Missing a Court Hearing

One circumstance that always surprises me is when a party will attend some court hearings but not others. Suffice to say, there are consequences for not attending a court hearing, especially a trial. A recent unpublished appellate decision was based on a non-appearance by unrepresented parties.

"The court set a trial on the petition for July 9, 2024. At a status hearing on June 18, 2024, the court ordered the trial remain set for July 9. Andrea and Symone personally appeared at the status hearing.

On July 8, 2024—the day before the trial was set to begin—Andrea and Symone filed a motion to compel responses to their discovery requests. According to the motion, Christopher failed to respond to requests for admissions and the production of documents, which Andrea and Symone purportedly served in April 2024. Andrea and Symone requested an order compelling responses and for sanctions against Christopher. It is not clear whether the court ruled on the motion.

Andrea and Symone did not appear at the trial the next day, July 9, 2024. The court found they had received notice at the June 2024 status hearing, and it went forward with the trial without them. After Christopher presented his evidence, the court declared the December 2020 amendment to be invalid. The court overruled Andrea's and Symone's objections. It denied without prejudice Christopher's elder abuse claims, request for restitution, and request for punitive damages.

The next day, Andrea and Symone filed a notice of appeal."

"As we understand their arguments, Andrea and Symone contend the probate court erred by going forward with the trial in their absence and without having provided them notice. Andrea and Symone's arguments are premised on the claim that the probate court granted their motion to compel discovery "on or about" July 8, 2024—the same day they filed the motion—and ordered Christopher to provide responses "not later than January 6, 2025." According to Andrea and Symone, the court clerk told them the trial would be continued in light of the court's discovery order. They believed the trial had been continued automatically, so they did not appear on July 9, 2024."

"Andrea and Symone's due process argument is premised on their contention that the probate court granted their motion to compel discovery the day before the trial and gave Christopher until January 2025 to respond to their requests. However, the record on appeal does not contain such an order. Nor does the probate court's case summary reflect that the court issued any orders on July 8, 2024. Andrea and Symone's opening brief on appeal states the order is attached as "Exhibit B." However, Andrea and Symone did not attach any exhibits to the brief they filed in this court." 

As one can imagine, the Court of Appeal affirmed the trial court's decision. 

Booker Family Trust, dated August 12, 2003, Los Angeles County Superior Court case no. 21STPB11517.

Lodging a Will

If a person passes away with a will, the will's custodian is obligated to lodge the will with the superior court in the county in which the decedent resided within 30 days of knowing that the decedent passed away and to deliver a copy of the will to the nominated executor, or a beneficiary if the executor cannot be located and a beneficiary can be located. Probate Code §8200(a). 

Periodically I have been involved in cases in which a disinherited heir raises strenuous objections about the will not being lodged within 30 days. These objections are almost invariably rooted in emotion rather than logic. It is hard to foresee the monetary damage caused to a disinherited heir if a will is lodged 25 days after death as opposed to 90 days after death. If the will is valid, the disinherited party will receive nothing from the estate. Therefore, the financial position of the disinherited heir will not change one iota regardless of when the will is filed. Furthermore, lodging the will after 30 days does not invalidate the will. A recent unpublished appellate opinion addressed this issue.

"The decedent, Artis Mae Myrick Finn, died on March 20, 2021. Two days later, a relative notified Crandall, who lived out of state. Crandall then spoke with Myrick, who also lived out of state."

"On April 8, Laura filed a petition to probate Finn's estate. She filed the 1983 will and 1991 codicil with the trial court on May 13—fifty-three days after Finn's death." 

"On the other hand, we agree with Myrick that we can review de novo his contention about untimely filings of the will and codicil because it is based on an undisputed timeline. Myrick correctly notes that Finn's will and codicil were filed in the trial court more than 30 days after her death. (§ 8200, subd. (a).)^[6] He concludes that, because the documents were filed untimely, they "[t]herefore, . . . should not have been admitted into evidence."

But Myrick cites no case law requiring a trial court to exclude an untimely filed will, and we have not found any ourselves. Nor has he shown any arguable error was prejudicial. Indeed, the statute itself suggests the only remedy for untimely filing is a claim for money damages for proximately caused harm. (§ 8200, subd. (b); see County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 ["`appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice'"].)"

Estate of Artis Mae Myrick Finn, Orange County Superior Court case no. 30-2021-01194661

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

Court Proceedings

When a party files a petition in probate court seeking redress of injury, e.g. breach of trust, the clerk will schedule a time for the initial hearing. For instance, if the petition is filed on July 27, 2021, the clerk might hypothetically assign a hearing date of February 14, 2022 (the current lead time in Santa Clara County is around 6 months for trust petitions).

A common misperception is that a judge will grant or deny the petition at this initial hearing. That is, the judge will resolve the case at the first hearing. Instead, the judge will typically ask the attorneys, if both sides are represented, if they've met and conferred on discovery issues. Discovery is the process in which evidence related to the case is exchanged between the parties. This initial hearing is typically brief, usually around 5 minutes or less. At the conclusion of the hearing, the judge will continue the matter to a future date to check-in on the discovery status. This will usually range from 30-120 days.

Another misperception regarding this initial hearing is that the court will hear live testimony from relevant witnesses. I've seen countless probate hearings where a large number of family members attended the initial hearing expecting to be heard by the judge. The judge will often let them testify, albeit briefly. I always tell my clients that attendance at a court hearing is an imprudent use of time. In particular, a client of mine has only been ordered to attend a court hearing one time. The reason for his mandatory attendance was because of a settlement conference that would take place at the courthouse, Marin County Superior Court. 

I should mention that a client's attendance at a trial is basically mandatory (or they risk losing the trial by default). This distinction between a routine court hearing and a trial is unfortunately not expressed clearly enough to the general public. For reasons unknown, parties come to court with the expectation that they "will have their day in court." While this statement is facially true, it is misleading. If a party so desires to have their day in court, they will, but not at the initial hearing. 

A prior case of mine can provide context to the foregoing. A wife passed away in 2018. The wife was survived by her husband. The sole probate asset was a home purchase by wife and husband while they were married. A daughter alleged that her mother wrote a will devising her mother's estate to the daughter and her siblings. The daughter repeated this allegation at multiple hearings and in multiple court filings while her mother's estate was being administered. Ultimately a trial was needed to determine whether or not wife passed away without a will. At the trial, the daughter was able to testify herself and provided witnesses to support her allegation. However, prior to the trial, the daughter's live testimony was not heard by the judge. The judge ultimately ruled that the wife passed away intestate as no valid will could be produced.

Probate Orders

Probate participants naturally appreciate consistency. If a judge rules one way in a case in 2016, then presumably that ruling will apply in 2017 as well even if the case is before a different judge. "For one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court." In re Alberto (2002) 102 Cal.App.4th 421, 427. Hence, it is error for a judge to modify a prior ruling unless there are highly persuasive reasons to do so.
People v. Riva (2003) 112 Cal.App.4th 981, 992.

Here in Santa Clara Co., we have had 3 probate judges the past couple of years, Judge Cain, Judge Persky and Judge Kuhnle. Thus it is not a given that the same judge will hear your matter for the duration of your case. Personally speaking, I've had a couple of probate matters in which the judicial assignment changed during the case.

For illustrative purposes, assume a disgruntled beneficiary petitions the court to order that the trustee provide an accounting. The judge orders the trustee to provide an accounting to the court in 4 months. Furthermore, if the accounting is acceptable, the trustee will be released from having to provide an annual accounting to the court. The beneficiary does not object to any portion of the order. Hence, the accounting would be a one-off matter. The judge who signs this order then retires and a new judge takes over the case.

Months later, the trustee files an accounting with the court. The judge is satisfied with the accounting and approves it. However, the disgruntled beneficiary vigorously argues that the trustee should be subject to ongoing court supervision on the day of the hearing. The beneficiary provides only oral testimony that the trustee "can't be trusted" because the trustee once made a bet against the Harlem Globetrotters as he believed the Washington Generals were "due." Despite the previous order that barred ongoing court supervision, the new judge agrees with the disgruntled beneficiary and orders that the trustee provide an annual accounting to the court. The trustee is well within his or her rights to appeal the order in that it directly contradicts the prior order. 

Attending a Court Hearing

Yolo County Superior Court

To state the obvious, it is always a prudent maneuver to attend a scheduled court hearing. If for whatever reason the litigant or the litigant's attorney cannot attend the hearing, they should notify the other party's attorney, the court, the court clerk, etc. to request a continuance. Absent extraordinary circumstances, opposing counsel will grant a continuance (I've always done so for opposing attorneys). Otherwise, the consequences can be harsh and possibly irreversible.

This brings us to the story of one unfortunate probate litigant. 

Susan Ford Frantzich was the daughter of the late Evelyn I. Ford. Ms. Ford had drafted multiple testamentary documents prior to her passing. The legal issue surrounding her estate was the admissibility of a handwritten codicil. 

(Of note, a codicil is an amendment to a will. To be valid, a handwritten codicil need not be witnessed. Hence, there is invariably a question of its authenticity because nobody saw the decedent actually write the document).   

Susan's petition was objected to by Casey S. Rogers, the grandson of the late Evelyn I. Ford. Casey sought to have the handwritten codicil (not surprisingly) be denied admission to probate. 

The Fresno County Superior Court consolidated the matters and scheduled a hearing for August 20, 2014. Inexplicably, neither Susan nor her attorney attended the hearing. The court then denied Susan's petition and granted Casey's petition.

Susan then appealed her case to the 5th District Court of Appeal. On appeal, the trial court's ruling was affirmed in a unpublished opinion:

"the record we do have reveals an appropriate basis for the probate court to deny Frantzich's petition, as it shows that neither Frantzich nor her attorney appeared at the hearing on her petition. Even if a pre-probate will contest is pending, if a contestant fails to appear at a hearing on a petition to admit a will to probate, and fails to inform the probate court of the status of the contest or request a continuance of the hearing, the probate court may infer that the objection to probate has been resolved or the contestant has elected to treat the matter as a post-probate will contest. (Estate of Horn (1990) 219 Cal.App.3d 67, 72 ["As a general rule a probate court should not be required to act on its own motion to postpone a hearing on admitting a will to probate even when a petition contesting the will is in the probate file."].) Since Frantzich did not appear at the August 20 hearing, either individually or through her attorney, the probate court was well within its authority to deny Frantzich's petition on that basis alone and to admit the will and codicils to probate on Rogers's petition."

In Re Estate of Ford, __ Cal.App.4th __ (2016) 

Appealing a Probate Matter

6th Circuit Court of Appeal of California

When a party to a California probate action receives an adverse ruling, they basically have two choices. The party can accept the order and move on with their life. Conversely, the party can appeal the decision to the appropriate California court of appeal. However, there are at least three factors which often, either alone or in conjunction with one another, dissuades a party from appealing their case. We will call this person the "appellant."

First, the appellant has the substantive hurdle of overcoming the presumption that the trial court ruled correctly. Denham v. Superior Court (1970) 2 Cal.3d 557, 564. This is not to say that a trial court is infallible. A trial court can commit reversible error through various means. Still, the appellant begins the appeal process with the knowledge of an uphill battle. They have to prove that the trial court ruled incorrectly. Thus, the burden of proof is on them.

Second, the appellant is confronted with the issue of financing the appeal. The cost of an appellate attorney will typically exceed $25,000 and can easily reach $100,000+. Also, there are costs involved with obtaining copies of the court transcripts and other documents. Furthermore, though improper, parties occasionally engage in scorched-earth tactics that drive up the cost of attorneys to the detriment of the lesser party. When the trial court renders an opinion, one party may not be able to afford an appeal given that they exhausted all of their resources at the trial court level. This is usually found in David v. Goliath cases. Most people do not have a limitless source of money or have access to a tree that grows money. 

Third, the appellant encounters the issue of time. A common complaint with the legal system is the length of time it takes to process a claim. It is common for a case to take years to complete and then take another 18 months to funnel through the appellate process. Everybody has a certain threshold of patience and enduring an appeal definitely will test the patience of any litigant. From personal experience, a trust beneficiary contacted me originally in June 2013 to inquire about his mother's trust. Due to a highly questionable trust amendment, litigation ensued. While the case ultimately settled, this did not occur until May 2015. Obviously being in limbo for 2 years is not a fun place to be.

Ultimately though, it is not the attorney's job to direct the client to appeal or not. Rather it is the attorney's job to advise the client of their options and the consequences of taking any of those options. Clients should be aware of this.

Where to File Probate

When a person passes away, in legal speak the "decedent," and leaves an estate that requires probate, the personal representative needs to file for probate in the appropriate court.  In California, there are 58 probate courts as there are 58 counties in the Golden State.

Many non-attorneys are often very confused about the jurisdictional requirements of courts. Certain cases may only be heard in federal court whereas other cases are only heard in state court. Furthermore, many California counties have specified courts for specified cases. In Santa Clara County, we have a probate court, criminal court, family court, civil court and small claims court. Each of these aforementioned courts is located at a different location, or at the very least a different department. I periodically have cases at the downtown superior court in San Jose, 191 N 1st Street San Jose, CA 95113, and frequently hear people passing through the metal detector that they have gone to the wrong courthouse as explained to them by the sheriff. I find this rather baffling though because the ticket, summons, citation, etc. will state the location of the courthouse.

The threshold issue when determining where to initiate probate is to ascertain the decedent's domicile. Domicile is basically a person's residence plus the intention to remain there. If you purchased a home and occupy it, that basically establishes domicile. If you are couch surfing, that is probably not enough to establish domicile. 

If the decedent was domiciled in California, then "the proper county for proceedings concerning administration of the decedent’s estate is the county in which the decedent was domiciled, regardless of where the decedent died." Prob C § 7051. For instance, I received a call from somebody a few years ago who told me that his brother had passed away in Mexico on vacation unfortunately. He had lived in an apartment in Newport Beach, CA for a couple of years. The appropriate court to file for probate was Orange County.

If the decedent was not a California domiciliary, but leaves assets in the county where they died, then such county is the appropriate one. Prob C §7052(a). For instance, assume Tom Reddick, a Florida domiciliary is vacationing in the Napa wine country and tragically passes away in a hot air balloon accident. Prior to his death, Tom purchased a vacation condo in Calistoga, CA. Probate would need to be filed in Napa County.   

Conversely, if the non-domiciliary decedent died outside the county where they held assets, then the county  in which assets are located is the appropriate one. Prob C §7052(b).  From above, assume Tom passed away while skiing in Lake Tahoe, which is located in El Dorado County. Here probate should be filed in Napa County not El Dorado County.

While this might be a technical and mundane issue, it is nonetheless important because you cannot start the process until you figure out the right court to initiate probate.