Trust and Estate Litigation in Sacramento – A Peek Into Department 129

November/December 2010

Sacramento Lawyer Magazine

If you walk into the Gordon D. Schaber Sacramento County Courthouse in search of Department 129, that’s a sure sign that you’re new to the world of trust and estate litigation. Probate matters are heard in the William R. Ridgeway Family Relations Courthouse on Power Inn Road, a venue well known to family law attorneys but not to most other civil practitioners.

Department 129, located on the second floor of the Family Relations Courthouse, has been overseen since early 2009 by Judge Gerrit W. Wood. This department handles all proceedings under the Probate Code, ranging from guardianships, conservatorships and routine probate matters to hotly-contested trust and estate disputes.

Trust and estate litigation appears to be on the rise. Rising longevity has led to a higher prevalence of Alzheimer’s disease and other mental illnesses, which can set the stage for a will contest or trust contest.

Conflicts often emerge even when there is no hint of mental incapacity or undue influence. Simple wills have given way to trust instruments that can be very complex. While trusts can be sound vehicles to minimize estate tax and avoid probate, children who step into the role of the successor trustee may be unprepared to perform the role of the fiduciary, and even the diligent trustee, whether or not a family member, may be faced with deeply-rooted acrimony among the beneficiaries.

Given these developments, Sacramento lawyers are ever more likely to hear from prospective clients who have trust and estate disputes. And, while estate planning attorneys often handle the court-supervised administration of probate and trust estates, many planners will not take on fully-contested matters that are headed towards trial. Hence, when the first deposition notice or set of interrogatories shows up in the mail, an estate planning attorney may decide it’s time to call in a litigator.

Probate disputes are governed by both substantive law and procedural rules that may be new and counterintuitive to lawyers who have litigated in other contexts. As to the procedural terrain in Sacramento County, lawyers should look to the Probate Code, Title 7 of the California Rules of Court, and Chapter 15 of the Local Rules. Lawyers who want to develop a trust and estate litigation practice should join the Probate and Estate Planning Section of the SCBA because the lunch meetings include periodic updates from the probate judge and court staff as well as presentations on key legal areas.

Civil litigators in Sacramento are accustomed to operating in the law and motion world of Departments 53 and 54 as a case progresses, and then taking a detour through a Department 59 settlement conference before, hopefully, getting out to a trial department on the first assigned day.

Not so in probate land. Most probate matters begin with the filing of a verified petition in the Family Relations Courthouse. The clerk’s office then assigns a case number and an initial hearing date, usually about 45-60 days after the petition is filed.

The petitioner serves the petition on all interested parties, along with a special probate-specific form of notice. Under Local Rule 15.04, any written objections to the petition, which also must be verified, should be filed at least three court days before the hearing. Alternatively, however, the Probate Code allows parties or their counsel to simply show up at the hearing (no advance notice required) and state an oral objection.

If petitions are well pled and there is no substantive opposition, the court may grant them at the initial hearing. Probate practitioners know to check the “probate notes,” usually posted online ten or more days before the hearing date, to see if the court staff has identified any deficiencies in the petition. Oftentimes such deficiencies can be corrected by a supplemental filing, which must be made at least three court days before the hearing date. Hence, unlike the ordinary civil law and motion process, in which tentative rulings are issued a day before the hearing, the probate process conveniently allows for pre-hearing written supplementation based on the court’s initial review.

While most probate petitions are unopposed and resolved quickly, if there is a viable objection the court will continue the matter for further proceedings. Some inexperienced practitioners may show up at the first hearing with witnesses in tow only to discover that their matter is number 33 on a busy morning calendar with 45 items.

Local Rule 15.10.4, as recently amended, requires parties to engage in alternative dispute resolution before they are assigned a trial date. Meanwhile, discovery disputes and other pre-trial law and motion matters are handled in Department 129. Unlike ordinary civil law and motion, probate litigants must first file their motions before they are assigned a hearing date, and the hearing dates typically are 30 or more dates out from the date of filing. Thus, it can take longer to obtain a ruling in Department 129 than in Departments 53 and 54.

Once ADR has been completed, or the litigants have persuaded the court that ADR should not be required, matters are assigned a mandatory settlement conference date and a trial date. The settlement conferences proceed in Department 128 with a probate-specific panel of volunteer attorneys. According to court staff, a shortage of volunteers in Department 128 has delayed contested probate matters from going to trial.

Trials of two days or less are set to occur in the Family Relations Courthouse. The judge is not known until the first day of trial. While the judge assigned to Department 129 may conduct the trial, the parties may be assigned to a judge from another department, possibly a judge with little or no experience in probate. Trials of longer than two days typically are sent to a downtown trial department.

Trial practice is generally the same as a civil bench trial – no juries are involved and the verified pleadings do not substitute for the presentation of admissible evidence. The petitioner proceeds as the plaintiff and the objecting parties are functionally the same as defendants. Local Rule 15.10.7 provides for the pre-trial filing and exchange of a trial brief and motions in limine, and the pre-trial exchange of exhibits.

Under Probate Code section 1310, an appeal generally results in an automatic stay of the trial court’s decision, so the status quo continues while the matter is pending before the Third District Court of Appeal.

Jeffrey S. Galvin is a partner at Downey Brand LLP. His litigation practice includes a focus on trust and estate disputes.

This article first appeared in the November/December issue of Sacramento Lawyer, the bimonthly publication of the Sacramento County Bar Association. Downey Brand thanks Sacramento Lawyer for the right to publish the article, in its entirety, on our legal website. The article is the copyrighted property of the Sacramento County Bar Association.