false proofs of service, and Plaintiffs relied on these misrepresentations to their detriment. As set forth in their UMF, Trustee did not personally serve any notice or document on George Saba, or provide any certified mail receipt, signature, or tracking confirming service on George Saba. (UMF 4.6, 4.8). Trustee filed proofs of service with the court despite knowing service had not been completed. (UMF 4.11). Trustee's misrepresentations caused delay and obstruction in George Saba's ability to contest the trust administration. (UMF 4.13).

However, this is a completely different theory of fraud than what is alleged in the Complaint. While Plaintiffs discussed the failure to give them proper notice in their Complaint, it was not the basis for their fraud claim. “A summary judgment motion is directed to the issues framed by the pleadings”. (Canales, 23 Cal.App.5th at 1268). See also FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381 (“The parties treat the appeal solely as a matter whether there are triable issues of material fact in the evidence adduced in the summary judgment proceedings. They are oblivious to the role of the pleadings as the outer measure of materiality in a summary judgment proceeding.”)

Plaintiffs cannot argue a different theory of fraud in their motion/memorandum of points and authorities, and their UMF, that was not set forth in the Complaint.

Accordingly, the court finds that Plaintiffs failed to meet their burden.

Negligent misrepresentation

The elements for negligent misrepresentation are: “1. The defendant must have made a representation as to a past or existing material fact. [¶] 2. The representation must have been untrue; [¶] 3. Regardless of his actual belief the defendant must have made the representation without any reasonable ground for believing it to be true; [¶] 4. The representation must have been made with the intent to induce plaintiff to rely upon it; [¶] 5. The plaintiff must have been unaware of the falsity of the representation; he must have acted in reliance upon the truth of the representation and he must have been justified in relying upon the representation. [¶] 6. And, finally, as a result of his reliance upon the truth of the representation, the plaintiff must have sustained damage.” (Continental Airlines, Inc. v. McDonnell Douglas Corp. (1989) 216 Cal.App.3d 388, 402).

Plaintiffs’ motion is denied as to this cause of action for the same reasons set forth in the fraud claim. Plaintiffs’ negligent misrepresentation cause of action is based on the following: “Defendant, Tayyan's intended that Settlor rely on their representations and Settlor reasonably relied on said representations, and in reliance on these representations, Settlor was induced to and did sign the 2015 Restatement Trust. Defendant Tayyan's representations were a substantial factor in causing Plaintiffs the harm described herein.” (Compl., ¶ 76).

However, in Plaintiffs memorandum and UMFs, Plaintiffs only set forth the following: Trustee did not have reasonable grounds to believe that service on 2521 Glenbush Circle would reach George Saba. (UMF 5.8). Trustee's representations were made in documents intended to induce the court and beneficiaries to believe that statutory service had been completed. (UMF 5.10). George Saba relied on the trustee's representations to his detriment because he did not receive the notices required to protect his rights. (UMF 5.11).

Accordingly, the court finds that Plaintiffs failed to meet their burden, as they set forth a different theory of negligent misrepresentation in their motion/memorandum of points and authorities and in their UMF.

Elder abuse and Undue Influence

Plaintiffs failed to argue their theories of Elder Abuse and Undue Influence as alleged in the Complaint.

Plaintiffs’ claims, as alleged in the Complaint, are on behalf of the Settlor: “Defendant, Tayyan unduly influenced Settlor to execute the 2015 Restatement Trust against her wishes, knowledge or consent. By unduly influencing Settlor, an elder over the age of 90, Defendant, Tayyan's committed financial elder abuse. (Compl., ¶ 80). (See also

Compl., ¶¶ 81, and 82). Under the Undue Influence cause of action, Plaintiffs allege: “Defendant, Tayyan, as Settlor's daughter, was in a position of authority over Settlor and had a confidential relationship with Settlor, who threatened not to take Settlor to her doctors' appointments, buy her food or take care of Settlor at her home, and promised that Defendant, Tayyan would place Settlor in an old people's home, unless Settlor agreed to retain attorney Cuevas to prepare a new Trust.” (Compl., ¶ 85). “Defendant, Tayyan used fear tactics and intimidation to control and coerce Settlor into executing the 2015 Trust Restatement to her financial benefit.

The Court should find Defendant, Tayyan liable for financial elder abuse and order Defendant, Tayyan to pay double damages because Defendant, Tayyan unduly influenced Settlor in bad faith as described herein and because Settlor was an elder at the time, she was the victim of Defendant Tayyan's undue influence.” (Compl., ¶ 91). (See also Compl., ¶¶ 83-93).

However, in Plaintiffs’ motion/memorandum of points and authorities and UMF, their elder abuse and undue influence theories pertain to George Saba.

See, for example, the following UMFs: At all relevant times, George Saba was over the age of 65. (UMF 6.1). Trustee failed to marshal or disclose trust assets. (UMF 6.6). (See generally UMF 6.1-7.10). Similarly, in their memorandum of points and authorities, Plaintiffs argue: “Plaintiff GS is over 65 (UMF 6.1), Trustee withheld trust information (UMF 6.3), withheld John's gift (UMF 6.4), failed to account(UMF 6.5), failed to marshal assets. 14 (UMF 6.6) . and wrongfully retained trust property (UMF 6.10 6.11).” (Memo. of Ps. And As., 5:12-13).

The seventh cause of action is not even labelled “undue influence” (as it is in the Complaint) but is now labelled “breach of duty to inform.”

While Plaintiffs’ declarations set forth various facts regarding Defendants’ treatment of the Settlor, Plaintiffs do not argue these points in their memorandum and do not state them in their UMFs.

Accordingly, the court finds that Plaintiffs failed to meet their burden as to both claims.

Conversion

The key elements for a cause of action for conversion include the plaintiff’s ownership or right to possession of personal property, the defendant’s disposition of the property in a manner inconsistent with the plaintiff’s property rights, and resulting damages. (Hartford Financial Corp. v. Burns (1979) 96 Cal.App.3d 591, 592; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119).

Plaintiffs allege the following in support of their cause of action for conversion:

“Attached to Settlor's main residence was a studio apartment that had been rented since 1981, long before 2000 when Settlor's husband and father of Plaintiffs and Defendant, Tayyan passed away. During the two

years before Settlor passed away on March 24, 2022, the studio apartment was being rented for $900.00 per month in cash. Settlor would ask Defendant, Tayyan to collect the $900.00 from the tenants and to deposit the rent money in Settlor's bank account.” (Compl., ¶ 96). “Defendant, Tayyan wrongfully exercised control over Settlor's monthly Rent income in the sum of $900.00 in cash per month, and failed to deposit the rent money in Settlor's bank account and used the rent money for her personal use.” (Compl., ¶ 96).

That Settlor did not consent to the taking of the rental money by Defendant, Tayyan and was harmed by her conduct. Defendant, Tayyan's conduct was a substantial factor in causing Settlor's harm. (Compl., ¶ 97). As a proximate result of Defendant, Tayyan's conversion, Settlor was harmed in the minimum sum of $21,600, which sum should be included in Settlor's estate. (Compl., ¶ 98). Furthermore, Defendant, Tayyan's acts alleged herein were done with a wanton, reckless disregard for the rights of Settlor and with the full knowledge that Settlor would be harmed as a result of said acts. As a proximate result of Defendant, Tayyan's fraudulent acts, Plaintiffs and each of them suffered damages in a sum of at least $164,016.34. (Compl., ¶ 100).

However, in the motion for summary judgment, Plaintiffs named this cause of action “Wrongful withholding of distribution” and contend that Defendant “Withheld the $25,00 gift owed to John’s estate (UMF 8.1- 8.6) and failed to account or disclose assets. (UMF 8.7-8.10).” (Memo. of Ps. and As., 5:19-20).

In support of this cause of action, UMFs nos. 8.1-8.6 set forth the $25,000 gift to John Saba and Defendant’s control of the $25,000. UMF nos. 8.7-8/10 generally provide that “Trustee failed to account for trust assets, including funds owed to beneficiaries”, “Trustee failed to marshal or disclose trust assets”, “Trustee withheld trust property belonging to beneficiaries by failing to distribute required gifts and failing to provide information necessary to access trust assets”, and “Trustee's retention of trust property deprived beneficiaries of the use and benefit of their property.”

None of Plaintiffs’ UMFs establish: 1. Plaintiffs/settlor’s ownership or right to possession of the rental income, 2. the defendant’s disposition of the rental income in a manner inconsistent with the plaintiff’s property rights, and 3. the resulting damages in the amount of $21,600, or $164,016.34, due to the alleged conversion, as set forth in the cause of action in Plaintiffs’ complaint. Even if this court were to analyze the merits of Plaintiffs’ conversion claim as set forth in motion, Plaintiffs failed to establish conversion resulting in the damages amount of $164,016.34.

With regards to Plaintiffs’ contention that Defendant owes John Saba $25,000, Plaintiffs Jack and George Saba failed to establish their own right to possession of this money. In any event, this is a new theory of conversion that was not plead in the Complaint.

Accordingly, the court finds that Plaintiffs failed to meet their burden.

Breach of fiduciary duty

The elements for a cause of action for breach of fiduciary duty are: (i) Existence of a fiduciary duty; (ii) Breach of the fiduciary duty; and (iii) Damage proximately caused by the breach. (Pierce v. Lyman (1991) 1 Cal.App.4th 1093, 1101).

“Fiduciary duties are imposed by law in certain technical, legal relationships such as those between partners or joint venturers, husbands and wives, guardians and wards, trustees and beneficiaries, principals and agents, and attorneys and clients.” (GAB Bus. Servs., Inc. v. Lindsey & Newsom Claim Servs., Inc. (2000) 83 Cal.App.4th 409, 416.)

Plaintiffs allege the following in their Complaint:

“It is undisputed that on October 26, 2015, Defendant, Tayyan agreed and knowingly undertook to act as Settlor's trustee and as such, Defendant, Tayyan as Trustee owed the benficiares a duty of good faith.” (Compl., ¶ 102).

“A fiduciary must give priority to the best interest of the beneficiary, which in this case Defendant Tayyan failed to give to the beneficiaries. Defendant, Tayyan, in this case, used fear tactics and intimidation to control and coerce Settlor into executing the 2015 Trust Restatement to her financial benefit.” (Compl., ¶ 103). “Defendant, Tayyan failed to act as a reasonably careful trustee would have acted under the same or similar circumstances. Intentional wrongs such as fraud (fiduciary fraud) as well as negligent misrepresentation also constitute a breach of fiduciary duty.” (Compl., ¶ 104). “As a direct and proximate result of Defendant Tayyan's breach of duty, Plaintiffs and each of them suffered damages in a sum of at least $164,016.34.” (Compl., ¶ 105).

Plaintiffs contend that Defendant Trustee violated duties of loyalty, impartiality, disclosure, and prudent administration.

In support of their contention, Plaintiffs present the following UMFs:

Trustee did not provide statutory notice of trust administration to George Saba or Jack Saba. (UMF 9.2, 9.3). Trustee did not provide a copy of the trust instrument to George Saba after written request. (UMF 9.4). Trustee did not notify Geroge Saba of the Settlor’s death. (UMF 9.5). Trustee did not keep beneficiaries reasonably informed about trust administration. (UMF 9.6). Trustee did not respond to written inquiries regarding trust assets. (UMF 9.7). Trustee has not provided an accounting since assuming office. (UMF 9.8). Trustee did not provide an accounting within 60 days of written demand. (UMF 9.9). Trustee has not marshaled trust assets. (UMF 9.10). Trustee has not disclosed trust assets to beneficiaries. (UMF 9.11).

Trustee has not provided an inventory of trust property. (UMF 9.12). Trustee withheld the $25,000 gift to John Saba and his surviving issue. (UMF 9.13). Trustee's conduct resulted in beneficiaries being deprived of information, distributions, and the ability to protect their rights. (UMF 9.15).

Plaintiffs have not set forth evidence of damages “proximately caused by” the breach. Plaintiffs’ assertion that her conduct resulted in Plaintiffs being deprived of information, distributions, and the ability to protect their rights does not set forth actual damages caused by Defendant’s breach. George Saba declares “as a result, trustee breached her mandatory duties of fiduciary duties to my mother and as a proximate result of this breach, Plaintiffs and each of them suffered damages in the sum of $164,017.98.” (Decl. of George Saba, ¶ 31). As with the damages set forth in the breach of contract claim, this number appears to derive from the following: “This amount was calculated as follows... the net proceeds from the sale of my mother's home were $656,071.92. Dividing that amount by the four (4) beneficiaries results in $164,017.98 per beneficiary.” (Decl. of George Saba, 29).

However, Plaintiffs fail to establish that Defendant’s purported breach proximately caused them to be damaged in this amount.

Accordingly, the court finds that Plaintiffs failed to meet their burden.

Negligence

The elements of a negligence cause of action are duty, breach, causation, and damages. (Gilead Tenofovir Cases (2024) 98 Cal.App.5th 911, 920.)

Plaintiffs allege in the Complaint that: Defendant, as trustees was negligent (1) in serving Plaintiffs with the Notification by Trustee pursuant to Probate Code § 16061.7; (2) in serving the 2015 Restatement trust; (3) in selling Settlor's property without advising the beneficiaries of the sale; (4) in selling Settlor's property at a price below the fair market value of the property; dispensing with Settlor's property without advising the beneficiaries. (Compl., ¶ 108). This breach was the proximate or legal cause of the resulting injury to Plaintiffs and Plaintiffs and each of them suffered damages in a sum of at least $164,016.34. (Compl., ¶ 109).

In their UMFs, Plaintiffs set forth the facts regarding their lack of notice, lack of copy of the trust instrument, even after request, Defendant’s failure to respond to written inquiries and to provide any accounting, and her failure to marshal or disclose trust assets. (UMF nos. 10.1- 10.13). Plaintiffs set forth that her failure to provide notice and documents prevented beneficiaries from exercising their rights under the Trust. (UMF 10.14).

However, as with the breach of fiduciary duty cause of action, Plaintiffs fail to establish the element of damages. In the declaration of George Saba, he declares that: “The third element is causation, which links the Trustee's breach of duty directly to the Plaintiffs' injuries. The Trustee's breach of duty as set forth in subparagraphs (a) through (j) above was a substantial factor in causing the harm suffered. This breach by the trustee shows that the injuries would not have occurred but for the Trustee's negligent actions.” (Decl. of Saba, ¶ 36). As a result of the Trustee's intentional actions, Plaintiffs, each suffered damages in the sum of $164,017.98. (Decl. of Saba, ¶ 36). However, these are ultimate facts.

The court finds that Plaintiffs failed to meet their burden as to this claim.

Intentional infliction of emotional distress

The elements for intentional infliction of emotional distress (“IIED”) are: (1) outrageous conduct by the defendant; (2) the defendant’s intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff’s suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct. (Vasquez v. Franklin Management Real Estate Fund, Inc. (2013) 222 Cal.App.4th 819, 832.) Such conduct exceeds “all bounds of that usually tolerated in a civilized community.” (Yau v. Santa Margarita Ford, Inc. (2014) 229 Cal.App.4th 144, 160-161.)

“[T]o state a cause of action for intentional infliction of emotional distress the plaintiff is required to show severe emotional distress resulting from outrageous conduct on the part of the defendant.” (Kiseskey v. Carpenters’ Trust for So. California (1983) 144 Cal.App.3d 222, 231 [emphasis in the original].) “[S]evere emotional distress,” for purposes of establishing a claim for intentional infliction of emotional distress, means “emotional distress of such substantial quality or enduring quality that no reasonable [person] in civilized society should be expected to endure it.” (Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228, 1246.)

In support of this cause of action, Plaintiffs set forth the following in their UMFs: Trustee withheld required trust information and documents from George Saba. (UMF 11.1). Trustee did not notify George Saba of the Settlor's death. (UMF 11.2). Trustee did not provide statutory notice of trust administration to George Saba. (UMF 11.3). Trustee did not provide a copy of the trust instrument after written request. (UMF 11.4). Trustee did not respond to written inquiries regarding trust assets. (UMF 11.5).

Trustee did not provide any accounting since assuming office. (UMF 11.6). Trustee's conduct caused prolonged uncertainty regarding trust assets and distributions. (UMF 11.8). Trustee's conduct caused George Saba emotional distress, including anxiety, frustration, and inability to protect his rights. (UMF 11.9). Trustee's conduct continued over an extended period of time. (UMF 11.10). There are no facts as to John Saba.

The court finds that these facts do not establish either element of outrageous conduct, or severe or extreme emotional distress. Accordingly, the court finds that Plaintiffs failed to meet their burden.

Declaratory relief

Code Civ. Proc. § 1060 provides: “Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the

superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.” (Emphasis added).

This cause of action requires the following: “(1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the rights or obligations of a party.” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 546 [citations omitted].).

Plaintiffs allege the following in their Complaint: “Upon information and belief, Plaintiffs allege that, unless enjoined by order of the Court, Defendant, Tayyan will continue to administer the 2015 Restatement Trust for her sole benefit and to the detriment of Plaintiffs. No adequate remedy exists at law for the injuries alleged herein, and Plaintiffs will suffer great and irreparable injury if Defendant, Tayyan's conduct is not immediately enjoined and restrained.” (Compl., ¶ 122).

Plaintiffs set forth the following in their UMF in support of this cause of action: A present and actual controversy exists between the parties regarding the validity of trustee's actions and the administration of the Trust. ((UMF 12.1). Trustee did not provide statutory notice of trust administration to beneficiaries. (UMF 12.2). Trustee did not provide a copy of the trust instrument to George Saba after written request. (UMF 12.3). Trustee did not notify George Saba of the Senior's death. (UMF 12.4).

Trustee has not provided any accounting since assuming office. (12.5). Trustee has not distributed the $25,000 specific gift owed to beneficiary John Saba or his surviving issue. (UMF 12.6). Trustee's actions and omissions have created uncertainty regarding the rights, duties, and obligations of the parties under the Trust. (UMF 12.7). Plaintiffs seek a judicial declaration of their rights and the trustee's obligations under the Trust. (UMF 12.8).

An actual controversy exists (UMF 12.1). Trustee's violations create uncertainty. (UMF 12.2 12.7). Plaintiffs seek judicial declaration (UMF 12.8) An actual controversy exists regarding the Trustee's statutory violations and administration of the Trust (UMF 12.1). The Trustee's conduct creates uncertainty requiring judicial declaration (UMF 12.2- 12.3).

However, as set forth above, Code Civ. Proc. § 1060 sets forth exceptions for wills and trust. Furthermore: “Summary judgment is appropriate in a declaratory relief action when only legal issues are presented for the court's determination.” (California Public Records Research, Inc. v. County of Yolo (2016) 4 Cal.App.5th 150,1 185).

Accordingly, the court finds that Plaintiffs have not met their burden of showing that they are entitled to declaratory relief.

Fraud and Deceit (IHSS)

Next, Plaintiffs contend that Defendant committed fraud to California In- Home Support Services (IHSS), a social services program (See Cal. Code Regs. Tit. 22, § 50045.5) by retaining IHSS funds for herself. However, as Defendant correctly argues, Plaintiffs improperly assert what is otherwise a qui tam or state cause of action, and cite to Gov. Code § 12652, subd. (c)(1) which provides:

A person may bring a civil action for a violation of this article for the person and either for the State of California in the name of the state, if any state funds are involved, or for a political subdivision in the name of the political subdivision, if political subdivision funds are exclusively involved. The person bringing the action shall be referred to as the qui tam plaintiff. Once filed, the action may be dismissed only with the written consent of the court and the Attorney General or prosecuting authority of a political subdivision, or both, as appropriate under the allegations of the civil action, taking into account the best interests of the parties involved and the public purposes behind this act.

No claim for any violation of Section 12651 may be waived or released by any private person, except if the action is part of a court approved settlement of a false claim civil action brought under this section. Nothing in this paragraph shall be construed to limit the ability of the state or political subdivision to decline to pursue any claim brought under this section.

Plaintiffs do not bring this claim as qui tam plaintiffs. Plaintiffs have not complied with the requirements of Gov. Code §12652, subd. (c). Plaintiffs have not otherwise established justifiable reliance on Defendant’s statements to the IHSS, or that they suffered any damages because of Defendant’s alleged statements to the IHSS. Accordingly, the court finds that Plaintiffs failed to meet their burden.

Therefore, the motion is DENIED.

Plaintiffs shall give notice.

Remove Prefiling Order

Plaintiff George Saba’s motion to lift this court’s 7/25/24 vexatious litigant prefiling order is DENIED, without prejudice.

Authority

Code Civ. Proc., § 391.8 states:

(a) A vexatious litigant subject to a prefiling order under Section 391.7 may file an application to vacate the prefiling order and remove his or her name from the Judicial Council's list of vexatious litigants subject to prefiling orders. The application shall be filed in the court that entered the prefiling order, either in the action in which the prefiling order was entered or in conjunction with a request to the presiding justice or presiding judge to file new litigation under Section 391.7. The application shall be made before the justice or

judge who entered the order, if that justice or judge is available. If that justice or judge who entered the order is not available, the application shall be made before the presiding justice or presiding judge, or his or her designee.

(b) A vexatious litigant whose application under subdivision (a) was denied shall not be permitted to file another application on or before 12 months has elapsed after the date of the denial of the previous application.

(c) A court may vacate a prefiling order and order removal of a vexatious litigant's name from the Judicial Council's list of vexatious litigants subject to prefiling orders upon a showing of a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order.

(See also Luckett v. Panos (2008) 161 Cal. App. 4th 77, 93-94 [setting forth factors such as honestly and remorse in the application]).

Plaintiff has not shown “a material change in the facts upon which the order was granted and that the ends of justice would be served by vacating the order.” (Code Civ. Proc. § 391.8, subd. (c)).

First, Plaintiff does establish “the facts upon which the order was granted.” Plaintiff cannot establish that there has been a material change in the facts without establishing what the facts are. Rather, Plaintiff argues that he has not filed any new lawsuits, has not filed any repetitive actions, has not filed any frivolous motions, has complied with all court rules and deadlines, and has acted with professional and decorum.

But even these assertions are incorrect. For example, in the concurrent motion for summary judgment/adjudication which is set for hearing on the same day as the instant motion, Defendant established that Plaintiffs did not comply with Cal. R. Ct., rule 3.1350. (See Decl. of Duncombe, ¶ 6: “I caused to be tendered a request for Movants to provide the electronic version of Movant’s separate statement and was summarily denied ... .”). George Saba does not dispute his failure to comply with this rule.

George Saba is also attempting to litigate matters on behalf of John Saba, now deceased, despite the fact that he has not established his ability to do so, and the fact that John Saba’s ability to contest the trust has been determined in the related probate matter. (See Plaintiff’s Motion for Summary Judgment/Adjudication and Separate Statement of Undisputed Material Fact; See Defendant’s RJN ISO Opposition to MSJ/MSA, Ex. 5).

Accordingly, the motion is DENIED.

Plaintiffs shall give notice.

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