Matter of Bozenich Family Trust

Case Number

22PR00156

Case Type

Hearing Date / Time

Thu, 10/03/2024 - 09:00

Nature of Proceedings

1) Accounting 2nd Account and Report; 2) Motion Demurrer and Motion to Stay or Dismiss Petition; 3) Petition to Confirm Title to Water Rights; 4) Petition: Instructions re Allocation of Settlement and Trustee/ Legal Fees

Tentative Ruling

Appearances are required to update the court.

TENTATIVE RULING:

The demurrer of interested party Tehachapi-Cummings County Water District to the petition of petitioner Nathaniel D. Carey as trustee of the Bozenich Survivor’s Trust to confirm water rights is overruled and the alternative motion to stay or to dismiss that petition is denied. Tehachapi-Cummings County Water District and joining party Golden Hills Community Services District shall file and serve their respective responses/ objections to this petition on or before November 4, 2024.

Background:

(1)       Procedural History

On March 22, 2022, petitioner Nathaniel “Nathan” D. Carey, as trustee of the Bozenich Family Trust and Bozenich Survivor’s Trust (petitioner or Trustee), filed his initial petition (March 22 Petition) in this matter for appointment of a successor trustee, to confirm trust provisions, and for determination of beneficiary.

On April 20, 2022, objector Michael Fremgen filed his objections to the March 22 Petition. On April 21, 2022, petitioner filed a supplement to this petition.

On April 12, 2022, Nathan Carey, in his capacity as beneficiary of the Bozenich Family Trust and Bozenich Survivor’s Trust filed a response to the March 22 Petition.

On May 24, 2022, interested party City of Hope filed its request for special notice.

On June 20, 2022, objector Kathy Mileham (Mileham) filed her objections to the March 22 Petition.

On June 30, 2022, the court entered its order appointing petitioner as interim trustee of the Bozenich Family Trust/ Survivor’s Trust.

On July 22, 2022, petitioner filed a second petition (July 22 Petition), to determine ownership of trust property and for an order confirming the transfer of trust property specific to real property located at 4330 Llano Avenue, Santa Barbara.

On August 24, 2022, petitioner filed a third petition (August 24 Petition), for instructions to sell real property specific to four vacant lots located in the Playa Del Rey area of Los Angeles.

On August 25, 2022, interested party Brian Bullough filed his request for special notice. Also on August 25, petitioner filed a notice of hearing with respect to the July 22 Petition set for September 29, 2022.

On August 29, 2022, Mileham filed her petition to contest the validity of trust amendment, to ascertain beneficiaries, to instruct the trustee, to order return of trust assets, and to compel an accounting (Mileham Petition).

On October 27, 2022, Trustee Carey filed his response and objection to the Mileham Petition.

On November 1, 2022, Mileham filed a first supplement to her objection to the March 22 Petition.

On November 17, 2022, petitioner filed a fourth petition (November 17 Petition) for instruction regarding a purchase agreement as to real property located at 307 Fowling, Playa Del Rey.

On January 24, 2023, objectors Harvey Byalick and Valerie Byalick file their objections to the November 17 Petition.

On January 30, 2023, the court entered its orders granting the July 22 Petition and the August 24 Petition.

On March 10, 2023, Mileham filed her second supplement to her objection to the March 22 Petition. On March 13, Mileham filed her third supplement to her objection to the March 22 Petition.

On March 15, 2023, the Office the California Attorney General filed its request for special notice.

On May 12, 2023, petitioner filed a fifth petition (May 12 Petition), for instructions to administer Gary Bozenich’s separate property. On June 8, Mileham filed an objection to the May 12 Petition. On June 15, the court partially granted the May 12 Petition and continued the matter for the balance of the unresolved issues.

On October 12, 2023, petitioner filed a sixth petition (October 12 Petition), for approval of a settlement agreement. The settlement agreement resolved most of the issues of the pending petitions.

On October 31, 2023, petitioner filed a seventh petition (October 31 Petition), to determine ownership of trust property and for order confirming the transfer of trust property. This petition seeks orders confirming title in the Trustee of (1) real property located in Lancaster, California, and (2) 32 acre-feet of base water rights in the Tehachapi Basin Area of Kern County.

On November 14 and 15, 2023, trial was held on the November 17 Petition. On November 15, the court ruled in favor of objectors Valerie and Harvey Byalick.

On November 29, 2023, beneficiaries and objectors City of Hope, American Diabetes Association, Shriners Hospitals for Children, and Rocky Mountain Elk Foundation (collectively, Charities) filed their objection to the October 12 Petition.

On November 30, 2023, the court granted the October 12 Petition approving the settlement agreement.

On January 11, 2024, the court granted the October 31 Petition, determining ownership of title to the respective properties. The court entered its written order on January 18. (Note: The parties have not discussed the extent, if any, this ruling affects any of the issues herein and the court correspondingly does not include this ruling in its analysis.)

On May 6, 2024, the Charities filed a petition (May 6 Petition), for instructions re allocation of settlement and trustee/ legal fees.

On June 20, 2024, petitioner filed an eighth petition (Water Rights Petition), at issue herein, to confirm title to water rights. Also on June 20, petitioner filed a notice of hearing on the Water Rights Petition to be heard on August 1, 2024.

On July 18, 2024, Carey, as beneficiary, filed a response and objections to the May 6 Petition. On July 24, Carey, as Trustee, filed a response to the May 6 Petition. Also on July 24, the Charities filed a reply to Carey’s response and objections. On July 26, beneficiaries Marc Kimbell and Scott Lyon filed a joinder in beneficiary Cary’s response and objections and a response to the Charities’ reply.

On August 30, 2024, objector Tehachapi-Cummings County Water District (TCCWD or Watermaster) filed the instant demurrer and motion to stay or to dismiss the Water Rights Petition. In support of the demurrer and motion, the Watermaster filed a request for judicial notice discussed below.

On September 19, 2024, petitioner filed his opposition to the demurrer and motion.

On September 25, 2024, respondent Golden Hills Community Services District (GHCSD) filed its joinder in TCCWD’s motion and objection to the Water Rights Petition.

(2)       Allegations of Petition to Confirm Water Rights

By grant deed recorded February 5, 1979, (1979 Grant Deed) the grantor granted to Don and Ethelyn Carroll (the Carrolls), as to a one-half interest, and to Gary Bozenich (Gary), as to a one-half interest in certain real property lots Nos. 95, 96, 97, and 98, and also:

“One hundred fifty (150) acre-feet of base water rights (one hundred (100) acre-feet of allowed pumping allocation) adjudicated to Seller or her predecessors in interest in the judgment, as amended, in the case of ‘Tehachapi-Cummings County Water District vs. City of Tehachapi, et al.,’ Kern County Superior Court, civil case number 97210 [(Tehachapi-Cummings)], subject to a written agreement entered into by Seller with the City of Tehachapi to dedicate forty (40) acre-feet of base water rights to the City contingent upon annexation of the real property.” (Water Rights Petition, ¶¶ 3, 4 & exhibit A.) (Note: The exhibits referenced in the Water Rights Petition are attached to the concurrently-filed declaration of James M. Sweeney. Also, consistent with the usage in the Water Rights Petition and to avoid confusion, first names are used to refer to persons with the same surname.)

Tehachapi-Cummings is and was a groundwater adjudication proceeding for the Tehachapi Basin. (Water Rights Petition, ¶ 5.) The 1971 judgment in Tehachapi-Cummings (1971 Judgment) established the extent of water rights in that basin. (Ibid. & exhibit B.) The 1973 Amendment to Judgment (1973 Amendment) imposed a physical solution, which limited the pumping allocation to the grantor to two-thirds, resulting in the 100 acre-feet conveyed in the 1979 Grant Deed. (Water Rights Petition, ¶ 6 & exhibit C.) The grantor’s base water rights were not appurtenant to their land. (Water Rights Petition, ¶ 8.) The transfer of the 40 acre-feet of base water rights had actually been completed prior to the grant. (Water Rights Petition, ¶ 9 & exhibit D.)

Under the terms of the 1973 Amendment, transfers of water rights must be in writing and a copy of the transfer instrument filed with the watermaster. (Water Rights Petition, ¶ 9.) TCCWD is the watermaster under the 1971 Judgment and 1973 Amendment, and maintains records of transfers of water rights within the basin. (Ibid.)

Because 40 acre-feet had already been transferred to the City of Tehachapi, the 1979 Grant Deed conveyed 110 acre-feet of base water rights in equal shares of 55 acre-feet to Gary and 55 acre-feet to the Carrolls. (Water Rights Petition, ¶ 10.)

By quitclaim deed recorded February 6, 1980 (1980 Deed), Gary quitclaimed all of his interest in the lots and in the base water rights to his mother, Dorothy Bozenich (Dorothy). (Water Rights Petition, ¶ 11 & exhibit F.) The 1980 Deed is the last instrument to expressly include the water rights in the description of the estates and rights conveyed. (Water Rights Petition, ¶ 11.) Petitioner contends that the title to the water rights never changed from this vesting pursuant to the 1980 Deed.

Subsequent to the 1980 Deed, by individual grant deed recorded June 11, 1987, the Carrolls and Dorothy conveyed to the Carrolls the south one-half of lots 96 and 97. (Water Rights Petition, ¶ 13 & exhibit G.) By individual grant deed also recorded June 11, 1987, the Carrolls and Dorothy conveyed to Dorothy lot 95. (Water Rights Petition, ¶ 13 & exhibit H.) By grant deed recorded August 13, 1991, Dorothy granted the south 45 feet of lot 95 to the City of Tehachapi. (Water Rights Petition, ¶ 13 & exhibit I.) By quitclaim deed recorded September 10, 1991, Dorothy quitclaimed lot 95 to herself as trustee of Dorothy’s trust. (Water Rights Petition, ¶ 13 & exhibit J.) By grant deed recorded September 21, 1992, Dorothy granted lot 98 to Gary, although the deed listed the APN for lot 95. (Water Rights Petition, ¶ 13 & exhibit K.) By grant deed recorded August 12, 1994, Dorothy again granted lost 95 to Gary to clarify the lot number in the September 21, 1992, deed. (Water Rights Petition, ¶ 13 & exhibit L.) By grant deed recorded December 12, 1997, Dorothy as trustee of Dorothy’s trust granted lot 95 to Gary. (Water Rights Petition, ¶ 13 & exhibit M.) None of these instruments included the water rights in the description of the property conveyed. (Water Rights Petition, ¶ 14.)

After the 1980 Deed, the Carrolls owned only the remaining 55 acre-feet of water rights. (Water Rights Petition, ¶ 15.) Apparently, though, the Carrolls thought that they owed 110 acre-feet of water rights. (Water Rights Petition, ¶ 16.) In March 1998, the Carrolls sold 55 acre-feet (all that they actually owned) to Gary, as memorialized in the Permanent Transfer of Water Rights dated March 31, 1998 (March 1988 Transfer) and filed with the Watermaster. (Water Rights Petition, ¶ 16 & exhibit N.)

Of the 55 acre-feet of water rights that Gary purchased from the Carrolls, he immediately sold 23 acre-feet to the Golden Hills Community Services District (Golden Hills) by Permanent Transfer of Water Rights dated April 2, 1998 (April 2, 1988 Transfer) and filed with the Watermaster. (Water Rights Petition, ¶ 17 & exhibit O.) Along with selling their 55 acre-feet to Gary, the Carrolls also purported to sell another 55 acre-feet to Golden Hills by Permanent Transfer of Water Rights dated April 6, 1998 (April 6, 1988 Transfer) and filed with the Watermaster. (Water Rights Petition, ¶ 18 & exhibit P.) The attempted transfer was ineffective because Dorothy owned the 55 acre-feet that the Carrolls purportedly sold to Golden Hills. (Water Rights Petition, ¶ 18.)

Dorothy left a September 4, 1991, pour-over will, leaving all assets of her estate to the successor trustee of Dorothy’s trust, namely, Gary. (Water Rights Petition, ¶ 19.) Gary was also the sole remainder beneficiary under Dorothy’s trust and therefore inherited all assets that would have been administered under Dorothy’s will. (Ibid.) Gary’s will poured over all assets of his estate to the trustee of the Survivor’s Trust. (Ibid.)

Petitioner is now also serving as personal representative of Gary’s probate estate, but only as a special administrator for the limited purpose of participating in litigation in San Luis Obispo County. (Water Rights Petition, ¶ 20.) Rather than commence separate proceedings to effect transfer of the water rights that should have, but were not, transferred from Dorothy’s estate, petitioner seeks to confirm ownership and vest title in this proceeding pursuant to Probate Code section 850 et seq. (Water Rights Petition, ¶ 21.)

Petitioner seeks orders confirming that upon Dorothy’s death, Dorothy held title to 55 acre-feet of base water rights in the Tehachapi Basis, and that title to those water rights are now vested in petitioner as trustee of the Survivor’s Trust. (Water Rights Petition, at p. 10.)

Analysis:

“Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code.” (Prob. Code, § 1000, subd. (a).)

(1)       Requests for Judicial Notice

In support of its demurrer and motion, the Watermaster requests that the court take judicial notice of: (TCCWD’s Request for Judicial Notice, exhibit A) the 1971 Judgment; (exhibit B) the 1973 Amendment; (exhibit C) TCCWD resolution TW 1-2011, amending and restating rules and regulations for Watermaster Operations, dated August 17, 2011; (exhibit D) the decision, dated July 29, 1997, in In re Nunes (Bankr. E.D.Cal., July 29, 1997, No. 96-9067) 1997 WL 1038143; (exhibit E) a minute order in Tehachapi-Cummings, Kern County Superior Court case No. S-1500-CV 97210, dated December 30, 2004; (exhibit F) a notice of entry of judgment on objections to the Watermaster’s decision concerning conflicting claims to 75 acre-feet of base water rights, dated June 13, 2012, in Tehachapi-Cummings, with attached judgment, filed June 5, 2012; and (exhibit G) the Fiftieth Annual Watermaster Report for Tehachapi Basin (2023).

With respect to exhibits A, B, D, E, and F, these are court records for which judicial notice is appropriate and will be granted. (See Evid. Code, § 452, subd. (d).) Exhibit C consists of regulations of a public entity for which judicial notice is appropriate and will be granted. (See Evid. Code, § 452, subd. (b).) Exhibit G is an official act of a public entity for which judicial notice is appropriate. (See Evid. Code, § 452, subds. (c), (h).) Judicial notice does not extend to the truth of matters set forth such documents. (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 120; Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)

(2)       Demurrer

“We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed. [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]” (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6, internal quotation marks omitted.)

The Watermaster demurs to the Water Rights Petition on the ground that there is another action pending between the same parties on the same cause of action. (Demurrer, at p. 2.) The Watermaster’s argument on demurrer is based upon two related but different doctrines. The first is the ground for special demurrer that another action is pending. (Ibid.; see Code Civ. Proc., § 430.10, subdivision (c).) The second is the ground of the doctrine of exclusive concurrent jurisdiction. (Demurrer, at p. 2.)

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds: [¶] … [¶] (c) There is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).)

“A single cause of action cannot be the basis for more than one lawsuit. [Citation.] A demurrer raising this objection to a second action between the same parties ‘is strictly limited so that ... the defendant must show that the parties, cause of action, and issues are identical, and that the same evidence would support the judgment in each case.’ [Citation.]” (Pitts v. City of Sacramento (2006) 138 Cal.App.4th 853, 856.)

“The plea of another action pending is dilatory in its nature and is not favored. The rule that the pendency of one action abates another is based in part upon the practical supposition that the first suit is effective and affords an ample remedy to the party and that the second is unnecessary and vexatious, and in part upon the legal principle that the law abhors a multiplicity of actions. [Citation.] The plea is ineffectual unless the former suit is actually pending at the time the later suit is commenced. Section 1049 of the Code of Civil Procedure provides that an action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied. After the judgment has become final, demurrer on the ground of another action pending is untenable, and the objection must be based on a plea in bar of res adjudicata.” (National Automobile Ins. Co. v. Winter (1943) 58 Cal.App.2d 11, 16, italics omitted.)

Neither the complaint nor the judicially noticed matter demonstrate that another action is pending. The action in Tehachapi-Cummings has concluded in a final judgment. Moreover, there is nothing in the complaint or judicially noticed matter to demonstrate that some post-judgment proceeding is pending addressing the issues presented in this case. The special demurrer under section 430.10, subdivision (c) will therefore be overruled.

A similar, but broader doctrine asserted by the Watermaster is the doctrine of exclusive concurrent jurisdiction.

“Under the rule of exclusive concurrent jurisdiction, ‘when two superior courts have concurrent jurisdiction over the subject matter and all parties involved in litigation, the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter and all parties involved until such time as all necessarily related matters have been resolved.’ [Citations.] The rule is based upon the public policies of avoiding conflicts that might arise between courts if they were free to make contradictory decisions or awards relating to the same controversy, and preventing vexatious litigation and multiplicity of suits. [Citations.] The rule is established and enforced not ‘so much to protect the rights of parties as to protect the rights of Courts of co-ordinate jurisdiction to avoid conflict of jurisdiction, confusion and delay in the administration of justice.’ [Citation.] The rule of exclusive concurrent jurisdiction may constitute a ground for abatement of the subsequent action. [Citations.] ‘An order of abatement issues as a matter of right not as a matter of discretion where the conditions for its issuance exist.’ [Citation.] However, abatement is not appropriate where the first action cannot afford the relief sought in the second.” (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 786–787 (Plant Insulation).)

“Although the rule of exclusive concurrent jurisdiction is similar in effect to the statutory plea in abatement, it has been interpreted and applied more expansively, and therefore may apply where the narrow grounds required for a statutory plea of abatement do not exist. [Citation.] Unlike the statutory plea of abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity of parties, causes of action or remedies sought in the initial and subsequent actions. [Citations.] If the court exercising original jurisdiction has the power to bring before it all the necessary parties, the fact that the parties in the second action are not identical does not preclude application of the rule. Moreover, the remedies sought in the separate actions need not be precisely the same so long as the court exercising original jurisdiction has the power to litigate all the issues and grant all the relief to which any of the parties might be entitled under the pleadings.” (Plant Insulation, supra, 224 Cal.App.3d at p. 788.)

The decision in County of Siskiyou v. Superior Court (2013) 217 Cal.App.4th 83 (County of Siskiyou), a case not cited by either party, is instructive. In County of Siskiyou, the petitioners filed a petition for writ of mandate in Sacramento County seeking to halt the issuance of well-drilling permits for nonadjudicated groundwater with the Scott River subbasin in Siskiyou County. (Id. at p. 86) The petitioners alleged that Siskiyou County and State Water Resources Control Board had failed to manage certain groundwater resources interconnected with the Scott River in a manner consistent with the public trust doctrine. (Ibid.) Siskiyou County demurred, asserting that the Siskiyou Superior court had exclusive jurisdiction by virtue of its 1980 decree that adjudicated water rights in the Scott River and reserved jurisdiction to review and modify the decree in the interests of justice. (Ibid.) Siskiyou County also moved to change venue based upon the argument that ground water constitutes real property. (Ibid.) The trial court overruled the demurrer and denied a change of venue. (Ibid.) Siskiyou County then sought review by writ of mandate. (Ibid.)

The County of Siskiyou court denied the petition for writ. (County of Siskiyou, supra, 217 Cal.App.4th at p. 87.) With respect to the issue of exclusive concurrent jurisdiction, the court stated:

“ ‘The rationale supporting the rule is a highly practical one. As Witkin has it, “Justification for the rule [of exclusive concurrent jurisdiction] rests on practical considerations. If the identical cause of action is asserted by the same plaintiff in two suits, there is no doubt that the first court has priority, but this can rarely happen. What does happen is that parties to the same controversy or transaction ... file separate suits on their individual causes of action, usually against each other. Although their claimed rights and therefore their alleged causes of action are distinct, the issues are substantially the same, and individual suits might result in conflicting judgments. The rule of priority is designed to avoid the unfortunate result[s] of these conflicts by requiring, in effect, a consolidation of the separate actions in the court in which jurisdiction of the parties first attached. [Citations.]” ’ [Citation.]” (County of Siskiyou, supra, 217 Cal.App.4th at p. 89.)

“To maintain both the practical nature of the rule and the historically flexible rules of equity, exactitude is not required. That the parties in the two actions are not entirely identical, and that the remedies sought by the two actions are not precisely the same, is not controlling. Instead, it is sufficient for the exercise of equitable jurisdiction that the issue in both actions is the same and arises out of the same transaction or events.” (County of Siskiyou, supra, 217 Cal.App.4th at p. 89.)

Siskiyou County argued that “the rule of exclusive concurrent jurisdiction applies because the 1980 decree adjudicated all water rights in the Scott River, including groundwater, and expressly reserved ‘continuing jurisdiction’ over the ‘subject matter hereof,’ including the power to ‘change or modify the same as the interests of justice may require.’ [The petitioners], Siskiyou [County] contends, seek to apply the public trust doctrine to the interconnected groundwater of the Scott River, thus affecting the rights to the use of the water, the very subject matter of the 1980 decree. Therefore, as the first court to exercise jurisdiction over water rights to the groundwater, the Siskiyou Superior Court has exclusive jurisdiction to hear [the petitioners’] petition.” (County of Siskiyou, supra, 217 Cal.App.4th at p. 90.)

The County of Siskiyou court noted: “[U]nder the rule of exclusive concurrent jurisdiction, when two courts have concurrent jurisdiction over the subject matter and the parties, the first court to assume jurisdiction has exclusive and continuing jurisdiction ‘until such time as all necessarily related matters have been resolved.’ [Citations.] Exclusive concurrent jurisdiction is not a permanent, immutable grant of jurisdiction in the first court over everything even remotely connected to the subject matter. The first court retains exclusive jurisdiction only until all necessarily related matters are resolved.” (County of Siskiyou, supra, 217 Cal.App.4th at p. 91.) “In addition, although the parties in the two actions and the remedies sought need not be precisely the same, the issues in the two proceedings must be substantially the same and the individual suits must have the potential to result in conflicting judgments.” (Ibid.)

For these and other reasons, the County of Siskiyou court determined that the Siskiyou County Superior Court did not have exclusive jurisdiction. (County of Siskiyou, supra, 217 Cal.App.4th at p. 92.)

Although the issues in County of Siskiyou are not identical to the issues presented here, the basic principles remain the same. As discussed above, the action in Tehachapi-Cummings is not “pending.” The 1971 Judgment and 1973 Amendment adjudicated the existence, ownership, and scope of water rights as they were in 1971 and 1973. The resolution of the instant petition will not, and cannot, determine the scope or use of water rights; the resolution of the instant petition will only determine current title to previously adjudicated rights. As far as the record now before this court goes, there are no proceedings in Tehachapi-Cummings which would resolve the issues presented in the petition now pending in this court. There is therefore no potential for conflicting judgments between what would be adjudicated in this petition and the result of any now-existing proceeding in Tehachapi-Cummings. The court therefore concludes that the doctrine of exclusive concurrent jurisdiction does not preclude this court from resolving the merits of this petition.

The demurrer of the Watermaster will therefore be overruled.

(2)       Motion to Dismiss or to Stay

The Watermaster also moves to stay or to dismiss the petition. Much of the Watermaster’s argument in support of a stay or dismissal is based upon the exclusive concurrent jurisdiction doctrine and plea in abatement discussed above. Watermaster also argues that the court should abate the proceedings in the petition pursuant to Probate Code sections 854 or 856.5.

The instant petition is brought pursuant to Probate Code section 850: “The following persons may file a petition requesting that the court make an order under this part: [¶] … [¶] (3) The trustee or any interested person in any of the following cases: [¶] … [¶] (B) Where the trustee has a claim to real or personal property, title to or possession of which is held by another.” (Prob. Code, § 850, subd. (a)(3)(B).)

“If a civil action is pending with respect to the subject matter of a petition filed pursuant to this chapter this part and jurisdiction has been obtained in the court where the civil action is pending prior to the filing of the petition, upon request of any party to the civil action, the court shall abate the petition until the conclusion of the civil action. This section shall not apply if the court finds that the civil action was filed for the purpose of delay.” (Prob. Code, § 854.)

As discussed above, the Tehachapi-Cummings action is not “pending.” (See also Code Civ. Proc., § 1049.) The court is not therefore required to abate the action pursuant to Probate Code section 854.

“The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action.” (Prob. Code, § 856.5.) Complementing section 856.5 are sections 801 and 855:

“The court, on its own motion or on the motion of any interested party, may order that an action or proceeding not specifically provided in this code be determined in a separate civil action. Upon the payment of the appropriate filing fees, the court may order transfer of the severed action or proceeding to the separate civil action.” (Prob. Code, § 801.)

“An action brought under this part may include claims, causes of action, or matters that are normally raised in a civil action to the extent that the matters are related factually to the subject matter of a petition filed under this part.” (Prob. Code, § 855.)

The present procedural posture does not require the court to abate this proceeding in favor of a civil action. Petitioner’s claim is two-fold: (1) the title holder to the water rights owned by Dorothy, as set forth in the 1980 Deed, should be petitioner as Trustee; and (2) the potentially competing claim of GHCSD to the rights to 55 acre-feet based on the subsequent putative transfer by the Carrolls should be declared invalid. The first part of the claim is one of correcting omissions that should have occurred in other probate proceedings. The second part of the claim is a potential title dispute between two conflicting owners of rights, neither of whom is the Watermaster. The Watermaster has expressly stated that at this time it takes no position as to the ownership of the contested water rights. (Demurrer, at p. 3.)

In reply, the Watermaster for the first time raises Probate Code section 853 as a basis for dismissal of the Water Rights Petition: “A person having or claiming title to or an interest in the property which is the subject of the petition may, at or prior to the hearing, object to the hearing of the petition if the petition is filed in a court which is not the proper court under any other provision of law for the trial of a civil action seeking the same relief and, if the objection is established, the court shall not grant the petition.” (Prob. Code, § 853.)

To the extent the Watermaster now objects on the grounds of section 853, it is not raised in the Watermaster’s notice or memorandum. (E.g., Notice, at p. 2.) The court does not consider arguments raised for the first time in reply. (See Maleti v. Wickers (2022) 82 Cal.App.5th 181, 227–228.) Moreover, standing to assert the objection of section 853 is for a “person having or claiming title to or an interest in the property which is the subject of the petition.” While the Watermaster has an interest in the general subject matter of the petition, there is nothing before the court by which the Watermaster has or claims an interest in the underlying water rights at issue, expressly taking no position on that issue. There is therefore no basis to determine the applicability of section 853 at this time.

Similarly, GHCSD has, as of this writing, only filed a joinder and non-specific objection to petitioner’s claim. (The court infers nothing with respect to the nature of GHCSD’s objection beyond the fact of joinder and objection.) Thus, the joinder adds nothing further either by way of evidence or argument to the Watermaster’s motion.

Title disputes involving trust or estate property are the point of section 850 et seq. (See generally Ross & Cohen, Cal. Practice Guide: Probate (The Rutter Group 2024) ¶ 15:555 [explaining that section 850 purposely eliminated historical lack of jurisdiction of probate courts to try title disputes].) The court finds no persuasive showing by the Watermaster that a proceeding under section 850 should be abated in favor of a civil proceeding to quiet title.

In its joinder and objection, GHCSD requests that if the court overrules TCCWD’s motion, GHCSD requests an opportunity to file a more substantive objection. GHCSD will be granted leave to file such an objection. In so doing, the court repeats its observation that the Water Rights Petition has two distinct issues, that is, to determine that the title holder to the water rights owned by Dorothy, as set forth in the 1980 Deed—whatever those rights may entail in substance—should be petitioner as Trustee, and to determine the effect of the transfer by the Carrolls on those rights as against others, such as GHCSD. To the extent this issue is raised in subsequent proceedings in this matter, the court expects the parties to address the procedural consequences, if any, of these two issues being raised in the same petition.

The motion of the Watermaster to abate or to dismiss this petition will be denied.