Witness Testimony

When a witness testifies, a key consideration when determining the testimony's weight is the testimony's source. Typically witnesses are either interested or disinterested, i.e. they personally benefit from their own testimony or have no interest in the case's outcome. 

A trial court decision pending appeal involved the testimony of a disinterested witness. 

"Macario Aguilar filed in the Tulare County Superior Court, a Probate Code section 850 petition for transfer of real property. Aguilar noted he had contracted with his neighbor, Norma Jean Stephens, to buy her property in Goshen, when she moved from California to Oregon. Aguilar further contended he had complied with all the terms of sale; however, the escrow company handling the sale shut down before escrow officially closed and title to the property was never transferred to him. Meanwhile, Stephens, who had moved to Oregon, had passed away.

Aguilar brought the instant petition to obtain title to the subject property. Stevens's granddaughter, Elizabeth Rose Tyler, objected to Aguilar's petition. The probate court held a contested hearing in the matter. The court ruled in favor of Aguilar. The court found that Aguilar had contracted with Stephens to buy her property and had complied with the contract's terms. Accordingly, the court ordered that title to the property be transferred to Aguilar."

Ms. Stephens moved to Oregon to be closer to her sister, Donna Dennis. Ms. Dennis had no interest in the case's outcome and confirmed the facts of the sale that Mr. Aguilar had testified to during the trial. Ms. Dennis also "testified that all of Stephens's four children had passed away. She said Stephens's grandchildren "never came around at all until they found out money was involved, and now they're coming out of the woodwork." Dennis said that Stephens had told her that her grandchildren did not visit her and did not like her.

The probate court cited Dennis' testimony in their ruling:

"Among other findings, the probate court stated: "In this case, the court finds that the petitioner has [established] that he completed the purchase of the property. He testified he paid the agreed purchase price for the real property." The court added: "Decedent's sister fully supports his version of events. She confirmed her sister wanted to sell the property to `[Aguilar].' Dennis additionally testified that [Stephens] set the price, which price she was willing to agree to after Aguilar paid the mobile home lien. Dennis testified that after Aguilar paid off the lien, the parties entered the agreement for the purchase and sale of the property at the price decedent indicated she was willing to sell for and that Aguilar paid the $20,000."

The probate court continued: "Dennis's testimony was consistent with Aguilar's that the parties had `signed papers,' but that the property was never transferred to Aguilar for unknown reasons. Dennis also confirmed that cognitive decline and undue influence did not impact the sale."

Estate of Stephens, Tulare County Superior Court case no. VPR052163 

Malicious Prosecution of a Probate Action

Usually when a party loses a case, they do not compound their loss by continuing to litigate. In other words, "if you find yourself in a hole, stop digging." Alas one litigant in a recent unpublished appellate option did not heed this adage.

"This case stems from a family dispute over the probate of the estate of Mohammed Hussain (decedent). After decedent passed away, one of his sons, Asif "Robert" Hussain (Asif) took a document purporting to be decedent's will and instructed one of his friends to sign and backdate the witness attestation clause so he could probate the will. The will named Asif the executor of decedent's estate and distributed most of the estate to Asif. Decedent's other heirs contested Asif's petition to probate the will. Asif subsequently conceded that the will was invalid and abandoned his probate petition.  

Decedent's other heirs then filed suit against Asif for malicious prosecution of the probate action. In response, Asif filed a special motion to strike the malicious prosecution claim under our anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court denied the motion. Asif now appeals, arguing the plaintiffs failed to provide sufficient evidence that he acted without probable cause and with malice in filing the probate petition. We disagree and affirm the trial court's ruling." 

The declaration submitted by the aggrieved litigant:

"Asif submitted a declaration in support of his motion attesting to the following facts. In 2022, decedent told Asif that he intended to distribute his home in Granada Hills to Asif and Seletskiy, with 60 percent going to Asif and the remainder to Seletskiy. Decedent also indicated that he prepared a will and instructed Asif to sign it. In December 2022, decedent gave Asif the combination to a safe and told him to retrieve the documents stored there in the event of his death. After decedent's passing, Asif opened the safe and retrieved a will. He then took that will to a non-attorney "probate specialist," Cheryl Templeton (Templeton). Templeton told him that "in order to submit the [w]ill to [p]robate it needed to be fully signed and dated by two witnesses who knew [decedent]."  

Having been told that the will was defective because it was not signed by two witnesses, Asif concluded that "all [he] needed to do to submit the [w]ill to [p]robate was to get another signature on the [w]ill from a person who knew [decedent]." He went to Gorgone and asked her to sign the witness attestation clause and backdate her signature to July 2022. He then took the signed will to a probate attorney and directed his new counsel to file the probate petition. At some unspecified time after filing the petition, Asif "became aware" that Gorgone's signature was invalid because she did not witness decedent sign the will as she had attested to. Once he learned this information, he instructed his counsel to dismiss the probate petition. Asif claims he did not intend to deceive any of the plaintiffs and would not have submitted the will to probate court if he had known that Gorgone's signature was defective."

Hussain et al. v. Hussain et al., Los Angeles County Superior Court case no. 24VECV04712.

Granting a Continuance

Occasionally a party will request that a court hearing be continued to a future date for whatever reason. For example, a party is ill, a party is recovering from surgery, an attorney has a scheduling conflict (i.e. they have hearings in multiple locations at the same time), etc. It is fairly common for a continuance to be granted. Seldom will a continuance request be denied. Almost invariably there will be a compelling reason for the denial.

A recent unpublished appellate decision involved an aggrieved party who appealed the denial of a continuance by the trial court.

"On appeal, Curtis first argues that the trial court erred when it denied his oral request for a continuance on the morning of trial. We find no abuse of discretion."

"The trial court correctly ruled that Curtis did not comply with the procedures required by the California Rules of Court, as he failed to file any noticed motion or ex parte application with supporting documentation for his request for a continuance. Indeed, his request was made orally on the day of trial. The court also properly considered the fact that the original trial date had been scheduled eight months earlier, the trial had already been continued once five months earlier, and Curtis was present at the hearing at which that continuance was granted. Finally, according to the minute order, Curtis claimed he would be hiring an attorney named Ryan Anderson, but Anderson was not present at the hearing and there was no confirmation that he was available and willing to represent Curtis or had been contacted to do so.

Even if Curtis had filed the appropriate documentation, it was well within the court's discretion to deny his request for a continuance in these circumstances. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [denial of an oral request for a continuance justified when requested on the morning of trial, the opposing party was ready to proceed, and no supporting documentation was provided].) Although Curtis purportedly requested the continuance to obtain counsel, he had at least eight months to do so and still had not actually retained counsel at the time of the hearing. From the limited record before us, we cannot conclude that the trial court's denial of Curtis's request for a continuance was outside the bounds of reason. Therefore, we find no abuse of discretion."

Roberts v. Curtis, San Diego County Superior Court case no.  37-2020-00019064-PR-GE-CTL

Vexatious Litigant

A litigant is generally entitled to file court documents at their discretion. That is, the litigant does not need pre-approval to file a complaint, petition, objection, etc. from a third-party. However, for an unlucky subset of litigants, they do need pre-approval to file because they have been declared a vexatious litigant.

An unpublished appellate opinion described the rationale behind the vexatious litigant law:

"`The vexatious litigant statute (§ 391 et seq.) was enacted "`to curb misuse of the court system'" by "`persistent and obsessive' litigants." [Citation.]' [Citation.] Relevant here, a "`[v]exatious litigant'" is one who, proceeding in propria persona, . . . `repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay' (inter alia)." (Deal, supra, 45 Cal.App.5th at p. 618.)

"`A court exercises its discretion in determining whether a person is a vexatious litigant'" based on statutory criteria. (Deal, supra, 45 Cal.App.5th at p. 621; see § 391, subd. (b).) "Once a person has been declared a vexatious litigant, the court, on its own or a party's motion, may `enter a prefiling order which prohibits [the person] from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.'" (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170; see § 391.7.)

This unpublished appellate opinion also described how a party had been declared a vexatious litigant by a trial court:

"After a continued hearing, at which all parties had the opportunity to orally present their positions, the temporary judge hearing the motion issued an order granting respondents' motion. The written ruling listed roughly four dozen court filings by appellant since the time of the ruling on the first vexatious litigant motion, and it described them as "repetitive," "difficult to decipher," and unsuccessful. Based on appellant's actions of "repeatedly fil[ing] unmeritorious motions, pleadings, or other papers," the court found appellant to be a vexatious litigant and issued a prefiling order "prohibit[ing] [him] from filing any new litigation in the courts of this state in propria persona . . . without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed."  

The appellate court affirmed the the trial court's vexatious litigant determination.  

Elias v. Jensen, Orange County Superior Court case no. 30-2018-00980796

Complying with a Filing Deadline

It is axiomatic that a party is best served to observe filing deadlines. A judge does not impose filing deadlines for no reason. Rather filing deadlines are imposed to ensure the orderly administration of a case. A party who does not comply with a filing deadline does so at their own peril. This point was recently illustrated in an unpublished appellate opinion.

"On March 28, 2022—five days after the probate court's deadline to file objections to Liane's petition, three days after the court's deadline to file short briefs before the continued hearing, and just two days before the continued hearing itself—Tony filed and served objections to Liane's petition and an opposition brief."

"The probate court began by remarking that although the matter was set for an evidentiary hearing, "I don't think we're going to have one based on what I read." The court explained it had ordered any objections to the petition to be filed seven days in advance of the hearing and had received none. The court also observed it ordered the parties to walk their pre-hearing briefs into the courtroom five days before the hearing but had received only Liane's and Jett's briefs.

Tony's attorney, who was retained to represent Tony solely for purposes of appearing at the continued hearing (and the initial, uncompleted hearing earlier in March), explained that his client had difficulty filing his objections and brief through the electronic filing system. The court said Tony should have walked his filings into the courtroom and explained that as a "pro per litigant" Tony had "the luxury of walking in the door with [his] paperwork to the clerk's office and handing it to the clerk and saying `file it.' That is a luxury only pro pers have."

The probate court stated it would only "consider[ ] the briefs that were given to the court in a timely fashion." When Tony's attorney attempted to argue points raised in Tony's opposition and objections, the court rejected those arguments because Tony failed to timely file those documents: in the probate court's words, "[Tony] doesn't have a chance to have this fight because he did not do what he was required to do." When Tony's counsel asked for a short continuance so that the court could read what his client had filed, the court explained it gave Tony ample to time to file his responses to the petition and reiterated, "I'm not going to hear from him, because he did not do what he was ordered to do." When Tony himself attempted to interject, the court stated, "Mr. Bral, . . . I specifically put forth a briefing schedule and you did not comply with it. Therefore, we are not having this evidentiary hearing based on the fact that there is no need for it."

Tony personally interjected to inform the probate court that he had witnesses that would "respond to every item, every allegation." The probate court then invited both sides to make an offer of proof about what their witnesses would say if called to testify. Liane and Jett provided an extensive offer of proof; Tony did not.

"[B]ased on the briefs that were received," the offers of proof presented by Liane and Jett, and the fact that "no objection [was] lodged to th[e] petition," the probate court granted the petition and immediately suspended and removed Tony as co-trustee."

Estate of Ramin Bral, Los Angeles County Superior Court case no. B323383

No-Contest Clause

One method used to deter litigation amongst trust beneficiaries is to insert a no-contest clause in the trust. A no-contest clause provides that a beneficiary will forfeit their inheritance if they challenge the trust's validity and lose. Probate Code §21310(b). Essentially then, a beneficiary must balance the risk of challenging the trust’s validity, an uncertainty, against the assurance of an inheritance, a certainty. Of note, undue influence is probably the most common reason to challenge a trust's validity.

Occasionally I read trusts which state that a beneficiary will forfeit their inheritance, $1, if they contest the trust’s validity. Since $1 will hardly dissuade a litigant, the no-contest clause is rendered effectively useless. Rather the better approach is to increase the size of the inheritance, e.g. $75,000, whereby the litigant will have to seriously ponder the possibility of forfeiting a sizable sum of money should they contest the trust’s validity and lose.

Since January 1, 2010, California has greatly curtailed the impact of no-contest clauses. Now a contestant can challenge a trust’s validity and lose, but still receive their inheritance provided the contestant had “probable cause” when they filed their contest. Probable cause “exists if, at the time of filing a contest, the facts known to the contestant would cause a reasonable person to believe that there is a reasonable likelihood that the requested relief will be granted after an opportunity for further investigation or discovery.” Probate Code §21311(b). A recent unpublished appellate opinion provides an example of this.

In the trial court, the contestant (Randi) lost her contest. The respondent (Fred) appealed the trial court’s decision that the contest had been filed with probable cause. If filed without probable cause, Randi would be disinherited per the trust’s no-contest clause.

“Taken together, the evidence proffered by Randi in her declaration and the declarations from others would cause a reasonable person to believe there was a reasonable likelihood Randi would prevail on the undue influence claim. Marcia was unwell and seemed feeble at the time. Fred had taken her into his home and the evidence supports an inference that he isolated her from her other family and friends. Marcia signed trust documents prepared by an attorney she previously stated she did not want to work with further, and aspects of the Trust seemed inconsistent with Marcia's previously stated practices or desires. Additionally, though Fred did not "unduly" profit from the Trust in the sense that his share of the estate exceeded that of Randi and Julie, a reasonable person could nonetheless consider his receipt of an equal portion an undue benefit given his limited presence in Marcia's life prior to the months leading up to her death. So, too, could one consider his appointment as trustee, a position that gave him both authority and compensation, as an undue benefit under the circumstances."

This part of the opinion was particularly elucidating

“The court also found the evidence pointed to Fred having a virtually non-existent role in Marcia's life until shortly before she passed, and thus, it was not unreasonable to infer that he feared he might be disinherited or only left a small portion of the estate, with a greater portion going to "his apparent nemesis," Randi, who spent a substantial time with Marcia during her lifetime.”

Estate of Sherman, Los Angeles County Superior Court case no. 19STPB10622

Trusts Disputes - Civil Department or Probate Department?

In order for a court to properly adjudicate a case, it must have jurisdiction over the matter. For example, if the manager of the Oakland Athletics wanted to lodge a protest over a supposedly blown call by an umpire, they would lodge their protest with the commissioner of Major League Baseball, not the commissioner of the National Football League. In legal terms, Santa Clara County Superior Court would not have jurisdiction over a case involving real property located in Scotts Valley, CA because Scotts Valley is not located within Santa Clara County. Conversely, Santa Cruz County Superior Court would have jurisdiction over a case involving real property located in Scotts Valley, CA because Scotts Valley is located within Santa Cruz County.

Typically a trust matter is heard in the probate department of the superior court. For instance, the trust matter could be a challenge to the trust’s validity, a petition to remove the trustee, a petition to compel an accounting, a petition to determine the trust’s interpretation, etc. Still, it is not a certainty that every single probate matter will be heard in probate court. Of note, reference to a “probate court” is really just a reference to a particular department in the applicable superior court. For instance, Department 2 and Department 13 are currently the departments in which probate matters are heard in Santa Clara County Superior Court. The departments change periodically as the probate judges rotate over time.

A recent unpublished appellate decision addressed, amongst other issues, whether a civil department could properly hear a trust matter.

The appellant argued that “Department 52 of the Los Angeles County Superior Court lacked jurisdiction to decide this matter because jurisdiction relating to internal trust disputes resides exclusively in the probate department.”

The California Court of Appeal disagreed with this argument.

“Thus, although the Los Angeles Superior Court maintains a probate department, no authority vests that department with exclusive jurisdiction over probate matters. On the contrary, the California Constitution vests the superior court as a unified entity with plenary jurisdiction. As applicable here, even if the probate department has jurisdiction over internal trust affairs, that jurisdiction is nonexclusive. The superior court as a whole, which indisputably enjoys jurisdiction over actions involving contested interests in real property and the enforcement of judgments, also enjoys jurisdiction over ancillary issues that may arise in those actions, including issues relating to internal trust affairs.”

“The trial court therefore had jurisdiction to decide the merits of Lea's third-party claim to the Berryman property, even if that claim raised issues concerning internal affairs of the Family Trust.”

SMS Financial XIX LLC v. Stromberg, Los Angeles County Superior Court case no. B313902