Trusts and Estates
Goebner v. Superior Court
Cite as A171241
Filed April 30, 2025
First District, Div. Three
By Hengameh Kishani
Temmerman, Cilley, Kohlmann & Norcia LLP
https://www.tcklawfirm.com
Headnote: Litigation – Deadline to File Demurrer in Probate Case
Summary: A demurrer may be filed any time at or before the initial hearing in a probate case.
McDonald filed a petition contesting amendments to a trust, including an amendment that named Goebner as success trustee. More than four months after McDonald’s petition was served and two days before the hearing, Goebner filed a demurrer seeking to dismiss McDonald’s claims. The trial court overruled Goebner’s demurrer as untimely pursuant to Code of Civil Procedure section 430.40, which requires a demurrer to be filed within 30 days after service of the complaint. Goebner petitioned for writ of mandate, arguing that Probate Code section 1043, not Code of Civil Procedure section 430.40, applies to demurrers filed in a probate case.
The appellate court agreed and issued a writ of mandate. While Probate Code section 1000 provides, in relevant part, “Except to the extent that [the Probate Code] provides applicable rules, the rules of practice applicable to civil actions…apply to, and constitute the rules of practice in, proceedings under [the Probate Code],” the plain language of Probate Code section 1043 includes specifically applicable rules that address the timing for filing a response or objection to a petition. Probate Code section 1043 provides that an interested person may appear and make a response or objection in writing at or before the hearing, and a demurrer is a form of objection to a petition or complaint.