Dunlap v. Mayer

Filed 4/23/21

CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JOHN T. DUNLAP, as Executor, etc., D077561

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2018- 00033083-PR-TR-CTL) MARIA E. MAYER, as Trustee, etc.,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County, Jeffrey S. Bostwick, Judge. Reversed.

Withers Bergman; Mary F. Gillick and Matthew R. Owens; Kimura London & White and William O. London, for Plaintiff and Appellant. Henderson, Caverly, Pum & Trytten; Kristen E. Caverly and Lisa B. Roper, for Defendant and Respondent. Plaintiff John T. Dunlap is the executor of the New York estate (Estate)

of Josephine A. Mayer,1 who passed away in 2016. Josephine was the lifetime beneficiary of a testamentary trust (Marital Trust) established by

1 We refer to members of the Mayer family by their first names, for clarity. No disrespect is intended.

Josephine’s husband, Erwin Mayer. The Estate petitioned the trustee of the Marital Trust, defendant Maria E. Mayer, for an accounting. Maria objected to the petition, alleging that she was never a trustee of the Marital Trust and that she never had possession or control of the assets of the trust. The court dismissed the petition at a case management conference, without an evidentiary hearing to resolve the contested facts. The court abused its discretion in doing so. We reverse the order of the court and remand for further proceedings. BACKGROUND Facts Josephine and Erwin Mayer were married and had two children, Maria and Claudia. Erwin was a resident of San Diego County when he passed away in 1995 and his estate was probated here. Erwin created a trust in his will for the benefit of Josephine. In litigation over Erwin’s estate, family members and business entities entered into a settlement agreement that modified the terms of the Marital Trust. The settlement agreement, including the terms of the Marital Trust, was approved by the San Diego probate court. Pursuant to the settlement agreement, Josephine was the sole income beneficiary of the Marital Trust during her lifetime, and Maria was the sole principal beneficiary upon Josephine’s death. The court appointed Maria as the sole trustee of the Marital Trust, pursuant to the terms of the settlement agreement. Claudia disclaimed any interest in the Marital Trust. The Marital Trust was to be funded with Erwin’s 99 percent interest in Peterson & Ross Limited Partnership (P&R) and his stock in Fillmore Mercantile, Inc. (FMI). Maria’s husband at that time, Ray F. Garman, III, was the president of FMI. P&R was a subsidiary of, affiliate of, or related to FMI. Maria and Garman subsequently divorced. Josephine, as executor of