THE MEZZETTI FAMILY LIFE INSURANCE TRUST

INTRODUCTION

Petitioner Jose Miguel Mezzetti (“Petitioner”) initiated this action for construction of the Mezzetti Family Life Insurance Trust (“MFLIT”). The MFLIT was created by husband and wife settlors Constance Mezzetti and Robert Mezzetti, Sr. (“Settlors”) on September 1, 1994. In or around September 1994, Settlors also applied for a Guardian whole life insurance policy to fund the MFLIT. Petitioner contends that the MFLIT was irrevocable from its inception and he seeks an order determining same. He also seeks an accounting and an order that Respondent Robert Mezzetti, II (“Respondent”), trustee of the MFLIT, may not use trust funds in the instant litigation.

Currently before the court is Respondent’s demurrer to Petitioner’s amended petition filed February 9, 2026. Respondent filed his demurrer on April 1, 2026. Petitioner filed an opposition, Respondent filed a reply and evidentiary objections, and Petitioner filed a response to Respondent’s evidentiary objections. BACKGROUND

Settlors separated in the late 1970s but never divorced. Robert, Sr.4 established extramarital romantic relationships with Kathy Hatcher and others. (Ibid.) According to the amended petition, Settlors sought to protect their assets from so-called “Marvin v. Marvin”5 claims and professional malpractice claims due to Robert, Sr.’s work as an attorney.

Petitioner alleges that the 2002 Unsigned MFLIT Instrument was provided to Petitioner and allows for the distribution of the Gurdian Life Insurance Policy in equal shares. Petitioner and Respondent received and signed Acknowledgement of Notice Receipt of Crummey6 Demand Rights. On August 5, 2015, Robert Sr. and Respondent as trustee and power of attorney for Constance who was incapacitated in 2006, signed a Declaration of Lost Instrument indicating that the original MFLIT had been lost.

Constance passed away on March 11, 2017. No trustee’s notice pursuant to Probate Code section 16061.7 was sent concerning the MFLIT. Robert Sr. Died on October 22, 2024. Petitioner alleges Respondent submitted a death benefit claim to the Guardian Policy which was paid out on December 2, 2024.

4 Because some of the individuals involved in this case share the same last name, the court will refer to them by their first names. No disrespect is intended. 5 Marvin v. Marvin (1976) 18 Cal.3d 660. 6 Crummey v. Commissioner (9th Cri. 1968) 397 F.2d 82.

On September 5, 2025, Respondent filed a demurrer targeting Petitioner’s initial petition, which alleged the same cases of action raised in the amended petition. On January 12, 2026, this court filed its written order sustaining the demurrer with leave to amend based on the running of the statute of limitations. Based on the allegations in the initial petition and its attachments, the court determined that a trustee’s notice had been served on Petitioner on November 21, 2024, yet the initial petition was not filed until June 30, 2025, more than the 120 days provided by Probate Code section 16061.8. (January 12, 2026 Order, p. 12:1-6.)

The court further found that the initial petition was, in effect, a trust contest governed by Probate Code section 16061.8. (Id. at p. 11:5-12.) The court granted leave to amend “for Petitioner to more adequately demonstrate that the MFLIT was irrevocable from inception.” (Id. at p. 13:1-2.)

DISCUSSION I. Respondent’s Request for Judicial Notice Respondent requests judicial notice of the following documents: (1) Petitioner’s initial petition filed June 30, 2025 in the instant case, (2) this court’s order, filed January 12, 2026 sustaining Respondent’s prior demurrer, and (3) Petitioner’s amended petition filed February 9, 2026. The request for judicial notice is GRANTED in its entirety pursuant to Evidence Code section 452, subdivision (d). II. Respondent’s Evidentiary Objections Concurrently with his opposition to the demurrer, Petitioner filed the declaration of his counsel indicating that counsel included a statement in the introduction to the amended petition indicating that changes that were made to the amended petition were made in response to the court’s January 12, 2026 order sustaining the demurrer and attaching Exhibit A, the Legislative Counsel’s Digest for Assembly Bill 1745 (2021-2022 Reg.

Sess.), which amended Probate Code section 16061.8.

Respondent filed evidentiary objections to the declaration as a whole, certain portions thereof, and the exhibit. Respondent’s objection to the entirety of the declaration is SUSTAINED as the court cannot consider extrinsic evidence on demurrer. (See Nealy v. County of Orange (2020) 54 Cal.App.5th 594, 597, fn. 1 [on demurrer, court’s focus is limited to the facts alleged on the face of the pleading and its exhibits, and any facts subject to judicial notice]; SKF Farms v. Super. Ct. (1984) 153 Cal.App.3d 902, 905 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters.”].)

Notably, although Petitioner argues in his response to the evidentiary objections that the court can take judicial notice of evidence in connection with a demurrer, Petitioner does not request judicial notice of either the declaration or the exhibit and a declaration is generally not the proper subject of judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [court cannot consider substance of declarations in addressing demurrer].)

In light of this conclusion, the court need not address Respondent’s remaining objections. III.

Legal Standard

As relevant to the instant case, “[t]he party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: (e) The pleading does not state facts sufficient to

constitute a cause of action.” (Code Civ. Proc., § 430.10, subd. (e).)7 A demurrer may be utilized by “[t]he party against whom a complaint [] has been filed” to object to the legal sufficiency of the pleading as a whole, or to any “cause of action” stated therein, on one or more of the grounds enumerated by statute. (§§ 430.10, 430.50, subd. (a).)

The court in ruling on a demurrer treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v.

General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) In ruling on a demurrer, courts may consider matters subject to judicial notice. (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 751.) Evidentiary facts found in exhibits attached to a complaint can be considered on demurrer. (Frantz v. Blackwell (1987) 189 Cal.App.3d 91, 94.) IV. Merits of the Demurrer As with his prior demurrer, Respondent’s primary contention on demurrer is that the amended petition is barred by the statute of limitations.

He contends that, in response to the court’s January 12, 2026 demurrer order, Petitioner has simply removed allegations that established that his initial petition was time-barred. But, he asserts, Petitioner may not remove fatal allegations from the amended petition to avoid the instant demurrer.

At the outset, the court notes that, in its prior order, the court held that Petitioner had failed to adequately plead that the MFLIT was irrevocable from its inception. (See, e.g., January 12, 2026 Order, p. 8:11-13.) This finding was integral to the court’s order sustaining the demurrer on statute of limitations grounds because Petitioner had argued that the statute of limitations contained in Probate Code section 16061.8 applies only to trusts that were previously revocable but became irrevocable upon the death of one or more settlors.8 The court also determined that the effect of the initial petition rendered it a contest within the meaning of the

7 All further undesignated statutory references are to the Code of Civil Procedure. 8 Probate Code section 16061.8 provides, “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.” (Italics added.) Probate Code section 16061.7, subdivision (a)(1) provides, “A trustee shall serve a notification by the trustee as described in this section in the following events: . . . [w]hen 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.”

relevant case law. (January 12, 2026 Order, p. 11:8-10.) Finally, it found that, in light of these two conclusions, the statute of limitations barred the initial petition, but it may be possible for Petitioner to amend to allege that the trust was irrevocable from its inception, which, if the court made such a determination, would mean that Probate Code section 16061.8 would not apply. (January 12, 2026 Order, pp. 12:4-6, 12:27-13:2.) A. The Court Has Already Determined that Petitioner’s Action is a Contest and Petitioner May Not Remove Allegations to Change this Fact Both parties devote a significant portion of their briefs to the question of whether the amended petition is a trust contest governed by Probate Code section 16061.8. (See Prob.

Code, § 16061.8 [“A person upon whom the notification by the trustee is served . . . shall not bring an action to contest the trust more than 120 days from the date the notification . . ..”], italics added.) But, the court has already concluded that the petition constituted a trust contest because the practical effect of the petition was to assert that the MFLIT was irrevocable, whether Robert, Sr. and Respondent could amend the MFLIT, and whether Petitioner and Kathy Hatcher are entitled to a distribution under the terms of the MFLIT. (January 12, 2026 Order, pp. 9:18-11:12.)

In the amended petition, Petitioner has removed allegations relating to the 2021 and 2023 amendments. He has also removed his requests for relief regarding the distribution provisions of the amendments. Petitioner takes the position that the amended petition is no longer a contest because the offending provisions have been removed. Respondent contends that Petitioner may not remove fatal allegations that were contained in the initial petition to avoid a demurrer to the amended petition. Respondent is correct.

Respondent relies on two older cases, Owens v. Traverso (1954) 125 Cal.App.2d 803 (Owens) and Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713 (Wennerholm). As explained in Wennerholm, “[i]f any verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured simply by omitting the allegation, without explanation, in a later pleading. [Citation.]” (Wennerholm, supra, 20 Cal.2d at p. 716.) In Owens, the court similarly stated, “It is undoubtedly a general rule of law that an amended pleading takes the place of the original, and that thereafter the superseded complaint performs no function as a pleading. [Citations.]

But to this general rule there is an equally well settled exception. This exception is to the effect that if in the prior verified complaint there are allegations destructive of the cause of action, the defect cannot be remedied by simply omitting, in subsequently filed pleadings, without proper explanation, such allegations.” (Owens v. Traverso (1954) 125 Cal.App.2d 803, 808.) In such a situation, the court may read the prior allegations into the amended pleading and consider them on demurrer. (Ibid.)

Despite the age of Respondent’s cases, they remain good law. “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742-743 [affirming an order sustaining defendants’ demurrer without leave to amend when the plaintiff filed an amended complaint omitting harmful allegations from the original unverified complaint]; see also Colapinto v. County of Riverside (1991) 230 Cal. App. 3d 147, 151 [][‘If a party files an amended complaint and attempts to avoid the defects of the original complaint by either omitting

facts which made the previous complaint defective or by adding facts inconsistent with those of previous pleadings, the court may take judicial notice of prior pleadings and may disregard any inconsistent allegations.’].) A noted commentator has explained, ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading. The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’ [Citation.]” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425-426.)

Here, the amended petition continues to seek a ruling that the MFLIT was irrevocable from its inception. The practical effect of the amended petition remains that the amendments to the MFLIT would be rendered invalid by such a determination. And, the court may consider the existence of the amendments, in addition to the Probate Code section 16061.7 notice in connection with the instant demurrer under the above authorities. Contrary to Petitioner’s arguments, removing the allegations regarding the MFLIT amendments from the amended petition is exactly the type of conduct the sham pleading doctrine was meant to avoid.

Petitioner’s explanation in the introduction of the amended petition that he amended his petition as a result of this court’s prior order sustaining the demurrer does not excuse the removal of the allegations regarding the amended petition. Notably, the court did not allow amendment to remove allegations, it allowed amendment so that Petitioner could properly allege that the trust was irrevocable from its inception.

As discussed above, the court already determined that the statute of limitations under Probate Code section 16061.7 barred the petition because it failed to adequately allege that the MFLIT was irrevocable from its inception and, therefore the statute of limitations contained in Probate Code section 16061.8 applied on the face of the petition and its attachments. Petitioner cannot remove the allegations regarding the service of the Probate Code section 16061.7 notice or the allegations that rendered the initial petition a trust contest to alter that conclusion.9 Accordingly, the court will consider whether the amended petition now properly alleges that the MFLIT was irrevocable from its inception.

B. The Amended Petition Adequately Alleges that the MFLIT Was Irrevocable From Its Inception As discussed in the court’s order on the prior demurrer, Probate Code section 15400 provides, “Unless a trust is expressly made irrevocable by the trust instrument, the trust is revocable by the settlor. This section applies only where the settlor is domiciled in this state when the trust is created, where the trust instrument is executed in this state, or where the trust instrument provides that the law of this state governs the trust.”

Petitioner argues that the court cannot apply the Probate Code section 15400 presumption on demurrer because it is a rebuttable presumption. “And[,]” she contends “a demurrer is not an evidentiary motion to which such a presumption may be applied. [Citation.]” (Estate of Tarlow (2025) 109 Cal.App.5th 124, 131 [discussing presumption that disclaimers are valid].) The court

9 For the same reason, the court rejects Petitioner’s argument that the allegations in the amended petition no longer constitute a trust contest and the allegations are now more akin to those in Packard v. Packard, supra, 108 Cal.App.5th 1284.

implicitly rejected this argument in its January 12, 2026 Order. (See January 12, 2026 Order, p. 7:23-26 [invoking the presumption and indicating that to overcome the presumption, Petitioner must plead facts showing that the original MFLIT indicated that it was irrevocable].)

As noted above, Petitioner contends that the original MFLIT has been lost. (Amended Petition, ¶ 17.) In the compendium of exhibits filed with the amended petition, Petitioner provides the declaration of lost trust instrument signed by Robert, Sr. and Respondent as Constance’s attorney-in-fact. (See Compendium of Exhibits in Support of Amended Petition, Ex. 3.) Petitioner asserts that Respondent lacked authority to sign the document on behalf of Constance and Constance’s intent was not adequately recorded in the declaration of lost trust instrument. (Amended Petition, ¶ 18.) The amended petition further alleges that life insurance trusts are typically irrevocable trusts and that the settlors intended to protect the trust assets from taxes and creditors, such as Robert. Sr.’s paramours or clients who might assert professional malpractice claims. (Amended Petition, ¶¶ 9, 19-20.)

The amended petition further indicates that Petitioner and Respondent received Crummey notices in 2002, indicating that the original MFLIT contained Crummey provisions, which Petitioner pleads “are a specific mechanism used in trusts and estate planning to ensure that gifts made to an irrevocable trust qualify for the annual gift tax exclusion under 26 USC § 2503.” (Amended Petition, ¶ 22.)10 Finally, the amended petition indicates that the fact that no Probate Code section 16061.7 notice was sent out upon Constance’s death suggests that the MFLIT was irrevocable and that the settlors already had a revocable trust in place at the time the MFLIT was executed and there would be little need for a second revocable trust. (Amended Petition, ¶¶ 23- 24.) These allegations are sufficient to allege that the trust was irrevocable.

Having found that the amended petition adequately alleges that the MFLIT was irrevocable from its inception, the court cannot find that the statute of limitations bars the

10 As explained in one estate planning treatise, “Most life insurance trusts will give the beneficiaries current “Crummey” withdrawal powers. The trust instrument will then include provisions for the disposition of any income that remains after the exercise of the “Crummey” powers. Both the attorney and the settlor should bear in mind that “Crummey” powers are not usually exercised. To the extent that the power is not exercised, gifts to the trust by the settlor or others will be available for payment of premiums by the trustee. . . .

The trust instrument will typically give the trustee the duty of applying so much of the net income of the trust remaining after any payments to satisfy exercised “Crummey” withdrawal powers to pay premiums on any policies of life insurance on the settlor’s life which are part of the trust estate.” (3 California Wills & Trusts § 115.08, fn. omitted.) The treatise further explains that most life insurance trusts are irrevocable. (Ibid.) “By placing life insurance policies in an Irrevocable Life Insurance Trust . . . estate tax consequences may be avoided.

The policy proceeds will pass outside the decedent’s gross estate yet will benefit his or her heirs. If the policy proceeds are payable to an irrevocable trust and the trustee has a legally binding obligation to pay taxes, debts, or other charges against the estate, then the amount of the proceeds necessary to pay the charges are includible in the gross estate.” (5 California Insurance Law & Practice § 71.06.)

amended petition as a matter of law. 11 “ ‘A demurrer on the ground of the bar of the statute of limitations will not lie where the action may be, but is not necessarily barred.’ [Citations.] It must appear clearly and affirmatively that, upon the face of the complaint, the right of action is necessarily barred. [Citations.] This will not be the case unless the complaint alleges every fact which the defendant would be required to prove if he were to plead the bar of the applicable statute of limitation as an affirmative defense. [Citation.]” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 881.) Here, even if the omitted allegations are read into the amended petition, the amended petition pleads that the MFLIT was irrevocable from its inception. The demurrer is OVERRULED as to the first cause of action.

In his demurrer, Respondent also argues that the remaining causes of action fail because they are based on the trust construction cause of action. The court in its prior order found that the remaining two causes of action need not be specifically discussed because they are tied to the first cause of action. (See January 12, 2026 Order, p. 12:7-11.) Accordingly, because the court finds that the first cause of action survives the demurrer, the demurrer is OVERRULED as to the second and third causes of action.

CONCLUSION

The demurrer is OVERRULED.

11 This finding is without prejudice to Respondent raising the statute of limitations or the Probate Code section 15400 at trial or on an evidentiary motion.