Calma v. Calma

Opinion

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IN THE SUPERIOR COURT Of GUAM 5

6 RUSTICO Q. CALMA, CIVIL CASE NO. CV0300-20

g Plaintiff

vs. DECISION AND ORDER RE. 10 PLA1NTIFF’S MOTION FOR DIANA J. CALMA, SUMMARY JUDGMENT 11 Defendant. 12

14 I. INTRODUCTION

15 This matter came before the Honorable Judge Maria T. Cenzon on June 13, 2022 for a

hearing on Rustico Q. Calma’s (the “Plaintiff’) Motion for Summaiy Judgment (the “Motion”).

18 The Plaintiff was represented by his counsel, Gary W. F. Gumataotao. Attorney Jeffrey A. Cook

19 was present on behalf of Diana J. Calma (the “Defendant”). The Court took the matter under 20 advisement pursuant to Supreme Court of Guam Administrative Rule 06-001 and CVR 21 7.l(e)(6)(A) of the Local Rules of the Superior Court of Guam. Having duly considered the 77

parties’ written briefs, the arguments presented at the Motion Hearing, and the applicable 23

24 statutes and case law, the Court now issues the following Decision and Order DENYING

25 Plaintiffs Motion. 26

27 “ 28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, Cabna v. Calma Page 1 of8 II. BACKGROUND

2 Plaintiff and Defendant are father and daughter. The familial dispute concerns five (5)

3 properties identified here as:

Parcel 1: Lot Number 2-Ri, Block 4, Tract No. 149, Tamuning, Guam. 5 Parcel 2: Lot Number 103-2, Tract No. 534, Dededo, Guam. Parcel 3: Lot Number 7, Block No. 6, Tract No. 178, Agafa-Gumas, Dededo, Guam. 6 Parcel 4: Lot No. 5-Ri, Block No. 25, Dededo, Guam. 7 Parcel 5: Lot No. 192, Block No. 4, Tract No. 100, Unit No. 4, Dededo, Guam.

8 See Compl. at 3 (Mar. 16, 2020).

While Plaintiffs suit seeks the rescission of deeds reputedly transferring these properties 10 from Plaintiff to Defendant because of alleged fraud, this Motion for Summary Judgment deals 11 exclusively with parcels 2, 4, and 5.’ The Plaintiff argues that the Rusty Calma Revocable Trust 12

13 (the “Trust”), executed on or about June 13th 2012, holds control over Parcel 2 and another

14 property, a condominium unit in Manila, Philippines. Plaintiffs Br. at 2 (Sept. 28, 2021). Thus, 15 the Plaintiff contends that any attempt to transfer Parcel 2 is null and void because it was held 16 by the Trust, and not the Plaintiff when the deed was executed. Id. Similarly, the Plaintiff also 17 posits that the deed identified as instrument #897518 in Exhibit D of Plaintiffs Complaint,

19 which attempts to transfer the condominium in Manila and Parcels 4 and 5, is also null and void

20 because the condominium in Manila was held by the Trust, and, since this transfer cannot be 21 severed from the rest of the deed, the attempt to transfer Parcels 4 and 5 is also null and void. 77

Id. at7. 23

25 Despite Plaintiff attaching Exhibits to the Complaint containing deeds “whereby Plaintiff is the purported granto; 26 and one or both Defendant are the purported grantee,” Plaintiffs Compi. ¶ 7, only Exhibit D, containing instrumeni #897518, actually identifies property that was transferred from the Plaintiff to the Defendant. Exhibit A identifie; 27 the Plaintiff as a Grantee and an unidentified third party as the Grantor, Exhibit B fails to identify any property subject to that deed, and Exhibit C again identifies the Plaintiff as a Grantee instead of the Grantor. 28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, Cahna v. Calma Page 2 of8 III. DISCUSSION

2 “Summary judgment is proper ‘if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.’

Unpingco v. Deny, 2021 Guam 1 ¶ 9 (citing Guam R. Civ. P. 56(c)). “A genuine issue of 6 material fact exists when there is sufficient evidence to establish a factual dispute that must be

s resolved by a factfinder.” Camacho v. Perez, 2017 Guam 16 ¶ 12 (citing Iizttka Corp. v.

Kawasho Int’l (Guam), Inc., 1997 Guam 10 ¶ 7 (per curiam)). In reviewing a motion 10 for summary judgment, “[the] court must view the evidence and draw inferences in a light most ii favorable to the non-movant.” Id. ¶ 13 (quoting Gov’t of Guam v. Gtttienrez, 2015 Guam $ ¶ 26). 12

13 “A movant bears the initial burden to show that undisputed facts in the record support a prima

i4 fade entitlement to the relief requested.” Hawaiian Rock Prodttcts Corp. v. Ocean Hoits., Inc.,

‘ 2016 Guam 4 ¶ 27. “The movant may ‘[satisfy] and discharge[] its burden by establishing the i6 absence of evidence to support the non-moving party’s case.’ “ Waathdad v. Cyfred, Ltd, 2021 17 Guam 24 ¶ 17 (quoting Kim v. Hong, 1997 Guam 11 ¶ 6). is 19 Under the circumstances, the Plaintiffs Motion wholly unsupported by fact or law. Articic

20 A, titled “Properties of Trust”, explicitly states which properties are subject to the Trust, ir 2i pertinent part: 22

23 1. The Trustees hereby acknowledge the receipt of the properties listed on the certificate attached to this declaration of trust, which have been assigned and 24 transferred to them as Trustees hereunder by the Settlor. 25

26 2. Additional properties may be assigned, conveyed, and/or transferred to the Trustees by the Settlor during her lifetime. A receipt for such additional properties 27

28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, Ca/ma v. Ca/ma Page 3 of 8 shall be executed by the Trustees and a description thereof added to the certificate 1 attached to this declaration of trust. 7

Plaintiffs Submission of Documents at 1 (Mar. 2, 2021). The certificate attached to the

4 declaration of trust reads as follows: 5 The Trustees of the Rusty Calma Revocable Trust acknowledge that they hold the 6 following items under the terms of the trust agreement dated June 13, 2012: 7 $10.00 Cash.

8 Id. at 24.

9 Plaintiff correctly maintains that the Trust mentions Parcel 2 and the condominium in 10 Manila, but it does so under Article C, titled “Provisions Applicable Upon and After Death oi II Rustico Q. Calma.” Id. at 2. This particular section dictates that: 12

13 1. As soon as practicable after the death of the Settlor, the Trustees shall distribute all my rights, title and interest in the following properties, free of trust, to the 14 following individuals.. 15 a. Fifty Percent (50%) of my right, title, and interest to the Real Property more 16 particularly described as Chalan Pugua, Lot No. 103-2, Tract No. 534, 17 Municipality of Dededo to my grandson Michael Roy Calma, the remaining Fifty Percent (50%) to be disposed of in accordance with Section II below. 18 b. All my right title and interest to my condominium unit located at oriental 19 Garden Condominium Complex located in Makata, Metro-Manila, Philippines 20 to my son, Mark Anthony Calma of Laguna City, Philippines.

21 Id.at3. 22 The Defendant recognized the aforementioned language and soundly reasoned that 23 “[t]here is no evidence that the real property. . . was ever conveyed to the Trustees.” Deft.’s Br. 24 at 3. The Plaintiff failed to substantively counter Defendant’s argument that the properties were 25

26 never in control of the Trust and thus that the Plaintiff possessed the ability “to transfer the

27 property to whomever he wanted prior to his death.” Id. Instead, the Plaintiff reverts back to his 28 Decision and Order Re. Plaintiffis Motion for Summary Judgment CVO300-20, Cabna v. Ca/ma Page4of8 argument that the Plaintiff never revoked the properties as set out in Article B(2) and thus any

2 attempt to assign them should be void. See Plaintiff’s Reply. Br. at 2 (“The instruments do not

3 conform with the process detailed in the Trust for revocation.”).

The obvious question still persists: why would the Plaintiff have to revoke the properties 5 from the Trust if they were never part of the Trust Res? The Trust unambiguously states that it 6 only holds ten dollars ($10.00) cash. Admittedly, the Trust does permit the admittance of

8 additional properties to the Trust during the Plaintiff’s lifetime, in which case “[a] receipt for ‘ such additional properties shall be executed by the Trustees and a description thereof added to 10 the certificate attached to this declaration of trust.” Plaintiff’s Submission of Documents at 1. 11 But the Plaintiff does not argue nor does he present any evidence to show he assigned, 12

13 conveyed, and/or transferred additional properties to the Trust through this procedure or

14 otherwise. As a result, the Trust only contained ten dollars cash and Plaintiff’s argument fails. 15 Published and unpublished opinions have adopted a similar view.2 In Tutorow v. Gerber, 16 WL 984777 (Cal. Ct. App. May 14, 2002), a dispute arose over whether a real property had 17 previously been transferred to a trust or not. The trust contained a paragraph that stated in part 18 19 that “[t]his trust shall be funded with assets transferred to this Trust by the Grantor at the time of

20 creating this Trust, or at any later time.” Id. at * 1. The trust also had a legal description of the ‘1 - lone property at issue and stated that at the time of the settlor’s death, the property should be

23 2 The Court does not adopt the unpublished opinions as mandatory authority, but rather includes them here t 24 illustrate when other courts have reached similar findings and does find the rationale and conclusions therel] compelling. The Supreme Court of Guam has likewise referenced unpublished opinions. See Guam YTK Coip. v, 25 Port Auth. of Guam, 2019 Guam 12 (“No court has relied upon Visiting Nurse for this proposition, but there hay been a handful of unpublished opinions adopting a similar view.”); See also Lamb v. Hoffman, 200$ Guam 2 2 26 ¶ (“In unpublished opinions, a few federal appellate courts have had occasion to follow Lewis and have rejecte arguments that petty offense penalties be aggregated.”). Lastly, the Ninth Circuit has found the use of unpublishe 27 opinions in Guam to be an accepted practice. See People i’. Yang, 800 F.2d 945, 947 n.2 (9th Cir. 1986) (“Unlik this circuit, the Guam courts afford the same respect to published and unpublished decisions.”). 28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300.-20. Gilma u. (a1ma Page 5 of$ distributed to the beneficiaries as the trust’s terms stated. Id. The court found that the trust did

2 not contain the property because “there was no declaration. . . transferring any property to the 3 trust nor a separate deed doing so.” Id. at *3 “At best,” the court reasoned, the paragraph

mentioning the funding of the trust “indicate[d] an intent to transfer at some point rather than an 5 actual or present transfer.” Id. The court also reasoned that the paragraph allocating the property 6 was “a distribution paragraph not a transfer.” Id.

8 The Defendant cites to another unpublished opinion in NPR Foundation v. Dirneff 2017

WL 1406817 (Cal. Ct. App. April 20, 2017). There, a schedule was attached to the trust

describing what properties were held under its control. The defendant attempted to minimize his

exposure by arguing that the schedule was not material. Id. at *7• The court rejected the 12

13 defendant’s argument, stating that “[e]ven assuming for the sake of argument that the 200$

14 Trust was ‘funded’ by some other means, the fact remains that [defendant] drafted Schedule A, 15 a provision in the 200$ Trust that defines the scope of the trust estate.” Id. More importantly, 16 the court then stated such language is in fact material: “In this case, the 200$ Trust . . . defines 17 the trust estate as “[a]1l of the property described in Schedule A,” (italics added) thereby making 18 19 the materiality of Schedule A [] apparent.” Id. In other words, the California court found that

20 attached schedules to trusts are material since they illustrate what properties are subject to that 21 trust.

Dirneff differs from another California case, Ukkestad v. RBS asset Finance, Inc., 235 23 Cal. App. 4th 156 (Cal. Ct. App. 2015), in that the trust in Ukkestad directly transferred 24

25 property that could be ascertained. See Ukkestad, 235 Cal. App. 4th at 163 (“Specifically, in the

27 Defendant’s original cite was incorrectly written as 2017 WL 140687. 28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, Ca/ma v. Calma Page 6 of 8 Trust Instrument, Mabee refers to ‘all of his real and personal property, including . . .real 1

2 property. . . wherever situated.”). Thus, the court in Ukkestad found the language of the trust

3 was “sufficient. . . to define the property that is part of the Trust’s assets” because it could then

use extrinsic evidence to determine what assets were in the trust. Id. (quotations omitted). 5 These opinions confirm that the Rusty Calma Trust Res consisted only of ten dollars 6 ($10.00), and thereby the Plaintiff has failed to meet his burden of presenting undisputed facts

$ that would entitle him to summary judgment in his favor. The Certificate of properties received

by the trustees here is material because it defines the scope of what properties are held by the 10 Trust. Given that the Trust language specifically notes that the Trust’s assets are those described

in the attached certificate, and that certificate only speaks of $10.00, this Court cannot find that 12

13 Trust controls anything but ten dollars. Parcel 2 and the condominium unit in Manila are

14 referenced in the Trust, but in a distribution paragraph and not a transfer paragraph. This

Court’s finding coincides with the rule that courts must interpret trusts so as to align with the 16 intent of the trustor or settlor. See Ephrairn v. Metro. Tr. Co. of Cal. 28 Cal.2d 824, 834 (Cal. 17 1946) (“the primary rule in construction of trusts is that the court must, if possible, ascertain and

19 effectuate the intention of the trustor or settler.”); In re Gitmp’s Estate, 16 Cal. 2d 535 (Cal.

20 1940) (“In construing trust instruments, as in construction and interpretation of all documents, 21 the duty of the court is to first ascertain and then, if possible, give effect to the intent of the 22 maker.”). 23 The Plaintiff had the opportunity to transfer all his properties to the Trust by using

25 language similar to that as used in Ukkestad. He did not. Instead, he limited the trust’s assets to

26 those he attached to it. Unfortunately for the Plaintiff he never attached any of the real

properties in dispute here to the Trust and cannot claim now otherwise just because it would Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, C’alma v. Cabna Page 7 of$ convenience him. See GCA § 66104 (the nature, extent, and object of a trust are expressed in 1

2 the declaration of the trust.”) (emphasis added).

3 IV. CONCLUSION

The Plaintiff has failed to show there is no genuine issue of material fact and, for the 5 reasons set forth herein, his Motion for Summary Judgment is DENIED.

SO ORDERED this SEP 07 2022

10 HONORItE MARIA T. CENZON II Judge, Superior Court of Guam 12

28 Decision and Order Re. Plaintiffs Motion for Summary Judgment CVO300-20, Ca/ma v. Ca/ma Page $ of$