A Square Peg in a Round Hole? Civil Law and Motion Pleadings in Probate Proceedings

• Publication year: 2009
• Author: By Andrew Zabronsky, Esq. and Naznin B. Challa, Esq.

A SQUARE PEG IN A ROUND HOLE? CIVIL LAW AND MOTION PLEADINGS IN PROBATE PROCEEDINGS

By Andrew Zabronsky, Esq. and Naznin B. Challa, Esq.^*

I. INTRODUCTION

The Code of Civil Procedure allows for extensive law and motion practice in civil actions. Probate Code section 1000¹ provides that, in general, "the rules of practice applicable to civil actions ... apply to ... proceedings under [the Probate] [C]ode." Many probate litigators therefore assume that motions permitted in civil actions (hereafter, civil motions) may also be brought in probate proceedings.² Until recently, at least, it appears that courts assumed the same thing; although many reported decisions in probate matters involve civil motions, none has questioned the party's entitlement to bring the motion. Some probate courts, however, have begun to do just that.³ Are they right?

These courts stress that Section 1000 applies "[e]xcept to the extent that this code provides applicable rules" (hereafter, the "exception clause"), and posit various "applicable rules" which they assert displace the rules of practice applicable to civil actions. For example, one probate court issued the following ruling rejecting a demurrer:

Probate Code Section 1000 provides that: "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions ... apply to, and constitute the rules of practice in, proceedings under this code." The Rules in Probate provide for the speedy determination of issues by court trial upon a verified petition and verified objections. All of moving party's arguments may be presented in verified objections, and the court may rule upon such legal objections after argument upon a hearing set by the court. The Demurrer procedure is unnecessary in the normal process of Probate petitions. [¶]For this reason, the court declines to hear these issues by demurrer. They are better heard in the normal process under the Rules of Probate.... The moving party should present its written objections and the matter will then be set for hearing.

As explained below, these courts take an overexpansive view of Section 1000's exception clause that is contrary to case law and would largely swallow the section's rule and undermine its basic purpose: to conform probate proceedings "as nearly as is consistently possible"⁴ to those in civil actions.

II. BACKGROUND

Civil cases are divided into two classes: actions and special proceedings.⁵ Probate cases are special proceedings.⁶

The Code of Civil Procedure is divided into four parts. Part 2 contains most of the provisions governing civil motions. As our Supreme Court has noted, "Part 2 of the Code of Civil Procedure extends generally only to civil 'actions,' and not to 'special proceedings.'"⁷

Exceptions include the summary judgment statutes, which by their terms apply to "any action or proceeding,"⁸ and the discovery statutes, which apply to "a civil action and a special proceeding of a civil nature."⁹ For the most part, however, the statutes governing civil motions do not apply of their own accord to probate proceedings. The question, therefore, is whether they are made applicable to probate proceedings by Section 1000.

III. SECTION 1000

Although the Probate Code contains certain provisions concerning the conduct of trial and pretrial matters,¹⁰ it generally adopts the rules of practice applicable to civil actions. Section 1000 provides, "Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions ... apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions."

Section 1000 is one of a series of borrowing statutes that apply to various special proceedings and are designed to carry out "a common purpose ... to make the 'rules of practice' in all of these special proceedings identical, so far as not otherwise provided, with those prevailing in civil actions generally."¹¹ Our Supreme Court has described the language of (a predecessor to) Section 1000 as "broad and all-inclusive," and indicated that the purpose of the provision is to conform probate proceedings "' as nearly as is consistently possible'" to those in civil actions.¹² Thus, while "[t]he general rules of the Code of Civil Procedure do not apply when the Probate Code provides special rules[,] ... [t]hose cases which have held provisions of the Code of Civil Procedure inapplicable in probate proceedings involve provisions of the Code of Civil Procedure which are inconsistent with specific provisions of the Probate Code."¹³

California Law Revision Commission (CLRC) comments¹⁴ are in accord. They make clear that, in probate proceedings, civil rules are the "default rule[s]" and apply except "where this [Probate] [C]ode provides a special rule."¹⁵ The examples given by the CLRC of special rules that preempt civil rules all involve specific statutes that are inconsistent with civil rules, including that "jury trials are strictly limited under this code," that "[t]he right to make a motion for new trial in proceedings for administration of a decedent's estate is limited in Section 7220," and that "[t]he right to appeal

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in decedent estate administration is limited to the orders set out in Section 7240."¹⁶ They also make clear that just because the Probate Code provides a special rule doesn't mean that it displaces all civil rules on the same subject. For example, the CLRC notes that Section 1004 "provides a more restrictive rule (for lis pendens) than would otherwise apply through the incorporation provision of Section 1000," but goes on to note that, even so, "[o]ther provisions of the Code of Civil Procedure applicable to lis pendens apply under this code by virtue of Section 1000."¹⁷

In sum, probate proceedings are to conform "as nearly as is consistently possible" with civil actions,¹⁸ and civil rules apply unless "inconsistent with specific provisions of the Probate Code."¹⁹ As our Supreme Court recently explained with regard to divorce proceedings, which are governed by a statute substantially the same as Section 1000,²⁰ "such proceedings are governed by the same statutory rules of evidence and procedure that apply in other civil actions ...."²¹

IV. CIVIL MOTIONS IN PROBATE PROCEEDINGS

A. Introduction

There is no question that Section 1000 authorizes some civil motions. For example, the CLRC has said that Section 1000 authorizes probate litigants to bring motions for relief from default under Code of Civil Procedure section 473.²² Similarly, the CLRC has said that, with one exception, the civil rules governing lis pendens (including, presumably, motions to expunge them) apply in probate.²³ Likewise, the CLRC has implied that, except as limited by Section 7220, the civil rules governing motions for new trial apply in probate.²⁴ One case says it is proper to bring a summary judgment motion in a probate case.²⁵ And another says "there is no question" but that discovery procedures, including motions, are available in probate proceedings.²⁶ Thus, any suggestion that Section 1000 does not authorize any civil motions is certainly incorrect.

The case law, however, contains no discussion that makes clear that all civil motions are permitted in probate proceedings (although, by the same token, it contains no suggestion that any particular civil motion is not allowed). For example, there are numerous reported decisions involving demurrers in probate cases, including several that affirm dismissals on demurrer,²⁷ one in which our Supreme Court affirmed an order sustaining a demurrer in an action seeking to modify a testamentary trust.²⁸ While an affirmance by our Supreme Court of an order sustaining a demurrer may be a pretty good indication that the demurrer was properly brought, none of these cases specifically discuss the question whether demurrers are allowed in probate proceedings. Indeed, we have found only one case in which a party even raised the question whether civil motions are available in probate proceedings.²⁹ The court decided the case on other grounds, however, and declined to resolve the question.³⁰

Although the issue of civil motions in probate proceedings has not been discussed in the case law so far, given the recent rulings of certain probate courts, it is likely to come up soon.

B. Demurrers

Perhaps the most controversial civil motion is the demurrer. It therefore makes a good test case for whether civil motions are generally available in probate proceedings. Although the cases affirming dismissal on demurrer may be said to "implicitly recognize[] the demurrer as proper,"³¹ generally...