Not as Seen on TV Courtroom

May 4, 2021

We are all familiar with the one-hour (40 minutes with commercials) legal dramas that identify the legal problem, follow the client to consult the attorney and by the second commercial break they are arguing the case (usually without so much as a wardrobe change) with witnesses and offering compelling evidence to convince a judge or jury that they are right, and their evil opponent is wrong.  Even if they lose at the trial level, they often achieve victory on appeal, and everyone is celebrating after 39-1/2 minutes of drama.    Although most of my clients come to me with a clear understanding that the process is not going to be that easy, almost none of them understand the difficulty, expense and time commitment of real-life litigation in Probate Court.


Probate Court is a division of the California Superior Court for civil matters (non-criminal).  It is a specialized division that has Judges that only hear matters including, but not limited to proceedings involving Decedents’ estates, Trust proceedings, Guardianship proceedings, Conservatorship proceedings, and Minor’s compromises.

For so many of my clients, the merits of their case are so obvious that they cannot fathom that a Judge would not immediately rule in their favor after reading about their case in the petition or response to the petition.  At that point I explain to them that the Judges in Probate Court have very, very busy dockets and often do not have time to even read the filings themselves.  They have court staff that is tasked with previewing the filings and giving the Judge “notes” summarizing the issues; identifying the parties; and advising the Judge if the matter is contested.  The Judge often relies on these notes to conduct the initial hearing.  While the Judge may make some rulings on contested matters, such as to order an accounting, to instruct a trustee or to make decisions about removing a trustee and appointing an interim trustee, the factual issues or merits of the petition are not likely to be decided during a regularly scheduled hearing where it is one of 20 or more matters set for the same calendar.  If a petition is contested, unless a motion is filed seeking specific orders to dismiss or make a ruling based on uncontested facts, it almost always begins a process of the parties preparing for an evidentiary hearing or trial, with a stop along the way for mediation or a settlement conference to see if the parties can work out their differences.  Even having been warned by me, repeatedly, that this is a long process, my clients are often weary at the delays on the road to trial.     


In a recent San Diego case, the defendant and her attorneys must have thought they had finally attained that fictional television outcome when the Judge dismissed the petition after only a handful of hearings.  In the case of Dunlap v. Mayer, D077561, the Executor of the Estate of a former beneficiary of a Trust filed a petition seeking an order that the Trustee of that Trust needed to provide an eleven-year accounting.  The alleged Trustee filed a response claiming, among other things, she had never been the Trustee and was not responsible for producing an accounting.  The Executor filed a reply arguing that the defendant had actually signed documents identifying herself as the Trustee.  Despite the arguments and proof to the contrary, the Judge took the defendant at her word and dismissed the petition, without an evidentiary hearing or any testimony.  While I am certain the Executor and his attorneys felt blindsided and the alleged Trustee and her attorneys could not believe their good fortune, the Appellate Court was quick to explain why life cannot imitate television…at least not in Probate Court.


The Executor appealed the ruling dismissing the petition for an accounting and won.  The California Court of Appeal, Fourth Appellate District Appellate Court cited California Probate Code Section 1046 saying that “When matters within the purview of the Probate Code are contested, ‘[t]he court shall hear and determine any matter at issue and any response or objection presented, consider evidence presented, and make appropriate orders.’”  The court cited the  Conservatorship of Becerra (2009) 175 Cal.App.4th 1474 and Gregge v. Hugill (2016) 1 Cal. App. 5th 561, saying: “The court abused its discretion because it failed to follow the proper procedure in reaching its decision…that deprived petitioner of trial.”

While I would love for my clients to have their legal matters resolved as swiftly as they are on television, the court in Dunlap v. Mayer actually explained why even the most obvious of cases, with contested facts, must have its day in court. Although the delays and expense may not seem like a good thing, I think that the ruling in Dunlap v. Mayer demonstrates why everyone needs their day in court and we should all be grateful that the system allows you the opportunity to have your case heard, evidence presented, and testimony taken on matters with contested facts. Without it, a singular Judge could ignore other evidence and decide for your opponent just based on the petition or response.


If you or someone you know have a Trust or Estate litigation matter, we can help. We have 15 years’ experience with Trust and Estate litigation, administration and planning.   Contact Cannon Legal Firm today. 

We proudly serve Seal Beach, Long Beach and the surrounding communities for all your Estate Planning, Trust & Estate Litigation, Trust Administration and Probate needs.   We are happy to provide a free consultation via telephone, virtual visit or socially distanced at our offices at 3020 Old Ranch Parkway, Suite 300, Seal Beach, California or at your local home or office.

Contact us for a free consultation or schedule a Zoom or telephone appointment online.   –    562.543.4529 (Voice and Text)   –

About the author 

Dana Cannon

Dana M. Cannon has many years of experience with Probates, Conservatorships, Trusts and Estates. During that time she has advised clients on multi-million dollar trust administrations; handled complex litigation; performed estate planning; and represented clients in contested and uncontested conservatorship, guardianship, probate and trust matters. She has been a volunteer at the Los Angeles Superior Court Pro Bono Probate Settlement Program since it began.  She understands that these matters may not just involve money. They are often fueled by emotions and because of that this isn’t just business, it’s personal. She looks forward to assisting you with your legal needs.

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