2008-00021853-CU-CO

Michael A. Hackard vs. Hackard & Holt

Nature of Proceeding: Motion to Determine Proper Depository for Undertaking

Filed By: Holt, Peter T.

Defendant Estate of Theodore J. Holt’s (“Estate”) motion “to determine proper
depository for undertaking and for order compelling return of undertaking to the
Sacramento Superior Court” is denied.

Plaintiff Michael Hackard and Susan K. Smith, Trustee’s request for judicial notice is
granted.

Defendant once again seeks an order dispossessing the Trustee of the $100,000
undertaking which this Court most recently ordered released to her when it granted
Plaintiff’s motion “to release undertaking to Susan Smith, Trustee” on October 18,
2013. (RJN Exh. 6.) The Estate had previously sought to have the undertaking
“returned” to the Court on the basis that it was erroneously disbursed to Trustee.
Notably Defendant argued in the context of Plaintiff’s recent motion that the Trustee
was wrongfully holding the undertaking and asked that it be returned to the Court. In
its order the Court specifically stated that Defendant “notes that the clerk previously
issued the $100,000 to the BK Trustee in December 2012. Holt sought relief ex
parte for a return [sic] the undertaking, and Judge Cadei denied the request on
August 21, 2013. The Court denies the request to order the $100,000 bond to be
delivered to the court, as the bankruptcy trustee is the beneficiary of the bond
pursuant to the bankruptcy settlement.” (Id.) This dispels the Estate’s contention in
reply that the Court has never addressed this issue. Enforcement of that order was
stayed by way of an ex parte order entered on October 23, 2013 pursuant to CCP §
918 given the Estate’s stated intent to seek review of the October 18, order.

Though not labeled as a motion for reconsideration, the instant motion essentially
seeks to re-litigate the Estate’s previous unsuccessful attempts to have the
undertaking returned and reconsideration of the Court’s most recent October 18, order
ordering release of the $100,000 to the Trustee. However, no new facts or law have
been presented which would allow the Court to once again consider whether the
undertaking should be released to the Trustee and thus the Court lacks jurisdiction to
consider the motion. (CCP § 1008(a), (e).) Indeed, the motion is not even supported
by a declaration. On this basis alone, the motion is denied and the Court need not
consider Plaintiff’s and Trustee’s substantive arguments in opposition.

However, even if the Court were to consider this improper motion, it would be denied.
Indeed, it is not supported by any evidence or legal authority which would entitle the
Estate to the relief sought. Rather it simply argues, again, that the undertaking was
mistakenly released to the Trustee and that it should be returned to the Court pending
a determination of entitlement to the undertaking. This argument makes little sense as
the order highlighted above clearly ordered release to the Trustee as the beneficiary.

The Court need not and does not address the remaining arguments raised by Plaintiff
and Trustee in opposition, and the responses in reply, namely, that the undertaking is
now part of the Bankruptcy estate and beyond the reach of this Court.

The motion is denied.

This minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or other notice is required.