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Demurrer to Petition in Probate Matter Not Controlled by CCP Time Limit, C.A. Holds
By a MetNews Staff Writer
The First District Court of Appeal has held to be timely a demurrer to a petition in a probate matter that was filed two days before a hearing and four months after the pleading was served.
In fact, Div. Three said in an opinion by Justice Victor A. Rodríguez, grounds for the demurrer could even have been put forth orally at the hearing, under a Probate Code section. At issue is a petition to invalidate amendments that a woman made to her trust shortly before her death.
The opinion, filed Wednesday, grants a petition for a writ of mandate, directing the San Mateo Superior Court to vacate its order overruling a demurrer as untimely and to consider the objection to the pleading on its merits. Judge Leland Davis III had proclaimed the demurrer to have come too late based on Code of Civil Procedure §430.40(a) which provides:
“A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.”
But, Rodríguez declared, “[t]he deadline in the Code of Civil Procedure to respond and object within 30 days after a complaint is served is inapposite.”
Probate Code §1043
What controls, he said, is Probate Code §1043, which says, in relevant part:
“(a) An interested person may appear and make a response or objection in writing at or before the hearing.
“(b) An interested person may appear and make a response or objection orally at the hearing. The court in its discretion shall either hear and determine the response or objection at the hearing, or grant a continuance for the purpose of allowing a response or objection to be made in writing.”
He pointed to Probate Code §1000(a) which says that “[e]xcept to the extent that this code provides applicable rules, the rules of practice applicable to civil actions,” other than special proceedings (such as writ matters), “apply to, and constitute the rules of practice in, proceedings under this code.”
Rodríguez wrote:
“While the Probate Code does not expressly define ‘objection[s]’ to include demurrers, we conclude that interpretation is appropriate. Pursuant to section 1000, we look to the Code of Civil Procedure.”
Among provisions he cited was §430.30(a) which provides that “[w]hen any ground for objection to a complaint, cross-complaint, or answer appears on the face thereof, or from any matter of which the court is required to or may take judicial notice, the objection on that ground may be taken by a demurrer to the pleading.”
The jurist drew the conclusion that in reading “Probate Code and Code of Civil Procedure statutes together,” it emerges that “an interested party may file a demurrer to a petition under the Probate Code ‘at or before the hearing.’ ”
Will contests, he noted, are not affected by Wednesday’s holding given that a specific Probate Code provision—§8251—prescribes a 30-day period within which a demurrer may be filed.
Writ Review Rare
He acknowledged that it is rare that an appellate court will consider a writ petition challenging the overruling of a demurrer because there is an adequate remedy in the form of an appeal from the final judgment. Exceptions, Rodríguez said, are where circumstances are “compelling” and there is public interest in the matter or where trial court decisions are in conflict.
“Currently, there appears to be no appellate authority addressing whether section 1043 or Code of Civil Procedure section 430.40 governs the timing for filing a demurrer in a probate proceeding,” he wrote, adding that “trial courts have employed different methods of resolving this conflict.”
Rodríguez determined:
Writ review is thus appropriate to ensure consistency in the timing for filing demurrers in a probate proceeding.”
The case is Goebner v. Superior Court (McDonald), 2025 S.O.S. 1165.
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