[ENTER NAME]
[ENTER ADDRESS]
Petitioner In Pro Per
| SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO |
|
| In Re: [ENTER NAME] Petitioner And OLIVIA MESSICK Respondents | Case No.: ____________ PETITION FOR ACCOUNTING; FOR THE REMOVAL OF TRUSTEE |
INTRODUCTION
Petitioner [ENTER NAME], pro se, seeks an order for an accounting of the Trust’s assets and/or Property; and an order removing the Respondent as trustee; and to do all other things the Court deems necessary and just.
JURISDICTION AND VENUE
1. The Superior Court has jurisdiction of proceedings under the Probate Code concerning the administration of the decedent’s estate. See Prob. Code. § 7050.
2. The Probate Code confers exclusive jurisdiction of proceedings concerning the internal affairs of trusts to the superior court having jurisdiction over the trust. Prob. Code. § 17000, subd. (a).
3. The decedent [ENTER NAME], was domiciled in this state at the time of death. Therefore, venue is proper in this County pursuant to Prob. Code. § 7051.
Accordingly, the factual allegations below are made upon information and belief:
PARTIES
4. Petitioner is a beneficiary of the decedent’s estate. A trust beneficiary has the right to sue for the enforcement of the trust. See Menefield v. Fin. Freedom Senior Funding Corp., 2017 Cal. App. Unpub. LEXIS 6939 (California Unpublished Opinions 2017).
5. The Respondent has been a trustee for the decedent’s estate since [ENTER DATE]. As a trustee of the decedent’s estate, the Respondent owes fiduciary duty to the beneficiaries of the trust, including the Petitioner.
FACTS IN SUPPORT OF PETITION
6. On or about [ENTER DATE], the Petitioner’s mother created a trust and placed her property of address [ENTER ADDRESS] into the trust. Upon her death on September 7, 2021, the decedent’s assets were supposed to be administered according to the terms of the trust. Specifically, the Trustor’s intention under the trust was that the estate be managed by three trustees: Vincent Soriano, Gloria Carlos, and the Respondent. However, two of the trustees (Gloria, and Vincent) resigned, leaving the Respondent.
8. On or about [ENTER DATE], the Respondent sold the property without following due process.
9. Accordingly, in addition to the specific intent of this Petition, the Petitioner generally seeks that the Respondent be found at fault for declining the Petitioner’s offer in September 2021 and beneficiary Leticia’s most recent offer of $215,000 submitted in January 2022. Petitioner avers that the said offers would have ensured a reduction of costs and an increase of gains to the beneficiaries. The Respondent also failed to enter any negotiations with any beneficiary, which, as already observed, would have reduced costs and optimized gains.
10. The Petitioner also seeks to bring to this Honorable Court’s notice, the Respondent’s pattern of willful misconduct and disregard for all applicable law. The Respondent’s misconduct includes, without limitation, a lack of communication, lack of transparency, lack of accountability, and a mishandling of estate income and expenses.
11. The Petitioner also seeks to bring to this Honorable Court’s notice, the Respondent’s enmity and mistrust[1].
FIRST CAUSE OF ACTION
An Accounting
(Probate Code §§ 16420 and 17200)
12. Petitioner hereby realleges and incorporates by reference each and every allegation contained in Paragraphs l through 11 above.
13. Probate Code sections 16420 and 17200 provide for an accounting of trust assets as a remedy for breach of fiduciary duty.
14. The ground under which the Petitioner seeks an accounting is as follows: the Respondent wasted the estate’s assets. The real property in the trust went without maintenance for many years and became severely dilapidated as a result. For that reason, the listing realtor posted only the conditions 203K Loan or Cash Sell, on the belief that the property would not qualify for Government backed Mortgage funding due to its poor condition. It is further notable that the dilapidated condition of the property is one of the reasons that compelled the Respondent to evict her sister in favor of a cash offer.
15. Petitioner requests that this Court order an accounting to be performed, and filed with the Court. Petitioner further requests that this Court order Respondent to personally pay the costs of such accounting. Any expenses that cannot be support should be surcharged under Probate Code, section 16420, subd. (a)(9).
SECOND CAUSE OF ACTION
Breach of Fiduciary Duty and Removal of Trustee
(Probate Code §§ 15642, 16420, 17200)
16. Petitioner hereby realleges and incorporates by reference each and every allegation contained in Paragraphs l through 15 above.
17. Probate Code sections 16420 and 17200 authorize the removal of a trustee as a remedy for a breach of trust duties. A beneficiary of a trust may bring a petition to remove a trustee when the trustee commits a breach of trust (Prob. Code, § 15642(b )(1)) and/or when a trustee is insolvent (Pro b. Code, § 15642(b)(2) and/or :fails or declines to act (Pro b. Code, § l5642(b)(4)) and/or the trustee’s compensation is excessive under the circumstances (Prob. Code, § 15642(b)(5) and/or for other good cause. (Prob. Code, § l5642(b)(9).
18. Probate Code section 16000 et seq. set forth a trustee’s fiduciary duties in the administration of a trust. The Respondent has breached the following fiduciary duties: the duty to administer the trust according to the trust document; the duty to administer the trust solely in the interest of the beneficiaries; the duty not to use or deal with trust property for the trustee’s own profit or for any other purpose unconnected with the trust, nor to take part in any transaction in which the trustee has an interest adverse to the beneficiary; the duty to take reasonable steps under the circumstances to take and keep control of to preserve the trust property; the duty to make the trust property productive under the circumstances and in furtherance of the purposes of the trust; the duty to bring the trust portfolio into compliance with the purposes, terms, distribution requirements, and other circumstances of the trust; the duty to only incur costs that are appropriate and reasonable in relation to the assets, overall investment strategy, purposes, and other circumstances of the trust; and the prohibition on self-dealing transactions. (Pro b. Code, §§ 16000, 16002, subd. (a), 16004, subd. (a), 16006, }6007, 16010, 16049, 16050, and 16102.)
19. Petitioner avers that the Respondent has beached the aforesaid duties by:
- Fraud against the estate. The Respondent has for many years established a pattern of unethical financial dealings by collecting the rent due the estate only in cash in order to avoid accounting for it, and in order to under-report income to the state social services department, the tax authorities, and the beneficiaries[2].
- Abuse: The Respondent in 2010 along with Gloria Carlos, made an effort to have the Trustor’s attending physician document that because of medical condition, the decedent was not capable of handling her own affairs. Consequently, the affairs of the estate became in effect the sole responsibility of the Respondent. The Respondent’s failure to seek judicial review only speaks to her lack of diligence and further indicates mismanagement by the Respondent, of the Trustor’s and the estate’s affairs.
- Failing to conduct due diligence in her role as Trustee.
- Selling the property without following the required procedure, and against the intent of the Trustor in the Trust.
- Failing to maintain accounting records.
- Failing to send the beneficiaries accounting records.
20. As a proximate result of the Respondent’s breach of trust, the trust has been damaged.
THIRD CAUSE OF ACTION
Void Sale of Trust Property.
(Probate Code~§§ 16420)
21. Petitioner hereby realleges and incorporates by reference each and every allegation contained in Paragraphs l through 20 above.
22. Probate Code section 16420 permits the tracing of trust property that has been wrongfully disposed of and recover the property or its proceeds.
23. The Respondent sold the trust property in a questionable manner. Accordingly, the Petitioner objects to the said sale based on the following grounds:
- The property was income-generating. Notably, $1000 was being collected in rent every month since 2018, when the current tenant assumed occupancy. The rent amount was being collected by check[3]. Petitioner therefore avers that the property could pay off all of the trust’s costs, and preserve its capital.
- The terms of the trust had no provision for the liquidation of the property into cash. Notably, the trust only provided for the partitioning of the estate “in kind”.
- Since the demise of the Trustor to the date of filing this Petition, the Respondent has not been maintaining and delivering accurate, adequate and verifiable records of the estate. Notably, since September 7, 2021, the Respondent has never sent any accounting to the beneficiaries. The beneficiaries are therefore not in a position to know the economic status of the estate.
- The Respondent single-handedly made decisions, which ought to have been made by three trustees, according to the intent of the Trustor in the terms of the trust. The Respondent was obligated to seek successor trustees, after Gloria and Vincent resigned. The Respondent also misrepresented the date of the resignation of the other two trustees. It is notable that Vincent Soriano resigned in 2018 and Gloria Carlos followed shortly thereafter possible due to lack of cooperation with the Respondent[4].
PRAYER FOR RELIEF
WHEREFORE, Petitioner prays for an Order:
- For. a: full accounting of the real property and personal property and all additional assets of the Trust;
- Removing the Respondent as Trustee;
- Compelling the Respondent to redress her breaches of fiduciary duty by imposing appropriate remedies under P:robate Code section 16420, including payment to the trust of any and all funds wrongfully taken, as well as tracing trust property that has been wrongfully disposed;
- Voiding the sale of the trust property;
- Awarding petitioner attorney’s fees and costs, including actual costs incurred in conducting this proceeding; and
- For any other legal and equitable relief that this Court may deem just and proper.
In addition to the prayers set forth above, the Petitioner seeks to present an offer to the Respondent for the gain and/or benefit of the beneficiaries, which offer contains the following terms:
- The Price of $215,000 or appraised value as determined by an appraisal prior to sale, whichever is higher, property assumed as-is, and vacant of tenants, or restore former tenant, Leticia Carlos.
- The Assignment of shares of the Trust by gift or other transfer, not in cash but in kind, by and on behalf of Leticia Carlos.
- The Payment of fully 50% of all fees and expenses accruing to the trust as of the date of this offer; any amount thereafter accruing, is to be proportioned equally among the 13 principle beneficiaries.
- The deposit of that amount of cash necessary, into escrow as a set-aside, for the settlement of all fees and expenses accruing to the trust, to be assigned as a second position lien on the real property, if not settled at closing. Fees and expenses to be determined based on a complete and accurate accounting by Trustee to be produced and made available to all beneficiaries a minimum of 14 days prior to the submission/acceptance of a formal offer.
- The Closing Time period of 30 days or less, pending Mortgage Lender funding the purchase.
DATED:
Respectfully submitted,
Signature
___________________
[ENTER NAME]
[ENTER ADDRESS]
In Pro Per
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing document has been sent to all the Respondent in the following address:
[ENTER ADDRESS FOR RESPONDENT].
DATED:
Signature
____________________
[ENTER NAME]
[ENTER ADDRESS]
In Pro Per
[1] Petitioner will present printed copies of various text messages by and between the Petitioner, Leticia and the Respondent.
[2] The Petitioner has evidence of Leticia Carlos’ testimony, and the Respondent’s journal of cash payments made to a third party from 2018-2021.
[3] Petitioner challenges the Respondent to show the Court that a bank account for the Trust was open continuously during that period of payment.
[4] Petitioner will present Exhibits of scans of resignation documents signed by Vincent Soriano and Gloria Carlos.
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