Belanger – Trust

Legate since the Heggstad Petition has been continued 1/14/27.

Mr. Martinez joins in Ms. Chase's Objection.

Based on the foregoing, the court finds good cause to GRANT the motion to be relieved.

Withdrawal is effective upon filing the proof of service of the signed Order Granting Attorney’s Motion to Be Relieved as Counsel.

[Motion Type]

013330971 Belanger – TENTATIVE RULING Trust Case: Belanger – Trust 013330971

Calendar No: 11 Date: 08/26/26

DEMURRER (ROA 79)

Respondent Janice L. Belanger ("Respondent") demurrers to each cause of action in the subsequent trust Petition ("Subsequent Petition) (ROA 65) filed by Petitioner Bruce Kamolnick ("Petitioner").

Petitioner's request for judicial notice (ROA 77) is granted as to Exhibits A and B.

First Cause of Action - Accounting

Failure to State a Cause of Action

Respondent argues that Petitioner lacks standing to request an accounting of Trust A because Trust A remains revocable. However, the Subsequent Petition does not specifically request an accounting of Trust A.

The Subsequent Petition alleges that, since Decedent's death in 2012, the trustee has provided no accounting whatsoever. Petitioner is entitled to request information concerning the initial date-of-death inventory of assets and how such assets were allocated between Trust A and Trust B. (Prob. Code §

16060.) Petitioner is also entitled to regular accountings of Trust B. (Prob. Code § 16062.)

Furthermore, “[a] beneficiary who is not entitled to an annual account under Section 16062 may be entitled to information or a particular account under [section 16061].” (Esslinger v. Cummins (2006) 144 Cal. App. 4th 517, 526, citing Cal. Law Revision Com. com., 54A West's Ann. Prob.Code, (1991 ed.) foll. § 16061, p. 52.) “The trustee may be compelled to account not only by a beneficiary presently entitled to the payment of income or principal, but also by a beneficiary who will be or may be entitled to receive income or principal in the future.” (Rest.2d Trusts, § 172, com. c, p. 377.)” (Esslinger v. Cummins, supra, 144 Cal.App.4th at p. 525.)

Moreover, the court has inherent discretion to order an accounting sua sponte to determine the status of trust assets where there is “substantial reasons for the trial court to be concerned about trust expenditures.” (Christie v. Kimball (2012) 202 Cal. App. 4th 1407, 1413.) Such right is consistent with the court’s duty to supervise trust administration and the court’s inherent equitable power to take remedial actions to prevent or rectify abuses of a trustee’s power. (Id.)

Thus, the Subsequent Petition states facts sufficient to constitute a cause of action for an accounting.

Another Action Pending

Respondent further demurrers to the first cause of action on the ground that the first Petition ("Initial Petition") (ROA 2) filed by Petitioner seeks the same relief.

The Initial Petition asks the court to confirm that the Estate of John Alan Belanger is a vested beneficiary of Trust B; to instruct the trustee to place the "Diamante Property" into Trust B; and to confirm that Petitioner or another qualified fiduciary shall fill the vacancy of trustee for Trust B.

No part of the Initial Petition requests an accounting of any kind.

Moreover, the court is not persuaded that the Initial Petition needs to be resolved before the trustee can provide an accounting or before the court can order an accounting. The Initial Petition requests instruction as to the allocation of only one item of real property. That does not excuse the trustee's duty to comply with Probate Code sections 16060 and 16061 entirely.

Defect or Misjoinder of Parties

Respondent demurrers to the first cause of action on the grounds that there is a defect or misjoinder of parties.

Respondent offers no facts, law, or argument in support of such grounds for demurrer. Therefore, the court is not required to consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; People v. Stanley (1995) 10 Cal.4th 764, 793.)

Uncertainty

A demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made. (People v. Lim (1941) 18 Cal.2d 872, 883.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Errors and confusion created by “the inept pleader” are to be forgiven if the pleading contains sufficient facts entitling plaintiff to relief. (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.)

Here, the Subequent Petition is not so ambiguous that Respondent cannot reasonably determine how to respond. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) Moreover, any ambiguities in the Subsequent Petition can be clarified through discovery.

Based on the foregoing, the Demurrer to the first cause of action in the Petition is OVERRULED.

Second Cause of Action - Breach of Fiduciary Duty

Respondent demurrers to the second cause of action for breach of fiduciary duty on the same grounds that he demurrers to the first cause of action (i.e., fails to state facts sufficient; another action pending; defect or misjoinder of parties; and uncertainty).

However, the demurrer offers no facts, law, or argument in support of any such grounds for demurrer as to the second cause of action. Therefore, the court is not required to consider it. (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956; Quantum Cooking Concepts, Inc. v. LV Assocs., Inc. (2011) 197 Cal.App.4th 927, 934; In re

Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830; People v. Stanley (1995) 10 Cal.4th 764, 793.)

Based on the foregoing, the Demurrer to the second cause of action in the Petition is OVERRULED.

Third, Fourth, and Fifth Causes of Action - Remove/Suspend Trustee and Appoint New Trustee

Respondent argues that demurrer to these causes of action should be sustained for the same reasons that demurrer to the second cause of action should be sustained. As noted above, however, the moving papers do not offer any reason to sustain demurrer to the second cause of action.

Respondent also states, "Petitioner contends Respondent should be removed as trustee based on conduct as alleged in the Petition for Instructions that has not been decided yet." Though Respondent states nothing more, the court presumes Respondent intended such statement to indicate that demurrer should be sustained pursuant to Code of Civil Procedure section 430.10(c) which permits demurrer when there is "another action pending between the same parties on the same cause of action."

However, the Initial Petition does not consist of any "causes of action." Rather, it requests instructions pursuant to Probate Code section 17200. Specifically, the Initial Petition requests that the court ascertain beneficiaries, instruct the trustee how to allocate a certain real property asset, and resolve the vacancy for the trustee of Trust B. In short, it requests orders regarding the internal affairs of the trust that are administrative in nature.

A cause action seeks to impose liability for misconduct (e.g., breach of fiduciary duty, financial elder abuse, fraud, etc.). Unlike the Initial Petition, the Subsequent Petition asserts causes of action against the Trustee for breach of fiduciary duties and seeks removal of the trustee based on such breaches.

Based on the foregoing, the Demurrer to the Third, Fourth, and Fifth causes of action in the Petition is OVERRULED.

Sixth Cause of Action - Common Fund Doctrine

The court agrees with Petitioner that a request for fees under the common fund doctrine or substantial benefit doctrine is an equitable remedy and not a cause of action. Petitioner is not entitled to such fees unless and until a judgment is rendered in Petitioner's favor that benefits the

remaining beneficiaries.

Nonetheless, many practitioners choose to plead the entitlement to such fees early to signal the intent to seek such fees in order to avoid claims of waiver or prejudice for not raising it sooner. Moreover, since the prayer for relief in the Petition seeks attorneys fees, it behooves Petitioner to plead facts supporting such prayer for relief to avoid a motion to strike the requested relief. The trial court has discretion to make the determination of whether such equitable fees should be awarded in the judgment or to leave the issue to a post-judgment motion for fees.

While the probate courts apply the code of civil procedure (Prob. Code § 1000), civil procedures do not always perfectly comport with probate procedures. The formatting in the caption and body of this Petition (ROA 65) seemingly indicate that equitable fees are being asserted as a "cause of action." However, the court looks to substance over form. There is nothing in the substance of the Subsequent Petition that indicates the request for fees pursuant to the common fund doctrine is anything other than an equitable remedy.

Based on the foregoing, the Demurrer to the sixth "cause of action" in the Petition is OVERRULED.

Counsel for moving party is requested to give notice of this ruling.

01152663 Lashley – Trust TENTATIVE RULING

Case: Lashley – Trust 01152663

Calendar No: 12 Date: 08/12/26

MOTION TO BE RELIEVED AS COUNSEL (ROA 31)

Attorney Stephen P. Shepard seeks to be relieved as counsel for Co-Trustee Linda Hughes.

An attorney’s right to withdraw as counsel is conditioned upon compliance with California Rules of Court, Rule 3.1362 and, where applicable, Orange County Local Rule 601.21.