Judge: John B. Scherling, Case: 37-2020-00040222-PR-LA-CTL, Date: 2023-12-15 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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CENTRAL COURTHOUSE TENTATIVE RULINGS - December 14, 2023

12/15/2023  02:00:00 PM  502 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:John B Scherling

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Probate  Letters Of Administration Demurrer / Motion to Strike (Probate) 37-2020-00040222-PR-LA-CTL ESTATE OF LESLIE JO KNOLES [IMAGED] CAUSAL DOCUMENT/DATE FILED: Demurrer, 08/21/2023

Pursuant to Superior Court of San Diego County Local Rules, rule 4.23.7, the Court's tentative ruling is as follows: The Demurrer filed by Sandra Ann Heath, Tamara Amundson, George Robert Knoles, and Michael Joseph Knoles ('Respondents') (ROA 139) is OVERRULED.

Respondents' Request for Judicial Notice (ROA 143) is GRANTED pursuant to EC § 452(d) as court records.

Ruth Catello's Request for Judicial Notice (ROA 168) is GRANTED as to items 4-6, 9-14, 16-18 pursuant to EC § 452(d) as court records, and DENIED as moot as to items 1-3, 7, 8, and 15, which are duplicative of Respondents' Request for Judicial Notice.

The Court takes judicial notice to the extent permitted. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564-1565 ['The truth of matters asserted in court records and official acts are not subject to judicial notice.'].) I. Background The case concerns the estate of Leslie Jo Knoles ('Decedent') who died on September 28, 2020.

Respondents are Decedent's heirs claiming through intestacy. Ruth Catello ('Petitioner') was Decedent's partner and claims to be the sole beneficiary under a holographic Will from 2015.

On November 4, 2020, Sandra Heath filed a Petition for Letters of Administration with Authorization to Administer Under the Independent Administration of Estates Act, claiming Decedent died intestate.

(ROA 1.) On February 26, 2021, Ruth Catello ('Petitioner') filed a competing Petition for Letters of Administration with Authorization to Administer Under the Independent Administration of Estates Act. (ROA 20), which was superseded by a Petition for Probate subsequently filed on June 16, 2021 (ROA 43). (See ROA 54, Minute Order filed Jul. 1, 2021, taking off calendar the Petition at ROA 20, as superseded by the Petition at ROA 43.) The petition at ROA 43 claims Decedent died intestate.

On February 14, 2022, the parties filed a Stipulation and Order After Mandatory Settlement Conference, agreeing in pertinent part to the following: Calendar No.: Event ID:  TENTATIVE RULINGS

3011660 CASE NUMBER: CASE TITLE:  ESTATE OF LESLIE JO KNOLES [IMAGED]  37-2020-00040222-PR-LA-CTL Petitioner Sandra Ann Heath supplements her petition to name Patricia Fister, CLPF as the personal representative of the estate of Leslie Jo Knoles. Respondent, Objector and Petitioner, Ruth Catello consents to the appointment of Patricia Fister, CLPF. Tamara Amundson, Michael Knoles and George Robert Knoles, siblings and beneficiaries of the intestate estate consent to the appointment of Patricia Fister as the personal representative. All siblings and parties entitled to notice or appearing in this case have consented to the appointment of Patricia Fister, CLPF as the personal representative. The parties agree to stay this case pending the outcome of the civil case by Ruth Catello to quiet title, 37-2022-00004784-CU-OR-CTL. The parties agreed to provide a joint status report no later than every six months from the date of this order.

(ROA 92, Stipulation and Order filed on Feb. 14, 2022, emphasis added.) On February 24, 2022, the Court granted the Petition at ROA 1, appointing Patricia Fister as the administrator of Decedent's estate. (ROA 101, Minute Order filed Feb. 24, 2022.) Further, the matter was 'stayed pending the outcome of the Civil Case, 37-2022-00004784-CU-OR-CTL.' (Id., emphasis added.) The Court set a review hearing regarding the stay entered at ROA 92 for August 25, 2022. (Id.) Petitioner's petition for letters of administration (ROA 43) was taken off calendar. (ROA 94.) Letters of Administration were issued on April 28, 2022, consistent with the Court's ruling on February 24, 2022. (ROA 105.) At the review hearing on August 25, 2022, the Petition at ROA 1 was 'continued to a Case Management Conference pursuant to party's motion to 12/22/2022 ....' (ROA 113, Minute Order filed Aug. 25, 2022.) On December 21, 2022, Heath filed a Notice of Ruling in Related Matter (in case no. 22-4784 identified above). (ROA 117.) The Minute Order from the Case Management Conference held on December 22, 2022, states: 'Review Hearing Re Stay of This Action That the Court Is Granting Per Parties Stipulation and Order (ROA#92), Probate Case Management Conference is continued pursuant to party's motion to 03/16/2023 at 10:00AM before Judge John B Scherling.' (ROA 121, Minute Order filed Dec. 22, 2022.) The Minute Order from the Case Management Conference held on March 16, 2023, states: 'Review Hearing Re Stay of This Action That the Court Is Granting Per Parties Stipulation and Order (ROA#92) is vacated as moot.' (ROA 129.) On May 24, 2023, Petitioner filed a Petition for Probate, attaching a holographic Will purportedly executed by Decedent in 2015 ('Petition'). (ROA 131.) On August 21, 2023, Respondents filed the instant demurrer to the Petition. (ROA 139.) On December 4, 2023, Petitioner filed an opposition. (ROA 166.) On December 8, 2023, Respondents filed a reply. (ROA 163.) II. Discussion A. Timeliness of Demurrer A party against whom a complaint is filed 'may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.' (CCP § 430.40.) If the parties are unable to meet and confer at least five days prior to the date the responsive pleading is due, 'the demurring party shall be granted an automatic 30-day extension of time within which to file a responsive pleading, by filing and serving, on or before the date on which a demurrer would be due, a declaration stating under penalty of perjury that a good faith attempt to meet and confer was made and explaining the reasons Calendar No.: Event ID:  TENTATIVE RULINGS

3011660 CASE NUMBER: CASE TITLE:  ESTATE OF LESLIE JO KNOLES [IMAGED]  37-2020-00040222-PR-LA-CTL why the parties could not meet and confer.' (CCP § 430.41(a)(2).) Respondents argue the demurrer is timely because this action is in Probate; the Petition here is not a complaint or cross-complaint, there is no personal service of the petition in probate, and thus CCP § 430.40 does not apply. Respondents further argue that the statute governing demurrers is permissive, and a party 'may,' not 'must,' file a demurrer. Respondents cite to Probate Code § 1008 and argue the Probate Code would trump CCP § 430.40 and permit the filing of a demurrer no later than the date required of a respondent to appear and object under Probate Code § 1008. Therefore, CCP § 430.40 would not bar the filing of the demurrer in this action.

Here, the Petition was filed on May 24, 2023. (ROA 131.) The demurrer to the Petition was filed on August 21, 2023. (ROA 139.) As such, the demurrer was filed past the 30 days provided for in CCP § 430.40. There is no declaration supporting an automatic 30-day extension of this deadline pursuant to CCP § 430.41(a)(2). Thus, there is no question the demurrer is untimely pursuant to CCP § 430.40.

The argument that the statute is permissive does not address whether the demurrer is timely, as the provision that a party is not required to file a demurrer does not mean the party can file it any time.

Indeed, the deadline to file a demurrer also corresponds to the 30-day window permitted to file a responsive pleading in other Probate matters. (See, e.g., Prob. Code, §§ 8250, 8271.) Further, a motion for judgment on the pleadings, which functions as a general demurrer, may be made after the time to file a demurrer has expired. (See CCP § 438(f)(1); International Assn. of Firefighters, Local 230 v. City of San Jose (2011) 195 Cal.App.4th 1179, 1196 ['A motion for judgment on the pleadings is analogous to a general demurrer but is made after the time to file a demurrer has expired.'].) Thus, once the time to file a demurrer expires, a party may bring a motion for judgment on the pleadings, but not a demurrer.

Pursuant to Probate Code § 1000(a), the rules of practice applicable to civil actions, 'apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.' (Prob. Code, § 1000(a).) To be sure, Respondents' demurrer relies on CCP § 430.10(e), yet Respondents inconsistently argue, without citation to any legal authority, that the 30-day deadline contained in the same statutory scheme somehow does not apply.

Respondents cite to Probate Code § 1008, which does not exist, and the argument that 'the Probate Code would trump the Code of Civil Procedure section 430.40 and permit the filing of a Demurrer no later than the date required of a Respondent to appear and object,' is unsupported by any authority.

Therefore, the demurrer is untimely and may be denied on this basis.

Notwithstanding, CCP § 473(a)(1) 'allows the court to increase the time for filing a demurrer in furtherance of justice and on any terms that may be proper. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 ['The trial court's consideration of the demurrer, filed 38 days after plaintiff served the complaint, did not affect plaintiff's 'substantial rights,' where plaintiff did not take steps to obtain a default judgment or demonstrate the delay prejudiced her. (Citation.) Therefore, we conclude the lower court acted within its broad discretion by considering defendant's demurrer, notwithstanding plaintiff's claim that it was untimely. (Citation.)'].) Considering the delay in filing the Petition after the determination of intestacy in February 2022, and the fact the Petition was filed just a few months ago in May 2023, the Court finds no prejudice to Petitioner.

Thus, despite the untimeliness of the demurrer, the Court exercises discretion to hear the demurrer and rule on the merits.

B. Demurrer A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) A demurrer is treated 'as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.

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3011660 CASE NUMBER: CASE TITLE:  ESTATE OF LESLIE JO KNOLES [IMAGED]  37-2020-00040222-PR-LA-CTL [Citation.] [Courts] also consider matters which may be judicially noticed.' (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) No other extrinsic evidence can be considered (i.e., no 'speaking demurrers'). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The complaint must be liberally construed and given a reasonable interpretation, with a view to substantial justice between the parties. (Amarel v. Connell (1988) 202 Cal.App.3d 137, 140–141; see also, Poseidon Development, Inc. v. Woodland Lane Estates, LLC, supra, 152 Cal.App.4th 1106, 1111-12 [in ruling on demurrers, courts treat as being true 'not only the complaint's material factual allegations, but also facts that may be implied or inferred from those expressly alleged'].) A complaint should provide defendants sufficient notice of the cause of action stated against them so that they are able to prepare their defense. (People ex rel. Dept. of Transportation v. Superior Court (1992) 5 Cal.App.4th 1480, 1486.) 'To prevail on a demurrer based on the statute of limitations, a defendant must establish the entire cause of action is untimely.' (Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch LLP (2011) 195 Cal.App.4th 265, 274.) A trial court does not err in sustaining demurrer without leave to amend where the complaint discloses on its face that the action is barred by statute of limitations. (Barton v. New United Motor Manufacturing, Inc. (1996) 43 Cal.App.4th 1200, 1204.) 'If the proponent of a will has received notice of a petition for probate or a petition for letters of administration for a general personal representative, the proponent of the will may petition for probate of the will only within the later of either of the following time periods: (1) One hundred twenty days after issuance of the order admitting the first will to probate or determining the decedent to be intestate [; OR] (2) Sixty days after the proponent of the will first obtains knowledge of the will.' (Prob. Code, § 8226(c)(1), (2).) Here, on February 24, 2022 the court confirmed that the Probate matter was stayed 'pending the outcome of the Civil case.' (ROA 101). No dispute exists that the Civil case remains on appeal.

Accordingly, even though the Minute Order from the Case Management Conference held on March 16, 2023 states that the Review Hearing regarding the stay was vacated as moot, that admittedly ambiguous order did not explicitly lift the stay, which arguably remains in effect pending the outcome of the appeal in the Civil case per the parties' stipulation (ROA 92) and the Court's February 24, 2022 order (ROA 101). An alternative interpretation is that, given that the Review Hearing regarding the stay was continued at the December 22, 2022 hearing – even after the Notice of Ruling in Related Matter (ROA 117) was filed on December 21, 2022 – the stay remained in place until the March 16, 2023 hearing vacating the Review Hearing.

Respondents argue against CCP § 356 tolling premised on a stay because the Court granted ROA 1 after the Stipulation and Order was filed and based on their assertion that the Probate Code trumps any tolling. However, the Court's February 14, 2022 Order on the Stipulation and Order explicitly provided that the stipulation including the grant of ROA 1 would be implemented at the February 24, 2022 hearing. (ROA 92.) The Court appreciates Respondents' argument that the Probate Code is designed to promote prompt resolution of estate matters. However, neither Respondents' authorities nor Probate Code § 8226 explicitly preclude a stay or application of CCP § 356 tolling during a stay in a Probate proceeding. See also Probate Code § 1000 (the rules of practice in civil actions apply to Probate proceedings except when the Probate Code provides applicable rules).

Reasonably construing these circumstances with a view to substantial justice between the parties, the Court finds that the filing of the instant petition for probate of the Will is within the 120-day time period under Probate Code § 8226(c)(1).

The demurrer is therefore OVERRULED.

Counsel for Petitioner is directed to serve notice of this ruling on all parties in accordance with the Calendar No.: Event ID:  TENTATIVE RULINGS

3011660 CASE NUMBER: CASE TITLE:  ESTATE OF LESLIE JO KNOLES [IMAGED]  37-2020-00040222-PR-LA-CTL provisions of CCP § 1019.5(a).

IT IS SO ORDERED.

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