Monday, July 27, 2026
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Probate Judge Should Have Transferred Case Filed in Wrong County, Rather Than Dismissing It—C.A.
By a MetNews Staff Writer
A judge, in concluding that a probate petition had been filed in the wrong county, erred in dismissing the case rather than transferring it, the Third District Court of Appeal has declared.
The petition was filed in Sacramento Superior Court. A judge of that court, James McFetridge, found that the proper venue was Santa Cruz Superior Court.
A few days after he dismissed the case, the statute of limitation expired and the petitioner was therefore unable to re-file in the right place.
Boulware Eurie’s Opinion
Justice Stacy E. Boulware Eurie authored Thursday’s unpublished opinion reversing the order of dismissal, saying:
“The Probate Code does not articulate what should happen when a dispute regarding the proper venue arises in a case about a living trust. Thus, the procedural rules found in the Code of Civil Procedure apply in that situation….
“Pursuant to section 396b, if a case is commenced in a court that has jurisdiction of the subject matter, it may be tried in that court ‘unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond...files...a notice of motion for an order transferring the action or proceeding to the proper court.’…And section 397 permits trial courts, on motion, to ‘change the place of trial’ ‘[w]hen the court designated in the complaint is not the proper court.’ ”
Dismissal Not Contemplated
She went on to say:
“Section 396b does not contemplate dismissing a matter for improper venue. No derivatives of the root word ‘dismiss’ appear in the statute. By contrast, the word ‘transfer’ and its derivatives appear six times in the statute. And section 396b, subdivision (a), specifically contemplates adjudication of a matter ‘notwithstanding’ its commencement in the wrong county, so long as there is subject matter jurisdiction. Respondent, correctly, does not contend that the probate court lacked subject matter jurisdiction to adjudicate the instant dispute.”
The justice declared:
“Accordingly, because it had subject matter jurisdiction, the probate court erred in dismissing the petition for improper venue.”
The case is Renn v. Renn, C104090.
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