PURITSKY, LOUIS J. – DECEDENT

Case Number: BP136611 Hearing Date: July 01, 2014 Dept: 11

Posted 9:45 a.m. on 06/30/14

TENTATIVE RULING DENYING OBJECTOR’S MOTION FOR NEW TRIAL

The Underlying Matter

On May 3, 2012, Letters Testamentary were issued by the Superior Court for the State of Washington, County of King, Case No. 12-4-02943-9 SEA. Rochelle Urman Krispin was named as Executor. The Letters were issued in Washington in connection with the Last Will and Testament of Louis J. Puritsky (“Decedent” herein) dated August 7, 2007 (the “2007 Will”). On September 6, 2012, a Petition for Probate of Will and for Letters Testamentary, in LASC Case No. BP 136611, was filed by Petitioner Philip A. Puritsky. The Petition related to the California Statutory Will and Property Settlement Agreement dated April 13, 2012 executed by Decedent Louis J. Puritsky (the “2012 Will”). On October 9, 2012, Rochelle Urman Krispin filed her Objection to the Admission of the 2012 Will. On September 25, 2012, a Petition for Probate of Nondomiciliary Decedent’s Will and for Letters Testamentary, LASC Case No. LP016890, was filed by Rochelle Urman Krispin as petitioner therein. The Petition in the LP case related to the 2007 Will. Philip A. Puritsky is the petitioner with respect to Case No. BP 136611 and the objector with respect to Case No. LP016890. Rochelle Urman Krispin is petitioner with respect to Case No. LP016890 and objector with respect to Case No. BP 136611. For convenience, Philip Puritsky may sometimes be herein referred to as “Petitioner” and Rochelle Urman Krispin may sometimes be herein referred to as “Objector” or “Respondent”.

The issue decided in this case was whether the 2007 or the 2012 Will should be admitted to probate. Petitioner bore the burden of establishing due execution (Probate Code § 8252).
As to the 2012 Will, Objector Krispin contended that it was procured through undue influence. Objector Krispin also referred in her pleadings to a purported issue regarding ownership of Decedent’s IRA account. Objector pointed out that the named beneficiary on the subject account is in conflict with ¶7 of the Will wherein Decedent left the balance of his estate, after disposition of all specific bequests, to Petitioner.

Upon conclusion of Respondent’s case, Petitioner made an oral motion for non-suit. Under the circumstances, the court believed the motion would properly be deemed a Motion for Judgment pursuant to CCP § 638.1 which permits a judge, sitting as the trier of fact, to weigh the evidence including the credibility of witnesses. The court considered all of the evidence received for purposes of the motion and the court’s written Statement herein was rendered pursuant to CCP § 638.1. The court found granting of the motion was mandated by the facts presented at trial by all of the witnesses, and applicable law, and that the result was not in any way attributable to an attack upon the credibility of Objector or any witness who testified on her behalf. The Statement rendered resolved all issues involved in the action. Judgment was therefore rendered as an adjudication on the merits in favor of Petitioner. As to the issue of entitlement, distribution or even perhaps recovery of assets, the court found this was not properly before the court at this time as the only issue in the proceeding tried was which of two wills should be admitted to probate.

The court found the existence of overwhelming evidence of due execution and the absence, by any standard of proof, of any of the statutory factors which would negate a finding of the existence of testamentary intent. The court therefore admitted the 2012 Will to probate and overruled Objector Krispin’s Objections to the Petition. The court’s Ruling and Order, Etc. was entered 2/3/14 (as corrected Nunc Pro Tunc on 3/26/14). On 2/13/14 Petitioner filed and served Notice of Entry of Ruling and Order Granting Motion for Judgment and Statement of Decision Thereon (CCP § 631.8). On 5/13/14 Petitioner filed and served Notice of Entry of Judgment on Will Contest In Favor Of Petitioner Philip A. Puritsky and Against Objector Rochelle Urman Krispin and Order for Probate of Will and For Issuance of Letters Testamentary.

On 5/27/14 Objector filed and served Objector Rocehlle Urman Krispin’s Notice of Intent to Move For New Trial (the “Motion”). On 6/6/14 Objector filed her Memorandum of Points and Authorities in Support of Motion For New Trial. On 6/13/14 Petitioner filed Opposition to Objector’s Motion For New Trial and Request for Modification of Judgment.

The Motion

Objector’s Motion is based on a number of purported failures and abuses of discretion. For example, the court errantly failed to make any finding as to one paragraph (¶7) of the 2012 Will and instead admitted it to probate. This allegedly constituted an irregularity in the proceedings and an accident or surprise that ordinary prudence could not have guarded against. The Motion also contends the court made various findings or purported findings which constituted abuses of the court’s discretion. Prejudicial errors upon which the Motion is based include that Objector’s son inheritance was an unnatural disposition and a suspicious circumstance, that Petitioner had an opportunity to influence the Decedent and was susceptible to such influence, that Petitioner harbored hostility towards the Objector, that the court improperly failed to consider the credibility of the parties, that there was a lack of independent advice constituting a suspicious circumstance and that the 2012 will was itself a suspicious circumstance.

The Opposition

Petitioner asserts that Objector has failed to articulate a viable basis for new trial since the statutory grounds are specific and none apply given the facts. As to the 7 grounds set forth at CCP § 657, the following do not apply, even according to the Motion: (2) misconduct of the jury; (4) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; and (5) excessive or inadequate damages. As to ground (6), insufficiency of the evidence to justify the verdict or other decision, Petitioner contends that Objector was permitted to put on her entire case without restriction and without exclusion of any witnesses or documents. As such, the only remaining bases for any such motion would be the following: ground (1) regarding irregularity in the proceedings or abuse of discretion by which either party was prevented from having a fair trial; ground (3) regarding accident or surprise, which ordinary prudence could not have guarded against; that portion of ground (6), with respect to the decision being against the law; and (7), an error in law, occurring at the trial and excepted to by the party making the application.

As to the claim of irregularity, as noted above, Objector has taken the position that it was an irregularity in the proceeding that the court determined that the pleadings before it did not leave it for the court to adjudicate one single clause (¶7) of the 2012 Will regarding the IRA account. In this regard, the court specifically referred to this issue, and its limited scope with regard to the Will Contest, in its Statement. As to Objector’s reliance upon the prior Motion for Summary Judgment, that ruling merely referred to the fact that the issue could be raised at trial, not that it was necessarily relevant in a trial limited solely to deciding which of two wills should be admitted to probate.

As to the purported errors in law, Petitioner contends that Objector merely disagrees with the factual findings and inferences the court drew from the evidence. These are not “errors” within the meaning of the statute since the court is free to make its findings constituent with CCP § 632 which requires the court to “issue a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” Petitioner then retraced the court’s analysis pointing out on what basis the court ruled as to each controverted issue before it. Objector, despite repeatedly alleging various “abuses of discretion”, and “errors of law”, makes no showing, nor even any attempted showing, of what evidence she was prevented from presenting, or what evidence she would now show and rely upon for a contrary result, if she were granted a new trial. Rather, the court found there was no evidence supporting her claim, much less any showing which would meet the “clear and convincing evidence” standard required for Objector to have prevailed. Petitioner argues there is no basis whatsoever for a new trial.

Petitioner also requests that the court execute and enter Petitioner’s previously submitted long-form judgment pursuant to CCP § 662 which provides, in part: “In ruling on such motion, in a cause tried without a jury, the court may, on such terms as may be just, change or add to the statement of decision, modify the judgment, in whole or in part…”. Petitioner contends this will put to rest a number of issues, including most notably the court’s position with respect to it not specifically ruling on ¶7 of the 2012 Will.

Authority For The Motion

A party may move for a new trial on any of the following grounds: (1) irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial; (2) misconduct of the jury; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against the law; and (7) error in law, occurring at the trial and excepted to by the party making the application. CCP §657. An application based on the 1st, 2nd, 3rd, and 4th subdivisions of Section 657 must be made upon affidavits; otherwise it must be made on the minutes of the court. CCP §658. “A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. CCP §657.

Moving party must serve notice upon each adverse party of his intention to move for a new trial, designating the grounds upon which the motion may be made and whether same will be made upon affirmative affidavits or the minutes of the court or both, either (1) before the entry of judgment or (2) within 15 days of the date of mailing notice of entry of judgment by the clerk of the court…, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest… CCP §659. “Upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of such notice upon him to file and serve a notice of intention to move for a new trial.” CCP §659. The “notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice…” CCP §659.

“On the hearing of such motion, reference may be had in all cases to the pleadings and orders of the court on file, and when the motion is made on the minutes, reference may also be had to any depositions and documentary evidence offered at the trial…” CCP §660. Except as otherwise provided, “the power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier…” CCP §660.

As a preliminary matter, Objector’s new trial motion is timely as the notice was first sent on 5/27/14 which was within 15 days of Petitioner’s 5/13/14 filing and service of Notice of Entry of Judgment on Will Contest In Favor Of Petitioner Philip A. Puritsky and Against Objector Rochelle Urman Krispin and Order for Probate of Will and For Issuance of Letters Testamentary. See CCP § 659. Furthermore, 60 days from 5/13/14 would be 7/14/14. The instant motion is scheduled for hearing on 7/1/14. See, CCP § 660.

Tentative Ruling And The Court’s Reason For Denying The Motion

The Motion for New Trial is DENIED. The court will also execute the previously submitted long-form judgment pursuant to CCP § 662.

Objector’s initial Notice of Intent listed, as grounds for the Motion, every statutory basis applicable to a bench trial, except newly discovered evidence and excessive or inadequate damages. CCP § 657. The real thrust of the Motion however is that the court erred or abused its discretion in two respects. Firstly, that there was an alleged “irregularity in the proceedings” or “an accident or surprise” in that the court failed to make a finding that ¶ 7 of the 2012 Will, relating to the IRA account, was invalid. Secondly, the Motion alleges various errors or abuses in that the court disagreed with the Objector’s position concerning admission of the 2012 Will over the 2007 Will as a result of its finding that Objector had failed to meet her burden with respect to alleged undue influence concerning the 2012 Will.

Firstly, as to the court’s refusal to make any findings as to the purported invalidity of ¶ 7 of the 2012 Will concerning the IRA account, that issue was simply not properly before the court for its determination in a Will Contest. As such, this court clearly stated this in its Ruing and Order as follows: “The issue of entitlement, distribution or even perhaps recovery of assets is not before the court as the only issue before this court in this proceeding is whether or not a will should or should not be admitted to probate.”

The issues are framed by the pleadings. Here, there is a “Petition For Probate of Will, Etc.” and an “Objection, Etc.” thereto, based upon a claim of undue influence. The validity or non-validity of the single clause pertaining to Decedent’s IRA in the proffered Will would not be dispositive as to whether or not the Will was procured by Petitioner’s exercise of undue influence over the Decedent. Objector belatedly raised the claim that the use of this clause by Decedent amounted to a material mistake such that the entire 2012 Will should be held to be invalid on the grounds of “mistake.” However, the claim of “mistake” was never pled as a ground for contest by Objector in her 10/9/12 “Objection, Etc.” and even if it had been, inclusion of this clause would not be of such consequence that the entire estate plan should be disregarded. Furthermore, although Objector was the first-named beneficiary on the IRA Beneficiary Designation form, Petitioner was designated as the second-named beneficiary. A reading of the documents would indicate Objector relinquished her interest in Decedent’s IRA in the parties’ Property Settlement Agreement (Trial Exhibit 45, see esp. ¶¶ 2.1 and 4.3, and Attachment B thereof including ¶¶7, 8 thereof in which Decedent’s IRA was specifically designated as his own). In light of this fact, the clause does not contravene the Beneficiary Designation and even if the clause of the 2012 Will were to be somehow deemed invalid, there is no evidence to support the contention that this “mistake” was of such consequence that the entire 2012 Will should be disregarded.

In any event, the percentage value of Decedent’s IRA, as measured against the aggregate value of all other assets subject to administration could not be determined until after an Inventory has been filed. There was no evidence presented as to the over-all expected value of the estate. Even had the issue been timely and properly presented by Objector, the court was not given competent evidence so that it might have determined if the values represented in the Motion were in any way accurate. The issue presented as to ¶ 7 of the 2012 Will is to be decided, if at all, in connection with a Petition for Instructions, a Petition for Distribution, or similar subsequently-filed pleading. As for Objector’s comments regarding the earlier ruling on the Motion For Summary Adjudication, this merely indicated that the issue could be determined “at trial”. The court agrees with Petitioner that the ruling on the Motion for Summary Adjudication did not necessarily mean that the issue would automatically be deemed properly before the court during subsequent proceedings, especially a trial involving only a Will Contest. And while Objector admits that this court was not specifically asked to determine who may be entitled to the IRA account, but only rule on whether ¶ 7 of the 2012 Will was valid, that is not something which could properly be determined at this stage and even if it could, it would also possibly constitute a request for an advisory opinion. As such, it was not for this court, in the context of proceedings involving only a Will contest, to determine which clauses in one or the other of the respective Wills might have a particular impact on one or more beneficiary’s entitlement thereunder. A decision invalidating a particular clause with respect to the admitted 2012 Will would have done precisely that.

Furthermore, some of purported findings objected to include matters which were not “findings” at all. For example, the court made no “findings” merely by referring to this court’s experience in seeing instances where parents have entirely disinherited their own children. No issue in this case was decided on the basis of those unrelated cases. As stated in the Ruling and Order, Decedent reduction, in the 2012 Will versus the 2007 Will, what he had bequested to Ryan, Objector’s son, following his 2011 legal separation and property settlement with Ryan’s mother, the Objector, was not at all illogical. Given the facts, it certainly was not, as this court indicated, any basis upon which the court could find a disposition necessarily contrary to his true desires (citing Estate of Mann (1986) 184 CA 3d 593). A legal separation, especially one involving a very specific division of property between the Decedent and Objector, much like would typically occur upon a final dissolution of marriage, is not an inconsequential matter. As the parties are no doubt aware, the law recognizes the reality of the effect marital divisions have upon previously existing estate plans. For example, Probate Code § 6122, in the context of a formal dissolution actions, provides that absent an express indication in the testamentary instrument to the contrary, an ex-spouse would not take under a will executed prior to such dissolution. Given the evidence in this case (i.e., that the parties formally separated and divided their properties pursuant to a detailed property settlement agreement involving one or more attorneys’ on their behalf), would not evidence that the court engaged in “speculation and conjecture” in an “arbitrary and capricious” manner as has been asserted by Objector.

As for the remaining findings, to the extent they were in fact findings, it appears Objector merely disagreed with the court as to its interpretation of the evidence and the ultimate result. In that regard, Objector obviously has her remedies. Based on the evidence presented, the court found that Objector not only failed to meet her burden, but that there was a dearth of any competent evidence at all supporting Objector’s claim of undue influence. While circumstantial evidence certainly may establish undue influence, the circumstantial evidence proffered by Objector was, for the most part, entirely speculative and otherwise wholly insufficient. Objector’s Motion cites much of the circumstantial evidence relied upon at trial and her particular interpretation of those items of evidence. For example, Objector herself makes much of Mr. Petty’s testimony who, when he asked the Decedent if he intended to leave anything to Objector, said “Well, you know, I don’t know, and I need to call an attorney”. Objector contends this testimony confirmed that Decedent would have, but for his brother’s undue influence, sought out independent legal advice with respect to the 2012 Will. The court did not find that statement particularly relevant on the issue of whether or not the 2012 Will was the product of undue influence and as such, whether or not Decedent in fact intended to leave property to Objector. At least as importantly, Objector entirely ignores the “I don’t know” portion of the response to the question as to whether or not Decedent intended to leave anything to Objector.

As for the purported “death threats”, after very carefully listening to the voicemail during trial and putting it in context, the court, unconvinced it constituted a death threat as claimed, expressed on the record its reservations concerning its relevance . Objector characterizes the statements as “undisputed death threats” (Motion, page 23, line 19). Not only was the language itself open to some dispute as reflected in some detail in the record since the printed and recorded version were not identical, there is a serious issue as to whether or not the threats were indeed death threats at all as maintained by Objector for the reasons indicated above.

Objector has also apparently taken liberties with respect to the court’s findings. For example, citing the Ruling and Statement at page 8, lines 13-16, Objector claims this court made a finding that Petitioner was a “bad person.” The Ruling and Order made no finding that Petitioner was a “bad person” but instead stated the following: “The fact that Objector might be convinced that Petitioner is a “bad person”… or that he may be otherwise unworthy of the fruits of his brother’s bounty, is irrelevant.” (Ruling and Order, page 9, lines 19-23, emphasis added).

Footnote 2 to the Motion also apparently incorrectly asserts that the court used the euphemism “bad boy” in referring to Petitioner. However, the court does not recall ever doing so and could find no reference to the term “bad boy” in either the rough transcript of the evidentiary proceedings or in the Ruling and Order. As such, at the hearing on the Motion, the court would very much appreciate Objector providing the specific reference, and the entire quote upon which this assertion is made, so the court may determine whether or not it actually referred to Petitioner as a “bad boy” as Objector claims. The use of such terminology would seem inappropriate and, if such a term was used to apply to a litigant before this court, an apology from this court would be in order. This would be true even given the court’s reservations about Petitioner’s conduct and honesty.

The Motion also asserts the court improperly failed to make a finding that Rosalie Broad lacked credibility. In other words, not only should the court adopt the meaning Objector would ascribe to Ms. Broad’s testimony regarding her lack of knowledge regarding the PODS, Inc. password, the court should also make a specific finding that she was lacking in credibility. As we all know, there may be many reasons why a person may testify a certain way as to certain matters at trial and this does not necessarily indicate dishonesty or lack of trustworthiness (see, for example, CACI Jury Instruction 107 ). Furthermore, even if the court had found her testimony lacking as to the PODS, Inc. password issue, that would not necessarily require a finding that she was dishonest concerning the execution of the 2012 Will. (Id.) Objector essentially complains about the court’s refusal to find Ms. Broad lacking in credibility, not in failing to make any finding at all as to her credibility or lack thereof. Again, it appears Objector is, simply unhappy with the court’s ruling.

With respect to the Decedent’s susceptibility to undue influence, Objector focuses upon a portion of Larry Germansky’s trial testimony. Objector merely draws a conclusion from that testimony favorable to Objector based on her own perspective. Mr. Germansky, when asked if the Decedent’s stubbornness extended to his brother testified: “Yes and no” (emphasis added). Objector focuses only on the “no” portion of the response, entirely ignoring the “yes” portion. As stated in the Ruling and Order: “Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency relationship; a propensity on the testator’s part to have his or her free will usurped…”. Here, rather than indicate that the Decedent’s free will was usurped, Mr. Germansky testified to the Decedent having a “soft spot” for his brother, and that after “a lot of conversation”, the decedent would “probably” change his mind (see excerpts set forth in Motion, page 22, lines 14-21). As such, even according to the limited portion of the testimony which Objector cites as being most favorable to her position, Decedent was not shown to have been someone who permitted another, even his own brother, to usurp his own will amounting to coercion destroying Decedent’s free agency.

In summary, Objectors disagreement as to this court’s ultimate determination of the issues on the CCP § 631.8 motion, and the resulting Ruling and Order, is not a sufficient basis alone for granting Objector new trial. This, combined with the absence of any showing as to what additional or different evidence a new trial would involve which might result in a different outcome, necessitates denial of the Motion for New Trial.

Additionally, consistent with CCP § 662, the court elaborates upon its Ruling and Order by executing what Petitioner has referred to as the “long form proposed Judgment” which, among other things, lays to rest this court’s findings with respect to the issues surrounding the IRA account and ¶ 7 of the 2012 Will.

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