To Be or Not to Be, in Probate Court
In general, causes of action provided for in the Probate Code require filing petitions and responses.
If a cause of action is not expressly authorized by the Probate Code, matters of pleading and procedure are governed by the Code of Civil Procedure. This is also true of Probate Code matters except to the extent the Probate Code provides otherwise. (Prob Code §1000).
In planning to initiate a “hybrid” action, where a trust litigation matter involves both probate matters and civil matters in a single case, practitioners must confront the realities of the confusing state of California law regarding the consequences of whether a cause of action is “probate” or “civil.” In particular, the practitioner must take into account the controversy over whether filing a cause of action using the wrong pleading (a complaint rather than a petition or vice versa) is an error having jurisdictional, rather than merely procedural ramifications.
The source of this controversy is a combination of history, combined with the practical consequences of having two sets of procedures.
• The Probate Court was abolished as a separate court in California in 1879. 18 Cal L Revision Comm’n Reports 1281 (1986). The Probate Court had been a court of limited jurisdiction.
• Following abolition of the Probate Court as a separate court, the California courts managed to retain limited jurisdiction concepts for probate matters by creation of the concept of the “Superior Court sitting in probate.” This resulted in decades of litigation regarding the parameters of the power of the Superior Court sitting in probate, particularly with respect to jurisdiction to decide cases involving “third parties” and powers to grant equitable remedies.
• Until 1971, testamentary trust matters were probate matters, but inter disputes involving revocable vivos or living trusts were treated as civil matters. At that juncture, some matters concerning inter vivos trusts became probate matters. Stats 1970, ch 849, enacting former Probate Code §§1138-1138.13.
• This state of affairs led to a situation in which cautious practitioners for prudent plaintiffs would “double file” cases which even vaguely appeared to involve a combination of “probate” and “civil” matters. A petition would be filed with a probate case number. A complaint would be filed with a regular case number. The various notice and service of process requirements would be satisfied for both cases. One or more parties might then make a motion for consolidation of the two cases in one court.
• In 1986, the new California Trust Law was enacted. New Probate Code §17000 made clear that the Superior Court had jurisdiction over the internal affairs of trusts, and Probate Code §17001 made clear that the court was a “full power court” when exercising that jurisdiction. The latter provision presumably made clear that the Superior Court could exercise all of its powers, including equitable powers, when exercising jurisdiction over trusts. (A similar provision in Probate Code §7050(b) applies to decedent estates, but there is no such provision applicable to guardianships or conservatorships.)
• Many practitioners thought Probate Code §§17000-17001 had the effect of eliminating any jurisdictional distinctions between the Superior Court acting in exercise of its trust jurisdiction and the Superior Court operating in exercise of its general jurisdiction. This view was not shared by the Court in Estate of Mullins (1988), 206 Cal. App. 3d 924, 930. The probate “petition” in that case claimed that the deceased settlor of a living trust was contractually obligated to leave half of her estate to specified persons. It sought a declaration that the trustee of the decedent’s revocable trust held half of the trust estate as a constructive trustee for the benefit of petitioners. The Superior Court sitting in probate dismissed the case on the grounds of lack of jurisdiction and the appellate court affirmed.
• Loud protests quickly followed Mullins, contending, in effect, that there is no such thing as a “probate court” in California and that it was therefore impossible for a department of the Superior Court to lack Superior Court jurisdiction. The CLRC promptly sponsored legislation amending Prob Code §17001. Stats 1990, ch 710, §44. The Law Revision Commission Comment for the amendment stated in part: “This amendment is needed to reject dicta in recent cases as to limitations on the power and jurisdiction of the court in proceedings properly commenced under this division. See Estate of Mullins.
• Then came Saks v. Damon Raike & Co. (1992), 7 Cal. App. 4th 419, an action filed in Superior Court by beneficiaries of a trust against an attorney for the trust and a real estate broker, arising out of the sale of real property owned by the trust and the purchase of other property. The trial Superior Court sustained defendants’ demurrers without leave to amend to plaintiffs’ second amended complaint and dismissed the action.
The Court of Appeal affirmed. The court held that because of the nature of their claims and the particular jurisdictional and procedural requirements of the law, the beneficiate lacked standing to bring their claims in the Superior Court. Under both the common law and the provisions of the Probate Code governing the administration of trusts (Prob. Code, §§16000 et seq., 17000 et seq.), the beneficiaries’ only proper course was to proceed against the trustee in the probate department of the Superior Court, seeking either to compel it to proceed against the attorney and the broker, or to remove the trustee and to appoint a trustee ad litem to sue the third parties. The court further held that Civil Code, §1559, providing that a contract made expressly for the benefit of a third person may be enforced by him or her at any time before the parties thereto rescind it, has no application to a case in which a trust has been created in favor of such third person.
Given the confusion arising out of these hybrid cases, some lawyers are still proponents of double filing and then consolidating cases involving both “probate” and “civil” matters. This will require extra filing fees, and the expense of making and appearing at the motion for consolidation. This requires extra filing fees, and can create waste confusion and the expense of making and appearing at the motion for consolidation. Nevertheless, the procedure does sometimes avoid problems with court personnel and can avoid claims that the court does not have jurisdiction to hear a particular cause of action. The procedure may also mean that issues pertaining to availability of jury trials and the availability of certain remedies (notably punitive damages) are treated as being dependent on the substantive cause of action pled and remedy demanded, rather than the room number of the particular department in which the case is heard.
If the double filing approach is not used, or counsel otherwise ends up defending a claim that a cause of action is filed in the “wrong” court or using the wrong procedure, other help is available. Code of Civil Procedure §396 provides that a case filed in a court without jurisdiction is to be transferred to a court having jurisdiction. Objections to use of a petition rather than a complaint or vice versa can be addressed by asking the court to treat the filed document as the other form of pleading. ”The nature of an action and the issues involved are to be determined, not from the appellation given the pleading, but from the facts alleged and the relief that they support.” Bloniarz v Roloson (1969) 70 C2d 143, 149; Estate of Linnick (1985), 171 Cal. App. 3d 752.
Whether the Superior Court is sitting in probate, or handling all civil matters, budget cutbacks have reduced court personnel, and the time and patience that can be devoted to processing cases. When your situation deserves the best counsel you can afford, contact the Boesch Law Group probate litigation lawyers for a consultation. Here at the Boesch Law Group, we have handled testamentary probate and trust disputes from the largest, most public and most complex in the nation (See Marshall v. Marshall for Anna Nicole Smith), to important matters for private people caught up in serious disputes and issues beyond their control.
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