Motion-Secondary: IN THE MATTER OF THE GLADYS L CALANDRA TRUST

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Dec-26-2006 1:23 pm

Case Number: PTR-06-289191
Filing Date: Dec-22-2006 1:23
Juke Box: 001 Image: 01633549
MEMORANDUM OF POINTS AND AUTHORITIES

IN THE MATTER OF THE GLADYS L CALANDRA TRUST

001P01633549

Instructions:
Please place this sheet on top of the document to be scanned.12/22/2806

Oo oO NAW kB WN =

nw n yee ewe ese se ee wee
pNP RR BR ES SGeRA AA Bw NK

13:37 TOT *255 GAW VAN MALE Cc PAGE 58/52

BETTY L. HOMER GON 213311
EUGRE TENG SIN eocuo aL AL A, 3D)
A Professional Law Corporation - esvmertor Court
Fantee Cakforte 9483). DEC 2.2 2006
FRESE Smaps
ARON CALANDICA and JULIE CALANDRA
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO

Jn the Matter of ) Case No. PTR-06-289191 :

} MEMORANDUM OF POINTS AND

THE GLADYS L. CALANDRA 1998.
REVOCABLE TRUST

AUTHORITIES IN SUPPORT_ OF
AMENDED PETITION FOR
DECLARATORY RELIEF UNDER
PROBATE CODE § 21320

Date: January 23, 2007
Time: 9:00 a.m.

Dept: 204

L

INTRODUCTION

Petitioners SHARON CALANDRA and JULIE CALANDRA bring the present amended

ee

petition for a determination that the underlying Petition to Remove Trustee, which is attached as
Exhibit “B” to the present amended petition, is not a contest as a matter of public policy.
I
ANALYSIS

A. Th d Petition Does Not Violate the No Contest Clause under the
Declaration of Trust Because it Does Not Seek to Set Aside its Dispositive Terms.

‘Under the Declaration of Trust executed by Gladys L. Calandra, the definition of a
contest was limited to seeking to set aside the dispositive terms of the settlor’s estate plan. The
proposed petition seeks the removal of Respondent as trustee arising from Respondent’s breach

1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED PETITION FOR

DECLARATORY RELIEF
VO343608 n= 1212272006 12.89.12 Po

XV Ad12/22/2086 13:37 7a749" 1255 GAW VAN MALE C PAGE 51/52

~

10
1
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

- 28

eo Oo YN DH Bw N
—

of his fiduciary duties. It does not seck to set aside the dispositive terms of the settlor’s estate
plan, but rather seeks to enforce them. Consequently, the proposed petition does not violate the

no contest clause under the Gladys L. Calandra 1998 Revocable Trust,

B. The Proposed Petition Does Not Violate the No Contest Clause of the Declaration of
Trust Because It Is Not a Contest as 2 Matter of Public Policy

The proposed petition seeks the removal of Respondent as trustee as a result of
Respondent's breach of his fiduciary dutics and the appointment of a successor trustee to fill the
resulting vacancy. The Jegistaturc has provided that such a petition is not a contest as a matter of
public policy. Probate Code § 21305 provides, in relevant part:

“(b) Except as provided in subdivision (d), notwithstanding anything to the

contrary in any instrument, the following proceedings do not violate a no contest
clause a3 a matter of public policy: ...

(6) Apleading challenging the exercise of a fiduciary power.

(7) Apleading regarding the appointment of a fiduciary or the removal
ofa fiduciary...

(9) A pleading regarding the interpretation of the instrument
containing the no contest clause or an instrament or other
document expressly identified in the no contest clause...” .

(d) Subdivision (b) shall apply only to instruments of decedents dying on or after

January 1, 2001, and to documents that become irrevocable on or after January 1,

2001. However, paragraphs (9), (11), and (12) of subdivision (b) shall only apply

to instruments of decedents dying on or after January 1, 2003, and to documents

that become irrevocable on or after January 1, 2003."

In the present case, the instrument was exccuted in 1998. It is conceded that the literal
terms of Probate Code § 21305 only apply to instruments executed after 2001. However, this
statute frames the issue in terms of public policy. What is good public policy for instruments
executed aftcr 2001 is also good public policy for an instrument that was cxecuted in 1998.
Again, Petitioners do not seck to set aside the dispositive terms of the settlor’s estate plan, but
rather seeks to enforce them.

Iu.
CONCLUSION

For the reasons set forth above, Petitioners respectfully request that the court enter an

2

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED PETITION FOR,

DECLAR ATOR HAGLER 12 0912 PH12/22/2806 13:37 Tana * 258 GAW VAN MALE C PAGE 52/52

“|

1 |) order that the contemplated petition to remove trustee docs not constitute a contest.
2 || Dated: December2 25 2006 GAW, VAK MALE, SMITH,
MYERS & MTROGLIO
3
‘ \$——
5 By:
JAMES P. LAMPING
6 BETTY L. HOMER
EUGENE Y. PENG
7 Attorneys for SHARON CALANDRA and
JULTE CALANDRA
8
9
10
iW
2
13
4
15
16
17
18
19
20|
21
22
23
24
25
26
27
28
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF AMENDED PETITION FOR
DECLARATORY RELIEF

10343508 bt ~ 1272272008 12 49 12 PH