Filed 7/11/24 Hitz v. Rutter CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JEFFREY K. HITZ,

Petitioner and Appellant,

v.

THEODORE RUTTER et al.,

Respondents.

 D082787

 (Super. Ct. No. 37-2023-

00023693-PR-TR-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

John B. Scherling, Judge. Affirmed.

Jeffrey K. Hitz, in pro. per., for Petitioner and Appellant.

Chhokar Law Group, David G. Greco and Kristen A. Friedman, for 

Respondents.

Jeffrey K. Hitz appeals from a judgment dismissing his trust contest 

petition after the trial court sustained without leave to amend Trustees 

Theodore and Deborah Rutter’s demurrer. Hitz claims the trial court erred 

in concluding (1) his trust contest was time-barred, (2) he lacked standing to 

bring that or any other claim, and (3) amendment was futile. We conclude

Hitz failed to adequately support his claims of error with citations to relevant 
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authority and/or appropriate legal argument and therefore waived them. We

accordingly affirm.

I.

Marilyn and Peter Hoijer executed a declaration of trust in 1991 

appointing them as the original trustees, which was amended nine times over 

the years. In the 1999 Third Amendment, Deborah was appointed as cotrustee. 

In 2016, Marilyn, Peter, and Deborah executed the Seventh 

Amendment, removing Hitz, Marilyn’s nephew, as a beneficiary. Peter died 

in August 2017. 

In 2018, Marilyn and Deborah executed the Eighth Amendment to the 

trust, which clarified Marilyn “intentionally makes no gift or provision for” 

Hitz because she and Peter “provided ample gifts and loans to [him] during 

their lifetimes, which loans were not repaid.” In the 2020 Ninth Amendment, 

Theodore was also appointed as co-trustee. Marilyn passed away in 

September 2022. 

On October 4, 2022, a notification by trustee under Probate Code 

section 16061.7 was sent to all beneficiaries and heirs to notify them of 

Marilyn’s death and the 120-day limitations period to contest the trust. On 

October 7, 2022, a substantively identical notification of trustee was served 

providing notice of Peter’s death. 

Hitz filed a petition on June 7, 2023, contesting the trust and seeking 

reinstatement as a beneficiary or damages. The petition acknowledged 

service and receipt of both statutory notices. As Trustees note, Hitz’s claims 

are difficult to parse given the petition’s lack of separately pleaded causes of 

action. Liberally construed, the petition: (1) challenged the validity of the 

Seventh and Eighth Amendments on the grounds of Peter’s and Marilyn’s 
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alleged incapacity and Trustees’ alleged undue influence; (2) argued the 120-

day limitations periods for contesting a trust should run consecutively rather 

than concurrently if there are multiple notices; and (3) alleged Trustees

breached various fiduciary duties to Hitz. Hitz appended a copy of the 

declaration of trust as amended to his petition. 

Trustees demurred on the ground the petition “does not state facts 

sufficient to support a cause of action.” Following a hearing and after 

considering Hitz’s untimely opposition, the trial court sustained the 

demurrer. The court concluded Hitz failed “to plead factual allegations to 

overcome the statute of limitations.” It also concluded Hitz failed to “plead 

facts establishing [his] standing to bring the remaining cause(s) of action 

against” Trustees. Because Hitz failed “to show how the defects noted may be 

cured by amendment,” the court denied leave to amend. 

II.

A party appearing in propria persona is “entitled to the same, but no 

greater, consideration than other litigants and attorneys.” (Barton v. New 

United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1210.) On 

appeal, parties must provide cogent legal arguments in support of their

claims with citation to legal authority. (Sims v. Department of Corrections & 

Rehabilitation (2013) 216 Cal.App.4th 1059, 1081.) We deem waived 

arguments unsupported by reasoned argument or citations to relevant 

authority. (Sporn v. Home Depot USA, Inc. (2005) 126 Cal.App.4th 1294, 

1303 (Sporn).) The same is true of arguments unsupported by citations to the 

record. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 

574, 590 (Alki).)
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Although we appreciate Hitz’s efforts in representing himself, we agree 

with Trustees that Hitz waived all his arguments on appeal because he 

“failed to accurately cite any authority in support of his positions.”

Hitz cites no relevant legal authority to support his contention that, 

when multiple statutory notices are served, the 120-day limitations period to

challenge a trust under section 16061.8 applies to each and is aggregated.

While he cites Barefoot v. Jennings (2018) 27 Cal.App.5th 1 (Barefoot I), the 

Supreme Court reversed Barefoot I. (Barefoot v. Jennings (2020) 8 Cal.5th 

822, 830 (Barefoot II).) Further, Barefoot I does not concern the 120-day 

deadline to contest a trust under sections 16061.7 and 16061.8, much less 

support Hitz’s proposition that multiple such deadlines run consecutively. 

(See generally Barefoot I, 27 Cal.App.5th 1.) 

Hitz’s remaining authorities relating to timeliness are similarly 

misrepresented, if they exist at all. Notably, as Trustees argue in their 

response, Hitz’s citations to: (1) Estate of Cohn (2022) 74 Cal.App.5th 1149

leads to Paige v. Safeway, Inc. (2022) 74 Cal.App.5th 1108, a case concerning 

entirely unrelated issues; (2) Estate of Miller (2021) 275 Cal.App.4th 1026 

yields no results; and (3) Estate of Heggli (2008), for which Hitz provides no 

reporter information, does not appear to exist. 

Hitz’s remaining claims are deficient for much the same reasons. Hitz 

cites no legal authority and provides no cogent legal reasoning to support the 

existence of any duty by a trustee to notify beneficiaries of their 

disinheritance from a trust, particularly when one or more settlors were still 

alive when the relevant amendments were executed. Hitz’s claim that 

Trustees breached their duty of trust by failing to timely notify him of Peter’s 

death is inadequate in this regard as well. 
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As to Hitz’s claim that Trustees breached their duty to provide him 

with requested financial information after he received the October 2022 

notifications, he invokes, in a single sentence and without citing any specific 

page number, Barefoot II in support. But Barefoot II does not, as Hitz 

asserts, “require[ ] that this information be provided upon request, to all 

beneficiaries, even so-called disinherited beneficiaries.” (See generally 

Barefoot II, 8 Cal.5th 822.) Indeed, Barefoot II does not address a trustee’s 

duty to inform or provide reasonably requested information to beneficiaries at 

all; instead, it decides whether disinherited beneficiaries have standing to 

contest a trust. (See id.) Hitz provides no further legal support for this 

alleged breach.

Similarly, the two authorities Hitz cites in claiming that it was 

“completely inappropriate and unwarranted” to sustain the demurrer without 

leave to amend do not concern demurrers, but rather trial court

determinations on the merits. (See Estate of Giraldin (2012) 55 Cal.4th 1058, 

1064; Estate of Heggstad (1993) 16 Cal.App.4th 943, 953.) Hitz’s arguments 

as to the non-statute of limitations claims are additionally defective in failing 

to cite any relevant portions of the record.

Even after Trustees’ brief identified these infirmities in Hitz’s appellate

arguments and the support (or lack thereof) underlying them, he ignored 

these issues in his reply brief. Accordingly, we conclude Hitz has waived his 

arguments on appeal in their entirety due to his failure to adequately support 

his arguments. (Sporn, 126 Cal.App.4th at p. 1303; Alki, 4 Cal.App.5th at 

p. 590.) We thus need not address any of the claims on the merits.
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III.

We affirm the judgment and award costs on appeal to Theodore and 

Deborah Rutter.

CASTILLO, J.

WE CONCUR:

McCONNELL, P. J.

O’ROURKE, J.