Case Number: BP134478    Hearing Date: August 13, 2014    Dept: 11

In re Esther Hasson
Case No. BP134478
August 13, 2014
Objector’s Motion to Bifurcate

TENTATIVE RULING GRANTING OBJECTOR’S MOTION TO BIFURCATE

The Motion to Bifurcate

At the most recent hearing in this matter, the court suggested that the parties consider means to expedite the hearings including exploring possible issues appropriate for bifurcation at trial. Objector Stanley Arouty has submitted a brief, filed on May 30, 2014, suggesting bifurcation of the following issues:

(1) the validity of the December 9, 2005 “Revocable Living Trust” that is the foundation of the Petition in this action; and
(2) whether Petitioner can establish her claims of undue influence regarding the July
2011 Joint Tenancy Grant Deeds.

Objector contends that bifurcation of these issues is appropriate because this would promote economy and efficiency in the handling of the litigation. Objector frames the case as one in which the core issue is which documents represent the intention of Decedent Esther Hasson (“Decedent”) with respect to 4 separate documents executed at various times over a 21 year period, or a single document of which there is allegedly no evidence of actual execution apart from what Objector claims is Petitioner’s changed deposition testimony as to her witnessing the signing by her mother. This court should therefore bifurcate the two issues at the crux of this case whether the purportedly unexecuted trust document is valid, and whether Petitioner can invalidate certain Joint Tenancy Grant Deeds on the basis of undue influence and thereby promote the economy and efficiency of handling this litigation.

The Petition filed by Petitioner Lorraine Gorlick (“Petitioner” herein) seeks to remove Objector Stanley Arouty (“Objector” or “Arouty” herein) from an unexecuted trust that Petitioner alleges to be valid [Petition (“Pet.” herein) 1:28-2:2 and 4:21-23], and to invalidate certain documents validly executed by Decedent on the basis of alleged undue influence on the part of Objector Arouty [Pet. 4:26-5:5:8]. Objector contends that Petitioner admitted in her deposition that Decedent never signed the signature page of the document that Petitioner alleges to be a valid trust. The property at issue is a duplex located at 1216 & 1218 La Jolla Avenue, Los Angeles, California 90035 (the “Duplex”). According to Petitioner, a December 9, 2005 “Revocable Living Trust” is the operative, valid testamentary document which includes disposition of one-half of the Duplex to Petitioner who also contends to be the successor trustee, even though no party can apparently produce a signature page signed by Decedent. Petitioner also seeks to invalidate a fully-executed Irrevocable Living Trust Agreement, dated March 24, 2005 as well as two Joint Tenancy Grant Deeds from July 2011 and a Grant Deed from 1990.

Objector also submits that in her 4/24/14 Probate Trial Setting Worksheet Petitioner requests 17 separate orders and that 14 of these can potentially be eliminated if the matter is bifurcated just as to the 2 issues noted above. If these two questions are answered in the negative (i.e., the proffered Trust and undue influence arguments are unsuccessful), the first 3 of the requested orders could be denied outright, and the remaining 14 desired orders would be irrelevant. For example, if the 2005 Trust is not held valid, then none of the assets discussed by Petitioner are “trust assets” subject to the Petition, including the Duplex. Additionally, Objector cannot have acted in bad faith toward a nonexistent trust, and Petitioner’s pleas to surcharge Objector for his purported malfeasance will have no basis. Objector states that each of these issues would take no more than 2 afternoon sessions each. Even if these issues are not all resolved in favor of Objector, the remaining issues would, according to Objector, be substantially narrowed by rulings on the bifurcated portions of the case.

Petitioner’s Opposition

Petitioner’s Opposition sets forth allegations of fraudulent activity on Objector’s part including forgery and trickery including Objector allegedly fraudulently withholding the last page of the subject 2005 Trust. Petitioner asserts that it is undisputed that Decedent, Petitioner Gorlick and Objector Arouty all signed the subject Trust. Petitioner claims that in 2006 she asked for a copy of the Trust, 5 years before Decedent’s passing, and her brother faxed all but the signature page to her. Then, in 2011, Objector produced a different version of the Trust, evidencing document alteration on Objector’s part, and purportedly tried to utilize 2 sham grant deeds transferring the property solely to himself, based on the altered instrument’s terms. Petitioner sets forth various items of evidence which would support her allegations as to Objector’s malevolence and hence, Petitioner’s version of the facts (e.g., irregularities regarding the initialing of pages, pages in a subsequently provided copy of a document not aligning with previously transmitted copies of the very same document, efforts to change reported cause of death, etc.). Petitioner asserts that bifurcation would cause witnesses, including forensic document examiners and doctors, to testify repeatedly. Lastly, Petitioner represents the Petitioner’s entire case could be presented in “3-4 days” (i.e., 6-8 ½ day trial sessions).

Discussion

Bifurcation

CCP § 598 states, in relevant part, as follows:

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on [noticed] motion of a party … make an order … that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case … The court, on its own motion, may make such an order at any time…”.

Similarly, CCP § 1048(b) provides:

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial … of any separate issue or of any number of … issues …

The 1977 and 1979 amendments to Code of Civil Procedure section 598 specifically broadened the law to encourage courts “to make orders to try any issue or any part thereof prior to the trial of any other issue in the interest of `the economy and efficiency of handling the litigation.”‘ Buran Equipment Co. v. H & C Investment Co., Inc. (1983) 142 Cal.App:3d 338, 343. See also Plaza Tulare v. Tradewell Stores, Inc. (1989) 207 Cal.App.3d 522, 524 (“The purpose of [the 1977 amendments] was to expand the flexibility of courts to handle particular cases as expeditiously as possible.”); and Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 857, 888 (“The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.”). CCP §§ 598 and 1048(b) should be utilized to separate the primary issues (i.e., the existence of the 2005 Trust and whether Petitioner can establish undue influence) from those secondary issues that may only be required to be tried depending upon the outcome of those primary issues. See Equitable Life Assurance Society v. Berry (1989) 212 Cal.App.3d 832, 836.

With regard to the trial estimate, the court notes, not 12 witnesses identified by Petitioner as indicated in Objector’s motion, but rather 15 witnesses, including Objector pursuant to Evidence Code § 776. Petitioner’s expert witness designation also refers to 7 additional potential witnesses including treating physicians and other such personnel who may have to testify as well. As such, some witnesses may be called by Respondent as well and it appears there may be as many as 20 or possibly more witnesses testifying in Petitioner’s case.

Given the number of issues and the number of witnesses identified and/or likely, the court does not find Petitioner’s 3-4 day (6-8 ½ sessions) estimate reasonable, at least not without significant progress in arriving at factual and other such stipulations with Objector which, according to Petitioner’s Trial Setting Worksheet, does not appear at all likely. In fact, it appears the parties have been unable to even agree to dispense with the need for live testimony by various custodians of records and the Worksheet indicates the need for additional time for that purpose.

The court does find that determination of one or both of issues mentioned above would have a considerable bearing upon consideration of the remaining issues. Based on the information provided, the court does not believe determining the validity of the 12/9/05 “Revocable Living Trust” would take more than one or two trial sessions while determination of the second issue would likely take a significantly longer period. As such, subject to the discussion below regarding a third issue as noted, the court finds that ordering bifurcation and trying one or both of these issues first would promote economy and efficiency to the benefit of all concerned.

It also appears that Petitioner has raised the issue of possible forgery as to certain Joint Tenancy Grant Deeds and as such, one or both parties intend to utilize questioned documents experts. For purposes of economy, the court might entertain having all such document experts testify in Phase I as to all suspect documents at issue, reserving a decision on documents, if any, not necessarily relevant as to the issues to be tried in Phase I. This should avoid having such experts testifying more than once.

As such, Phase I of the trial should address only one, two, or possibly all, of the following issues:

(1) the validity of the December 9, 2005 “Revocable Living Trust” that is the foundation of the Petition in this action;
(2) the genuineness of the July 2011 Joint Tenancy Grant Deeds (i.e., whether they are forgeries); and/or
(3) whether Petitioner can establish her claims of undue influence regarding the July
2011 Joint Tenancy Grant Deeds.

The court desires to hear further from the parties as to precisely who would testify as to each issue above and estimates of trial time as to each such issue being tried together and/or separately.