Civil Litigation Archives

AB 2016 — An Update to “Small Estate Petitions” (Prob. Code § 13100)

Published on: September 4, 2024 | By Underwood Law Firm, P.C.

underwood-small-estate-petitions-300x300 An Assembly bill applying to decedents’ estates was finalized on August 29, 2024. The bill will amend six sections of the Probate Code (Cal. Prob. Code § 13100-13101, 13150-13152, 13154) and repeal one section (Prob. Code § 13158). This is significant because it impacts how successors of decedents can manage a decedent’s real property.

Specifically, this means real property in estates valued over $750,000, or that was not the primary residence, can no longer take advantage of this expedited process.

Generally, it takes a long time for an estate to go through probate, so this section of the code is meant to facilitate the distribution and disposal of certain types of property in the estate. Normally an estate goes through administration proceedings and to state a claim as a beneficiary that person needs to file a petition. (Prob. Code § 11700-11701.) The petitioning person has to notify the other settled heirs and beneficiaries who can fight the petition. (Prob. Code § 1220.) Because of these lengthy and expensive disputes, estates under a certain value were made exempt from the estate administration process. (Bucholtz v. Belshe (9th Cir. 1997) 114 F.3d 923, 927.) Currently, sections of the Probate Code allow property in an estate under a certain value to be disposed of by a successor. Once this new bill is enacted it will limit the exemption to which the property applies.

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What is a Trustee Removal Petition (Prob. Code, § 17200(b)(10))?

Published on: August 16, 2024 | By Underwood Law Firm, P.C.

underwood-trustee-removal-petition-300x300 The purpose of this article is to explain what a trustee removal petition is. In a trust the trust is managed by the trustee, who is put in charge by the creator of the trust called the settlor. A trustee removal petition is made by a settlor, co-trustee, or beneficiary of the trust with the goal of removing the trustee. (Prob. Code, § 17200, subd. (b)(10).) Usually, this petition is made by a beneficiary, meaning the person or persons intended to benefit from the trust.

Why would removal of a trustee be necessary?

A trustee is a person or persons intended to manage a trust. The trustee is meant to protect the trust and ensure beneficiaries are informed and included in any disputes arising with or against the trust. (Johnson v. Curley (1927) 83 Cal. App. 627, 630; Alexander v. Title Ins. & Trust Co. (1941) 48 Cal. App. 2d 488, 493–494.)

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A Primer on Short Cause Trials (California Rule of Court 3.735)

Published on: June 7, 2024 | By Underwood Law Firm, P.C.

underwood-primer-short-cause-trials-300x300 The purpose of this article is to explain what a short cause trial is. A short cause case is a civil case where the parties or court estimate the trial will take five hours or less. Because of a short cause trial’s brevity, these types of cases can get priority in the courtroom. These trials can fill time slots between longer, bigger cases so they may be heard earlier.

Short cause trials are common in family law court but can also arise in property disputes. Short cause trials are frequently used to address smaller legal issues and attorney fees and costs. (In re Marriage of Garcia (2017) 13 Cal.App.5th 1334, 1340–1341.) Just like a long cause trial, it is possible to appeal the judgment granted in a short cause trial.

However, just because a matter is tried as a short cause case does not mean it is or should be treated as less important by the courts. If an issue is tried too quickly it will be remanded. For example, a 15-minute trial to decide how to split shared property from a 25-year marriage is much too short to decide such complex issues. (In re Marriage of Brantner (1977) 67 Cal.App.3d 416, 422.) Such a trial would be remanded and deemed an abuse of discretion by the trial court who took so little time for the issue.

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A Guide to Statutory California Settlement Offers (Code of Civil Procedure Section 998)

Published on: March 20, 2024 | By Underwood Law Firm, P.C.

underwood-guide-statutory-settlement-offers-300x300 California Code of Civil Procedure section 998 encourages parties involved in legal disputes to settle prior to trial. According to this law, either party can present a written settlement offer to the other party up to ten days before the trial begins. (CCP § 998(b).)

If the plaintiff declines a timely offer from the defendant and subsequently receives a judgment at trial that isn’t more favorable than the defendant’s offer, the plaintiff must “pay the defendant’s costs from the time of the offer.” (CCP § 998(c)(1).) Moreover, in many civil cases, the court may also require the plaintiff to pay a reasonable amount of the defendant’s expert witness expenses incurred after the offer was presented.

Likewise, if the defendant rejects the plaintiff’s timely offer and later gets a judgment at trial that isn’t more advantageous than what the plaintiff offered, the court has the authority to require the defendant to pay the plaintiff a reasonable portion of their costs related to expert witnesses incurred after the offer was made. (CCP § 998(d).)

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The 2024 Updates to the Civil Discovery Act (SB 235)

Published on: December 13, 2023 | By Underwood Law Firm, P.C.

underwood-2024-updates-civil-discovery-300x300 In almost all civil litigation in California, a major issue is the formal process of exchanging information and documents that address claims or defenses in dispute between the parties. In this system, discovery is “self-executing.” That means that no party to the lawsuit has any obligation to provide any information, unless requested through the formal methods outlined in the Civil Discovery Act.

That is all potentially about to change. In 2024, next month, Code of Civil Procedure section 2016.090 will take effect. Recently, Governor Newsom signed Senate Bill 235 that amends two sections of the Code of Civil Procedure so that discovery in State Court becomes more like discovery in Federal Court. These experimental provisions, however, are set to last until January 1, 2027. (CCP § 2016.090(e).)

The New Requirements

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A Primer on Depositing Money Into Court (CCP § 572-573)

Published on: December 6, 2023 | By Underwood Law Firm, P.C.

underwood-depositing-money-court-300x300 Under certain special circumstances, money can be deposited with the court to safeguard during lawsuits under Code of Civil Procedure sections 572 and 573. The justification for such a rule is that, if the court doesn’t protect the money, the other party may spend it, rendering a plaintiff’s victory somewhat hollow.

However, there are several important limitations in place in order for parties to actually utilize section 572. Chief among them is that the money needs to be “the subject of the litigation.” And even if the money does fall into this category, the Court cannot receive the funds until it is proven that the money is being held wrongfully.

What is a money deposit with the Court?

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Service by Publication (CCP section 415.50)

Published on: October 27, 2023 | By Underwood Law Firm, P.C.

underwood-service-by-publication-300x300 Service of process is an important aspect of every lawsuit filed in California. If a defendant is not served and thus does not receive notice of a lawsuit, then any judgment entered against them is void, and the plaintiff will have to begin the litigation process all over again.

While service of process can be an easy affair when the locations of the defendant(s) are known, the situation becomes much more difficult when one or more parties don’t have a set address, or perhaps do not want to be found.

At that juncture, service by publication may be available as a last resort. But litigants must take care to realize that service by publication is not automatic, and cannot be attempted from the outset. Instead, set statutory rules need to be followed before this method of service may be authorized by the court.

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When Can a Sheriff Serve a Summons and Complaint (Gov. Code 26665)?

Published on: September 8, 2023 | By Underwood Law Firm, P.C.

underwood-sheriff-serve-summons-complaint-300x300 Under Government Code section 26665, a sheriff may serve “all writs, notices, or other legal process issued by superior courts in civil actions…” When someone decides they want to file a lawsuit, getting an experienced lawyer to draft the complaint is only half the battle. It still needs to be filed with the correct court and, most importantly, the complaint must be served on the defendant.

Service, however, can wind up being both stressful and expensive for many litigants. This is particularly the case when the defendant is moving from county to county, or from state to state to avoid being served papers.

In these instances, some plaintiffs come to believe that the matter would be best left to the Sheriff’s office, as it is often the cheapest option. Unfortunately, the decision isn’t as simple as it may seem, as there are numerous pros and cons that litigants should be weighing when they choose how to serve parties in a lawsuit. The attorneys at the Underwood Law Firm, however, are well-versed in the legal tools involving service of process and are here to help our clients make these difficult decisions.

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