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Kalenian v. Insen

California Court of Appeals, Second District, Fifth Division

April 14, 2014

GEORGETTE KALENIAN et al., Plaintiffs and Appellants,
v.
GEORGE ELIAS INSEN, as Trustee, etc., et al., Defendants and Respondents.

[CERTIFIED FOR PARTIAL PUBLICATION[*]]

APPEAL from orders of the Superior Court of Los Angeles County, No. BP120314 Roy L. Paul, Judge.

Page 570

[Copyrighted Material Omitted]

Page 571

COUNSEL

Osborn Law, Richard G. Osborn and Blair J. Berkley for Plaintiffs and Appellants.

MacLean Chung Law Firm and Graham Thomas MacLean, Jr., for Defendants and Respondents.

OPINION

TURNER, P. J.

I. INTRODUCTION

Plaintiffs, Georgette Kalenian, Ida Reza, Elizabeth Van Item and Alex Tony Insen (Alex), [1] appeal from an order denying their motion to vacate two December 15, 2011 dismissal orders. Plaintiffs filed a Probate Code[2] section 17200 petition seeking to replace defendant, George Elias Insen (George), [3] as trustee of the Elias George Insen Separate Property Trust and determine the trust’s construction. On December 15, 2011, Judge Mitchell L. Beckloff dismissed plaintiffs’ section 17200 petition and default prove-up request

Page 572

without prejudice. This dismissal resulted in plaintiffs being barred under the statutes of limitations from securing section 17200 relief. Plaintiffs contend they had no notice of Judge Beckloff’s December 15, 2011 dismissal orders until October 29, 2012. On January 15, 2013, plaintiffs filed a Code of Civil Procedure section 473, subdivision (b) motion to vacate the December 15, 2011 dismissal orders. Plaintiffs argued they were entitled to Code of Civil Procedure section 473, subdivision (b) mandatory and discretionary equitable relief. On February 26, 2013, Judge Roy L. Paul denied plaintiffs’ motion as untimely filed. In the published portion of the opinion, we hold plaintiffs may appeal the denial of the motion for relief from Judge Paul’s order denying their motion to vacate. In the unpublished portion of the opinion we conclude plaintiffs are entitled to equitable relief from the December 15, 2011 orders. Thus, we reverse the orders under review.

II. BACKGROUND

A. The Elias George Insen Trust

Elias George Insen (Elias) had six children—Ms. Kalenian, Ms. Reza, Ms. Van Item, Alex, Juliet Ainian, and George. On June 23, 1999, Elias executed a written declaration of revocable living trust (the trust). The trust property included: property located at 1175 North Edgemont Street in Los Angeles (the Edgemont property); 50 percent of the property and a business, George’s Auto Repair, located at 3655 West Pico Boulevard (the Pico property); a Washington Mutual savings account; a Washington Mutual checking account; and a 1984 Lincoln Continental. On July 21, 1999, Elias conveyed his interest in the Edgemont property to the trust.

Trust Article 1.023, concerning distribution of the trust balance, provides: “Upon the death of the Grantor [Elias], the Trustee hereof is directed to make the following specific distributions: [¶] [Alex], [the Edgemont property].... [George] is to continue to pay fifty percent (50%) of the outstanding mortgage payments on these properties. However, if [Alex] refinances these properties, then [George] is no longer obligated to pay fifty (50%) of the mortgages. [¶] [George], business (George’s Auto Repair).... [¶] The balance of the Trust Estate shall be distributed to the following individuals, upon the principle of representation ([i]f one of the beneficiaries of [Elias] dies, then his or her share will go equally to his or her then surviving issue. If no surviving issue exists, then distribute such deceased ...


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