Matter of Tribal Capital Management Relations

Case Number

25PR00108

Case Type

Hearing Date / Time

Thu, 01/15/2026 - 09:00

Nature of Proceedings

Petition: Determine Claim to Property

Tentative Ruling

Matter of Tribal Capital Management Relations 

Case No. 25PR00108

           

Hearing Date:  January 15, 2026                                                       

HEARING:              Petition for Order Pursuant to Probate Code Section 850 and Declaratory Relief (Probate Code section 855)

ATTORNEYS:        For Petitioner Tribal Capital Management Relations: D. Smith, Of Counsel, The Myers Law Group, A.P.C.

                            

TENTATIVE RULING:

The petition for orders and for declaratory relief is denied.

Background:

As set forth in the verified petition in this matter:

Petitioner Tribal Capital Management Relations (Petitioner or TCMR) is a tax-exempt religious and apostolic organization, which is a California unincorporated nonprofit association. (Petition, ¶ 1.)

Jose A. Maldonado and Rosa E. Amaya were the settlors and co-trustees of the Flor De Luna Family Trust dated March 23, 2011 (Trust). (Petition, ¶ 2.) Amaya has since died. (Petition, ¶ 3.) Maldonado is believed to be the surviving trustee of the Trust (Trustee), which is the sole or partial heir or heir apparent of Amaya’s estate interests. (Petition, ¶ 2.)

Amaya, a founding TCMR member, died having a personal property interest in TCMR for which an interest is claimed to belong to TCMR and its remaining member, Douglas Smith. (Petition, ¶¶ 3, 4.)

TCMR was formed on June 3, 2013, and its principal place of business has always been in Rancho Cucamonga, California. (Petition, ¶ 10.) TCMR’s initial bylaws limit its membership to the founding members, Amaya (president and executive trustee) and Smith (secretary, trustee and general counsel), and both members constituted the governing board of TCMR acting as its governing body. (Id., ¶ 12 & exhibits A, B.)

TCMR’s articles of organization provide that its dissolution and windup are commenced upon resignation of either of the founding members or by vote, and neither of its founding members resigned before, during, or after Amaya’s death on January 17, 2025. (Petition, ¶ 13.) TCMR’s amended articles of association and bylaws do not provide for the termination of its membership and only authorize dissolution upon resignation or vote which has not occurred. (Ibid.)

To date, no proposed external operations have been conducted, no funds have been solicited or donated, no income or revenue has been generated, and no assets or property have been acquired by TCMR. (Petition, ¶ 14.) TCMR’s net assets were

negative $618.65, reflecting contingent liabilities for its tax-exempt status application fee to the IRS and related postage. (Id., ¶ 15.) This is set forth in a “Statement of Financial Position” which is attached as part of exhibit C to TCMR’s supplement to petition, filed on April 23, 2025.

Since December 31, 2022, TCMR has incurred a small measure of additional contingent liabilities for additional postal fees related to subsequent IRS transmittals from February 22, 2022, through June 29, 2022, bringing its total net assets to date approximately negative $1,000 in contingent liabilities. (Petition, ¶ 15.)

TCMR’s sole property was, has been, and is its legal files, created and maintained

contemporaneously throughout its formation and existence as a result of internal

operations activities. Those legal files include a legal due diligence library with related legal work product and proprietary development references. (Petition, ¶ 16.)

The original petition, filed on March 3, 2025, seeks relief under Probate Code section 850 and a declaration (1) that TCMR has the right to fill the board vacancy left by Amaya’s death, and that Smith, the sole remaining board member who resides in the County of Santa Barbara, can fill this vacancy, (2) that there is no TCMR income available for distribution, (3) that there are no TCMR property or personal rights, such as voting, which are subject to distribution or transfer to Amaya’s successors in which she had an interest at the time of her death. (Petition, prayer.)

On April 23, 2025, petitioner filed a first supplement to the petition. The first verified supplement attached the Statement of Financial Position identified above.

On July 3, 2025, the court held a hearing in this matter. At that hearing, petitioner requested a continuance to file a further supplement to the petition.

On July 22, 2025, petitioner filed a verified second supplement to the petition responding to the court’s tentative ruling for the July 3 hearing. The second supplement to the petition asserts an alternative basis for relief based upon contractual rights of Amaya. Specifically, petitioner seeks: (1) an order confirming the transfer of pro rata share dividend rights in TCMR net income upon added TCMR member based on organizational necessity; and (2) a court-imposed constructive trust to effect the specific performance of adding a TCMR member resulting in the transfer of TCMR net income pro rata share divided right to the added member based on organizational necessity. (2d Supp. Petition, prayer.)

Proof of service of the petition was acknowledged by Maldonado. No other party has been served with the petition. No opposition or other response has been filed.

Analysis:

(1)       Probate Code Section 850

Petitioner brings this proceeding under Probate Code section 850 which governs probate litigation over adverse claims to property. (See Parker v. Walker (1992) 5 Cal.App.4th 1173, 1186.)

“The following persons may file a petition requesting that the court make an order under this part: [¶] … [¶] (2) The personal representative or any interested person in any of the following cases:

“(A)     Where the decedent while living is bound by a contract in writing to convey real property or to transfer personal property and dies before making the conveyance or transfer and the decedent, if living, could have been compelled to make the conveyance or transfer.

“(B)     Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.

“(C)     Where the decedent died in possession of, or holding title to, real or personal property, and the property or some interest therein is claimed to belong to another.

“(D)     Where the decedent died having a claim to real or personal property, title to or possession of which is held by another.” (Prob. Code, § 850, subd. (a)(2).)

Under the above circumstances, the personal representative, pursuant to section 850, subdivision (a)(2)(C), or a third-party claimant, pursuant to section 850, subdivision (a)(2)(D), or any other “interested person,” may seek an adjudication of the adverse claims in the probate court, requesting a court order directing the conveyance or transfer of title or possession accordingly. (Prob. Code, § 850(a)(2).)

Section 850 proceedings may be brought by or against “strangers” to the estate or parties who are in “privity” with (i.e., “interested” or claiming through) the estate. (Estate of Myers (2006) 139 Cal.App.4th 434, 440-441 [creditor of estate presumptively qualifies to initiate section 850 proceeding].)

After a full evidentiary hearing, if the court is “satisfied” that a conveyance or transfer pursuant to the section 850 petition is warranted, it “shall” authorize and direct the person with title or possession (personal representative or other person, as the case may be) to execute a conveyance or transfer to the person entitled to the disputed property or grant “other appropriate relief.” (Prob. Code, § 856.)

The Legislature intended section 850 to provide a mechanism for probate courts to resolve ownership disputes with respect to property constituting assets of an estate. (Parker v. Schwarz (2022) 84 Cal.App.4th 418, 426.) As the court in Parker, supra, at page 429 observed, the statutory scheme’s purpose is to effect a conveyance or transfer of property belonging to a decedent or a trust or another person under specified circumstances, to grant any appropriate relief to carry out the decedent’s or settlor’s intent, and to prevent the looting of estates. It provides the probate court with a mechanism to determine rights in property belonging to a decedent or to someone else. “[T]he statutory scheme was designed to allow conveyances or transfers of real and personal property into or out of an estate, trust, conservatorship, or guardianship estate as part of an expedited court proceeding. Its aim was to allow probate courts to resolve controversies surrounding title to property” and to determine property rights involving estates. (Id., at p. 430.)

Thus, section 850 provides a way for estates to resolve ownership disputes with respect to property constituting assets of an estate, allowing an estate’s personal representative to recover assets for the estate, or a claimant to recover from the estate an asset that rightfully belonged to the claimant. (Parker, supra, 84 Cal.App.4th at p. 430.)

Section 850 is about the recovery and transfer of assets to or from a trust or estate. Petitioner asserts three categories of assets that are subject to this motion, together with requests for authority to make organizational changes (discussed separately below): (1) membership rights in TCMR; (2) financial rights derivative of membership rights in TCMR; and (3) contract rights with TCMR.

(A)       Property Interests in TCMR

TCMR is organized as an unincorporated association. The Corporations Code provides the basic rules applicable to an unincorporated association as relevant here:

“ ‘Unincorporated association’ means an unincorporated group of two or more persons joined by mutual consent for a common lawful purpose, whether organized for profit or not.” (Corp. Code, § 18035, subd. (a).)

“ ‘Nonprofit association’ means an unincorporated association with a primary common purpose other than to operate a business for profit.” (Corp. Code, § 18020, subd. (a).) “A nonprofit association may carry on a business for profit and apply any profit that results from the business activity to any activity in which it may lawfully engage.” (Corp. Code, § 18020, subd. (b).)

“The interest of a member in an unincorporated association is personal property.” (Corp. Code, § 18100.)

“Property acquired by or for an unincorporated association is property of the unincorporated association and not of the members individually.” (Corp. Code, § 18110.)

“Unless otherwise provided by an unincorporated association’s governing principles, membership in the unincorporated association is terminated by any of the following events:

“(1)      Resignation of the member.

“(2)      Expiration of the fixed term of the membership, unless the membership is renewed before its expiration.

“(3)      Expulsion of the member.

“(4)      Death of the member.

“(5)      Termination of the legal existence of a member that is not a natural person.” (Corp. Code, § 18310, subd. (a).)

“Termination of membership does not relieve a person from an obligation incurred as a member before termination.” (Corp. Code, § 18310, subd. (b).)

“Termination of membership does not affect the right of an unincorporated association to enforce an obligation against a person incurred as a member before termination, or to obtain damages for its breach.” (Corp. Code, § 18310, subd. (c).)

The governing documents for TCMR are limited in their scope. The articles state that TCMR is a nonprofit unincorporated association organized under the Nonprofit Association Law. (Petition, exhibit A [Articles], art. III.) The primary common purpose of TCMR “is other than to operate a business for profit.” (Articles, art. IV.) The Articles provide for dissolution:

“The Association shall be dissolved by resignation of a member or by vote. Upon either such events, dissolution shall be deemed commenced. In the event of resignation, the resignation shall be effective as of the proper winding up of the Association’s affairs. In the event that dissolution by either of the foregoing means is or becomes infeasible, dissolution may occur by any other lawful, reasonable and appropriate method. Upon the Association having more than two members, any member resignation leaving at least two Association members remaining shall not result in dissolution without a vote by unanimous consent of the remaining Association members.

“Upon dissolution of the Association, if the Association’s remaining assets must be used exclusively for exempt purposes, such as charitable, religious, educational, and/or scientific purposes in order for the Association to qualify or remain qualified for exempt status under Section 501(a), Title 26 United States Code, any such donee must be exempt under Section 501(c)(3) at the time of the dissolution and transfer of remaining assets.

“Notwithstanding any such dissolution or member resignation, if the Association duly qualifies under Section 501(d), Title 26 United States Code, (Religious and Apostolic Organizations), a pro rata share, whether distributed or not, of the net income of the Association for the taxable year of the Association ending with or during a member’s taxable year shall be for inclusion in the gross income of the member to be treated as a dividend received by the member under 26 CFR § 1.501(d)-1(a), California Revenue and Taxation Code § 23701k. In the event that the Association’s members have an undivided interest in any remaining Association asset or assets upon dissolution or resignation and the Association by law is required to treat any such remaining asset or assets as a pro-rated dividend under the immediately preceding provision, such asset or assets shall be transferred accordingly in whole or in part. In the absence of any such requirement upon a member resignation not resulting in dissolution, the Association reserves any right or prerogative to retain any Association asset or assets, in whole or in part.” (Articles, art. V.)

The Bylaws of TCMR also are limited in their scope. Among the terms for membership:

“Initial membership is limited exclusively to the formers of the Association to limit

membership size and minimize any potential or actual result of increased transactions costs or other costs and expenses. Additional membership, based on organizational necessity, may occur on vote by unanimous consent of Association members upon a clear and convincing showing of bona fide demonstrative common vision and purpose with that of the Association.

“Any services performed for the Association by members, or carried out in the course and scope of membership and for the benefit of the Association, is subject to (1) reasonable compensation from the Association to the members as appropriate and lawful, or (2) if the Association duly qualifies under Section 501(d), Title 26 United States Code, (Religious and Apostolic Organizations), a pro rata share, whether distributed or not, of the net income of the Association for the taxable year of the Association ending with or during a member’s taxable year shall be for inclusion in the gross income of the member to be treated as a dividend received by the member under 26 CFR§1.501(d)-1(a), California Revenue and Taxation Code§ 23701k.” (Petition, exhibit B [Bylaws], art. I.)

The governing body of TCMR is stated as:

“The Association’s governing body shall be the Board of Trustees. The Board of Trustees shall at all times during the existency of the Association consist of all of the Association’s members, each of which shall be a Trustee. The Board of Trustees, in title, shall consist of 1) Executive Trustee and 2) Secretary, General Counsel. The former shall act in the capacity of a president and chief executive officer of the Association, and the latter shall act in the capacity of a secretary and attorney to the Association. The Trustees, respectively and collectively and on behalf of the Association, are authorized to sign instruments and manage the Association. The same governing principles which regulate members equally apply to Trustees, including eligibility, qualification, tenure, meetings and votes. Upon due qualification, any member added to the Association, and therefore the Board of Trustees, shall be pursuant to an amendment to this Article accordingly, including title, capacity as well as any authorized scope of management or signatory authority applicable to each such specific additional member.” (Bylaws, art. III.)

There are no express terms in either the Articles or the Bylaws of TCRM addressing the death of a member. Two issues immediately present themselves. First, with no contrary provision in the governing documents, under Corporations Code section 18310, subdivision (a)(4), Amaya’s membership in the unincorporated association was terminated by her death. So, whether or not Amaya’s membership interest was personal property, Amaya’s property interest in that membership interest has been terminated. Where a property interest terminates upon death, there is no property interest remaining in the decedent’s estate or trust. (Cf. Tenhet v. Boswell (1976) 18 Cal.3d 150, 159–160 [joint tenant’s interest died with him, leaving no interest enforceable against surviving joint tenant]; Cole v. Cole (1956) 139 Cal.App.2d 691, 694 [where decedent’s joint tenancy interest was not severed before decedent’s death, no property interest remained in decedent’s estate].)

Second, the effect of the death of one member of a two-member unincorporated association is not immediately clear. Because Corporations Code section 18035, subdivision (a) defines “unincorporated association” as a group of two or more persons, an argument exists that the unincorporated association ceases to be an unincorporated association under the terms of the statute by virtue of the definition. This result would be consistent with article V of the Articles, by which the resignation of a member requires dissolution. It is not, however, necessary to resolve this issue to resolve the issues presented by the petition.

Because there is no remaining property interest in Amaya’s membership, there is no property interest in the membership that Amaya’s estate or trust could transfer, or be ordered to transfer, under Probate Code section 850. The petition is therefore denied in that respect.

Under Corporations Code section 18310, subdivisions (b) and (c), notwithstanding the termination of Amaya’s membership, Amaya and TCMR may still enforce obligations owed by one to the other. Consequently, it is possible for Amaya, at the time of her death, to have possessed an interest in property derivative of, but separate from, the membership interest. In this regard, the petition asserts a property right in Amaya “to a pro rata dividend of TCMR net income during her life, and her successor(s) such as the Trust would have had the same right during the applicable tax year in which she left but for net income having as of yet to materialize.” (2d Supp. to Petition, ¶ 7.) TCMR states:

“While there are no liquid assets that would readily embrace Probate Code § 850, subdivision (a)(2)(C) disposition under this Court’s 7/2/25 Tentative Ruling, an IRC § 501(d) organization special, unique and beneficial tax-exempt organizational status itself represents meaningful, discrete property interests applicable in the specific performance context.” (2d Supp. to Petition, ¶ 8.) (Note: The court addresses contract rights below.)

There are two components to this pro rata dividend: payment, if any, of such dividend to Amaya; and, the tax impact of allocation of the dividend, whether or not the dividend is to be paid. With respect to payment, TCMR asserts (Petition, ¶ 56), and reaffirms in the above quotation, that Amaya did not have, at the time of her death, ownership, possession, or claim to payment of any tangible assets of TCMR. Moreover, to whatever extent Amaya had a right to payment of a dividend, that right would continue to belong to Amaya’s trust or estate. TCMR has presented no evidence or argument that TCMR or any other person would have a right to payment merely because such a right to payment may have adverse consequences to TCMR.

With respect to the tax impact of allocation of a dividend (whether accompanied by a right to payment or not), TCMR’s arguments make little sense in the context of a Probate Code section 850 petition. To whatever extent Amaya is, under federal tax law, allocated a dividend while she was a member of TCMR, that allocation is a function of federal tax law. (See 26 U.S.C. § 501(d).) There is no showing that the tax obligation incurred during Amaya’s lifetime by virtue of her membership interest in TCMR is property belonging to TCMR, belonging to the other member of TCMR, or belonging to a third party to whom the tax obligation may be transferred under section 850.

Instead, TCMR argues that maintenance of the section 501(d) tax-exempt status is itself a valuable asset of TCMR. Assuming that section 501(d) status is valuable, it is an asset of TCMR and was not in any way an asset of Amaya during her lifetime. “Property acquired by or for an unincorporated association is property of the unincorporated association and not of the members individually.” (Corp. Code, § 18110.) The court cannot order the transfer of any property right in the section 501(d) status from Amaya’s trust under Probate Code section 850.

There is therefore no basis for the court to order the transfer of any property from the Trust under Probate Code section 850. The petition is to that extent denied.

(B)       Contract Rights

In the second supplement to the petition, TCMR argues that the court may provide relief under Probate Code section 850 on the basis of quasi-specific performance.

“The following persons may file a petition requesting that the court make an order under this part: [¶] … [¶] (2) The personal representative or any interested person in any of the following cases: (B) Where the decedent while living binds himself or herself or his or her personal representative by a contract in writing to convey real property or to transfer personal property upon or after his or her death and the contract is one which can be specifically enforced.” (Prob. Code, § 850, subd. (a)(2)(B).)

In support of the application of section 850 in this context, TCMR cites to In re Foreman’s Estate (1969) 269 Cal.App.2d 180 (Foreman). In Foreman, three people (Robert, June, and Frank) formed a partnership in 1946 with equal initial cash contributions. (Id. at p. 182.) The partnership prospered and acquired real property, in which title was taken in the individual names of the partners as tenants in common. (Ibid.) The partnership agreement provided that upon the death of a partner, the deceased partner’s representative would have no right to participate in the continuing partnership, but would be entitled to receive specified payments for the deceased partner’s interest. (Id. at p. 183.) The business of the partnership, but not the real property, was later spun off into corporations. (Ibid.) The partners restated these rights upon the death of a partner in a subsequent buy-sell agreement that also provided for life insurance to fund the payoff. (Id. at pp. 183-184.) Following the death of Robert, Frank and June (now married to each other) became co-executors of Robert’s estate. (Id. at p. 185.)

In Foreman, Frank and June filed a section 850 petition to accomplish the transfer of interests under the buy-sell agreement. (Foreman, supra, 269 Cal.App.2d at p. 185.)  Kathleen, Robert’s surviving spouse, objected. (Ibid.) Kathleen argued that the probate court did not have jurisdiction to specifically enforce the agreement because the petitioners, Frank and June, did not appear in their individual capacities. (Ibid.) The Foreman court rejected that argument, holding that Frank and June were sufficiently before the court to assert their individual rights. (Id. at p. 188.) The Foreman court affirmed the trial court judgment and decree confirming the sale of the partnership interest of decedent Robert under the buy-sell agreement and the refusal to remove Frank and June as co-executors. (Id. at pp. 181, 190.)

TCMR argues that Foreman is analogous to the present situation because the Foreman trial court resolved the specific performance provisions in the context of a section 850 petition. (2d. Supp. Petition, ¶ 26.) Foreman, however, presents a factually different situation in a legally different environment. Significantly, Foreman was decided in 1969, prior to the enactment of the Uniform Partnership Act of 1994 (Corp. Code, § 16100 et seq.). Under prior partnership law, dissolution of a partnership was caused by the death of any partner and the partnership continued thereafter only until the winding up of the partnership affairs was completed. (Former Corp. Code, §§ 15030, 15031 [Stats. 1949, ch. 383, § 1, p. 682].) The issue presented in Foreman was whether the buy-sell agreement constituted a waiver of dissolution under the existing law and an alternative payment mechanism than by an accounting. (See Olivet v. Frischling (1980) 104 Cal.App.3d 831, 843, disapproved on other grounds in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 521, fn. 10 [accounting follows as a matter of course following dissolution].) The section 850 petition in Foreman thus sought specific performance of the buy-sell agreement.

Here, the only agreements at issue are TCMR’s organizational documents. While both the Articles and Bylaws may be construed as contracts for these purposes (see Power v. Sheriffs’ Relief Ass’n of Los Angeles County (1943) 57 Cal.App.2d 350, 352), neither constitutes a contract for which specific performance would be granted under these circumstances.

“ ‘Specific performance of a contract may be decreed whenever: (1) its terms are sufficiently definite; (2) consideration is adequate; (3) there is substantial similarity of the requested performance to the contractual terms; (4) there is mutuality of remedies; and (5) plaintiff’s legal remedy is inadequate. [Citations.]’ [Citation.]” (Union Oil Co. of California v. Greka Energy Corp. (2008) 165 Cal.App.4th 129, 134.)

In the context of this petition under Probate Code section 850, subdivision (a)(2)(B), the contract to be specifically enforced must be a contract in writing to transfer personal property. As also discussed above in the context of property rights, there are no provisions in either the Articles or Bylaws by which Amaya is obligated to transfer any property to anyone. The dissolution provisions of the Articles require transfer of TCMR’s assets with certain qualifications. (Articles, art. V.) The Bylaws contain no provisions for the transfer of any property by Amaya and, under Corporations Code section 18310, subdivision (a)(4), Amaya’s membership interest terminated upon Amaya’s death. Consequently, not only are there are no contractual provisions that are sufficiently definite to specifically enforce, but there are no contractual provisions of any kind requiring transfer of property from Amaya within the meaning of Probate Code section 850.

Instead, TCMR seeks an order by which the court first amends the Articles and Bylaws out of “organizational necessity” (e.g., 2d. Supp. Petition, ¶ 17), and then specifically enforces the Articles and Bylaws as thus amended.

“The following obligations cannot be specifically enforced: [¶] … [¶] (e) An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable.” (Civ. Code, § 3390, subd. (e).)

The precise acts sought to be enforced here are not present in the Articles or Bylaws and therefore are not subject to enforcement under Probate Code section 850, subdivision (a)(2)(B). The petition is to that extent denied.

(C)       Conclusion

Based on the foregoing, the court finds that Probate Code section 850 is not a proper basis for the relief sought by TCMR. To the extent, if any, the court nonetheless has discretion under section 850 to make orders in this matter, for the reasons set forth herein and based upon the evidence and arguments presented, the court declines to make any such orders. The petition under section 850 is therefore denied.

(2)       Declaratory Relief

Apart from section 850, petitioner seeks declaratory relief. The court reaffirms and repeats its analysis as set forth in its prior ruling on this issue (additional quotation marks omitted). A declaratory relief action may be brought under Code of Civil Procedure section 1060:

“Any person ... who desires a declaration of his or her rights or duties with respect to another, ... may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action ... in the superior court for a declaration of his or her rights and duties ... including a determination of any question of construction or validity arising under the instrument or contract.... The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”

However, “[t]he court may refuse to exercise [its] power [to] grant [declaratory relief] in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.” (Code Civ. Proc., § 1061.)

Declaratory relief includes a threshold issue of justiciability which “involves the intertwined criteria of ripeness and standing.” (California Water & Telephone Co. v. Los Angeles County (1967) 253 Cal.App.2d 16, 22.) “Standing” derives from the principle that “[e]very action must be prosecuted in the name of the real party in interest.” (Code Civ. Proc, § 367.) A party lacks standing if it does not have an actual and substantial interest in, or would not be benefited or harmed by, the ultimate outcome of an action. (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 23.)

“Ripeness” refers to the requirements of a current controversy. According to the Supreme Court, “an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law ... will not be entertained.” (Golden Gate Bridge etc. Dist. v. Felt (1931) 214 Cal. 308, 316.) A controversy becomes “ripe” once it reaches, “but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made.” (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 22.)

“The ‘actual controversy’ language in Code of Civil Procedure section 1060 encompasses a probable future controversy relating to the legal rights and duties of the parties. [Citation.]” (Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal.App.4th 877, 885.) It does not embrace controversies that are “conjectural, anticipated to occur in the future, or an attempt to obtain an advisory opinion from the court.” (Brownfield v. Daniel Freeman Marina Hospital (1989) 208 Cal.App.3d 405, 410.) Thus, while a party may seek declaratory judgment before an actual invasion of rights has occurred, it must still demonstrate that the controversy is justiciable. (Burke v. City etc. of San Francisco (1968) 258 Cal.App.2d 32, 34.)

TCMR’s request for declaratory relief fails the justiciability requirement. The petition, as noted above, does not allege that the Trust disputes TCMR’s claims, or that the Trust actually holds any assets which belong to TCMR. In fact, the petition alleges that since there has been “no gross or net income, proceeds, funds, assets or property existing of [TCMR] available . . . to pass to a decedent’s estate or trust succeeding to such interests in financial assets to Amaya, any such issue is therefore moot and non-existent.” (Petition, ¶ 57.) Further, and as noted above, there is no indication that the Trust asserts any property rights which are adverse to TCMR.

TCMR also seeks a declaration that its sole remaining governing board member, Smith, is authorized to fill governing board vacancies (in this case, the one vacancy left by Amaya) under former Corporations Code section 5902 (now section 9224). (Petition, ¶ 5, capitalization altered.) Corporations Code section 9224 states:

“Unless otherwise provided in the articles or bylaws and except for a vacancy created by the removal of a director by the members, vacancies on the board may be filled by approval of the board (Section 5032) or, if the number of directors then in office is less than a quorum, by (1) the unanimous written consent of the directors then in office, (2) the affirmative vote of a majority of the directors then in office at a meeting held pursuant to notice or waivers of notice complying with Section 9211, or (3) a sole remaining director.”

To the extent TCMR seeks a declaration concerning Corporations Code section 9224’s meaning and applicability in a possible future dispute between itself and the Trustee, such action is not ripe. Absent any need for court determination of section 9224’s applicability in a specific factual scenario in an actual dispute, issues involving interpretation of the statute’s meaning are not appropriate for immediate judicial resolution. (Newland v. Kizer (1989) 209 Cal.App.3d 647, 658.)

TCMR’s petition runs afoul of the rule that courts may not render advisory opinions on disputes which the parties anticipate might arise but which do not presently exist. (Teachers' Retirement Bd. v. Genest (2007) 154 Cal.App.4th 1012, 1043–1044.) “This policy is driven largely by a recognition that courts are unable properly to adjudicate issues when only hypothetical facts are involved.” (City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 70.) Yet, this is what is involved here. As petitioner states in seeking declaratory relief here: “[TCMR’s] [u]ncertainty of standing as to membership status poses unreasonable risks of adverse tax incidence and a host of similar prejudicial issues for [its] proposed projects and project participants subjecting either or both to unfair, unjust and acrimonious results contrary to good faith and fair dealing.”  (Petition, ¶ 67.)

The Court therefore declines to issue an advisory opinion to forestall hypothetical events that may never occur. The petition is denied.

(3)       Conclusion

Based upon the foregoing, the petition is denied in its entirety. The court’s conclusion that a petition under Probate Code section 850 or a complaint for declaratory relief as against Amaya’s trust is not a procedurally proper basis for the relief sought by TCMR should not be construed as expressing any opinion concerning the propriety or impropriety of the underlying remedies sought by TCMR if brought in a procedurally appropriate vehicle.