Matter of The Armando I Perez Trust

Case Number

22PR00501

Case Type

Hearing Date / Time

Wed, 03/12/2025 - 08:30

Nature of Proceedings

1. Motion for Change of Venue (Perez-Hogan) 2. Petition to Determine Claim to Property (McConnel) 3. Petition for Instructions (Perez-Hogan)

Tentative Ruling

Probate Notes:

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

There are three matters on calendar for the hearing:

1. Motion for Change of Venue (Perez-Hogan)
2. Petition to Determine Claim to Property (McConnel)
3. Petition for Instructions (Perez-Hogan)

Motion for Change of Venue

The motion appears to be untimely.  Although Probate Code section 17005 sets proper venue in the court where “principle place of administration” occurs, the Probate Code does not contain transfer of venue provisions for trust matters once a case has been filed.  This means that the transfer of venue of a trust case is governed by CCP section 397 through the general provision of Probate Code section 1000. 

Timeliness of a motion to transfer venue depends on the grounds for venue.  According to CCP section 397:

The court may, on motion, change the place of trial in the following cases:

(a) When the court designated in the complaint is not the proper court.

(b) When there is reason to believe that an impartial trial cannot be had therein.

(c) When the convenience of witnesses and the ends of justice would be promoted by the change.

(d) When from any cause there is no judge of the court qualified to act.

…

Ms. Perez Hogan’s motion is unambiguously a petition for change of venue based on 397(a), because she argues venue should be changed due to the principle place of administration being in SLO county.  This argument fails as a matter of law.

Motions made pursuant to the grounds in section 397, subdivision a have a strict timeliness requirement: they must be made before a defendant/ respondent’s time to file an answer (i.e. responsive pleading) expires:

(a) Except as otherwise provided in Section 396a, if an action or proceeding is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he or she answers, demurs, or moves to strike, or, at his or her option, without answering, demurring, or moving to strike and within the time otherwise allowed to respond to the complaint, files with the clerk, a notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of those papers.

(CCP, §396(b).)

Ms. Perez Hogan did not timely file the motion, because this case was transferred to this court on September 12, 2022, and this motion was filed and served over two years later.

Even if the motion had been made pursuant to 397(c) (convenience of witnesses), which it was not, the Court should still find that no witness will be inconvenienced. 

Although CCP § 396(b) contains no express time limitation for a motion for change of venue based on convenience of witnesses, the caselaw holds that the motion must be made within a reasonable time after the answer is filed. (Rycz v. Superior Court of San Francisco County (2022) 81 Cal.App.5th 824, 837.) What constitutes a “reasonable” time rests largely in the trial court's discretion. (Cooney v. Cooney (1944) 25 C2d 202, 208.)

Further, it is only the convenience of the nonparty witnesses that is important. Absent extraordinary circumstances, the parties' conveniences are not considered—even if they are to testify. (Wrin v. Ohlandt (1931) 213 Cal. 158, 160.)

Since this issue was not raised in the motion, and no non-party witness’ convenience was raised, the Court should also make a finding that the motion would be denied if 397(c) had been cited as grounds for the motion.

Petition to Determine Claim to Property

Shelly McConnel filed a Petition to Determine Claim to Property (erroneously titled Petition for Order Confirming Trust Assets) on February 6, 2025. The Petition seeks a determination from the Court that the proper title holder of the funds in the Decedent’s Conservatorship Estate is the Decedent’s trust. 

Although this petition has not received objection, Ms. McConnel did not use form DE-115 to notice the hearing, thus Due Process outlined in Probate Code section 851 is defective.  This notice defect keeps the petition from being ripe for adjudication at the hearing, and the Court should order the petition re-served with proper Notice of Hearing.

Petition for Instructions (Perez-Hogan)

Patricia Perez-Hogan filed a Petition for Instructions on January 17, 2025.  That Petition received objections by multiple parties, placing the matter at issue and 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.)

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