Nov 19, 2020
Probate Court Update: News from the Court and Important Reminders About Compliance with Rules
Nov 19, 2020
By Robert Rosborough
On Friday, November 13, outgoing Co-Chair of MCBA’s probate and estate planning section Tim Barteau welcomed attorneys via Zoom to an update from Probate Court Judge Kelly Simmons.
Tim reminded the audience that he and Co-Chair Valerie Kushel (who will join MCBA’s board of directors in 2021) are retiring as co-chairs after three years of service. He welcomed Paul Gruwell and Laura Gibbons as incoming co-chairs. Many thanks to Valerie and Tim for doing a great job for such an extended term and to Judge Simmons for taking her valuable time to meet with us.
Judge Simmons welcomed everyone and thanked them for taking the time to attend this update. She was happy to see familiar faces on Zoom but said that it’s not the same as in-person and she missed seeing us in person. She then addressed a number of recurring issues she and our Probate Examiner, Trudy Verzosa, are encountering either with the mechanics or substance of documents.
1) Exhibits Must Be Tabbed. Judge Simmons is receiving many documents where the exhibits do not have tabs. Tabs are required—an ordinary sheet of paper is not sufficient! It is an enormous pain for her to read submittals without tabbed exhibits because she is frequently flipping back and forth and not having tabs makes reading your documents take much longer, not to mention tedious. Neither is something you should aim to inflict on your judge.
2) File on Time. Judge Simmons is also receiving many late filings. It has not been an isolated case where she has gotten extensive documents at 8:30 a.m. for a 9:00 a.m. hearing. But even for Monday hearings, the prior Thursday or Friday is still not timely.
Please file your documents on time—five court days before the hearing unless otherwise directed by the Court—so that she can read them before a hearing as she does with all documents. Perhaps forcing her to read your documents over her weekend is not the best invitation to a pleasant Monday morning hearing.
3) Minor Defects. Judge Simmons is changing her approach to “small” issues in filed documents. She had earlier changed the Court’s policy to no longer be continuing matters with minor defects until they were corrected. But when she would talk to lawyers in court about the defects, the lawyers were frequently unable to address the issue. Her hearing calendar grew to be out of control (even aside from the effects of the pandemic).
Judge Simmons’ new policy will be to issue a tentative ruling that specifies any defects and puts the hearing over one month. You can contest the tentative ruling and show how it is wrong if that is indeed the case. Or you can fix any defects. You are welcome to contact the probate examiner after you have read a tentative ruling for clarification of any issues.
4) Fee Requests. When you are requesting extraordinary fees in a probate matter, please submit a summary of all the work performed, including your work for the statutory fee. Judge Simmons needs to determine whether the extraordinary compensation is warranted based on the relationship of all the work done to the total fee, not just the extraordinary portion. If you are requesting only statutory fees, you just need to comply with what the code requires. In response to a question about the desired level of detail, she said not as detailed as an accounting, but you must show why the statutory fees are not sufficient to compensate you for the extraordinary work.
Judge Simmons also noted that many attorneys are asking for “anticipated” fees. If you incur more fees between the time of filing and the hearing date, you can file an amendment, signed and verified by the Petitioner, for the additional fees. But otherwise, or for any fees beyond the hearing date, she will not grant anticipated fees—you will have to wait until the next accounting. However, this will not apply at the conclusion of matters where there will be no further accounting or hearing. In such cases, you may request anticipated fees that you will incur after the filing, which you can confirm at the final hearing.
5) Tentative rulings. Judge Simmons asks that you be prepared to discuss the specific issues she specifies in the tentative ruling. If she says in the tentative ruling that issues a, b, and c need to be addressed at the hearing, discuss only a, b, and c. Many attorneys are immediately arguing their entire case, not the specified issues. Furthermore, both sides should be prepared to discuss all of the specified issues, not just ones that appear to be aimed at your side—attorneys have sometimes made incorrect assumptions about the issues and not realized that the request in the tentative ruling was aimed at them. Please answer these pointed questions—and just these pointed questions, and do not discuss your whole case. You can argue the whole case later if you really want. And do not say, “Judge, you don’t understand, we should talk about this other thing instead.” Insulting your judge is rarely a good move.
6) Certified copies. Certified copies are unfortunately taking a long time. If you request them when you are in court and you have already submitted a check, Judge Simmons can handle your request then and there. If you have to go upstairs afterwards to request them or to provide a check, it will currently take about four weeks for your copies.
7) Ex parte matters. Please do not file an ex parte petition unless it is truly necessary, i.e., it is an emergency. Judge Simmons estimates that currently only about 50% of filed ex parte matters are really ex parte. Help keep her calendar from becoming even fuller; if it is not an emergency, do not file it ex parte.
8) Digital signatures. The code is highly specific about what constitutes an acceptable digital signature. You must comply with all of the requirements or your document will be rejected and most people are not complying with them all. Local Rule 8.15 requires compliance with Government Code section 16.5. Many people, for example, fail to provide the certificate of authority required by 16.5(d). Electronic signatures or wet signatures are much simpler and not rejected nearly as often.
Judge Simmons then turned to address issues that have been arising in one or more specific practice areas.
Trusts and Estates
1) Validity of Trusts. Many proposed orders contain a request to confirm the validity of the subject trust when nothing in the proceeding relates to the validity of the trust. Please do not include a confirmation of validity in your proposed order unless you addressed the validity as one of the issues.
2) Different Files for Each Case Type. When you need to open a different type of case for an ongoing matter, please open a new file for it. For example, if you are handling a guardianship and a trust needs to be created, open a separate file for the trust. Each type of case should be in a different file (trust, estate, guardianship, conservatorship). But please also include notice of a related case when you do open a separate file (Judicial Council Form CM-015). Judge Simmons will also talk to the clerical staff about ensuring compliance with this rule.
1) New Procedure for Handling Appointments. The Court has traditionally maintained a short list of attorneys willing to represent proposed conservatees. Over the years, that list dwindled down to just a few people. Judge Simmons reached out to the public defenders to take on this responsibility and has been appointing only them. Now they are saying that it is more than they can handle.
Judge Simmons is now instituting a new procedure and is asking attorneys to volunteer to represent proposed conservatees. Please note the need to comply with CRC 7.1101 for conservatorship panelists. She will then alternate appointments between public defenders and volunteers. Furthermore, any appointed attorney will now represent a (proposed) conservatee only through a decision in that particular stage of the matter, rather than for the rest of the existence of the conservatorship, which will ease the burden considerably. To volunteer, please let Tim Barteau know (415.453.9433 or email@example.com) and he will provide the final list to Judge Simmons. Keep in mind that the work may require speaking to the conservatee or court investigators but that may be done via telephone or Zoom during the pandemic.
2) Filing Petitions. If you are filing a petition in a conservatorship, please include a proposed order appointing counsel as part of the filing.
1) Excess Documentation. Judge Simmons noted that some attorneys are submitting more documentation with an accounting than required. Please review, for example, Probate Code section 2620 et seq. and CRC 7.575(b) in guardianships and conservatorships. You do not need to submit bank statements for the entire accounting period. You need to submit only the ending statement or if it is the first accounting, the beginning statement too. You also do not need to submit care facility statements.
Judge Simmons then turned to some general issues about operation of the Court.
The Court is experiencing a serious staffing shortage. It currently has only a single probate clerk, who cannot devote full time to the backlog. Judge Simmons went to the filing room herself and determined that the filing backlog is significant. She met with Court CEO James Kim the day before this update and the problem exists across all departments. She and other judges have volunteered to learn to do filings themselves and the Court is looking into it and is otherwise trying to figure out a solution.
Revising Rules of Court
As Judge Simmons has mentioned before, including at the most recent update from the Probate Court, she would like to revise the Local Rules of Court. No one has paid attention to keeping the rules up-to-date for years, and in her opinion, they could use significant modifications. Because of her schedule, she was not ready to take this on during the pandemic until now. She is now setting up three separate committees to work on significantly revising the rules to make them work for us. She envisions meeting about once a month (via Zoom) to work on them.
One committee will address trusts, one estates and one guardianships and conservatorships. At the suggestion of Robin Christo, Judge Simmons added a fourth committee to address contested matters generally. She encourages you to volunteer for a committee. To do so, please let Tim Barteau know and specify which committee you would like to join (or you can specify you would serve on any one of them). Judge Simmons and Trudy Verzosa will themselves take on the initial revision of the rules regarding filings, etc. located at the beginning of the rules.
Judge Simmons then answered questions from the audience. Note that the answers to some questions have been incorporated above.
Helen Milowe asked whether attorneys should submit Letters in advance. Yes.
Robert Epstein asked about Judge Simmons’ role as a settlement judge and in particular what impact she thinks it will have on her availability. Judge Simmons said that all mandatory settlement conferences will be assigned to her. If she is busy, then a conference will be assigned to a panelist. She will conduct settlement conferences on Tuesdays, Wednesdays and Fridays. When she is in trial, either another judge or a panelist will conduct the settlement conferences. While she may still do a small amount of criminal work, for the most part this assignment is taking the place of her criminal work and she does not envision that it will impact her availability in probate.
Tim Barteau noted that there was a question in the chat about unfairness of certain filing fees in probate, where one must pay what feels like a duplicative first appearance fee. Judge Simmons was unaware of this and will look into it. She noted that the rules committees can resolve it.
Finally, Judge Simmons discussed how because of the workload, the Court has generally been unable to post tentative rulings by noon and it has been as late as 3:00. She does not think posting them piecemeal is practical. She said that she will have a goal of posting them by noon and will try not to be later than 2:00. But please be understanding during the pandemic.
She reiterated her thanks for all of us being here and misses seeing us in court.
MCBA would like to thank Judge Simmons for a very productive update. We hope that all attorneys who practice before the Probate Court will take note of everything they can do to improve the workflow of the Court and help not only the Court but themselves and their clients as everyone continues to adapt to our unusual and changing circumstances.