May 26, 2021

Dismissal of a Case

The typical pattern in a contested probate case is for a petitioner to file a petition and the responding party to file an objection to the petition. Thereafter the parties likely will engage in discovery. Once discovery has been completed, mediation may be attempted. If mediation is unsuccessful, the case can be tried to verdict before a judge. A probate petition is tried before a judge, a bench trial, as opposed to a jury trial.

Following the initial hearing after the written objection has been filed, the parties will typically have a status conference hearing in which the litigants will inform the judge of developments. Each party can file a case management statement prior to this hearing.

In a recent published appellate opinion, a trial court's decision to dismiss a case at the status conference hearing was the subject of an appeal.

Dunlap v. Mayer, (2021) ____ CA4th _____. 

"The court held an initial case management conference in October 2019, and set another case management conference in January 2020, to give the Estate time to conduct discovery into the Marital Trust assets. The Estate sent discovery requests to Maria, but the responses were not received before the January conference. The Estate filed a progress report in advance of the hearing attaching documents showing that in 1996 the court approved a creditor claim for more than one million dollars to be transferred to FMI, and Maria signed a partnership agreement for P&R, as trustee of the Marital Trust, agreeing that the trust would provide a capital contribution of more than three million dollars to P&R."

"At the case management conference on January 13, 2020, the court dismissed the petition without prejudice pursuant to Probate Code[2] sections 17202 and 17206. The Estate timely appealed."

The appellate court found that this dismissal was improper.

"The probate court erred in dismissing the petition at a case management conference, without an evidentiary hearing or completion of discovery and without giving the Estate notice that the conference could result in dismissal of the petition.

When matters within the purview of the Probate Code are contested, "[t]he court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders." (§ 1046.) There was no hearing here, and no evidence was presented. The court relied on Maria's objection to the petition, which stated that Maria did not know if the Marital Trust was ever funded, she never took title to or controlled any of the assets of the Marital Trust, and two businesses that were to fund the trust were defunct. The latter two statements were "to the best of her knowledge" and "upon information and belief," respectively. The Estate contested these statements and produced documents showing that in 1996 money was transferred to the two entities that were the assets of the Marital Trust."