Estate of Ermalinda Avila

Case Number

24PR00264

Case Type

Hearing Date / Time

Wed, 09/11/2024 - 08:30

Nature of Proceedings

Petition to Probate Will and Letters Testamentary (Contested)

Tentative Ruling

Probate Notes:

Appearances required.  The following is noted for the Court at the hearing:

Evidentiary Hearing.  On April 29, 2024, Evelyn Catherine Avilla Lee filed a Petition for Probate and Letters Testamentary.  That petition received written objection by Jeffrey Avila Vargas on July 8, 2024, and a competing petition for appointment as personal representative, which places this matter at issue requiring Evidentiary Hearing to resolve. (In re Estate of Lensch (2009) 177 Cal.App.4th 667, 676; Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)

The following is noted for the Court at the hearing on September 11, 2024:

Still No Service of Summons re: Vargas Will Contest.  As noted for the last hearing, the will being sought by Evelyn Catherine Avilla Lee for admission to probate is contested by Mr. Vargas. 

When a will is contested, Probate Code section 8250 requires the objecting party to file a written objection to probate of the will, and a copy of the objection along with a summons be served on all those entitled to notice listed in section 8110 [all entitled to take by intestate, and each devisee, executor, and alternative executor].  The summons must be served according to the procedures in the Code of Civil Procedure Title 5, Part 2, Chapters 3 and 4 [§ 412.10 et seq and 413.10] which requires personal service. 

The Proof of Service on file in this case shows only mailed service was given.  This defect can be cured by personal appearance of “each heir of the decedent” (Prob. Code, §8110(a)) and “[e]ach devisee, executor, and alternative executor named in any will being offered for probate” (Prob. Code, §8110(b)).

This issue has not been rectified since the last hearing.

Improper “Reply” re: Vargas Will Contest.  At the last hearing, the Court addressed a document filed in response to Mr. Vargas’ will contest.  Ms. Lee filed a “Reply” without any citation to authority for the Reply. The probate notes pointed out that the Reply was an improper response to the will contest, and recommended the Court strike the Reply as not being filed in conformity with the law.

At the hearing on August 28, 2024, Ms. Bowker represented to the Court that 1) the Reply was not filed in response to the will contest; and 2) Probate Code section 1020 justified the filing of the Reply. Not only does section 1020 not support the filing of the Reply, Ms. Bowker did not identify what the Reply was replying to.  From the language on the face of the Reply, it appears that the Reply is Petitioner’s argument in response to Objector’s attempt to oppose the initial Petition for Probate and Letters. Again, there is no statutory support for such a filing.

Probate Code section 1020 does not authorize a “Reply,” but does identify a “response” to an initial pleading exists, while requiring that response to be in writing:

Except as provided in Section 1023, a petition, objection, response, report, or account filed pursuant to this code shall be in writing, signed by all of the petitioners, objectors, or respondents or by all of the persons making the report or account, and filed with the court clerk. Verification of a document shall constitute signature of that document, unless expressly provided to the contrary.

(Emphasis added.)  Contrary to Ms. Bowker’s assertion that the “Reply” complies with the requirements for a “response,” Chapter 3 of Division 3 of Part 1 of the Probate Code (which regulates pleadings that require hearings and responses thereto) specifically limits the filing of a “response” only to an initial pleading:

When a petition, report, account, or other matter that requires a hearing is filed with the court clerk, the clerk shall set the matter for hearing.

(Prob. Code, §1041.)

(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.

(c) A request for a continuance for the purpose of making a written response or objection shall not itself be considered as a response or objection, nor shall the failure to make a response or objection during the time allowed be considered as a response or objection.

(Prob. Code, §1043 [emphasis added].)

Chapter 2 of that same Part and Division of the Probate Code also confirms that a “Response” is only authorized in response to an initial pleading:

(a) All of the following shall be verified:

(1) A petition, report, or account filed pursuant to this code.

(2) An objection or response filed pursuant to this code to a petition, report, or account.

(Prob. Code, § 1020 [emphasis added].)

Thus, Ms. Bowker’s citation to section 1020 appears to be disingenuous at best, and purposely misleading at worst, because her “Reply” (if interpreted as a “response” under the Probate Code definitions above) would be a response to Petitioner’s own initial pleading, which is plainly not authorized by the Code.

Thus, the “Reply” was not filed in conformity with California Law, and should be stricken pursuant to Code of Civil Procedure section 436(b).

Appearances:

The court is open to the public for court business. The court is also conducting hearings via Zoom videoconference.

Meeting ID: 161 956 1423

Passcode: 137305