Matter of the Salling Family Trust

Case Number

24PR00392

Case Type

Hearing Date / Time

Mon, 10/07/2024 - 08:30

Nature of Proceedings

Petition for Internal Affairs

Tentative Ruling

Probate Notes:

Appearances required.

The following must be submitted:

Verification of Petition.  Petition must be verified by Petitioner (Prob. Code, § 1021) and signed by attorney (CCP, § 128.7).

Declaration re: facts relied upon for relief.  Even if the petition was verified, there are insufficient facts before the court to support the grounds for granting some of the prayers for relief. 

It has long been the rule that in probate matters “affidavits may not be used in evidence unless permitted by statute....” (Estate of Bennett (2008) 163 Cal.App.4th 1303, 1308-1309, 78 Cal.Rptr.3d 435.) “[T]he Probate Code limits the use of affidavits to ‘uncontested proceeding[s].” (Id. at p. 1309, 78 Cal.Rptr.3d 435.) 

(Conservatorship of Farrant (2021) 67 Cal.App.5th 370, 377.)

The Petition for Internal Affairs was filed on June 27, 2024.  No written objection was filed to date.  It is recommended the Court find all objections to this petition waived pursuant to CRC, Rule 7.801, and grant the petition.

However, even without objection there are insufficient facts to support invalidating the Fourth Amendment, and arguably the Fifth Amendment.

The Court cannot rely upon allegations in pleadings from other cases to establish facts, because Judicial Notice only extends to the “fact” that the pleading was filed and the causes of action claimed.  As is noted in a well-respected treatise on evidence:

The existence of a court record may be judicially noticed, but the truth of matters asserted in such records is not subject to judicial notice. (Board of Pilot Commissioners for the Bays of San Francisco, San Pablo and Suisun v. Superior Court, 218 Cal. App. 4th 577, 597, 160 Cal. Rptr. 3d 285, 41 Media L. Rep. (BNA) 2492 (1st Dist. 2013).). Unfortunately the classic statement of this rule contains one significant exception: judicial notice may be taken “of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law and judgements.” (Day v. Sharp, 50 Cal. App. 3d 904, 914, 123 Cal. Rptr. 918 (2d Dist. 1975) (citing Jefferson, California Evidence Benchbook (1972) § 47.3, p. 840); People v. Franklin, 63 Cal. 4th 261, 280, 202 Cal. Rptr. 3d 496, 370 P.3d 1053 (2016), cert. denied, 137 S. Ct. 573, 196 L. Ed. 2d 450 (2016).) In Weiner v. Mitchell, Silberberg and Knupp, the court slightly extended the Day rule to include the facts stated in an appellate opinion. (Weiner v. Mitchell, Silberberg & Knupp, 114 Cal. App. 3d 39, 46, 170 Cal. Rptr. 533 (2d Dist. 1980).)

In a lengthy and well-reasoned critique of Day, Sosinsky v. Grant distinguished judicial notice that a judge in a prior case had made a finding of fact from the taking of judicial notice that the facts found are the true facts. (Sosinsky v. Grant, 6 Cal. App. 4th 1548, 1561–1570, 8 Cal. Rptr. 2d 552 (5th Dist. 1992), opinion modified on other grounds, (June 15, 1992) and (rejected by, San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A., 102 Cal. App. 4th 308, 125 Cal. Rptr. 2d 499 (4th Dist. 2002)).) Sosinsky noted that the vast majority of cases reciting Day's rule, including Day, did not actually apply it to take notice of the truth of factual findings made in a different court record. (Sosinsky, 6 Cal.App.4th at pp.1565-1569.).

(Simons California Evidence Manual (2024) § 7:12. Permissive notice—Of court records.)

Appearances:

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

Meeting ID: 161 797 5412

Passcode: 8749009