Rallo v. O’Brian

Case Number: B290526

Court: Cal. Ct. App.

Date Filed: 2020-08-03

Case Brief – Rallo v. O’Brian

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA
Date: 2025-09-04
Case Number: B290526
Disposition: Affir­med

Holding

The court held that the plaintiffs’ petitions failed to allege facts showing that the decedent’s sole reason for omitting them was his unawareness of their births, and therefore the trial court properly sustained the demurrers without leave to amend.

The appellate decision in Rallo v. O’Brian resolves a dispute that has resurfaced repeatedly in California probate practice: whether a general “disinherit any heir” clause in a revocable trust can defeat a claim by an alleged omitted child under Probate Code § 21622. The case arose after the death of Hugh O’Brian, a well‑known actor who, in 1992, created the Hugh O’Brian Trust and subsequently amended it in 2009 and 2011. The trust named a handful of friends, family members, and charitable beneficiaries, and, in Article Two and Article 14, expressly declared that O’Brian “intentionally not [providing] for … any person who claims to be my descendant or heir” and that he “intentionally omitted to provide for … any of my heirs who may be living at the date of my death.” Virginia O’Brian, his surviving spouse, serves as trustee.

After O’Brian’s death on September 5, 2016, two adult children—Kimberly Rallo (born 1963) and Adam Ross (born after 1963)—filed separate probate petitions in Los Angeles Superior Court seeking distribution rights as “omitted children” under Probate Code § 21622. Both alleged that O’Brian was unaware of their births when he executed the trust and that his omission was therefore unintentional. The trustee demurred, arguing the petitions failed to state a cause of action. The trial court sustained the demurrers, first with leave to amend the Rallo petition and then without leave to amend either petition. The plaintiffs appealed.

Procedural posture. The appellate court reviewed the trial court’s rulings de novo for legal sufficiency, applying the standard that a demurrer is sustained when the complaint, even if all factual allegations are taken as true, does not state a viable claim. Where a demurrer is sustained without leave to amend, the court must determine whether any reasonable amendment could cure the defect; the burden rests on the moving party.

Statutory framework. California’s omitted‑child scheme is set out in §§ 21620‑21622. § 21620 provides an intestate‑share right to a child born after the execution of a will or trust unless the decedent’s intent to omit the child is evident in the testamentary instrument (the “intent exception” of § 21621). § 21622, the focus here, creates a right for a child who was living at the time of execution but was omitted because the decedent either believed the child was dead or was unaware of the child’s birth. The claimant bears the burden of proving that the sole reason for the omission was the decedent’s lack of knowledge.

Court’s analysis. The appellate court began by affirming the trial court’s factual findings that the trust’s disinheritance provisions were clear, unambiguous, and deliberately broad. The language—“any person who claims to be my descendant or heir” and “any of my heirs who may be living at the date of my death”—demonstrates O’Brian’s intent to exclude all heirs, known or unknown, from any share of the trust. The court rejected the plaintiffs’ contention that a general disinheritance clause could apply only to after‑born children under § 21620. The statutory text of § 21622 makes no reference to § 21621, and the legislature’s intent, as reflected in Estate of Della Sala and Estate of Mowry, was to allow a decedent to expressly disinherit a class of heirs even when the omitted child was alive at the time of execution.

Turning to the pleading deficiencies, the court emphasized that § 21622 requires more than a bare allegation that the decedent “did not know” of the child’s existence. Plaintiffs must allege facts showing that O’Brian would have provided for them but for that lack of knowledge. The petitions offered only conclusory statements and DNA‑test results, without any factual nexus linking O’Brian’s unawareness to a sole reason for omission. Moreover, the trust’s explicit intent to disinherit any heir—whether known or unknown—undermines any inference that O’Brian would have altered his distribution scheme had he known of Rallo or Ross. The court noted that O’Brian had already excluded two individuals (Hugh Donald Etkes and James Venverloh) who claimed paternity, reinforcing the conclusion that his intent was to withhold provision from any alleged child, regardless of awareness.

Because the plaintiffs could not, even hypothetically, supply the requisite factual foundation, the trial court’s denial of leave to amend was deemed proper. The appellate court applied the “reasonable possibility” test from Blank v. Kirwan: the plaintiffs bore the burden of showing that an amendment could cure the defect, and they failed to do so. Accordingly, the demurrers were affirmed, and the judgments of dismissal stood.

Implications. Rallo clarifies that a general disinheritance clause is a potent tool for a testator to preclude omitted‑child claims under § 21622. Practitioners must now ensure that petitions alleging omission contain detailed factual allegations—such as contemporaneous statements, correspondence, or conduct indicating the decedent would have provided for the child had he known—rather than relying on DNA evidence or bare assertions of unawareness. The decision also underscores the limited role of DNA testing in satisfying the statutory “sole reason” requirement; proof of parentage alone does not establish that the decedent’s omission was unintentional.

Unresolved issues remain, however. The court did not address whether a plaintiff could introduce post‑mortem evidence (e.g., medical records, testimony from the decedent’s confidants) to rebut a broad disinheritance clause, nor did it consider the potential for equitable relief where a trust’s language is arguably overbroad. Future litigation may explore the balance between a testator’s freedom to disinherit and the public policy protecting children from inadvertent omission.

Referenced Statutes and Doctrines

• Probate Code §§ 21620, 21621, 21622 – Omitted‑child provisions.
• Probate Code § 44 – Definition of “heir.”
• Evidence Code § 452(h) – Judicial notice of documents.

Key Cases Cited

• Estate of Della Sala (1999) 73 Cal.App.4th 463 – Legislative history of omitted‑child statutes.
• Estate of Mowry (2003) 107 Cal.App.4th 338 – Burden of proof for omitted‑child claims.
• Estate of Katleman (1993) 13 Cal.App.4th 51 – Effect of general disinheritance clauses.
• Blank v. Kirwan (1995) 39 Cal.3d 311 – Standard for sustaining demurrers without leave to amend.
• McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412 – De novo review of demurrer rulings.
• Switzer v. Wood (2019) 35 Cal.App.5th 116 – Plain‑meaning rule of statutory construction.
• Dyna‑Med, Inc. v. Fair Employment & Housing Comm. (1987) 43 Cal.3d 1379 – Statutory interpretation principles.
• Shoemaker v. Myers (1990) 52 Cal.3d 1 – Consideration of prior pleadings on demurrer.
• Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949 – Judicial notice of referenced documents.
• Estate of Cooper (1983) 142 Cal.App.3d 118 – Judicial notice of probated instruments.