BILL ANALYSIS �
AB 1893
Page 1
Date of Hearing: May 1, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1893 (Wagner) - As Introduced: February 22, 2012
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : PROBATE: PROCEDURAL RULES
KEY ISSUE : SHOULD THE PROCEDURAL RULES THAT APPLY TO
PROCEEDINGS IN PROBATE COURT, WHICH ARE GENERALLY THE RULES THAT
APPLY TO CIVIL PROCEEDINGS, BE CLARIFIED?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial measure, sponsored by the Trust and
Estates Section of the State Bar, clarifies the procedural rules
that apply to proceedings under the Probate Code. For the most
part, this bill simply clarifies current law, which provides
that, unless stated specifically otherwise, the rules of
practice under the Code of Civil Procedure apply to proceedings
under the Probate Code. Rather than change existing law, this
bill just clarifies that the proceedings under the Probate Code
conform as much as possible to general civil proceedings. This
bill does, however, provide for three exceptions to that general
rule, by: (1) prohibiting the use of demurrers in probate
court, allowing parties instead to rely on a motion for judgment
on the pleadings, when appropriate; (2) exempting rules on the
use of compulsory cross-complaints, which are often not relevant
in probate's many in rem proceedings; and (3) amending rules on
amendment of pleadings to more closely follow the general
practice in probate court, while allowing judges to make
exceptions as appropriate. There is no known opposition to this
bill.
SUMMARY : Clarifies the procedural rules that apply to probate
proceedings. Specifically, this bill :
1)Provides that issues of fact in probate proceedings must be
tried in conformity with rules of practice for civil actions.
Unless provided otherwise, states that the rules of practice
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in the Code of Civil Procedure apply to actions under the
Probate Code.
2)Except to the extent provided otherwise, provides that
proceedings in connection with motions and discovery in the
Civil Code and the Code of Civil Procedure constitute the
rules of practice for probate proceedings.
3)Establishes the following exceptions to the rules in #'s 1 and
2, above:
a) Demurrers do not apply, except as provided.
b) Rules regarding compulsory cross-complaints do not
apply.
c) Provisions regarding answers and amendment of pleadings
when no responsive pleading has been filed, do not apply.
Allows parties to amend pleadings, without court approval,
until 120 days prior to trial or other evidentiary hearing,
unless the court orders otherwise. Provides that any
amendments after that 120 days is governed by provisions of
the Code of Civil Procedure.
EXISTING LAW :
1)Except as provided otherwise, states that civil rules of
procedure, including discovery rules, apply to proceedings
under the Probate Code. Provides that issues of fact in
probate proceedings must be tried in conformity with the rules
of practice for civil actions. (Probate Code Section 1000.
Unless stated otherwise, all further references are to this
code.)
2)Allows the Judicial Council to provide rules for practices and
procedures under the Probate Code. (Section 1001.)
COMMENTS : This bill, sponsored by the Trusts & Estates Section
of the State Bar, clarifies the procedural rules that apply to
proceedings under the Probate Code. In support of the bill, the
author writes:
This bill's purpose is to confirm, subject to limited
exceptions, that the same motions available in general
civil litigation are also be available in litigation
under the Probate Code. This is consistent with most
practitioners' interpretation of current Probate Code
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section 1000 in that no statute in the Probate Code
specifically precludes filing such motions. Certain
trial judges, however, have ruled otherwise. Currently
there is no published appellate opinion on this point,
leading to uncertainty and disparate results in the
trial courts on a basic aspect of probate litigation.
For the most part, this bill simply clarifies current law, which
provides that, unless specifically stated otherwise, the rules
of practice under the Code of Civil Procedure apply to
proceedings under the Probate Code. Rather than change existing
law, this bill just clarifies that the proceedings under the
Probate Code conform as much as possible to general civil
proceedings.
This bill also specifies the civil motions that apply in probate
proceedings. The sponsor notes that this clarification is
particularly important because, in the absence of clear
legislative guidance or state or local rules addressing the
applicable procedural framework, the availability of civil
motions can vary from court to court and from judge to judge.
This bill clarifies that, among others, motions to strike,
motions for judgment on the pleadings, motions for summary
judgment, motions for summary adjudication on the issues, and
discovery motions apply in probate actions.
Technical Amendment : In order to ensure that the exemplary list
of allowed motions is not considered exhaustive, the author
rightly agrees to amend the bill with the following language:
On page 2, line 15, after "including" insert: , but not limited
to,
Exceptions to General Civil Procedures : The bill does provide
for three exceptions to the general civil rules. First, the
bill does not permit demurrers in probate proceedings.
According to the sponsor, some judges believe that these motions
are overused in probate court and often subject to abuse. A
motion for judgment on the pleadings is still available as an
alternative to a demurrer.
Second, the bill eliminates rules for cross-complaints. Probate
proceedings generally affect property and not people directly
(in rem versus in personum jurisdiction). As a result,
individuals affected by an action in probate court are often not
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named defendants and are not required to file responsive
pleadings. There are other rules, notes the sponsor, to ensure
that cases proceed expediently and appropriately, and rules on
cross-complaints should not apply to probate cases.
Lastly, the bill clarifies when a pleading may be amended. The
sponsor notes that litigants are almost always able to amend
pleadings in probate court proceedings unless an amendment would
prejudice one party's ability to defend the case at trial. This
bill recognizes that reality and allows parties to amend
pleadings, without court approval, until 120 days prior to trial
or other evidentiary hearing, unless the court orders otherwise.
This prevents unnecessary procedural hurdles to get permission
from the court for amendment, unless it is not appropriate, in
which case a court can disallow an amendment. In order to
ensure that parties are able to proceed to trial or other
evidentiary hearing with an understanding of the issues at hand,
the bill provides that whether any amendments within 120 days of
a trial or evidentiary hearing are permitted is governed by
provisions of the Code of Civil Procedure.
Clarifying Amendment : To make sure there are rules that apply
if a responsive pleading is not filed (which is often the case
in probate), the author agrees to the following amendment:
On page 2, lines 26-27, delete "In those proceedings in which a
responsive pleading has been filed, the" and insert: The
REGISTERED SUPPORT / OPPOSITION :
Support
Trust & Estates Section of the State Bar (sponsor)
Opposition
None on File
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
AB 1893
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