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Matter of Joy Ellen Podger Revocable Trust

Case Number

23PR00593

Case Type

Trust

Hearing Date / Time

Thu, 11/14/2024 - 09:00

Nature of Proceedings

Demurrer

Tentative Ruling

On May 10, 2024, Petitioners David Solis, Sr. and David Solis, Jr. filed a petition for reformation of trust and other claims. The respondents named in the petition include Harold K. Kono. Respondent Kono filed a demurrer to the petition on September 6, 2024, setting the hearing on the demurrer for November 14, 2024.

On November 4, 2024, Petitioners filed an Amended Petition. Respondent Kono has objected to the Amended Petition, contending that because it was late-filed under Code of Civil Procedure section 472(a), that it must be stricken, and that once it is stricken, his demurrer must be sustained without leave to amend, since it will then be unopposed.

The Court declines Respondent Kono’s invitation to strike the amended petition and sustain his demurrer without leave to amend because it is unopposed. Demurrers stand on their own and are never sustained simply because they are unopposed. Further, demurrers are never sustained without leave to amend unless that is the legally appropriate ruling, made after the pleading party has been provided with sufficient opportunity to amend their pleading in an attempt to state a legally viable claim.

The Court will deem the Amended Petition to be the Petitioner’s acknowledgment that the demurrer filed by Respondent Kono had merit. The Court will therefore sustain the demurrer with leave to amend and will designate the already-filed Amended Petition to be the petition for which such leave to file was permitted. Respondent’s time to respond to the Amended Petition will run from the date of this hearing.

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