Re:

In re the John P. McCann & Elizabeth A. McCann Trust Court Case No. 11CEPR00871

Hearing Date:

February 8, 2018 (Dept. 502)

Motion:

Motion by Kathleen M. Whitehurst and Timothy J. McCann for Summary Judgment

Tentative Ruling:

To deny.

Rulings on Evidentiary Objections:

Objections of Colleen E. Dempsey and John P. McCann: to overrule Objections 1-4 and 7-8, and to sustain Objections 5-6.

Objections of Kathleen M. Whitehurst and Timothy J. McCann: To overrule the objections to the Declaration of Leigh W. Burnside. To overrule the objections to the Declaration of Colleen E. Dempsey. To disregard the objections to the specific paragraphs of the Declarations of Dennis R. McCann and Michael D. McCann (as explained below) but to sustain the objections to the exhibits; thus Objections 2-5 to Dennis’ declaration are sustained , and Objections 2-4 to Michael’s declaration are sustained.

Explanation:

Use of Names:

For ease of reference and to avoid confusion, the McCann children will be referred to by their first names. No disrespect is intended by this. The settlors, Dr. John P. McCann and Elizabeth A. McCann, will be referred to respectively as “Dr. McCann” and “Mrs. McCann.”

Evidentiary Objections:

Re Colleen and John’s objections: the objections based on authentication and lack of personal knowledge are overruled because they are objecting to evidence which supports facts which they did not dispute. However, Objections 5 and 6 are sustained. These were to Kathleen’s declaration attempting to authenticate Exhibit P, which is a letter from Peter Dmytryk Jon Vaught. She failed to adequately authenticate the document, and furthermore it does not appear that this exhibit is even cited in the Separate Statement, so it is irrelevant. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338—This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist” (emphasis in the original).)

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Re Kathleen and Timothy’s Objections: The exhibits attached to the Burnside declaration are adequately authenticated. Objection to Exhibit F to Colleen’s declaration (the 2009 assignment of the partnership interest to the Survivor’s Trust) is overruled since Kathleen and Timothy themselves introduced this document as evidence at their UMF 18. Their objection to Paragraphs 10, 14, and 18 of Colleen’s declaration are defective since the objected-to material is not quoted in full, as required by California Rules of Court, Rule 3.1354, subdivision (3).

As for Kathleen and Timothy’s objections to the declarations of Dennis and Michael, these declarations were omitted from the document scanned/filed on October 6, 2017. All that document showed is the divider sheet for each declaration, one right after the other, with no pages of declarations following the divider sheets. Thus, the objections to specific paragraphs of their declarations (Objection 1 to each declaration) are disregarded as the court cannot rule on objections to material it cannot see. However, the objections to the exhibits that were included in the filed document, which were purportedly attachments to the missing declarations must be sustained for failure to authenticate.

Merits:

Since moving parties seek summary judgment as to both their petition and Dennis and Michael’s competing petition, they are in the roles of both plaintiffs and defendants. A plaintiff moving for summary judgment has the burden to produce admissible evidence on each element of a “cause of action” entitling him or her to judgment. (Code Civ. Proc. § 437c, subd. (p)(1); Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1287, disapproved of on other grounds by Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826.) A defendant moving for summary judgment has the burden of proving that there is a complete defense or that plaintiff cannot establish one or more elements of each of his causes of action. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.) To show that plaintiff cannot establish her claims, defendants may either (1) affirmatively negate one or more elements of each claim, or (2) by relying on plaintiff’s inadequate discovery responses, show that plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at p. 855.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) Only then does the burden of production shift to the party opposing summary judgment, who is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Id.) A prima facie showing is one that is sufficient to support the position of the party in question. “No more is called for.” (Id. at p. 851.) In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exist are to be resolved in favor of the party opposing summary judgment. [Barber v. Marina Sailing, Inc., supra, 36 Cal.App.4th at p. 562.)

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Moving parties did not meet their burden of production on the motion because they failed to address the contentions made by the respondents concerning 1) the reallocation of the MFP to the Survivor’s Trust and 2) the impact of that reallocation, i.e., their contention that the reinstatement letters and the events surrounding them satisfied the provisions of Paragraph 3.1 of the Second Amended Restatement to the Survivor’s Trust to direct the co-trustees, and that the letters which were only delivered to two of the co-trustees was sufficient under the tiebreaking provisions established under the Designation Document. “It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 73.) These issues were raised in the opposing parties’ joint response and in Dennis and Michael’s competing petition, both filed on May 16, 2017. (See, e.g., Joint Response, p. 11, §36; Competing Petn., ¶¶ 20-21.) Moving parties’ own evidence reflected the trustees’ and their attorneys’ and accountants’ understanding or belief that the MFP was held in the Survivor’s Trust. (See, e.g., evidence supporting UMFs 21, 22, and 23.) Moving parties’ treatment of the allocation issue by relegating it to a footnote in their opening brief did not meet their burden of production.

Only if the moving party meets its initial burden of production does it shift to the opposing party, who is then subject to its own burden of production to make a prima facie showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) If the moving party fails to meet this burden of production, the opposing party has no evidentiary burden to even oppose the motion. “[T]here is no obligation on the opposing party…to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element…necessary to sustain a judgment in his favor….” (Consumer Cause, Inc. v. SmileCare (2001) 91

Cal.App.4th 454, 468 (internal quotes omitted).) Given this fact, there is no need to consider or discuss the additional facts presented by the opposing parties. As the court noted in Consumer Cause, Inc. v. SmileCare (supra), where the moving party’s initial burden is not met the opposing party is not required to produce even a scintilla of evidence. (Id. at p. 468.)

Even were the court to find that moving parties satisfied their initial burden of production, it would be required to find disputed issues of material fact exist with regard to the central issues of whether the MFP was funded to the Unified Credit Trust or the Surviving Trustor’s Trust and whether the so-called reinstatement letters constituted written directives under paragraph 3.1 of the 2007 Amendment (See Co-Trustees’ Separate Statement of Material Facts Nos. 14, 15, 16, 17, 19, 29, 30, 31, 36, 37, and 38).

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure section 1019.5(a), no further written order is necessary. The minute order adopting this ruling will serve as the order of the court, and service by the clerk of the minute order will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 02/09/18
(Judge’s initials) (Date)