Matter of Arthur William Bauer Family Trust

Case Number

25PR00109

Case Type

Hearing Date / Time

Tue, 04/15/2025 - 09:00

Nature of Proceedings

Petition to Determine Claim to Property

Tentative Ruling

Probate Notes:

Appearances required. 

This hearing must be continued because the requirements of procedural due process have not been met.

The following is noted for the Court at the hearing, and for the general education of the filing attorney:

1 - Due Process Requires Use of DE-115 and Personal Service.  Petitions in Probate Court are pleadings akin to a Complaint in Civil Court, but do to the in rem jurisdiction of the Probate Court, are almost always accompanied by Notice of Hearing documents that contain statutorily mandated language designed to give notice to all the world of the exact property at issue, and the relief requested in relation to that property.  The Notice of Hearing Documents are drafted by the Judicial Council and mandated for use.  They are usually not optional.  Thus, to satisfy Due Process in Probate Court, a Proof of Service of the Notice of Hearing must be filed on mandatory Judicial Council forms.

This case is no different.  Service of Petitions pursuant to section 850 of the Probate Code is governed by section 851, which references CCP section 413.10:

At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable:

(1) The personal representative, conservator, guardian, or trustee as appropriate. 

(2) Each person claiming an interest in, or having title to or possession of, the property.

(Prob. Code, § 851(a).)  According to that chapter of the CCP, service of the petition must be on the person (CCP, §§413.10; 415.10) the same as a civil summons, with exceptions for mailing and publication as that law provides when the serving party proves the petition “cannot with reasonable diligence be personally delivered to the person to be served…” (CCP, §415.20(b).)

Further, section 851 requires Notices of Petitions pursuant to Probate Code section 850 “shall contain all of the following”:

(1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.

(2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.

(3) A statement advising any person interested in the property that he or she may file a response to the petition.

(Prob. Code, § 851(c) [emphasis added].)  To ensure this information is in the notice, the Judicial Council created form DE-115 (Notice of Hearing on Petition to Determine Claim to Property) to be used for all petitions pursuant to section 850.

Therefore, the proof of service must be submitted using Form DE-115, which became mandatory on January 1, 2020.

The proof of service filed does not conform to the above requirements, thus has not satisfied due process.

2 – Probate Code section 850 DOES NOT CODIFY HEGGSTAD.  In support of the Petition, the petitioner alleges “Probate Code section 850 codified the holding of Heggstad.”  Nothing could be further from the truth.

Probate Code section 850 is analogous to a quiet title cause of action in common law, that the legislature inserted into the Probate Code revision of 1990 in a different form. As discussed in detail by a recent Court of Appeal:

The origins of section 850 trace back to the probate court's historic lack of power to determine claims adverse to the properties of an estate when asserted by a stranger to the estate, that is, a person not in privity with the probate proceeding. In Estate of Dabney (1951) 37 Cal.2d 672 [234 P.2d 962] (Dabney), the Supreme Court noted: “It is established law ‘That the probate court has no jurisdiction to determine adverse claims to the properties of an estate in course of administration before it when asserted by a stranger to said estate ... [citations],’ [citation], or ‘to try the question of title to property as between a representative of the estate and strangers to the estate.’ ” (Id. at pp. 676–677.)

“This limitation on probate court jurisdiction ... was subject to strong criticism, and abrogated in 1972 by amendment of Probate Code, section 851.5. The Legislature thereby (§§ 851.5, 852, 853, Prob. Code) gave the probate court the power to determine controversies concerning title to property where the party asserting an interest is claiming adversely to the estate.” (Richer v. Superior Court (1976) 63 Cal.App.3d 748, 756 [134 Cal.Rptr. 52] (Richer), disapproved on other grounds in Kowis v. Howard (1992) 3 Cal.4th 888, 897–899 [12 Cal.Rptr.2d 728, 838 P.2d 250].) Former section 851.5 provided “for a hearing in the probate court to determine ownership of property ‘(i)f a person dies in possession of, or holding title to, real or personal property which ... is claimed to belong to another, or dies having a claim to real or personal property, title to or possession of which is held by another, ...’ upon a petition brought by the executor, administrator, or any claimant.” (Estate of Williams (1977) 73 Cal.App.3d 141, 143, fn. 1 [140 Cal.Rptr. 593]; see also Estate of Myers (2006) 139 Cal.App.4th 434, 441 [42 Cal.Rptr.3d 753] (Myers).) As explained in Estate of Linnick (1985) 171 Cal.App.3d 752 [217 Cal.Rptr. 552], “Section 851.5 ... provide[d] the authority and the procedure for the hearing of a petition by a decedent's estate concerning any claim involving property allegedly wrongfully possessed by another.” (Id. at p. 760.) The court in Estate of Scott (1987) 197 Cal.App.3d 913 [243 Cal.Rptr. 93] (Scott), further noted that “to proceed under section 851.5 [a petitioner] must be attempting to recover assets in which there is an interest belonging to the decedent, hence, to the estate.” (Id. at p. 918.)

The successor statute to section 851.5 was section 9860. (Parker v. Walker (1992) 5 Cal.App.4th 1173, 1184 [6 Cal.Rptr.2d 908]; Estate of Phelps (1990) 223 Cal.App.3d 332, 338 [273 Cal.Rptr. 2].)  The Legislature adopted similar provisions in the guardianship and conservatorship context to address conveyances and transfers of real or personal property claimed to belong to a ward, conservatee, or third party with the enactment of sections 2520 to 2529. (See former §§ 2520–2529.)

In 2001, former sections 2520 to 2529 and 9860 to 9869 were repealed, reformulated, and substantially reenacted as current day sections 850 to 859. (Stats. 2001, ch. 49, § 4, p. 175.) Sections 850 to 859, which took effect in 2002 and now fall under division 2, part 19 of the Probate Code entitled “Conveyance or Transfer of Property Claims to Belong to Decedent or Other Person,” consolidated these former provisions of the Probate Code, as well as similar provisions related to trusts.

(Parker v. Schwarcz (2022) 84 Cal.App.5th 418, 427–429.)

In fact, Estate of Heggstad need not be cited at all in this case, because the Trust contains a general assignment clause transferring “all right, title, and interest in and to all real and personal property…” to the subject trust.  (Pet. at ex. A, dgtl. P. 26.)  Thus, as long as the settlor owned the subject real property at the time of execution of the trust in 2023, settlor’s intent is express in the trust instrument and need not be implied.  (Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156, 162, at fn. 6.)

Once proper service has been completed, any objecting respondents must file a written objection before the next hearing.  The court has authority to require all objectors to file a written objection pursuant CRC, Rule 7.801, or else deem the failure to do so a waiver.

It is recommended the hearing be continued to a date set by the Court at the hearing, to allow sufficient time for re-service in conformity with the Due Process.

Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the “Filing Description” field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field – BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).

Appearances:

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

Meeting ID: 160 543 3416

Passcode: 5053334