Probate Law & Motion

Advisements

If the tentative ruling is accepted, no appearance by Zoom is necessary unless otherwise indicated. You must notify the probate clerk at (707) 521-6893 if you wish to be heard in response to the tentative ruling. You must inform the clerk concerning your appearance choice: Zoom or in person. Any interested party who wishes to be heard in opposition to a petition must notify all other parties of the intent to appear. Both notifications must be completed no later than 4:00 p.m. on the court day immediately preceding the day of the hearing.

Unless notification to the probate clerk has been given as provided above, the tentative rulings shall become the rulings of the court at 3:15 p.m. on the day of the hearing. 

To Join Department 63 “Zoom” Online

To Join Department 63 “Zoom” By Phone:

  • Call: +1 669 254 5252 US (San Jose) and enter same meeting ID and password as listed above. 

Guide for Participating in Court Proceedings via Zoom for Dept 63:

  • After joining the meeting and checking in with the clerk, please mute your audio when not speaking. This helps keep background noise to a minimum.
  • Be mindful of background noise when your microphone is not muted. Avoid activities that could create additional noise, such as shuffling papers.
  • Position your camera properly if you choose to use a web camera. Be sure it is in a stable position and focused at eye level, if possible. Make sure everything visible in the frame is appropriate for an appearance in court.
  • If a confidential session becomes necessary it is incumbent on you to ensure you are able to participate from a private location so that unauthorized people cannot overhear or see the proceedings.
  • Chat is enabled for the sharing of documents among participants and the court and to allow attorneys to communicate individually with each other or their clients only. No chat messages should be sent privately to the court as it would amount to an unauthorized ex parte communication. Neither should chat messages be sent to all participants unless directed by the court.
  • The recording function has been disabled. Remember, the prohibition against recording court proceedings, even remote ones, remains.
  • Be patient. Check in will take more time and the experience from those who have tried this before is that proceedings are a little slower generally.

Tentative Rulings

November 12, 2026, at 3:00 p.m.  

  1. Matter of Ben Edward McCutchan and Barbara Louise McCutchan Trust

24PR00320

Petitioner's Motion to Compel BMO Bank's Compliance with Deposition Subpoena of Business Records

Tentative Ruling: The motion is DROPPED from calendar in light of the withdrawal of motion filed November 3, 2026.

  1. Estate of Carolyn Anne Irwin

25PR00478

Motion to Set Aside Minute Order Approving Settlement Agreement

Tentative Ruling: The motion is DENIED for the reasons set forth below.

A court may exercise its equitable jurisdiction to set aside orders and decrees of probate proceedings in cases of fraud or mistake. Estate of Sanders (1985) 40 Cal.3d 607, 614. If fraud is the basis for the motion, the movant must prove extrinsic and collateral fraud to seek and secure equitable relief from the judgment. Caldwell v. Taylor (1933) 218 Cal. 471, 476. If mistake is the basis, such relief can be given where the former judgment was the result of a mistake, unmixed with fraud, and not the result of the negligence of the injured party.  Bacon v. Bacon (1907) 150 Cal. 477, 486.

Extrinsic fraud occurs when a party is deprived of his opportunity to present his claim or defense to the court, where he was kept in ignorance or in some other manner fraudulently prevented from fully participating in the proceeding. Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926. The circumstances of this case do not implicate extrinsic fraud. The parties did not keep Pauline Francis Irwin (Pauline) or the Public Guardian, her conservator, in ignorance or fraudulently prevent their participation in the proceeding. To the contrary, Pauline was provided with adequate notice, through the Public Guardian, of all relevant proceedings, in accordance with California Probate Code §1210. That the conservator did not forward those notices to county counsel does not establish extrinsic fraud. Fraud is intrinsic and not a valid ground for setting aside a judgment when the party has been given notice of the action and has had an opportunity to present his case and to protect himself from any mistake or fraud of his adversary, but has unreasonably neglected to do so. Heyman v. Franchise Mortgage Acceptance Corp. (2003) 107 Cal.App.4th 921, 926.

Extrinsic mistake occurs when circumstances extrinsic to the litigation have unfairly cost a party a hearing on the merits. Kramer v. Traditional Escrow, Inc. (2020) 56 Cal.App.5th 13, 30. In contrast with extrinsic fraud, extrinsic mistake exists when the ground of relief is not so much the fraud or other misconduct of one of the parties as it is the excusable neglect of the defaulting party to appear and present his claim or defense. Id. If that neglect results in an unjust judgment, without a fair adversary hearing, the basis for equitable relief on the ground of extrinsic mistake is present. Id. Relief will be denied, however, if the complaining party's negligence permitted the fraud to be practiced or the mistake to occur. Id.

Here, there was no mistake that justifies the requested relief. The Public Guardian was adequately notified of the underlying proceedings, including the mediation. They had notice and an opportunity to be heard. The Public Guardian’s failure to timely inform and involve county counsel is a result of their own negligence. The Court acknowledges the change in county counsel, and the inadvertent failure to inform county counsel, as stated in the Declaration of Elizabeth Cox, but those facts are not sufficient to justify relief for extrinsic mistake, because they show that the complaining party’s negligence permitted the mistake to occur.

As for any suggestion that failure to appoint a guardian ad litem constitutes mistake, or denial of due process, this is incorrect. There was no mistake as to the fact that Pauline is and was at all relevant time periods conserved. As the Public Guardian serves as conservator of Pauline’s person and estate, the Court had no basis for finding that representation of her interests would be inadequate such that appointment of a guardian ad litem was warranted pursuant to California Probate Code §1003(a).

The case of In re A.C. (2008) 166 Cal.App.4th 146, 154, decided in the context of a dependency case subject to the California Welfare and Institutions Code, does not stand for the notion that the Court in this case was required to order Pauline to appear through her conservator or to appoint a Guardian Ad Litem pursuant to California Code of Civil Procedure (CCP) §372. Also, in that case, the failure to appoint a guardian ad litem was found to be a procedural irregularity that did not violate the party’s due process rights. In re A.C. (2008) 166 Cal.App.4th 146, 157.

Finally, notice of the relevant proceedings was reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Thus, the Court does not find a violation of Pauline’s due process rights. See Mullane v. Central Hanover Bank & Trust Co. (1950) 339 U.S. 306, 314. In California, courts have applied Mullane in probate matters since at least 1968. Roth v. Jelley (2020) 45 Cal.App.5th 655, 667.

*End of Tentative Rulings*