Motion for Appointment re Probate in The Tennie B Muders Trust dated April 26, 1994| Trellis.Law

On August 15, 2019 a Complaint,Petition was filed involving a dispute between Muders, Linda, and for Trust in the District Court of Butte County.

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SHEPPARD, MULLIN. RICHTER & HAMPTON LLP
A Limited Liability Partnership F 5UP“)! Cﬁul't bf Califﬂmia

Including Professional Corporations mm,“ Bum
STEVEN P. BRACCINI, Cal. Bar No. 230708 I

KENDAL E. FLETCHER, Cal. Bar No. 281317 L 9/16/2019
37’9 Lytton Avenue E
Palo Alto, California 94301-1479 Eomrq
Telephone: 650.81 5 .2600 D . n;
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Facsnnile: 650.815.2601 By
E mail sbraccini 6 sheppardmullin.com
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kﬂetchergsheppardmullin.com
cl0ng@sheppardmullin.c0m

Attorneys for James P. Chase, Trustee 0fthe
Tennie B. Muders Trust Dated April 26, 1994

SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF BUTTE
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NORTH BUTTE COUNTY COURTHOUSE CHICO, CA -

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1n re the Case No. 19PR00366
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The Tennie B. Muders Trust Dated OBJECTION TO PETITION FOR
H -h April 26, 1994 ORDER REMOVING TRUSTEE AND
APPOINTING SUCCESSOR
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TRUSTEE
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ON Date: September 17, 2019
Time: 9:00 a.m.
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Dept: Probate

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\O l. INTRODUCTION
MG The Petition for Order Removing Trustee and Appointing Successor Trustee (the

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“‘Petition") ﬁled by Linda Muders (“Petitioner") should be denied because there is r10

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basis in law 0r fact t0 remove James Chase (the ““Trustee”) as trustee 0f the Termie B.

Muders Trust dated April 26, 1994 (the “Trust”). First and foremost, Butte County the
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Mﬁ wrong venue for the Petition; the proper venue is San Francisco County, which is the

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principal place of the Trust administration. Prob. Code §17005(a)(l). Second, Petitioner

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cannot carry her burden 0f establishing any basis t0 remove the Trustee, as the trustee has
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not breached any ofhis duties, and the only hostility that exists is engendered entirely by

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Petitioner and has in n0 way impaired the administration ofthe Trust. Estate ofBrown
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SMRHt4BIE-1433-3468-1 OBJECTION T0 PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
(1937) 22 Cal.App.2d 480, 486; see also Copley v. Copley (I981) 126 Cal. App. 3d 248,

287 (“[E]xtreme showing of trustee misconduct before removal is called for" particularly

in light of the law’s preference for the named trustee.); IFS Industries v. Stephens (1984)

159 Cal.App.3d 740, 754 (where the hostility is engendered entirely by the beneﬁciary

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demanding removal, it improper t0 remove the trustee). Finally, even assuming that

immediate denial of the Petition does not occur. the Petition is contested and cannot be

adjudicated absent an evidentiary hearing. Estate ofLensch (2009) 177 Cal. App. 4th 667,

675-678.

As to Petitioner’s request for attorney’s fees, no statute or agreement exists that

would entitled Petitioner to rccovcr hcr fees, so her request must be denied as a matter of

law.

II. RESPONSE T0 SPECIFIC ALLEGATIONS
1. Exhibit A: The Trustee admits that Exhibit A to the Petition is a true and
correct copy of the Trust.

2. Exhibit B: The Trustee admits that Exhibit B to the Petition is a true and

correct copy of the First Amendment

3. Exhibit C: The Trustee admits that Exhibit C is a true and correct copy of

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the death certiﬁcate of the Settlor, Tennie Muders (the “Settlor”).

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4. Exhibit D: The Trustee admits that Exhibit D is a true and correct copy of

the death certiﬁcate of Steven J. Muders ("Steven”).

5. Exhibit E: The Trustee admits that Exhibit E is a true and correct copy ofthe

Order for Probate dated July 9, 2019, Butte County Superior Court, Case No. 16PR00263.

6. Exhibit F: The Trustee admits that Exhibit F is a true and correct copy ofthe

Spousal Property Order dated July 9, 20 1 9.

7. Paragraph l: Admitted.

8. Paragraph 2: Admitted.

9. Paragraph 3: Admitted.

10. Paragraph 4: The Trustee is without sufﬁcient information and belief t0
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SMRHz48I2-I433-8468.1 OBJECTION To PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
admit or deny the allegations of this paragraph and, therefore, they are denied.

11. Paragraph 5: Admitted.

12. Paragraph 6: Denied as phrased.

13. Paragraph 7: Admitted that Steven is survived by Petitioner and their son.

Cody Justin Muders (“Cody”). The Tmstee is without sufﬁcient information and belief to
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admit or deny the remaining allegations of this paragraph and, therefore. they are denied.

14. Paragraph 8: Admitted.

15. Paragraph 9: Denied. Petitioner is a beneﬁciary of Steven’s estate. She is

not a beneﬁciary of the Trust.

10 16. Paragraph 10: Admitted.

11 17. Paragraph 11: Admitted that the James Chase is the last successor trustee

12 named under the terms of the Trust.

13 18. Paragraph 12: Denied that the Trustee is unable or unwilling to act and that

14 Petitioner is entitled to the relief sought in the Petition.

15 19. Paragraph 13: Admitted that the Trustee did not provide a Trustee’s

16 Notiﬁcation to Petitioner, as she is not a beneﬁciary ofthe Trust or the Settlor’s heir. As

17 to the remaining allegations ofthis paragraph. denied.

18 20. Paragraph 14: Denied as phrased.

19 21. Paragraph 15: Denied.

20 22. Paragraph 16: Denied that the Trustee is unwilling t0 act. The Trustee is

21 without sufﬁcient information and belief to admit or deny the remaining allegations of this

22 paragraph and, therefore, they are denied.

23 23. Paragraph 17: Denied as phrased.

24 24. Paragraph 18: Denied that the Trustee was the Settlor’s “acquaintance."

25 The Trustee was extremely close friends with both the Settlor and Steven for

26 approximately forty years. Admitted that the Trustee has known Petitioner for over

27 twenty-five years. The Trustee is without sufﬁcient information and belief to admit or

28 deny the remaining allegations of this paragraph and, therefore, they are denied.
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SMRH:4812-l433-8468.I OBJECTION To PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
25. Paraggaph 19: Denied that the Trustee’s feelings and opinions of Petitioner

have impaired his ability to property administer the Trust. The Trustee is without

sufﬁcient information and beliefto admit or deny the remaining allegations of this

paragraph and, therefore, they are denied.

26. Paragraph 20: Admitted that the Trustee told a third party he believed that
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Steven and Petitioner were divorced a1 the time of Steven’s death. The Trustee was

advised years ago by Steven that Petitioner had demanded a divorce and that Steven and

Petitioner had “signed divorce paperwork.” Based on this statement by Steven, the Trustee

reasonably believed Petitioner and Steven were divorced. It was only after Steven‘s death

that the Trustee (as wcll as many of Steven’s other friends) learned Steven and Petitioner

were still married. The Trustee is without sufﬁcient information and belief t0 admit or

deny the remaining allegations 0f this paragraph and, therefore, they are denied.

27. Paragraph 21: Denied.

28. Paragraph 22: Denied.

29. Paragraph 23: Denied that Petitioner and Cody are beneﬁciaries of the Trust

or that they are, in their individual capacities, entitled to notice of the Petition. Petitioner

is only entitled t0 notice of the Petition in her capacity as personal representative of

Steve’s estate.
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30. Paragraph 24: Admitted.
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Prayer for Relief

The allegations contained in paragraphs 1 through 4 of the Prayer are requests for

relief to which no response is required. To the extent a response is required, the Trustee

denies Jocelyn is entitled t0 the relief sought.

III. GROUNDS FOR DENIAL OF RELIEF
A. San Francisco County is the Proper Venue for the Petition

The Trustee is informed and believes and thereon alleges that the proper county for a

petition conﬁrming the internal affairs of the Trust under Probate Code section 17200 is the

county where the principal place oftrust administration occurs. Prob. Code §l7005(a)(l).
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SMRHz4812-I433-8468.I OBJECTJON To PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
The Trustee is further informed and believes and thereon alleges that the principal place of

administration is where the day-to-day activity of the trust is carried on by the trustee; if the

day-to-day activity cannot be so determined, then the principal place of administration of

the trust is the trustee’s residence. Prob. Code § 17002.

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Here, the day-to-day administration of the Trust is carried out in the County of San

Francisco, which is where the Trustee resides and the real property of the Trust is situated.

The only nexus this case has to Butte County is that Petitioner resides there, which is not a

basis for venue in that county. As such, venue for the Petition is indisputably proper in the

County of San Francisco. 1n the event Petitioner refuses to voluntarily withdraw the Petition

from this Court and reﬁle in the San Francisco County Superior Court, the Trustee will ﬁle

a motion to change venue.

B. There Are No Grounds for the Trustee’s Removal

The Trustee is informed and believes and thereon alleges that the burden for

removal of a settlor-appointed trustee is extremely high and that the preponent ofthe

removal must make “an extreme showing 0f trustee misconduct,” such as incapacity,

dishonesty, or lack of qualiﬁcations. Estate ofBrown (1937) 22 Cal.App.2d 480. 486; see

also Copley v. Copley (1981) 126 Cal. App. 3d 248, 287 (“[E]xtreme showing oftrustec

misconduct before removal is called for” particularly in light 0f the law’s preference for

the named trustee]; see also, Estate ofFeeney (1983) 139 Cal. App. 3d 812, 820)(citing

Estate ofCole (1966) 240 Cal. App. 2d 324, 332 [“Removal of an executor appointed by

will obviously defeats the will of the decedent and therefore, should not be resorted to for

light or insubstantial reasons.”]).

Here, the Trustee has not engaged in any misconduct in the administration ofthc

Trust, let alone in the level of extreme misconduct necessary to warrant his removal. Thus,

there are no grounds to remove the Trustee.

C. Any Hostility Between Petitioner and the Trustee is Engendered By Petitioner
and is Not Impairing the Administration of the Trust

The Trustee is informed and believes and thereon alleges that hostility and

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SMRH:4812-I433-8468.I OBJECTION To PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
antagonism can only justify an order of removal ofthe trustee when those factors impair

the proper administration of the trust. Estate ofGilmaker, 57 Cal.2d 627, 632. Further,

where the hostility is engendered entirely by the beneﬁciary demanding removal, it

improper to remove the trustee. IFS Industries v. Stephens ( 1984) 159 Ca1.App.3d 740.

754.
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Any hostility that exists in this matter is engendered entirely by Petitioner and not

by the Trustee. Petitioner also cannot demonstrate that this one-sided hostility has in any

way impaired the proper administration 0f the Trust. In short, even ifthere is hostility on

the part 0f Petitioner, this hostility has had no effect on the administration.

D. There is No Basis for an Award of Attorney’s Fees

The Trustee is informed and believes and thereon alleges that attorney’s fees are

generally not recoverable unless speciﬁcally provided for by statute or agreement of the

parties. Civ. Code § 1021. As there is no agreement or statute that would entitle Petitioner

to recover her attorney’s fees from the Trustee. her request for an award of attomey’s fees

must be denied.

IV. AFFIRMATIVE DEFENSES
First Separate Afﬁrmative Defense to All Causes of Action

(Improper Venue)

l. The Trustee alleges that the Petition, and each and ever cause of action
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therein, is barred in whole or in part because Butte County is not the proper venue for the

Petition.

Second Afﬁrmative Defense to All Causes of Action

(Estoppel)

2. The Trustee alleges that the Petition, and each and every cause of action

therein, is barred in whole or in part by the doctrine of unclean hands.

///

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SMRHr4812-I433-8468.1 OBJECTION T0 PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
Third Afﬁrmative Defense to All Causes of Action

(Estoppel)

3. The Trustee alleges that the Petition, and each and every cause ofaction

therein, is barred in whole or in part by the doctrine of estoppel.

Fourth Separate Afﬁrmative Defense to All Causes of Action
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(Waiver)

4. The Trustee alleges that the Petition, and each and every cause of action

therein, is barred in whole or in part by the doctrine of waiver.

Fifth Separate Affirmative Defense to All Causes of Action

(Probate Codc § 16440(b))

5. The Trustee alleges that the Petition, and each and every cause of action

therein, is barred by Probate Code section 16440(b), which provides that if the Trustee has

acted reasonably and in good faith under the circumstances as known to the Trustee, the

court, in its discretion, may excuse the trustee in whole or in part from liability for breach

of trust if it would be equitable to do so.

Sixth Separate Afﬁrmative Defense to All Causes of Action
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(Failure to State a Claim)

6. The Trustee alleged that the Petition. and each and every cause of action
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therein, fails to state facts sufﬁcient t0 constitute a cause 0f action against the Trustee.

Seventh Separate Afﬁrmative Defense As To All Causes Of Action

(Right To Assert Additional Afﬁrmative Defenses)

The Trustee alleges that he currently has insufﬁcient information and knowledge as

to whether he is entitled to other, separate afﬁrmative defenses and thus reserves his rights

to later assert additional afﬁrmative defenses in the course of this proceeding.

V. REQUEST FOR AN EVIDENTIARY HEARING
Where, as here, a petition is contested. the matter cannot be heard on declarations 0r

by a veriﬁed petition alone, and an evidentiary hearing is required. Estate ofLensch

(2009) 177 Cal. App. 4th 667, 675—78 (order granting contested petition without a trial

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SMRI-It4812-I433-8468-I OBJECTION T0 PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
reversed); Prob. Code sections 1000, 1022, and 1046; see also Evangelho v. Presoto

(1998) 67 Cal. App. 4th 615; see also [n re Buchman's Estate (1954) 123 Cal. App. 2d 546.

560 (a ﬁduciary is entitled to an evidentiary hearing, and has the right and must be given

and to present evidence on every ground for removal before removal can be ordered).

Here, the Trustee is entitled to an evidentiary hearing to proffer documentary and

testimonial evidence upon direct and cross-examination to refute the allegations contained

in the Petition.

Vl. PRAYER
Thc Trustcc hereby prays as follows:

l. That the Petition be denied in its entirety;

2. For such other and further relief as the Court deems proper.

Dated: September 16, 2019

SHEPBARD, MULLIN, RICHTER & HAMPTON LLP
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xxx.

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By: I

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“V- STEVEN P. BRACCINI
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KENDAL E. FLETCHER
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Attorneys for James P. Chase. Trustee ol‘the
Tennie B. Muders Trust Dated April 26, 1994

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SMRHi4812-|433-8468.I OBJECTION T0 PETITION FOR ORDER REMOVING TRUSTEE AND APPOINTING
SUCCESSOR TRUSTEE
VERIFICATION
STATE OF CALIEORNIA. COUN I Y OF SANTA CLARA
I have read the fore oingOBJECTION TO PETITION FOR ORDER
REMOVING TRUSTEE AND POINTING SUCCESSOR TRUSTEE and know its
contents.

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I am a party to this action. The matters statpd in the foregoigg document are
trug of my own knowledge excegt gs to those matters whlch are stated on mformation and
belxef, and as to those mattersl eheve them to be true.

I declare under penalty of peljury under the laws of the State of California
that the foregoing is true and correct.

Executed on September z r; , 2019, at San Francisco, California.

James P. Chase. Trusteevof th_e Tennie
B. Muders Trust Dated April 26. 1924

mqamawNHBGS‘oSSGIGESS

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SMRH=43‘2"433’§453-1 OBJECTION T0 PETl'l‘IéN FOR ORDER REMOVH‘IG TRUSTEE AND APPODITING
SUCCESSOR TRUSTEE
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
3 At the time of service, I was over 18 years of age and not a party to this action. I
am employed in the County of Santa Clara, State of California. My business address is
4 379 Lytton Avenue, Palo Alto, CA 94301-1479.
5 On the date listed below, I served true copies of the following document(s) the
interested parties in this action as follows:
6
OBJECTION TO PETITION FOR ORDER REMOVING TRUSTEE AND
7 APPOINTING SUCCESSOR TRUSTEE
8 ☒ BY MAIL: I enclosed the document(s) in a sealed envelope or package addressed
to the persons at the addresses listed in the Service List and placed the envelope for
9 collection and mailing, following our ordinary business practices. I am readily familiar
with the firm's practice for collecting and processing correspondence for mailing. On the
10 same day that correspondence is placed for collection and mailing, it is deposited in the
ordinary course of business with the United States Postal Service, in a sealed envelope
11 with postage fully prepaid. I am a resident or employed in the county where the mailing
occurred.
12
Erwin Williams Attorneys for Petitioner
13 McKernan, Lanam, Bakke & Williams, LLP. LINDA MUDERS
55 Independence Circle, Suite 106
14 Chico, CA 95973
Telephone: (530) 877.4961
15 Facsimile: (530) 877.8163
lawoffice@mlbwlaw.com
16
I declare under penalty of perjury under the laws of the State of California that the
17 foregoing is true and correct.
18 Executed on September 16, 2019, at Palo Alto, California.
19
20
Edwina Feguis
21
22
23
24
25
26
27
28

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SMRH:4851-0875-6902.1 PROOF OF SERVICE

Case Info

Judge

Mosbarger, Tamara L Track Judge’s New Case

Case No.

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Document Filed Date

December 17, 2019

Case Filing Date

August 15, 2019

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Complaint,Petition: The Tennie B Muders Trust dated April 26, 1994

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