Judge: John B. Scherling, Case: 37-2017-00049047-PR-LA-CTL, Date: 2024-02-26 Tentative Ruling
SUPERIOR COURT OF CALIFORNIA,
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CENTRAL COURTHOUSE TENTATIVE RULINGS - January 25, 2024
01/26/2024 02:00:00 PM 502 COUNTY OF SAN DIEGO
JUDICIAL OFFICER:John B Scherling
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Probate Letters Of Administration Motion Hearing (Probate) 37-2017-00049047-PR-LA-CTL ESTATE OF LUCIA REYES BENNETT [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 09/11/2023
Pursuant to Superior Court of San Diego County, Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Motion to Dismiss filed by Monica Bennett (ROA 1054) is DENIED.
I. BACKGROUND Lucia Reyes Bennett ('Decedent') died on October 25, 2016.
On December 20, 2017, Josephine Bennett ('Josephine'), Decedent's daughter, filed a petition to be appointed as administrator of the estate. (ROA 1.) Josephine's petition alleged that Decedent died intestate.
On March 23, 2018, Monica Bennett ('Monica'), daughter of Decedent and Josephine's sister, filed a competing petition for probate. (ROA 29.) Monica's petition alleged that Decedent died with a Will dated February 18, 2007, and a codicil dated June 28, 2010 (collectively 'Contested Documents').
On August 15, 2018, the Court granted Josephine's petition (ROA 1), appointing Josephine as administrator of Decedent's estate. (ROA 138, Minute Order filed Aug. 15, 2018; see also ROA 132, Order for Probate.) The Court denied Monica's petition (ROA 29) as to her request to be appointed as the personal representative, but continued the petition to October 11, 2018, on the issue of probate of the Will. (ROA 131, Minute Order filed Aug. 15, 2018.) The matter was then continued several times thereafter.
The Trial Readiness Conference took place on November 17, 2022. (ROA 876, Minute Order filed Nov.
17, 2022.) Trial took place on December 7, 2022, December 8, 2022, and on December 13, 2022. (See ROA 910, 912, and 919.) The Court found that Monica did not meet her burden of proof in establishing the validity of the Contested Documents and denied Monica's competing petition for probate (ROA 29).
(ROA 919, Minute Order filed Dec. 13, 2022.) On February 6, 2023, Monica filed a motion for new trial. (ROA 930.) The Court denied this motion.
(ROA 990, Minute Order filed Apr. 6, 2023.) On April 18, 2023, Monica filed what appears to be a courtesy copy of the petition for writ of mandate filed with the Fourth Appellate District, Division One, Court of Appeal, requesting to set aside the trial Calendar No.: Event ID: TENTATIVE RULINGS
3029518 CASE NUMBER: CASE TITLE: ESTATE OF LUCIA REYES BENNETT [IMAGED] 37-2017-00049047-PR-LA-CTL court's order of December 13, 2022. (ROA 991, Notice.) The Court of Appeal summarily denied the petition. (ROA 992, Order Denying.) On September 11, 2023, Monica filed the instant motion to dismiss Josephine's petition pursuant to CCP §§ 583.310 and 583.360 on the ground that trial was not brought within five years.
On January 8, 2024, Josephine filed a response to the motion, opposing the motion. (ROA 1083.) On January 22, 2024, Monica filed an untimely reply. (ROA 1089.) On January 23, 2024, Josephine filed a response to Monica's reply. (ROA 1091.) II. DISCUSSION A. Compliance with Statute and Rules of Court As a preliminary matter the Court notes that Monica's reply, filed on January 22, 2024, just three days before the hearing in this matter is untimely under CCP § 1005(b) and thus, the reply fails to comply with CRC 3.1300(a) and the Court's instructions from September 26, 2023, directing the parties to file opposition and reply papers pursuant to code. (ROA 1081, Minute Order filed Sept. 26, 2023.) The Court further notes that Josephine's response to Monica's reply is not permitted by statute or Rules of Court, and Josephine did not seek leave of court to file her response. Therefore, the Court will disregard Monica's untimely reply and Josephine's declaration (ROA 1091) responsive to Monica's reply.
B. Analysis Monica moves for an order to dismiss Josephine's petition, but it is crystal clear from the record of proceedings that Josephine's petition was granted on August 15, 2018. (ROA 138, Minute Order filed Aug. 15, 2018 ['ROA #1 Petition for Letters of Administration With Authorization to Administer Under the Independent Administration of Estates Act With Limited Authority filed 12/20/2017 by Josephine A.
Bennett is granted. The Court appoints Josephine A. Bennett as Administrator for the Estate of Lucia Reyes Bennett on 08/15/2018 and Letters are to issue.' (Emphasis added.)].) Thus, Josephine's petition was adjudicated, and letters of administration have been issued and extended multiple times since Josephine's petition was granted.
Monica's petition (ROA 29) was partially denied on August 15, 2018, and only the issue of the validity of Decedent's Will and codicil was left to be adjudicated. (ROA 131, Minute Order filed Aug. 15, 2018 ['1.
ROA #29 Competing Petition for Probate of Will and for Letters of Administration With Will Annexed With Authorization to Administer Under the Independent Administration of Estates Act With Limited Authority filed 03/23/2018 as to her request to be appointed Personal Representative is denied. [¶] 2. ROA #29 Competing Petition for Probate of Will and for Letters of Administration With Will Annexed With Authorization to Administer Under the Independent Administration of Estates Act With Limited Authority filed 03/23/2018 is continued to a Case Management Conference pursuant to party's motion to 10/11/2018 at 10:30AM before Judge Robert Longstreth. (Only on the Probate of the Will request).' (Emphasis added.].) Trial on the remaining issue in Monica's petition (ROA 29) took place on December 7, 2022, December 8, 2022, and December 13, 2022. (ROA 910, 912, and 919.) On December 13, 2022, trial concluded with the trial court finding that Monica had not met her burden. (ROA 919.) Monica's petition was thus denied. Monica moved for a new trial and the trial court denied this motion. (ROA 984, 985.) Subsequently, Monica filed another petition for writ of mandate (ROA 991, Notice), which was summarily denied by the Court of Appeal. (ROA 992, Order Denying in Bennett v. Superior Court of San Diego (Apr. 21, 2023, D081958) [nonpub. opn.] review den. Jun. 21, 2023, S279773.) Monica does not assert, Calendar No.: Event ID: TENTATIVE RULINGS
3029518 CASE NUMBER: CASE TITLE: ESTATE OF LUCIA REYES BENNETT [IMAGED] 37-2017-00049047-PR-LA-CTL nor is there any indication, that any appeal of the judgments on the petitions is currently pending. Thus, the judgment as to both petitions (ROA 1 and 29) is final. (U.S. Supreme Ct. Rules, rule 13 ['Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals ... is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment.']) Accordingly, there are no petitions pending adjudication. Indeed, a debtor's exam is schedule for January 29, 2023, for Monica to be examined. Thus, the motion is not well taken.
Even if Monica truthfully believed that the petitions (ROA 1 and 29) were pending, there is no basis to dismiss under CCP § 583.310 because the statute governing the time to bring an action to trial 'does not require a case to reach judgment in five years, but merely that trial commence within that period.' (Canal Street, Ltd. v. Sorich (2000) 77 Cal.App.4th 602, 608; CCP § 583.310 ['An action shall be brought to trial within five years after the action is commenced against the defendant.' (Emphasis added.).) According to Monica, trial commenced on December 7, 2022, within five years from the filing date of December 20, 2017. Thus, CCP § 583.310 is not triggered.
Therefore, the motion to dismiss is DENIED.
Josephine Bennett is directed to serve written notice of ruling in accordance with the provisions of CCP § 1019.5(a).
IT IS SO ORDERED.
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