By John A. Hartog
is part of our series of posts written by John A. Hartog of John A. Hartog,
Inc. in Orinda, Calif., and Shirley L. Kovar of Henderson Caverly Pum Charney
LLP, in San Diego, Calif., co-authors of the LexisNexis® Matthew Bender®
Practice Guide titled California Trust Litigation (March 2011). In this post, Hartog gives tips for
litigators who are new to working in trust law. Hartog and Kovar will be
appearing at seminars and a webinar in the coming weeks. For more information, please go to: www.ocbar.org and http://www.sfbar.org/.
A really easy and egregious mistake is to file a
complaint rather than a petition. Another easy-to-spot error is to fail to file
a notice of hearing. Another really
common one that litigators make, is to serve the lawyer with the pleading
rather than serving the party. In probate practice, you must serve the party;
you may serve the lawyer, but service on the lawyer does not replace service on
In civil practice, the rules are pretty strict
about when a responsive pleading must be filed.
In probate, at the first appearance
- at least under section 1043 -
nothing needs to be filed until the date of the hearing, and a party can show
up and not even have a pleading. The court, under the terms of the statute, can
give them the time they require to file writing. There's not even a
requirement to do the writing.
So what happens in probate often is that
pleadings get filed within 24 hours of the hearing date, and they are
timely. I can't tell you how many times
I get civil litigators who come just enraged into court, telling the court that
they can't hear my papers because they were late filed.
And it's, well, "1043, Your Honor."
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