A SQUARE PEG IN A ROUND HOLE? CIVIL LAW AND MOTION PLEADINGS IN PROBATE PROCEEDINGS

By Andrew Zabronsky, Esq. and Naznin B. Challa, Esq.^*

I. INTRODUCTION

The Code of Civil Procedure allows for extensive law and motion practice in civil actions. Probate Code section 1000¹ provides that, in general, "the rules of practice applicable to civil actions … apply to … proceedings under [the Probate] [C]ode." Many probate litigators therefore assume that motions permitted in civil actions (hereafter, civil motions) may also be brought in probate proceedings.² Until recently, at least, it appears that courts assumed the same thing; although many reported decisions in probate matters involve civil motions, none has questioned the party’s entitlement to bring the motion. Some probate courts, however, have begun to do just that.³ Are they right?

These courts stress that Section 1000 applies "[e]xcept to the extent that this code provides applicable rules" (hereafter, the "exception clause"), and posit various "applicable rules" which they assert displace the rules of practice applicable to civil actions. For example, one probate court issued the following ruling rejecting a demurrer: