Schwerin v. Kuhns CA1/4

Filed 4/14/14 Schwerin v. Kuhns CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

MICAH SCHWERIN, Plaintiff and Appellant, A138444 v. WILLIAM A. KUHNS, Trustee, etc. et al., (Marin County Super. Ct. No. CIV 1200218) Defendants and Respondents.

Micah Schwerin seeks to collect personal injury damages from trust assets held for the benefit of a woman who struck him with her automobile. The trial court ruled Schwerin could not reach the trust assets. The court granted the trustee’s motion for summary judgment and entered judgment against Schwerin. We conclude there are triable issues of fact and therefore reverse the judgment. I. FACTUAL AND PROCEDURAL BACKGROUND1 A. The Accident and Personal Injury Judgment In November 2010, Schwerin was struck by a car driven by Claire Bradenberg. Schwerin was walking in a crosswalk at the time of the accident and he suffered serious injuries. Bradenberg had no auto insurance. Schwerin sued Bradenberg and obtained a judgment against her in the amount of $865,573.90.

1 Respondents did not dispute many of the facts set forth in Schwerin’s separate statement of facts in opposition to the motion for summary judgment. Instead, they labeled them “irrelevant.” We consider any facts respondents labeled as irrelevant undisputed for purposes of this appeal.

1

Bradenberg died from causes unrelated to the accident after Schwerin obtained his judgment against her. A petition for letters of administration, filed in superior court on behalf of Bradenberg’s estate, stated that she died with property with an estimated value of $1.5 million. Later, however, an attorney for the estate told the court there had been a mistake, that Bradenberg personally had no assets, and that any assets used or controlled by Bradenberg belonged to a trust. B. The Trust The trust in question was the Hiroko Friedman Revocable Trust (dated October 22, 1999, as amended in 2005; hereafter, the Trust). Hiroko Friedman was Bradenberg’s mother. Friedman was the settlor and the original trustee of the Trust. She funded the Trust with two pieces of improved real property located in Mill Valley, California, all of her financial accounts, and all of her tangible personal property. Friedman, as trustee, generally retained control over the principal and income of the Trust to use as she saw fit during her lifetime. Friedman died in January 2008. The Trust named Bradenberg as the successor trustee. The Trust provided for mandatory payments of income to Bradenberg following Friedman’s death. The trustee (Bradenberg) had the power to make discretionary payments of principal to Bradenberg for her “health, education, support, and maintenance.” A “special trustee” could make additional discretionary payments of principal for Bradenberg’s “comfort, welfare, and happiness.” The Trust named respondent William A. Kuhns as special trustee. Finally, the Trust contained a “Spendthrift Clause,” which provided the interests of the beneficiaries of the Trust were not transferable and were to be free from the claims of creditors. Bradenberg acted as trustee until her death in 2011. The Trust provided that upon the death of Bradenberg, the Trust was to terminate, with the trustee distributing the Trust property to Bradenberg’s “then-living issue.” In the event Bradenberg died with no living issue, as actually happened, the trustee was to distribute the Trust property in equal shares to Ichiro Inoue and Kuniko Hyoto, Friedman’s nephew and niece, respectively. Kuhns succeeded Bradenberg as trustee after her death.