Estate of Hamilton CA2/6 ( 2022 )

Filed 10/11/22 Estate of Hamilton CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
Estate of LOIS C. HAMILTON, 2d Civil No. B314993
Deceased. (Super. Ct. No. 20PR00031)
(Santa Barbara County)
KIMBERLY IRENE MEARIG,
Petitioner and Appellant,
v.
GREGORY V. HAMILTON,
Objector and Respondent.
Lois C. Hamilton (Lois) and Van R. Hamilton (Van) were
married with no children from the marriage. Both are deceased.
Lois had a daughter – appellant Kimberly Irene Mearig. Van
had two sons – Eric J. Hamilton and respondent Gregory V.
Hamilton. After the death of Lois, appellant was appointed
administrator of her estate.
Appellant filed an appeal from the judgment dismissing
with prejudice her amended verified petition to confirm Lois’s
community property interest in a home (the property) in Santa
Barbara. Lois and Van resided there until Lois was placed in an
assisted living facility. Years before her death, Lois conveyed her
interest in the property to Van’s personal trust. Appellant claims
that, after the conveyance, Lois acquired a community property
interest in the property because mortgage payments were made
from community property funds. But pursuant to an amendment
of Van’s trust, upon his death the property passed to Van’s
children. Title to the property is presently held by respondent.
We conclude that respondent’s motion to dismiss
appellant’s amended petition was an unauthorized “speaking
motion” because it was based on evidence extrinsic to the
pleadings. The trial court should have treated it as a motion for
summary judgment, but instead treated it as a motion to dismiss
on the merits. Because the trial court failed to follow protective
procedures applicable to summary judgment motions, we reverse.
Appellant’s Amended Petition
Appellant filed the original petition on December 22, 2020.
She filed the amended verified petition in May 2021. It is
entitled, “Amended Petition to Determine Title to and Require
Transfer of Real Property to Estate.” (Bold and some
Capitalization omitted.) The amended petition alleged that it
was brought pursuant to Probate Code section 850, subdivision
(a)(2)(D), which provides that “[t]he personal representative [of
the decedent] or any interested person” may file a petition for an
appropriate order “[w]here the decedent died having a claim to
real or personal property, title to or possession of which is held by
another.”
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The amended petition stated that, after Lois and Van
married in 1987, they had lived together on the property. The
amended petition did not say how title to the property was held.
In the original petition, appellant alleged that the property had
been “purchased by Van, prior to marriage.”
The amended petition continued: In August 2002 Lois and
Van “executed a Note secured by a Deed of Trust on the . . .
Property in the principal amount of $162,000 as part of [the]
refinance of the Property.” Three days later, “Lois and Van
conveyed their interests in the Property to Van as Trustee of his
Trust.” Van told Lois that the conveyance “was done” for the
purpose of refinancing the mortgage on the property and “that
she was an heir to Van’s original Trust.”
In 2017 “Lois was placed in assisted living for . . . severe
dementia.” “A few days” later, Van signed “a Second
Restatement [of his trust] dated November 4, 2017.” “The Trust
Amendment included a clause whereby he completely
disinherited Lois.” The Second Restatement provided that, after
Van’s death, “the residue of the Trust estate (including [the
property])” shall be divided among his children. Under the
heading “Disinheritance,” the Second Restatement said: “Except
as otherwise provided in this instrument, the Settlor [Van] has
intentionally and with full knowledge omitted to provide for the
Settlor’s heirs, including his wife LOIS C. HAMILTON. Settlor
has provided for his wife outside of this Trust.” “Van never
informed Lois of these amendments to his Trust . . . .”
“From October 2002 to July 2019, the monthly mortgage
payments for the . . . Property were paid from community funds.”
“[I]n violation of his fiduciary obligations to Lois, Van
disinherited her from his estate plan, such that Lois’ community
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property interests in the . . . Property were transferred to Van’s
children instead of Lois.” (Italics added.)
Van died on September 6, 2018. Respondent, Van’s son,
became the successor trustee. On September 28, 2018,
respondent mailed to Lois “a ‘Notification by Trustee’ pursuant to
Probate Code [s]ection 16061.7.” Several months earlier, Lois’s
physician had written that she “has dementia, and is incapable of
managing her personal affairs, including making financial
decisions. This incapacity is expected to be permanent.”
In December 2018 appellant “filed a petition for her
appointment as Conservator of the Person and Estate of Lois.” In
April 2019 she was appointed conservator. Appellant “was not
aware of the Trust Amendment, nor of the fact that Lois had been
disinherited from her community interests in Van’s estate plan.”
Appellant “believed that Van was only leaving his interest in the
[property] to [his children].” (Italics added.)
Lois died in August 2019. In March 2020 appellant was
appointed administrator of Lois’s estate. “In early 2020, . . .
[appellant] reviewed Lois’ documents inclusive of correspondence
from [respondent’s] attorney and the Trust Amendment that was
previously sent to Lois. [Appellant] was shocked when she
discovered that Van had completely disinherited Lois, however,
she was not aware of the extent of this disinheritance.”
Because of the Covid pandemic, the California Judicial
Council adopted Emergency Rule 9(a), which tolled the statute of
limitations “from April 6, 2020, until October 1, 2020” for
limitation periods “that exceed 180 days.” On December 22,
2020, appellant filed the original petition in this matter, “as Lois
clearly had a community property interest in the . . . Property
and the title to same is held by [respondent].”
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The amended petition requested that the court find “Lois’[s]
community property interest in the . . . Property is vested in
[appellant] as Administrator of [Lois’s] Estate” and that the court
“exercise its equitable powers to hold that [respondent] is a
constructive trustee and holds the proceeds of the Property in
trust for the Estate of Lois . . . .” As authority for the requested
relief, the amended petition cited Family Code section 1101 and
Probate Code section 5020.
Respondent’s Motion to Dismiss the Amended Petition
Respondent moved to “dismiss the Amended Petition with
prejudice because: [(1)] it fails to state a cause of action; [(2)]
[appellant’s] claims are barred by the statute of limitations; and
[(3)] [appellant’s] claims are barred by the doctrine of laches.” As
to the first theory, respondent claimed that the amended petition
“fails to adequately allege that Van breached a fiduciary duty
owed to Lois.”
As to the statute of limitations, respondent argued that the
amended petition was barred by Code of Civil Procedure section
366.2, which “bars claims against a decedent’s estate one year
after the decedent’s death . . . . Respondent also argued that the
petition was barred under Probate Code sections 16061.7 and
16061.8.
As to the doctrine of laches, respondent asserted that Lois
and appellant had unreasonably delayed the filing of the original
petition and that the delay had prejudiced him because “the
ability to get records . . . on the Property for the period in
question is made nearly impossible due to the passage of time.
Further, Respondent paid off the mortgage on the Property and
paid the property taxes with his own funds.” Moreover,
respondent and his wife invested “nearly all of [their] collective
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assets into the Property as an investment in their family’s future.
Awarding [appellant] with any interest in the Property at this
late juncture would be financially devastating to Respondent and
his family. Additionally, Respondent has expended his own funds
to improve the property.”
Probate Court’s Ruling
The probate court provided no explanation for its ruling. It
merely stated: “On proof made to the satisfaction of the Court,
the Court finds that the Amended Petition fails to state a claim,
is time barred by the statute of limitations, and is time barred by
the Doctrine of Laches.” The court ordered that the amended
petition be “dismissed with prejudice.”
Laches Is the Fundamental Issue; A Demurrer to the
Amended Petition Cannot Be Sustained Based on Laches
The gravamen of the amended petition is an alleged breach
of fiduciary duty owed by Van to Lois. The petition states a claim
for breach of fiduciary duty under Family Code section 1101,
subdivision (a), which provides, “A spouse has a claim against the
other spouse for any breach of the fiduciary duty that results in
impairment to the claimant spouse’s present undivided one-half
interest in the community estate . . . .”
The fundamental issue presented by the motion to dismiss
is the applicability of the doctrine of laches. “Under [Family
Code] section 1101, subdivision (d), breach of fiduciary duty
claims filed after the death of a spouse are governed only by
equitable principles of laches. . . . [T]he Legislature’s specific
treatment of the statute of limitations in section 1101,
subdivision (d) governs instead of the general statute of
limitations in Code of Civil Procedure sections 366.2 and 366.3.”
(Yeh v. Tai (2017) 18 Cal.App.5th 953, 957.) “[A] spouse who
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chooses not to litigate during the marriage and decides to wait to
bring a section 1101 action until after the marriage has ended
through death or litigation is not penalized, though the action is
subject to laches.” (Id. at p. 962, fn. omitted.) Probate Code
section 16061.8, which sets a time limit for bringing “an action to
contest the trust,” is inapplicable. (See Yeh, supra, at p. 967.)
“‘‘The defense of laches requires unreasonable delay plus
either acquiescence in the act about which plaintiff complains or
prejudice to the defendant resulting from the delay.” [Citation.]’
[Citation.] Any delay is measured from the time the plaintiff
knew (or should have known) about the alleged claim. [Citation.]
The prejudice may be factual in nature or compromise the
presentation of a defense. [Citation.] ‘Prejudice is never
presumed; rather it must be affirmatively demonstrated by the
defendant . . . .’” (Drake v. Pinkham (2013) 217 Cal.App.4th 400,
406.) “Laches in almost all cases raises factual issues regarding
the cause of an asserted delay and the prejudice . . . therefrom.”
(City of Oakland v. Public Employees’ Retirement System (2002)
95 Cal.App.4th 29, 52.) Based on “‘undisputed facts, the
applicability of laches may be decided as a matter of law.’”
(Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Prot.
Dist. (2021) 62 Cal.App.5th 583, 602.)
Respondent insists that “there was no demurrer” to the
amended petition. Nevertheless, because appellant claims that
“Respondent’s request to dismiss must be treated similarly to a
general demurrer,” we discuss whether a demurrer should have
been sustained based on the doctrine of laches.
“Laches may be raised by demurrer, but only if the
complaint shows on its face unreasonable delay plus prejudice or
acquiescence.” (Conti v. Board of Civil Service Commissioners
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(1969) 1 Cal.3d 351, 362.) The face of appellant’s original and
amended petitions does not make the required showing. The
amended petition alleged that, when the trustee’s notification
was mailed to Lois after Van’s death in September 2018, “it [had
been] well known, for over a year, that Lois had severe
dementia.” In January 2018 Lois’s physician opined that,
because of her dementia, she “is incapable of managing her
personal affairs, including making financial decisions.” Eleven
months after the mailing of the trustee’s notification, Lois died.
In view of Lois’s severe dementia, the petitions do not show on
their face that the delay by her was unreasonable.
As to the delay by appellant, the amended petition alleged
that it was not until “early 2020” that “she discovered that Van
had completely disinherited Lois, however, she was not aware of
the extent of this disinheritance. [Appellant] and her attorneys
then began investigating the matter to determine what Lois
would have been entitled to had she not been disinherited.”
“Shortly thereafter, the entire world was disrupted by the
COVID-19 pandemic.” Because of Covid, the statute of
limitations was “tolled from April 6, 2020, until October 1, 2020.”
We recognize that “[l]aches is an equitable defense, not a statute
of limitations or other deadline, but there may be equitable
arguments that the effects of the pandemic should be taken into
account when assessing whether a delay was unreasonable . . . .”
(Agami v. City of Boston Zoning Board of Appeal (Mass. Super.
Mar. 16, 2022) [nonpub. opn.] no. 20 84CV 01438, 2022 WL
817002, at *4.)
Appellant filed her original petition on December 22, 2020.
Based on the face of the original and amended petitions, we
cannot say that appellant’s delay in filing the petition was
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unreasonable as a matter of law. In any event, the petitions do
not show that appellant’s allegedly unreasonable delay
prejudiced respondent. The amended petition contains no
allegations concerning prejudice. The original petition alleged
that respondent, as successor trustee of Van’s trust, deeded the
property to himself by a deed recorded on February 22, 2019.
The original petition further alleged that in July 2019 respondent
paid “the remaining balance of the mortgage” on the property.
Both events – deeding the property to himself and paying off the
mortgage – occurred before Lois died in August 2019 and before
appellant allegedly learned of Van’s disinheritance of Lois. Thus,
based on the face of the petitions, any prejudice to respondent
was not attributable to appellant’s delay. When appellant
learned of the disinheritance, respondent had already deeded the
property to himself and had paid off the mortgage. Accordingly, a
demurrer to the amended petition cannot be sustained based on
laches.
Respondent’s Motion to Dismiss the Amended
Petition Is an Unauthorized Speaking Motion
Respondent’s motion to dismiss the amended petition did
not cite any statutory or other authority for the motion. The
motion is an unauthorized “speaking motion.” “A speaking
motion to dismiss or strike is one which is supported by facts
outside the pleadings [citation]. Such facts ordinarily are set
forth in an affidavit or declaration.” (Vesely v. Sager (1971) 5
Cal.3d 153, 167, fn. 4, abrogated by statute on other grounds as
stated in Cory v. Shierloh (1981) 29 Cal.3d 430, 435.) “The
pleadings allowed in civil actions are complaints, demurrers,
answers, and cross-complaints.” (Code Civ. Proc., § 422.10.)
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“[N]onstatutory speaking motions have now been
superseded by the procedure governing motions for summary
judgment contained in section 437c of the Code of Civil
Procedure. . . . [¶] . . . The remedy afforded by this section is
broad enough to cover all situations in which speaking
motions have been employed, and there is therefore no longer any
need for the nonstatutory procedure. In the interests of orderly
and efficient administration of justice the litigant should be
required to employ the statutory remedy, and a speaking motion
to dismiss should be treated as a motion for summary judgment
in order to preserve the safeguards provided by the statute.”
(Pianka v. State (1956) 46 Cal.2d 208, 211-212 (Pianka).)
The rules as to speaking motions in civil actions also apply
to proceedings under the Probate Code. “Except to the extent
that [the Probate] [C]ode provides applicable rules, the rules of
practice applicable to civil actions . . . apply to, and constitute the
rules of practice in, proceedings under [the Probate] [C]ode.”
(Prob. Code, § 1000, subd. (a).) The Probate Code provides no
special rules as to speaking motions to dismiss a petition. (See
Merrill v. Finberg (1992) 4 Cal.App.4th 1443, 1447 [Probate Code
“section 1000 is a rule of default and adopts the civil practice
rules only where special rules are not prescribed”].)
In their briefs the parties have not expressly raised the
“speaking motion” issue. Government Code section 68081
provides, “Before . . . a court of appeal . . . renders a decision in a
proceeding . . . based upon an issue which was not proposed or
briefed by any party to the proceeding, the court shall afford the
parties an opportunity to present their views on the matter
through supplemental briefing.” We have not asked the parties
to submit supplemental briefing on the “speaking motion” issue
10
because it is fairly included within the issues expressly raised by
the parties. “The parties need only have been given an
opportunity to brief the issue decided by the [appellate] court,
and the fact that a party does not address an issue, mode of
analysis, or authority that is raised or fairly included within the
issues raised does not implicate the protections of [Government
Code] section 68081.” (People v. Alice (2007) 41 Cal.4th 668, 679,
italics added.)
The following history of the parties’ litigation shows that
respondent’s motion to dismiss the amended petition is a
speaking motion because it is based on evidence extrinsic to the
pleadings:
Respondent’s verified motion to dismiss appellant’s original
petition alleged facts not specifically pleaded in the petition.
Exhibits A through C were attached to the motion. Respondent
did not request that the court take judicial notice of the exhibits.
Appellant filed opposition to the motion. She claimed that
respondent’s laches argument, “[a]t best, . . . is a defense that can
be raised at a trial or evidentiary hearing on this matter.”
On March 25, 2021, respondent filed a verified response to
appellant’s opposition. The response alleged additional facts not
specifically pleaded in the original petition. Exhibits A through L
were attached to the response. The exhibits included, inter alia,
respondent’s declaration under penalty of perjury, email
communications between the parties, bank statements, and a
five-page March 2019 report prepared by Lois’s court-appointed
counsel, Margaret V. Barnes. The report, hereafter “the Barnes
Report,” was written after Barnes’s “lengthy meeting with Lois in
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her room” at an assisted living facility. Respondent did not
request that the court take judicial notice of the exhibits.1
On April 29, 2021, respondent filed a further verified
response. He argued: “Beyond the four corners of the Petition
itself, Respondent has properly raised laches and presented
substantial evidence to show Lois[’s] and [appellant’s]
unreasonable delay, their acquiescence to Respondent’s payoff of
the mortgage [on the property] and the dramatic prejudice that
would result to him and his family should the Petition be
granted.” (Italics added.) Pursuant to Evidence Code section
452, subdivision (d)(1), respondent requested that the trial court
take judicial notice of the Barnes Report because it was a court
record.
The record on appeal does not contain a ruling on the
request. Although the trial court could have taken judicial notice
of the existence of the report, it could not have taken judicial
notice of the truth of the report’s contents. (See Lockley v. Law
Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 886 [“a number of . . . California decisions . . .
have categorically refused to take judicial notice of the truth [of
facts] asserted in court records”].)
In his appellate brief respondent in effect acknowledges
that the motion to dismiss was a speaking motion because it was
1 Respondent claims that, at a hearing conducted on April
1, 2021, “the court stated that it was taking judicial notice of
matters in its file.” The court did not so state. The court said it
wanted appellant to provide “a detailed argument as to why an
evidentiary hearing would be necessary here in light of the
statute of limitations issues and the matters that are subject to
judicial notice in the court’s file.” The court did not specify what
matters in its file were “subject to judicial notice.”
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based on extrinsic evidence: “[T]he trial court dismissed the case
as untimely after reviewing written extrinsic evidence presented
over the course of a series of hearings.” Respondent explains:
“[T]he trial court dismissed appellant’s verified [amended]
petition after considering . . . respondent’s verified objections,
which contained their own narrative, and extrinsic documentary
evidence referenced in those objections . . . . So there was what
amounted to a trial based on documentary evidence, but without
live testimony.” (Italics omitted.)
The trial court proceedings were not the equivalent of a
trial. The court said, “I disagree with the necessity for a
trial . . . .” Respondent acknowledges that appellant “asked,
unsuccessfully, for a live evidentiary hearing.”
Much of the extrinsic evidence presented by respondent
was inadmissible because it was in the form of a declaration or
verified response. “[Probate Code] [s]ection 1022 specifies that
‘[a]n affidavit or verified petition shall be received as evidence
when offered in an uncontested proceeding under this code.’
When a petition is contested, as it was here, ‘affidavits and
verified petitions [or verified responses] may not be considered as
evidence at a contested probate hearing.’” (Estate of Lensch
(2009) 177 Cal.App.4th 667, 676; see Dunlap v. Mayer (2021) 63
Cal.App.5th 419, 426 [“The [probate] court could not rely on
Maria's objections, even though verified, as a basis for its ruling
[dismissing the petition] because the facts were contested”].)
Since the motion to dismiss was based on extrinsic
evidence, the trial court should have “treated [it] as a motion for
summary judgment in order to preserve the safeguards provided
by the [summary judgment] statute.” (Pianka, supra, 46 Cal.2d
at pp. 211-212; see also Saltarelli & Steponovich v. Douglas
13
(1995) 40 Cal.App.4th 1, 5, [“The procedure of moving to dismiss
an action based on extrinsic evidence is disapproved in California
and the motion is permitted only where it complies with the
requirements for a motion for summary judgment”].)
Probate Code section 1022 did not preclude the trial court
from treating the motion to dismiss as a motion for summary
judgment. In Key v. Tyler (2019) 34 Cal.App.5th 505, 521, the
court noted that, “[d]espite Probate Code section 1022, summary
judgment proceedings in probate court are commonplace.” The
court explained that, although “the statute governing summary
judgment motions specifically provides for the use of affidavits,”
“the summary judgment statute does not permit the
determination of contested facts based upon the affidavits, but
[instead] allows a motion to be granted only if there is ‘no triable
issue as to any material fact.’ (Code Civ. Proc., § 437c, subd. (c).)”
(Ibid.) Here, the trial court determined contested facts adversely
to appellant.
Respondent claims, “At no point did [appellant] object to the
trial court considering the extrinsic evidence.” “Therefore, this
appeal has to be decided on the basis that there was nothing
improper with the procedural and evidentiary manner in which
the trial court came to its decision . . . after weighing the evidence
before it.”
We disagree. In her opposition to respondent’s March 25,
2021 verified response, appellant protested that respondent had
referred to “new evidence . . . includ[ing] a newly drafted
declaration and numerous exhibits and factual allegations” that
“relate to numerous factual disputes, which are better left for an
evidentiary hearing . . . .” Appellant asserted: “There is no
statutory authority for using a motion to dismiss as a method to
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challenge pleadings.” Appellant claimed that, “at best,
[respondent’s] request to dismiss must be treated similarly to a
general demurrer.” Therefore, respondent’s “request to dismiss
must meet the standard for dismissal under a demurrer, which
requires the Court to accept all allegations by [appellant] as true
. . . .”
The above statements by appellant constituted an objection
to the extrinsic evidence. Appellant argued that the motion to
dismiss must be treated as a demurrer. “A demurrer can be used
only to challenge defects that appear on the face of the pleading
under attack or from matters outside the pleading that are
judicially noticeable. No other extrinsic evidence can be
considered.” (Kerivan v. Title Ins. & Trust Co. (1983) 147
Cal.App.3d 225, 229.)
Furthermore, by insisting that the trial court conduct an
evidentiary hearing, appellant objected to the court’s reliance on
the extrinsic evidence presented by respondent. At a hearing
conducted on April 1, 2021, appellant’s counsel maintained that
the issue of laches “has to go to an evidentiary hearing.” Counsel
requested that the trial court “set this out for an evidentiary
hearing in several months.” At a subsequent hearing on May 13,
2021, appellant’s counsel said: “[W]hat is clear here is that there
are definitely factual disputes as to the timing of events and to
what happened in this case. . . . [I]t would be inappropriate to
dismiss this matter on the pleadings; there needs to be due
process and a trial on this.”
Estate of Bennett (2008) 163 Cal.App.4th 1303, shows that
appellant’s insistence on an evidentiary hearing constituted an
objection to respondent’s extrinsic evidence. In Bennett the Court
of Appeal noted that Probate Code section 1022’s “restriction on
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the use of declarations in contested probate hearings is
inapplicable when ‘the parties d[o] not object to the use of
affidavits in evidence and both parties adopt[ ] that means of
supporting their positions.’ [Citations.]” (Id. at p. 1309.) “But
here,” the court continued, “Smith, [like appellant in the instant
case,] . . . asserted in written opposition and at the hearing that
the factual conflicts presented by the parties’ competing
declarations mandated an evidentiary hearing. Consequently,
the issue was preserved for review in this case.” (Ibid.)
Finally, at the hearing conducted on May 13, 2021,
appellant clearly objected to the trial court’s consideration of
respondent’s extrinsic evidence when her counsel asserted,
“[T]his Court is required to stick to the facts stated in the
petition, not what [respondent’s counsel] stated, on a motion to
dismiss.”
Law of Summary Judgment
“The purpose of the law of summary judgment is to provide
courts with a mechanism to cut through the parties’ pleadings in
order to determine whether, despite their allegations, trial is in
fact necessary to resolve their dispute. [Citation.]” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) A
motion for summary judgment “shall be granted if all the papers
submitted show that there is no triable issue as to any material
fact and that the moving party is entitled to a judgment as a
matter of law.” (Code Civ. Proc., § 437c, subd. (c).)
A defendant moving for summary judgment “bears the
burden of persuasion that ‘one or more elements of’ the ‘cause of
action’ in question ‘cannot be established,’ or that ‘there is a
complete defense’ thereto. [Citation.]” (Aguilar, supra, 25
Cal.4th at p. 850; see also Code Civ. Proc., § 437c, subd. (p)(2).)
16
The defendant also “bears an initial burden of production to make
a prima facie showing of the nonexistence of any triable issue of
material fact . . . .” (Aguilar, supra, at p. 850.)
“The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters
of which judicial notice shall or may be taken. The supporting
papers shall include a separate statement setting forth plainly
and concisely all material facts that the moving party contends
are undisputed . . . followed by a reference to the supporting
evidence.” (Code Civ. Proc., § 437c, subd. (b)(1).); see Cal. Rules
of Court, rule 3.1350.)
On appeal we conduct a de novo review, applying the same
standard as the trial court. (AARTS Productions, Inc. v. Crocker
National Bank (1986) 179 Cal.App.3d 1061, 1064.) Our
obligation is “‘“to determine whether issues of fact exist, not to
decide the merits of the issues themselves. . . .”’” (Wright v.
Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1228.) We
must “‘consider all of the evidence’ and ‘all’ of the ‘inferences’
reasonably drawn therefrom [citation], and must view such
evidence [citations] and such inferences [citations], in the light
most favorable to the opposing party.” (Aguilar, supra, 25
Cal.4th at p. 843.)
The Trial Court Erroneously Granted
Respondent’s Speaking Motion to Dismiss
The trial court did not treat respondent’s speaking motion
to dismiss as a motion for summary judgment. Respondent was
not required to file a separate statement of undisputed material
facts with references to supporting evidence. (Cal. Rules of
Court, rule 3.1350(d).) Accordingly, appellant did not file a
responsive separate statement. (Id., rule 3.1350(f).) “The
17
requirement of a separate statement from the moving party and a
responding statement from the party opposing summary
judgment serves two functions: to give the parties notice of the
material facts at issue in the motion and to permit the trial court
to focus on whether those facts are truly undisputed.” (Parkview
Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133
Cal.App.4th 1197, 1210.)
The trial court did not follow other required summary
judgment procedures. For example, it did not place on
respondent “an initial burden of production to make a prima facie
showing of the nonexistence of any triable issue of material fact.”
(Aguilar, supra, 25 Cal.4th at p. 850.) Nor did it consider the
evidence in the light most favorable to appellant.
Moreover, the trial court did not determine whether there
were triable issues of material fact. Although the evidence was
conflicting, the trial court decided the laches issue on its merits
adversely to appellant. Respondent contends that, since the trial
court “resolv[ed] disputed issues of fact,” it “would have been
required to issue a statement of decision had [appellant]
requested one.” (Bold omitted; see Code Civ. Proc., § 632.) “The
summary judgment procedure is designed to test whether any
material triable issues of fact exist, but not to resolve disputed
factual issues.” (McAlexander v. Siskiyou Joint Community
College (1990) 222 Cal.App.3d 768, 774.)
Because the trial court did not follow the protective
procedures applicable to summary judgment motions and because
it is reasonably probable that, if it had followed them, triable
issues of material fact would have been disclosed, we must
reverse the judgment of dismissal.
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Disposition
The judgment is reversed. Appellant shall recover her
costs on appeal.
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.*
BALTODANO, J.
*Retired Associate Justice of the Court of Appeal, Second Appellate District,
assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Bright & Powell and Kevin Mauseth, for Petitioner and
Appellant.
Law Offices of John Derrick and John Derrick, for Objector
and Respondent.
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