The Byalick Family Trust et al vs The Bozenich Family Trust

Case Number

25CV03452

Case Type

Hearing Date / Time

Thu, 02/26/2026 - 09:00

Nature of Proceedings

1) Motion: Summary Adjudication; 2) Status Hearing

Tentative Ruling

The motion for summary adjudication of defendant The Bozenich Family Trust, dated August 10, 1999, as amended, is denied.

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Background: 

On December 5, 2024, plaintiffs The Byalick Family Trust, dated March 6, 2006 (the Byalick Trust), Harvey Byalick (H Byalick), and Valerie Byalick (V Byalick) (collectively, Plaintiffs) filed a complaint against defendant The Bozenich Family Trust, dated August 10, 1999, as amended (the Bozenich Trust), alleging one cause of action for breach of contract. As alleged in the complaint:

For over 20 years, the Bozenich Trust owned real property commonly known as 307 Fowling Street (the Property) and located in Playa Del Rey, California. (Compl., ¶ 7.) The Property is a single-family residence that was previously owned by Gary Bozenich’s (G Bozenich) mother and had been vacant for over 20 years. (Compl., ¶ 8.)

In October of 2021, G Bozenich, who was at that time the Trustee of the Bozenich Trust, agreed to sell the property to H Byalick for a total price of $1,600,000, with the amount of $1,5000,000 to be paid through escrow and the amount of $100,000 to be paid outside of escrow. (Compl., ¶ 9.) On December 15, 2021, escrow was opened at Betty Betts Escrow, and Plaintiffs deposited the amount of $20,000. (Compl., ¶¶ 11-12 & Exh. A [“Sale Escrow Instructions”].) On December 21, at the request of the escrow officer, G Bozenich and H Byalick entered into a written purchase agreement (the Agreement), for the sale and purchase of the Property. (Compl., ¶ 13 & Exh. B [Agreement].) The Agreement references the escrow purchase price of $1,500,000, and is silent as to the additional $100,000. (Ibid.)

Due to the dilapidated condition of the Property, the parties understood that substantial repairs would need to be made in order to qualify for a loan. (Compl., ¶ 14.) In December of 2021, Plaintiffs began making repairs to the Property. (Ibid.)

G Bozenich died on February 4, 2022. (Compl., ¶ 15.) Shortly after G Bozenich’s death, Nathan Carey (Carey), the successor Trustee of the Bozenich Trust, told Plaintiffs that he was aware that G Bozenich wanted Plaintiffs to have the Property, and that he would complete the transaction. (Compl., ¶ 21.)

As the close of escrow approached, Carey changed his mind and told Plaintiffs that he was not going to complete the sale of the Property to Plaintiffs. (Compl., ¶ 21.) Carey eventually expressed that he thought the Property was worth substantially more than Plaintiffs were paying, and that Carey wanted to market the Property to third parties. (Ibid.) Despite specific language in the Agreement requiring Carey to complete the sale of the Property to Plaintiffs, and though Plaintiffs wrote numerous letters to the Bozenich Trust imploring them to complete the sale, Carey refused to complete the transaction. (Compl., ¶¶ 16 & 23.)

The Bozenich Trust subsequently filed a Petition for Instructions (the Petition) to determine the Agreement unenforceable. (Compl., ¶ 17.) Plaintiffs filed objections to the Petition, and requested that the court determine that the Agreement was enforceable and order Carey to complete the sale to Plaintiffs. (Ibid.)

A trial of the Petition was held on November 14 and 15 of 2023. (Compl., ¶ 18.) The court declared the Agreement enforceable, and ordered the Bozenich Trust to complete the sale of the Property to Plaintiffs. (Compl., ¶ 18 & Exh. C [Jan. 19, 2024, Notice of Entry of Judgment & Judgment on Petition].)

On January 29, 2024, Plaintiffs completed the purchase of the Property for a total purchase price of $1,6000,000. (Compl., ¶ 19.) As a result of the Bozenich Trust’s refusal to honor the Agreement, close of escrow was delayed by approximately 22 months. (Compl., ¶ 24.) During that delay, interest rates rose sharply, which increased the cost of Plaintiffs’ loan for the purchase of the Property, resulting in damages of $678,214.30 over the life of the loan. (Compl., ¶¶ 24 & 34.) Plaintiffs also incurred costs to, among other things, complete repairs and renovations that were put on hold while their ability to purchase the Property was being challenged. (Compl., ¶ 25.)

On June 11, 2025, Carey filed in this action, a notice of related case identifying Santa Barbara Superior Court case number 22PR00156, entitled In re the Bozenich Family Trust (the Bozenich Trust Action) as related to this case.

On August 20, the Bozenich Trust filed an answer to the complaint, generally denying its allegations and asserting twenty-one affirmative defenses.

On November 6, the court entered an order setting the matter for a jury trial on September 14, 2026.

On November 14, the Bozenich Trust filed a motion for an order granting summary adjudication against Plaintiffs as to the sole cause of action for breach of contract alleged in the complaint, on the grounds that the Bozenich Trust did not owe Plaintiffs any duty of performance under the Agreement.

Plaintiffs oppose the motion.

The separate statement of undisputed material facts submitted by the Bozenich Trust in support of the motion, and the response of Plaintiffs to that separate statement, show that the following material facts are not in dispute:

G Bozenich died on February 4, 2022. (Resp. Sep. Stmt., UMF no. 1.) On March 22, 2022, Carey filed a “Petition For Appointment Of Trustee; To Confirm Validity Of Trust Provisions; And For Determination Of Beneficiary” (the Carey Trustee Petition). (Resp. Sep. Stmt., UMF no. 2.) On April 20, Michael Fremgen filed objections (the Fremgen Objections) to the Carey Trustee Petition. (Resp. Sep. Stmt., UMF No. 3.)

An initial hearing on the Carey Trustee Petition was held on April 28, 2022, and the court appointed Carey as the “Interim Trustee” who “... cannot sell, hypothecate, or dispose of any assets.” (Resp. Sep. Stmt., UMF no. 4.) The appointment of Carey as the Interim Trustee was memorialized in a formal order (the Interim Trustee Order) entered on June 30, 2022. (Resp. Sep. Stmt., UMF no. 5.)

Carey, as the Interim Trustee, took title to the Property by recording in the official records of the County of Los Angeles, an “Affidavit - Death Of Trustee” (the Property Affidavit) on June 2, 2022. (Resp. Sep. Stmt., UMF no. 6.)

On June 20, Kathy Mileham (Mileham) filed an “Objection To: Petition For Appointment Of Trustee; To Confirm Validity Of Trust Provisions; And For Determination Of Beneficiary” (the Mileham Objection). (Resp. Sep. Stmt., UMF no. 7.)

By service of a Notice Of Hearing dated July 1 (the Hearing Notice), H Byalick was given notice of a continued hearing on the Carey Trustee Petition. (Resp. Sep. Stmt., UMF no. 8.)

On August 29, Mileham filed a “Petition To: Contest Validity Of Trust Amendment; Ascertain Beneficiaries; Instruct The Trustee; Order The Return Of Trust Assets; And Compel An Accounting” (the Mileham Petition). (Resp. Sep. Stmt., UMF no. 9.)

On November 1, Mileham filed a “First Supplement To: Objection To: Petition For Appointment of Trustee” (the Mileham First Supplement). (Resp. Sep. Stmt., UMF no. 10.)

On November 17, Carey filed an Interim Trustee’s Petition For Instructions -Fowling Street Purchase Agreement (the Fowling Street Petition). (Resp. Sep. Stmt., UMF no. 12.) Plaintiffs filed their objections to the Fowling Street Petition (the Plaintiffs Objections) on January 24, 2023. (Resp. Sep. Stmt., UMF no. 13.)

On March 10, 2023, Mileham filed a “Second Supplement To: Objection To: Petition For Appointment of Trustee” (the Mileham Second Supplement). (Resp. Sep. Stmt., UMF no. 11.)

On May 12, Carey, as the Interim Trustee and the Trustee of the Bozenich Family Trust / Survivor’s Trust, as restated December 12, 2021 (the Survivor Trust), filed a Petition For Instructions To Administer G Bozenich’s Separate Property (the Separate Property Petition). (Resp. Sep. Stmt., UMF no. 14.) On June 8, Mileham filed an objection to the Separate Property Petition (the Mileham June 8 Objection). (Resp. Sep. Stmt., UMF no. 15.)

On June 22, after a hearing held on June 15, the court entered an order (the June 22 Order) authorizing the Interim Trustee to distribute some real properties from the Bozenich Trust to the Trustee of the Survivor Trust but did not authorize such distribution as to the Property. (Resp. Sep. Stmt., UMF no. 16.)

On November 15, the court issued its tentative decision on the Fowling Street Petition and entered a minute order (the November 15 Minute Order) reflecting that tentative decision. (Resp. Sep. Stmt., UMF no. 17.)

On December 19, after a hearing held on November 30, the court entered an “Order Granting Petitions: (1) For Approval Of Settlement Agreement; (2) For Appointment Of Trustee, Etc.; And (3) To Administer Separate Property” (the General Trustee Order). (Resp. Sep. Stmt., UMF no. 18.)

On January 18, 2024, the court entered judgment (the Judgment) on the Fowling Street Petition. (Resp. Sep. Stmt., UMF no. 19.)

The above summary is not intended to be exhaustive, and the court considers all admissible evidence submitted in support of and in opposition to the motion.

Analysis:

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment.” (Code Civ. Proc., § 437c, subd. (f)(2).)

“The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The party moving for summary judgment “bears the burden of persuasion that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law.” (Id. at p. 845.) “Initially, the moving party bears a burden of production to make a prima facie showing of the nonexistence of any genuine issue of material fact. If he carries his burden of production, he causes a shift: the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a genuine issue of material fact.” (Ibid.)

The motion contends that the death of G Bozenich created a vacancy in the office of the trustee of the Bozenich Trust which was not filled until Carey was appointed as the Trustee pursuant to the General Trustee Order. The motion further contends that, though Carey was appointed as Interim Trustee pursuant to the Interim Trustee Order, Carey was prevented by court order from selling, and had no authority to sell, any asset of the Bozenich Trust, including the Property. The motion also asserts that the first time anyone was authorized to sell the Property after G Bozenich’s death was when the court granted the Carey Trustee Petition. For these reasons, the motion argues, the Bozenich Trust was excused from, and did not have, any contractual duty to perform under the Agreement by selling the Property to Plaintiffs. The motion further argues that the court-ordered limitation on Carey’s authority as the Interim Trustee made the performance of any duty under the Agreement illegal and temporarily impossible by operation of law, within the meaning of Civil Code section 1511, subdivision (1).

The present undisputed record reflects that the Property became an asset of the Bozenich Trust by the recording of the Property Affidavit by the Interim Trustee. The record also reflects that Carey was appointed as the Trustee of the Bozenich Trust pursuant to the General Trustee Order. (Evid. Supporting Motion, Exh. U at pdf p. 47, ¶ 4(a).) Available evidence and information also indicates or suggests that any sale of the Property to Plaintiffs pursuant to the Agreement was or may have been temporarily delayed pending the appointment of Carey as the Trustee of the Bozenich Trust, pursuant to the General Trustee Order, which “supersedes [the Interim Trustee Order]” and provides that the “restrictions on Carey’s authority as trustee provided in [the Interim Trustee Order] no longer apply.” (Ibid.)

The Bozenich Trust does not dispute that the court found the Agreement to be enforceable, or that the Judgment instructs the Trustee of the Bozenich Trust to sell the Property to Plaintiffs. (Evid. Supporting Motion, Exh. V [Judgment] at pdf p. 54, ¶ 1 & 1(iii) [“the purchase and sale agreement shall be the writing dated December 21, 2021....”].)

“Temporary impossibility of the character which, if it should become permanent, would discharge a promisor’s entire contractual duty, operates as a permanent discharge if performance after the impossibility ceases would impose a substantially greater burden upon the promisor; otherwise the duty is suspended while the impossibility exists.” (Autry v. Republic Productions (1947) 30 Cal.2d 144, 149.)

The motion presents no evidence showing that any delay in the performance of a duty to sell the Property to Plaintiffs under the Agreement (such as pending the appointment of Carey as the Trustee of the Bozenich Trust) imposed an actual and substantially greater burden on the Bozenich Trust. (See also G. W. Andersen Construction Co. v. Mars Sales (1985) 164 Cal.App.3d 326, 335–336 (G. W. Andersen) [general discussion].) “Where performance of a contract after a temporary suspension does not impose a substantially greater burden upon such promisor his duty is suspended only during the period his performance was hindered and he must thereafter perform.” (Bergin v. Van Der Steen (1951) 107 Cal.App.2d 8, 16.)

Considering that the undisputed record shows, at most, that any duty or obligation of the Bozenich Trust to sell the Property to Plaintiffs pursuant to the Agreement was only temporarily delayed until the time the Trustee of the Bozenich Trust was appointed pursuant to the General Trustee Order, any delay in performing those duties or obligations, under the circumstances present here, “is not sufficient to discharge [that] duty. The temporary impracticability would suspend [Plaintiffs’] duty and therefore [the Bozenich Trust’s] later duties which were conditioned upon [Plaintiffs’] prior performance. But the delay ... would not discharge [the Bozenich Trust’s] duty unless [Plaintiffs] repudiated or [Plaintiffs’] performance became permanently impossible.” (G. W. Andersen, supra, 164 Cal.App.3d at pp. 336–337.) The motion also presents no evidence showing why Plaintiffs repudiated the Agreement, or why Plaintiffs’ performance under the Agreement became permanently impossible.

Furthermore, “because the application of the doctrine of frustration under California law compels the termination of the contract, the law does not recognize the ‘temporary’ frustration defense [the Bozenich Trust] attempts to assert here.” (SVAP III Poway Crossings, LLC v. Fitness Intern., LLC (2023) 87 Cal.App.5th 882, 896.)

To the extent the motion seeks summary adjudication of the issue of whether any duty owed by the Bozenich Trust under the Agreement was temporarily delayed, suspended, or impossible for a specific period of time, the motion is improper. “A motion for summary adjudication shall be granted only if it completely disposes of ... an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1), italics added; see also Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382, 398–399.)

For all reasons discussed above, the Bozenich Trust has failed to meet its burden to show why it did not owe to Plaintiffs a duty of performance under the Agreement, or why any such duty was rendered illegal or impossible by operation of law. Therefore, and for all reasons discussed above, the court will deny the motion.

The Bozenich Trust’s request for judicial notice:

In support of the motion, the Bozenich Trust submits a request for judicial notice of: (1) the Property Affidavit and the attached Certificate Of Death for G Bozenich (the Death Certificate), issued by the Santa Barbara County Public Health Department; (2) the Carey Trustee Petition; (3) the Fremgen Objections; (4) a “Supplement To Petition For Appointment Of Trustee” (the Supplement) ostensibly filed by the Bozenich Trust on April 21, 2022; (5) a minute order (the April 2022 Minute Order) entered in the Bozenich Trust Action on April 28, 2022; (6) a “Supplement To Objections Of [Fremgen] To Petition For Appointment Of Trustee; To Confirm Validity Of Trust Provisions; And For Determination Of Beneficiary” (the Supplemental Fremgen Objections), ostensibly filed on June 20, 2022; (7) the Mileham Objection; (8) the Interim Trustee Order; (9) the Hearing Notice; (10) the Mileham Petition; (11) the Mileham First Supplement; (12) the Fowling Street Petition; (13) the Plaintiffs Objections; (14) the Mileham Second Supplement; (15) a “Third Supplement To: Objection To: Petition For Appointment Of Trustee” (the Mileham Third Supplement), ostensibly filed by Mileham on March 13, 2023; (16) the Separate Property Petition; (17) the Mileham June 8 Objection; (18) the June 22 Order; (19) the November 15 Minute Order; (20) the transcript (Transcript) of the November 15, 2023, tentative decision of the court following the bench trial of the Fowling Street Petition; (21) the General Trustee Order; and (22) the Judgment.

Plaintiffs do not assert any objections to the request for judicial notice of the Bozenich Trust.

The court will grant the request of the Bozenich Trust for judicial notice of the Property Affidavit; the Death Certificate; the Carey Trustee Petition; the Fremgen Objections; the April 2022 Minute Order; the Mileham Objection; the Interim Trustee Order; the Hearing Notice; the Mileham Petition; the Mileham First Supplement; the Fowling Street Petition; the Plaintiffs Objections; the Mileham Second Supplement; the Separate Property Petition; the Mileham June 8 Objection; the June 22 Order; the November 15 Minute Order; the Transcript; the General Trustee Order; and the Judgment. (Evid. Code, § 452, subds. (c) & (d)(1).) Judicial notice of these court records or official acts does not extend to the truth of any factual matters asserted in, or which might be deduced from, those records or acts, or their proper interpretation. (Ragland v. U.S. Bank National Assn. (2012) 209 Cal.App.4th 182, 193–194; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.)

As to the Supplement, the Supplemental Fremgen Objections, and the Mileham Third Supplement described above, the Bozenich Trust fails to advance any reasoned argument showing why these records are relevant to the issues presented in the motion. (See Evid. Code, § 350; Mangini v. R. J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled on other grounds in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) For these reasons, the court will deny the Bozenich Trust’s request for judicial notice of those records.