ERIKA BENE SIMON VS THE ESTATE OF RON RAVIV

Tentative Rulings

Case Number: *******1942 Hearing Date: July 6, 2022 Dept: 55

SIMON v. THE ESTATE OF RON RAVIV *******1942

Hearing Date: 7/6/22, Dept. 55

#8: MOTION FOR SEPARATE TRIAL.

Notice: Okay

Opposition

MP: Barak Raviv, Administrator of Defendant THE ESTATE OF RON RAVIV

RP: Plaintiff

Summary

On 10/30/20, Plaintiff ERIKA BENE SIMON filed a Complaint alleging that Defendant THE ESTATE OF RON RAVIV breached the decedent’s prior oral agreement to treat Plaintiff as his wife, when it failed to distribute Raviv’s trust properties as agreed and pursuant to testamentary intent as expressed in the RRES Estate Plan.

The causes of action are:

1. BREACH OF ORAL CONTRACT

2. DECLARATORY RELIEF

3. CONSTRUCTIVE TRUST.

On 4/23/21, Defendant filed a Cross-Complaint against Plaintiff, for an Order Compelling the Return of Estate Property, Financial Elder Abuse, Breach of Fiduciary Duty, Conversion, and Surcharging, including because Plaintiff utilized an expired power of attorney to wrongfully withdraw over $600,000 from Decedent’s Union Bank accounts just one day before Decedent’s passing

MP Positions

Moving party requests an order that the Cross-Complaint be separately tried before the Complaint, on bases including the following:

The equitable causes of action in the Cross-Complaint—Order Compelling the Return of Estate Property and Surcharging—should be tried first, because if Plaintiff is found to have acted in bad faith in failing to return Estate property, she will be deemed to have pre-deceased Decedent. Cal. Prob. Code 259.

If the relief under Cal. Prob. Code 259, sought in the Cross-Complaint— that Plaintiff be deemed to have pre-deceased Decedent— gets granted at trial, then the Complaint would be disposed of in avoidance of a lengthy trial on the Complaint.

RP Positions

Opposing party advocates denying, for reasons including the following:

Every fact and legal concept at issue in the Complaint is at issue in the exact same way in the Cross-Complaint, such that the issues are intimately entwined.

Whether Simon’s actions are sanctionable in regard to Probate 259, is based on whether she had a good objective or subjective reason for believing she was authorized by Oral Agreement regarding the distribution of Ron’s assets or other direction from Ron to withdraw the money.

Without any discovery on the banking or medical institutions, Defendant cannot say anything with any confidence regarding Simon’s, or Defendant’s, liability or authorization regarding any account.

Defendant’s fact pattern for Plaintiffs bad faith, and Plaintiffs fact pattern for her right to estate property, are not so much overlapping fact patterns.

Tentative Ruling

The motion is granted.

Trial is bifurcated to first hear the issues of Probate Code Section 259. Cf. Est. of Lowrie (2004) 118 Cal. App. 4th 220, 225 (“A bifurcated trial was held before the court. At the end of the first phase of the trial, the court found, by clear and convincing evidence, that Sheldon was guilty of elder abuse by reason of neglect, isolation, and financial abuse. In that Sheldon was found to be liable for elder abuse, the trial court found that Sheldon was disinherited from decedent's estate (Prob.Code, 259).”)

Case Number: *******1942    Hearing Date: June 3, 2021    Dept: 55

SIMON v. THE ESTATE OF RON RAVIV *******1942

Hearing Date: 6/3/21, Dept. 55

#10: MOTION TO STRIKE PUNITIVE DAMAGES CLAIM.

Notice: Okay

Non-opposition

MP: Barak Raviv, Administrator of Defendant THE ESTATE OF RON RAVIV

RP: Plaintiff

Summary

On 10/30/20, Plaintiff ERIKA BENE SIMON filed a Complaint alleging that Defendant THE ESTATE OF RON RAVIV breached the decedent’s prior oral agreement to treat Plaintiff as his wife, when it failed to distribute Raviv’s trust properties as agreed and pursuant to testamentary intent as expressed in the RRES Estate Plan.

The causes of action are:

1. BREACH OF ORAL CONTRACT

2. DECLARATORY RELIEF

3. CONSTRUCTIVE TRUST.

MP Positions

Moving party requests an order striking punitive damages allegations from the Complaint, on bases including the following:

· The request for punitive damages contains nothing more than boilerplate language from Cal. Civ. Code ; 3294, in an attempt to meet the required allegations of oppression, fraud or malice.

· Without any facts to support Plaintiff’s claim for punitive damages, the claim should be stricken.

·

Tentative Ruling

The non-opposed motion is granted, without leave to amend, as prayed.

Twenty days to answer the surviving allegations.

Not opposing a motion creates a waiver of the issues raised therein. Bell v. Am. Title Ins. Co. (1991) 226 Cal. App. 3d 1589, 1602; Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal. App. 4th 683, 693.