In the Matter of THE DITMORE REVOCABLE TRUST

SUPERIOR COURT, STATE OF CALIFORNIA COUNTY OF SANTA CLARA Department 13 Honorable Daniel T. Nishigaya R. Belligan, Courtroom Clerk 191 North First Street, San Jose, CA 95113 Telephone: 408-882-2240

DATE: August 12, 2026 TIME: 10:00 A.M. TO CONTEST A TENTATIVE RULING, YOU MUST CALL (408) 808-6856 BEFORE 4:00 P.M. ON THE DAY PRIOR TO THE HEARING. You must also inform all other sides to the issue before 4:00 P.M. the day prior to the hearing that you plan to contest the ruling. The Court will not hear argument, and the tentative ruling will be adopted if these notifications are not made. (Cal. Rule of Court 3.1308(a)(1); Civil Local Rule 8.D.)

LINE # CASE # CASE TITLE RULING LINE 1-3 23PR195217 In the Matter of THE DITMORE Demurrer; Anti-SLAPP; Demurrer; MJOP REVOCABLE TRUST Ctrl Click (or scroll down) on Line 1 for tentative ruling.

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Case Name: In the Matter of THE DITMORE REVOCABLE TRUST Case No.: 23PR195217

INTRODUCTION

In 1982, settlors Meredith Ditmore (“Ditmore”) and her husband, Carl Ditmore, who is now deceased, executed the Ditmore Revocable Trust.

On July 19, 2023, in docket 23PR195111, entitled the Ditmore Revocable Trust, David Kennedy (“Kennedy”),1 filed an ex parte petition (without notice) to appoint a private fiduciary, Russell H, Marshall (“Interim Trustee”) as temporary trustee. Kennedy explained that Meredith Ditmore (“Ditmore”), one of the trustors and then-trustee had experienced an injury that rendered her incapacitated. On July 19, 2023, the court (Hon. Jacqueline Arroyo) issued an order appointing Interim Trustee pending further order of the court.

On July 10, 2023, in docket 23PR195217, also entitled the Ditmore Revocable Trust, Kennedy filed a petition to invalidate a purported 2022 trust amendment Kennedy claims was made at a time when Ditmore lacked capacity to make such a change, to remove Ditmore as trustee and appoint Kennedy as successor trustee, to impose a constructive trust, and for financial elder abuse (“2023 Petition”). The 2023 Petition alleged that Respondent Allan Miller (“Miller”), Ditmore’s nephew, took Ditmore to the office of Respondent Mark Duvall (“Duvall”), Ditmore’s long time financial advisor, where Miller and Duvall made interlineations and handwritten notations on a copy of the 2016 restatement of the trust. Ditmore signed that copy, which replaced Kennedy with Miller and Duvall as successor trustees, deleted certain beneficiaries, and added Miller as a beneficiary.

On February 11, 2026, Ditmore, via her court-appointed guardian ad litem, Rebecca Weisman (“Weisman”), filed a petition to validate a fifteenth amendment to the trust executed on July 18, 2025. On May 21, 2026, Kennedy filed an objection to Ditmore’s February 11 petition and a cross-petition to invalidate the fifteenth amendment and for a finding of elder abuse by Weisman, Miller, and Duvall (“Cross-Petition”).

On June 22, 2026, Duvall filed a combined demurrer targeting the financial elder abuse claim in the Cross-Petition and motion for judgment on the pleadings targeting financial elder abuse claim in the 2023 Petition. On July 1, 2026, Miller filed a special demurrer for uncertainty also targeting the Cross-Petition. On July 17, 2026, Weisman filed a demurrer, on behalf of herself and as guardian ad litem, also targeting the financial elder abuse claim in the Cross-Petition. Also on July 17, 2026, Weisman filed an anti-SLAPP motion, on behalf of herself and as guardian ad litem, seeking dismissal of the financial elder abuse cause of action, or, alternatively, certain specified paragraphs in the Cross-Petition.

1 Kennedy was named as successor trustee in the fourteenth amendment to the trust instrument, executed in 2016 by both settlors.

On July 24, 2026, Kennedy filed a first amended Cross-Petition.

Currently before the Court are the demurrer and motion for judgment on the pleadings by Duvall and the demurrer and anti-SLAPP motion by Weisman.2 Kennedy has opposed the motion for judgment on the pleadings and Duvall has filed a reply. No opposition has been filed to the Weisman demurrer or anti-SLAPP motion.3

DISCUSSION

I. The Demurrers Are Moot

As mentioned above, after both the Weisman demurrer and the Duvall demurrer were filed, Kennedy filed an amended Cross-Petition. Accordingly, both demurrers are MOOT. (Code Civ. Proc., § 472, subd. (a) [plaintiff may file an amended complaint without leave of court and despite the filing of a demurrer until the time to file an opposition to a demurrer has passed]; Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054 [the filing of an amended complaint renders a demurrer to the prior complaint moot]; State Compensation Ins.

Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131 [“the filing of an amended complaint moots a motion directed to a prior complaint”]; see also Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 884 [“ ‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. [Citations.]’ [Citations.]”].)4

II. The Hearing on Weisman’s Anti-SLAPP Motion is Continued

Unlike with a demurrer, the subsequent filing of an amended petition may not moot an anti-SLAPP motion. (See § 472, subd. (b) [“This section shall not apply to a special motion brought pursuant to Section 425.16.”].) A plaintiff or cross-complainant may not avoid a pleadings challenge pursuant to Code of Civil Procedure section 425.16 by amending the challenged complaint or cross-complaint before the motion to strike is heard. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1280 (Salma); see also Simmons v.

Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073 [section 425.16 does not allow for amendment when the court has determined that a complaint makes allegations concerning protected material].) In JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 477-478 (Colton), the Court of Appeal held that “an amended complaint [does] render moot an anti-SLAPP motion directed to a prior complaint, with the following caveat: A plaintiff or cross-complainant may not seek to subvert or avoid a ruling on an anti-SLAPP motion by amending the challenged complaint or cross-complaint in response to the motion.”

2 The demurrer by Miller is currently set to be heard on August 28, 2026. 3 Weisman has filed a notice of objection to the filing of the first amended Cross-Petition asserting that the anti-SLAPP motion is not mooted by the filing of an amended pleading. Kennedy filed the declaration of his counsel requesting time to file an opposition to the anti- SLAPP motion and Weisman has filed the declaration of his counsel in reply. This issue will be addressed below. 4 All further undesignated statutory references are to the Code of Civil Procedure. 4

As mentioned above, Weisman has filed a notice of objection to the filing of the first amended Cross-Petition asserting that the anti-SLAPP motion is not mooted by the filing of an amended cross-petition. Kennedy filed the declaration of his counsel requesting time to file an opposition to the anti-SLAPP motion. In that declaration, Kennedy’s counsel, while addressing the merits of the anti-SLAPP motion, does not argue that the motion is moot.

Here, like in Colton, the Court does not find that the amended Cross-Petition was filed to avoid the anti-SLAPP motion. (See Colton, supra, 221 Cal.App.4th at p. 478 [amended complaint was filed two hours before anti-SLAPP motion and, therefore, could not have been filed in response to anti-SLAPP motion].) Kennedy’s counsel declares that she did not file the amended Cross-Petition to avoid the anti-SLAPP motion and that she never served a notice of hearing for the original Cross-Petition because she had intended to file an amended Cross- Petition. (Declaration of Lynn Searle in Opposition to the Guardian Ad Litem’s Allegation of Non-Objection to Anti-SLAPP Motion (“Searle Decl.”), ¶¶ 2, 12.) Moreover, the specific paragraphs of the original Cross-Petition Weisman identifies as addressing protected conduct remain in the amended Cross-Petition, albeit with different numbering.5

In Salma, the Court of Appeal concluded that, where the amended complaint was filed after the anti-SLAPP motion was filed but before it was heard, automatic dismissal of the amended claims was appropriate. (Salma, supra, 161 Cal.App.4th at p. 1294.) Here, the claims in the original Cross-Petition and in the First Amended Cross-Petition are the same. The Court finds no evidence of an attempt to circumvent the anti-SLAPP motion. Accordingly, the Court does not find automatic dismissal of the amended claims appropriate.

As recognized in Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 678 (Dickinson), “[t]here is a disagreement in the appellate courts as to whether the bar to amendment comes into effect as soon as the defendant files an anti-SLAPP motion, or instead only if the court has indicated the anti-SLAPP motion has some level of merit. [Citations.]” In Dickinson, the court concluded that the holding in Simmons was not controlling because the plaintiff merely amended to add a new defendant. (Ibid.) Thus, the Dickinson court adopted a hybrid approach based on Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, wherein the court “held that the cross-complainant was entitled to file the first amended

5 The Court notes that content of paragraph 37 in the original Cross-Petition has changed somewhat. Originally, it stated, “Cross-respondents WEISMAN, DUVALL, and MILLER continued to conceal the fact of the purported 15th Amendment’s execution from the Court, temporary trustee MARSHALL and cross-petitioner until the GAL filed her petition to approve it on February 11, 2026, three week after Judge Duong rotated off the probate bench and less than two weeks prior to the mediation. RJN Exhibits 5 and 6.” (Cross-Petition, ¶ 37.)

The corresponding paragraph of the amended Cross-Petition states, “Cross-respondents WEISMAN, DUVALL, and MILLER continued to conceal the fact of the purported 15th Amendment for 6 months after its execution. Then three weeks after Judge Duong rotated off the probate bench, WEISMAN filed a petition to approve the purported 15th Amendment. RJN Exhibits 5, 6.” (First Amended Cross-Petition, ¶ 30.) Because part of the protected activity Weisman asserts forms the basis of the challenged elder abuse cause of action is petitioning activity and the allegation that Weisman filed her petition to validate the 15th amendment remains, it does not appear that this alteration in the language is meant to avoid the anti-SLAPP motion. 5

cross-complaint under Code of Civil Procedure section 472, and the first amended crosscomplaint was given effect with respect to the then-pending demurrer; however, the amendment did not override the cross-defendant’s right to adjudication of its then-pending anti-SLAPP motion on the original cross-complaint.” (Dickinson, supra, 17 Cal.App.5th at p. 679.)

A similar approach is appropriate here. Here, similarly, the amended Cross-Petition is valid as to the respondents who did not file an anti-SLAPP motion and it moots the demurrers. But, Kennedy could not amend the Cross-Petition in the face of the anti-SLAPP motion filed by Weisman. (Dickinson, supra, 17 Cal.App.5th at p. 679 [amendment was proper as to defendants who did not file anti-SLAPP motions, rendering demurrers moot, and amended pleading should not have been stricken as to those defendants].)

Moreover, the amendment did not alter the original Cross-Petition such that allegations of protected activity, to the extent they were contained in the original Cross-Petition, have been removed. Accordingly, regardless of which version of the Cross-Petition, the outcome will be the same. For this reason, the Court will consider the old version of the Cross-Petition as the numbering of the paragraphs will match the numbering used by Weisman in the motion.

Having determined that the anti-SLAPP motion may proceed, the Court addresses Kennedy’s request for a continuance to allow him to file an opposition to the motion. At the outset, the Court notes that it does not find persuasive Kennedy’s counsel’s argument that she did not know that Weisman intended to proceed with the anti-SLAPP motion against the original Cross-Complaint. (See Searle Decl., ¶ 5.) Kennedy’s counsel emailed all other counsel, including Weisman’s counsel, asking whether they agreed that a July 29, 2026 hearing on the original Cross-Petition could go off calendar in light of the filing of the amended Cross- Petition. (Id. at ¶ 4, Ex. 1.)

Weisman’s counsel responded that he had no objection to the July 29, 2026 hearing going off calendar but insisted that the anti-SLAPP motion should still be heard on the scheduled hearing date, August 12, 2026. (Id. at Ex. 2.) Kennedy’s counsel indicated that she did not see this email and asked again whether Weisman’s counsel agreed to take the July 29, 2026 hearing off calendar. (Id. at ¶ 5, Ex. 1.) Weisman’s counsel responded later that same day indicating that he had already responded and forwarded his prior email response. (Id. at Ex. 1.)

This later response should have alerted Kennedy’s counsel to Weisman’s counsel’s prior response indicating the anti-SLAPP motion should be heard as scheduled. Moreover, the email chain referred to the July 29, 2026 hearing on the original Cross-Petition, not the hearing on the anti-SLAPP motion. Thus, Kennedy’s counsel could not reasonably have concluded that Weisman intended to take the anti-SLAPP motion hearing on August 12, 2026 off calendar.

Nonetheless, as discussed above, not only is there authority that concludes an anti- SLAPP motion could be moot under these circumstances, (see Colton, supra, 221 Cal.App.4th at pp. 477-478), there is a split in authority regarding whether the right to file an amended pleading is cut off when the anti-SLAPP motion is filed or when the court has determined that the anti-SLAPP motion has merit. (See Dickinson, supra, 17 Cal.App.5th at p. 678.) Further, the Court has concluded that it will consider the anti-SLAPP motion on the merits. Under these circumstances, a continuance to allow for an opposition is appropriate. Accordingly, the anti- SLAPP motion is hereby CONTINUED to August 28, 2026 at 10:00 a.m. in Department 13. Kennedy may file an opposition and Weisman may file a reply within the timeframe specified in section 1005, subdivision (b) based on the new hearing date.

III. Duvall’s Motion for Judgment on the Pleadings

A. Requests for Judicial Notice

Duvall requests judicial notice of (1) the order appointing Marshall as temporary trustee, filed July 14, 2023, in docket 23PR195111; (2) the fifteenth trust amendment; and (3) the declaration of Douglas Barnes in Support of the Petition to Validate Trust. The unopposed request for judicial notice of the order appointing Marshall as temporary trustee is GRANTED. (See Evid. Code, § 452, subd. (d).) The remainder of the request is DENIED as irrelevant because it is clear that the remainder of the documents were meant to support the moot demurrer and not the motion for judgment on the pleadings as the reasons for the request pertain to the execution of the fifteenth amendment.

Kennedy requests judicial notice of the 2023 Petition. That request is GRANTED. (See Evid. Code, § 452, subd. (d).)

B. Procedural Issues

Kennedy makes several procedural arguments with respect to the motion. First, he contends that the motion is an improper combination demurrer and motion for judgment on the pleadings targeting two different pleadings. Next, he asserts that the motion is improperly noticed because the caption of the notice of motion only states the case name of the original Cross-Petition and not the 2023 Petition. Additionally, he argues that the ground that he lacks standing to bring the elder abuse cause of action in the 2023 Petition is not mentioned in the notice.

Finally, he contends that the memorandum of points and authorities in support of the motion is deficient in that it fails to include a statement of facts relating to the 2023 Petition. He maintains that these procedural errors render the motion confusing and he urges the Court to decline to consider it. While the Court agrees that the combined demurrer and motion for judgment on the pleadings is somewhat confusing, it notes that the notice of motion does indicate that it includes a motion for judgment on the pleadings and that it targets the 2023 Petition.

It states:

Respondent Mark Duvall (“Respondent”) will and hereby does:

(1) Demur to the financial elder-abuse claim asserted against Respondent Mark Duvall in the Cross-Petition to Invalidate Purported 15th Amendment and for Financial Elder Abuse; and

(2) Move for judgment on the pleadings as to the financial elder-abuse claim asserted against Respondent Mark Duvall in the July 10, 2023 Petition.

It goes on to state, “The motion for judgment on the pleadings is brought pursuant to Code of Civil Procedure section 438 subd. (c) and Probate Code section 1000, on the grounds that, taking the Petition’s allegations as true and considering matters subject to judicial notice, Petitioner fails to plead facts sufficient to state a claim.”

As to the argument that the notice does not address the standing argument, section 438,(c)(1) provides that, if the moving party is a defendant, the only grounds for a motion for judgment on the pleadings are lack of subject matter jurisdiction and failure to state a claim. Lack of standing is embraced in the failure to state a claim category. (See, e.g., County of 7

Fresno v. Shelton (1998) 66 Cal.App.4th 996, 1009 [“Where, as here, it is alleged that a party lacks standing to sue, the complaint can be challenged by general demurrer for failure to state a cause of action in this plaintiff.”], italics omitted; Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 921 [“A complaint filed by someone other than the real party in interest is subject to general demurrer on the ground that it fails to state a cause of action. [Citation.]”].)

Moreover, according to the proof of service, the notice of motion was served at the same time as the memorandum of points and authorities, which makes clear that one of the grounds for the motion is Kennedy’s alleged lack of standing. As to the failure of the memorandum to state the facts, the Court finds that this does not impact the readability the motion and a statement of facts is unnecessary to the outcome as the sole issue remaining in the motion is whether Kennedy has standing to bring his claims, which is based on Kennedy’s position as successor trustee in the fourteenth amendment.

Accordingly, the Court will consider the motion for judgment on the pleadings on the merits.

Duvall argues that Kennedy’s opposition is late. For a hearing date of August 12, 2026, the opposition was due July 30, 2026. (See § 1005, subd. (b).) Accordingly, the opposition, filed July 31, 2026, is late. Nonetheless, the Court will exercise its discretion to consider the opposition. (Cal. Rules Ct., rule 3.1300(d); Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)

C. Legal Background

A motion for judgment on the pleadings brought by a defendant or respondent may be granted on where the petition fails to state sufficient facts to constitute a cause of action. (§ 438, subd. (c)(1)(B)(ii).) “[A] motion for judgment on the pleadings may be addressed to the pleading as a whole or to separate counts. If addressed to the pleading as a whole, the motion must be denied if even one count is good. [Citation.] If addressed to separate counts, the motion may be granted as to some counts and denied as to others. [Citation.]” (Heredia v. Farmers Ins. Exch. (1991) 228 Cal.App.3d 1345, 1358.)

A motion for judgment on the pleadings is the functional equivalent of a general demurrer generally made after the time to demur has expired. (See Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999; Shea Homes Limited Partnership v. County of Alameda (2003) 110 Cal.App.4th 1246, 1254.) The grounds for the motion “shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.” (Code Civ. Proc., § 438, subd. (d).) In ruling on a motion for judgment on the pleadings, “[t]he trial court must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

A motion for judgment on the pleadings may be granted with or without leave to amend. Denial of leave to amend generally constitutes an abuse of discretion if the pleading does not show on its face that it is incapable of amendment. (Virginia G. v. ABC Unified School Dist. (1993) 15 Cal.App.4th 1848, 1852.)

D. Merits of the Motion

Duvall contends that Kennedy lacks standing to pursue an elder abuse claim on behalf of Ditmore while she is alive and represented by a guardian ad litem.6 Duvall points out that Kennedy is not the current trustee, nor a personal representative. Moreover, Ditmore has not been adjudicated incapacitated. Kennedy argues that he may pursue an elder abuse claim as a successor trustee. He asserts that Ditmore is incapacitated, that the fourteenth amendment to the trust is legitimate, and that he is the rightful successor trustee under the terms of the fourteenth amendment.

“Code of Civil Procedure section 367 states, ‘Every action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute.’ A party who is not the real party in interest lacks standing to sue because the claim belongs to someone else. [Citations.] . . . ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law. [Citation.]’ [Citations.] Where someone other than the real party in interest files suit, the complaint is subject to a general demurrer. [Citations.]” (Estate of Bowles (2008) 169 Cal.App.4th 684, 690.)

The standing provisions of the Elder Abuse Act provide that the personal representative of the elder’s estate has standing to pursue an elder abuse claim on behalf of the decedent after the decedent’s death and if there is no personal representative, a successor in interest or an interested person under Probate Code section 48 may pursue such a claim. (Welf. & Inst. Code, § 15657.3, subd. (d).) Where the elder is alive but incapacitated, “the elder’s personal representative may demand return of property on the elder’s behalf and, if unsuccessful, may bring an action for damages and other relief. ([Welf. & Inst.

Code,] § 15657.6.) [Personal] representative is defined as a person or entity that is either (1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult or (2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.” ([Welf. & Inst. Code,] § 15610.30, subd. (d); see [Welf. & Inst. Code,] § 15657.6 [adopting definition of personal representative contained in § 15610.30, subd. (d)].)” (Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1204-1205 (Tepper), internal quotation marks omitted.)

Kennedy relies primarily on Tepper and Barefoot v. Jennings (2020) 8 Cal.5th 822 (Barefoot). In Tepper, supra, 10 Cal.App.5th 1198, the Court of Appeal held that a daughter lacked standing to pursue an elder abuse claim on behalf of her living mother against her siblings, who were at the time or had been trustees of the mother’s trust where the daughter conceded that she had not be been personally aggrieved by the siblings’ actions. (Id. at p. 1205.) The daughter did not allege that she was a beneficiary under the terms of the mother’s trust. (Id. at p. 1206.)

Because the daughter did not have a financial interest in the trust, she was not an interested person under Probate Code section 48. (Ibid.) The Tepper court concluded that the daughter must seek appointment as her mother’s conservator or guardian ad litem to bring claims on her behalf. (Id. at p. 1208.) Because the daughter did not seek appointment as conservator or guardian ad litem and she did not have the mother’s consent via

6 Duvall also argues that the original Cross-Petition is inadequately led. Kennedy “applies” the argument, which mentions only the Cross-Petition, to the 2023 Petition. But, the Court reads this argument as applying only to the original Cross-Petition and not the 2023 Petition. Accordingly, it does not address this issue and only addresses the standing argument. 9

a power of attorney, despite the daughter’s allegations that the mother lacked capacity, the Court of Appeal concluded that the cause of action for elder abuse remained with the mother. (Id. at p. 1209.)

Kennedy relies on dicta in Tepper indicating that the daughter pleaded that the mother lacked capacity and that if she had also pleaded that she was the mother’s personal representative “as defined under the Elder Abuse Act—that is, [the mother’s] conservator, trustee of her estate, or her attorney in fact under a power of appointment ([Welf. & Inst. Code,] § 15610.30, subd. (d)(1) & (2))—those allegations concerning the [mother’s] lack of understanding would be sufficient to withstand demurrer. (See [Welf. & Inst.

Code,] § 15657.6 [authorizing action by elder’s personal representative to proceed on elder’s behalf for return of property and damages when elder lacks capacity].)” (Tepper, supra, 10 Cal.App.5th at p. 1207.) Here, however, Kennedy is not the current trustee of the trust and he cannot plead that he is the current trustee because Marshall is the current trustee with the present authority to act. Nor does Kennedy currently stand in any of the other positions with authority to sue on behalf of an allegedly incapacitated elder.

In Barefoot, the California Supreme Court concluded that “claims that trust provisions or amendments are the product of incompetence, undue influence, or fraud, as is alleged here, should be decided by the probate court, if the invalidity of those provisions or amendments would render the challenger a beneficiary of the trust. [Citation.] So when a plaintiff claims to be a rightful beneficiary of a trust if challenged amendments are deemed invalid, she has standing to petition the probate court under [Probate Code] section 17200.” (Barefoot, supra, 8 Cal.5th at p. 827.)

The court held that “the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.” (Id. at p. 825.) The court explained, “[W]hen a demurrer or pretrial motion to dismiss challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint. Instead, the court must first determine standing by treating the properly pled allegations as true.

If, having taken the allegations as true, the court finds no standing, it should sustain the demurrer or dismiss the petition. If it finds standing by contrast, the court should allow the litigation to continue. [Citations.]” (Ibid.)

Here, as Kennedy points out, his 2023 Petition claims that he is the rightful trustee of the trust. (See, 2023 Petition, Prayer for Relief, ¶¶ 5-6.) Thus, he asserts, taking that allegation as true and taking into account his allegations that Ditmore lacks capacity, (see, e.g., 2023 Petition, ¶¶ 26-31, 39-40), he has standing to pursue an elder abuse claim on Ditmore’s behalf.

Duvall contends that the holding in Barefoot is narrow and applies only to disinherited beneficiaries, not successor trustees. The holding in Barefoot, which the Supreme Court itself described as narrow, “does not allow individuals with no interest in a trust to bring a claim against the trust. Instead, we permit those whose well-pleaded allegations show that they have an interest in a trust—because the amendments purporting to disinherit them are invalid—to petition the probate court.” (Barefoot, supra, 8 Cal.5th at p. 828.) Thus, it is clear that the Barefoot court relied on the disinherited beneficiary’s property interest in the trust to determine that the beneficiary had standing.

Nonetheless, part of the reasoning in Barefoot was that the definition of beneficiary in Probate Code section 24, subdivision (c) included a contingent beneficiary like the plaintiff in

that case. (Barefoot, supra, 8 Cal.5th at p. 827.) Using the same reasoning, “ ‘[t]rustee’ includes an original, additional, or successor trustee, whether or not appointed or confirmed by a court. (Prob. Code, § 84.) This language does not explicitly indicate whether it applies to a successor trustee who has not yet taken office and the Court discovered no published authority addressing this issue. Thus, Kennedy’s argument that Barefoot allows a successor trustee who has not yet succeeded to the role to raise a claim has some appeal.7

The Court finds two other cases, not addressed by the parties, to be instructive. In Starr v. Ashbrook (2023) 87 Cal.App.5th 999, 1016, the Court of Appeal concluded that a beneficiary of a revocable trust had standing to petition to challenge the actions of the current trustee where his petition alleged that the settlor was incompetent and thus, the trust could not be revoked by the settlor. The court explained that under Probate Code section 15800, “a trustee of a revocable trust owes no duties to a trust beneficiary, and a beneficiary does not have standing to petition the probate court regarding trust administration or the actions of the trustee, unless and until (1) the trust becomes irrevocable under the terms of the trust instrument, (2) the settlor dies, or (3) all persons holding the power to revoke the trust become incompetent. [Citation.]” (Id. at p. 1015.)

Thus, under Barefoot, the beneficiary had standing to petition the court because he adequately pled standing due to the allegations that the settlor was incompetent and could no longer revoke the trust. (Id. at p. 1016.) Starr v. Ashbrook thus establishes that standing does not depend on an actual adjudication of incompetence at this time; well-pled allegations of incompetence are sufficient on motion for judgment on the pleadings.

In Estate of Lowrie (2004) 118 Cal.App.4th 220, 229-230 (Lowrie), the Court of Appeal held that a successor trustee and successor beneficiary had standing to pursue a claim of financial elder abuse against the currently-acting trustee. The court explained, “According to decedent’s estate plan, if [trustee and alleged abuser] Sheldon predeceased decedent, Lynelle would become the successor trustee and the successor beneficiary to the remainder. Thus, Lynelle would become the person entitled to succeed to decedent’s estate and Lynelle would have standing to bring this case. [Citation.]” The court emphasized that “[s]tanding, for purposes of the Elder Abuse Act, must be analyzed in a manner that induces interested persons to report elder abuse and to file lawsuits against elder abuse and neglect.

In this way, the victimized will be protected. Here, Lynelle’s expectancy, i.e., her contingent interest, provides her with a strong incentive to pursue this action and gives her standing.” (Id. at p. 230.) While Lowrie, like Barefoot, supports the idea that someone without a present interest may have standing if their successful petition would result in an interest, Lowrie is likewise distinguishable because, here, Kennedy is not a beneficiary, contingent or otherwise, and is therefore not an interested person. (Estate of Sobol (2014) 225 Cal.App.4th 771, 782 [An interested person must have “ ‘a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding’ ” to have standing to contest a petition for probate.]; Conservatorship of Anne S. (2025) 112 Cal.App.5th 1021, 1028 [“Courts have

7 Here, interestingly, Marshall is not purported to be wrongfully acting under an allegedly invalid version of Ditmore’s estate plan. Instead, he is the interim trustee due to Kennedy’s successful petition for appointment of a neutral fiduciary. This is likely a distinction without a difference because the 2023 Petition, if successful, would cause Kennedy to succeed to the role of trustee prior to Decedent’s death. 11

traditionally characterized an ‘interested person’ under the Probate Code as someone who could be financially affected by the probate proceedings.”].)

Moreover, Kennedy does not allege that Marshall, the current trustee, committed elder abuse or lacks incentive to pursue legitimate elder abuse claims. Kennedy points to no cases in which a court has ever concluded that a successor trustee has standing to act when there is another currently acting trustee who has not been accused of wrongdoing. The Court’s research also disclosed no such authority. It is only when the position of trustee becomes vacant that the successor trustee begins to serve. (See Prob. Code, §§ 15660 [providing for methods of filing vacancy in trustee position];15644 [upon vacancy, former trustee must transfer trust property to successor trustee].)

The Court recognizes that standing for the purposes of the Elder Abuse Act is purposefully broad in order to encourage reporting of abuse and neglect of elders and dependent adults. (See Lowrie, supra, 118 Cal.App.4th at p. 226.) The Legislature expressed that its intent in adding the remedy and standing provisions of the Elder Abuse Act was “to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Welf. & Inst. Code, § 15600, subd. (j); see also Lowrie, supra, 118 Cal.App.4th at p. 230 [“Standing, for purposes of the Elder Abuse Act, must be analyzed in a manner that induces interested persons to report elder abuse and to file lawsuits against elder abuse and neglect.

In this way, the victimized will be protected.”].) But, here, Kennedy is not an interested person. (Welf. & Inst. Code, § 15657.3, subd. (d)(1) [employing Probate Code section 48’s definition of interest person for standing purposes after death of the elder].) And, Ditmore can be protected by multiple persons, including Marshall, who is not accused of any wrongdoing. Under these circumstances, the Court finds that Kennedy lacks standing to pursue an elder abuse claim on behalf of Ditmore. Accordingly, the motion for judgment on the pleadings is GRANTED.

Because Kennedy does not seek leave to amend and makes no argument regarding how he can do so, the motion is granted WITHOUT LEAVE TO AMEND. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [“Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading. [Citations.]”]; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 411 [“Plaintiffs have the burden to show how they could further amend their pleadings to cure the defects. [Citation.]”].)

CONCLUSION

The demurrers filed by Duvall and Weisman are MOOT. Weisman’s anti-SLAPP motion is hereby continued to August 28, 2026 at 10:00 a.m. in Department 13. Kennedy is permitted to file an opposition and Weisman may file a reply under the timeline set forth in section 1005, subdivision (b) based on the new hearing date.

Duvall’s motion for judgment on the pleadings is GRANTED WITHOUT LEAVE TO AMEND.

The Court will prepare the final order.

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