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AB-308 Procedures for litigation.(2017-2018)

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Date Published: 03/09/2017 09:00 PM
AB308:v98#DOCUMENT

Amended  IN  Assembly  March 09, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 308


Introduced by Assembly Member Maienschein

February 06, 2017


An act to amend Sections 851 and 1000 of of, and to add Sections 851.1 and 17201.1 to, the Probate Code, relating to estates and trusts.


LEGISLATIVE COUNSEL'S DIGEST


AB 308, as amended, Maienschein. Procedures for litigation.
(1) Existing law governs the procedures for litigation to resolve certain disputes relating to property that is subject to an estate, conservatorship, guardianship, or trust. These procedures include, among others, a requirement to serve the petition for relief and a notice of hearing on specific persons.
This bill would require the notice of hearing to include a description of the property at issue, whether the petition seeks specified damages or attorney’s fees and costs, and a statement that any person interested in the property may file a response to the petition.
(2) Existing law requires that the rules of practice relating to discovery in civil actions apply to actions under the Probate Code, except as provided.
The bill would provide when a petitioner in specified actions under the Probate Code may commence discovery, including, among others, an action to resolve a dispute relating to property that is subject to an estate, conservatorship, guardianship, or trust.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

The people of the State of California do enact as follows:


SECTION 1.

 Section 851 of the Probate Code is amended to read:

851.
 (a) At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable:
(1) The personal representative, conservator, guardian, or trustee as appropriate.
(2) Each person claiming an interest in, or having title to or possession of, the property.
(b) Except for those persons given notice pursuant to subdivision (a), notice of the hearing, together with a copy of the petition, shall be given as provided in Section 1220 if the matter concerns a decedent estate, as provided in Section 1460 if the matter concerns a conservatorship or guardianship, or as provided in Section 17203 if the matter concerns a trust to all of the following persons:
(1) Each person listed in Section 1220 along with any heir or devisee whose interest in the property may be affected by the petition if the matter concerns a decedent estate.
(2) Each person listed in Section 1460 if the matter concerns a conservatorship or guardianship.
(3) Each person listed in Section 17203 if the matter concerns a trust.
(c) A notice of hearing shall contain all of the following:
(1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.
(2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.
(3) A statement advising any person interested in the property that he or she may file a response to the petition.
(d) The court may not shorten the time for giving the notice of hearing under this section.

SEC. 2.

 Section 851.1 is added to the Probate Code, to read:

851.1.
 A petitioner in a proceeding under Section 850 may commence discovery upon any person who receives notice of the hearing pursuant to subdivision (a) of Section 851 in accordance with the same time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), except that the time periods shall commence to run upon service of the petition and notice of hearing. Nothing in this section shall alter when a respondent in such a proceeding may commence discovery.

SEC. 2.SEC. 3.

 Section 1000 of the Probate Code is amended to read:

1000.
 (a) Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.

(b)A petitioner in a proceeding under Section 17200 that does not require issuance of a summons may commence discovery upon a trustee who is subject personally to the jurisdiction of the court under Section 17003 in accordance with the same time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) except that the time periods shall commence to run upon service of the petition and notice of hearing upon the trustee or the trustee’s appearance in the proceeding, whichever first occurs.

(c)A petitioner in a proceeding under Section 850 may commence discovery upon any person who receives notice of the hearing pursuant to subdivision (a) of Section 851 in accordance with the same time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure), except that the time periods shall commence to run upon service of the petition and notice of hearing.

(d)

(b) For purposes of determining when a petitioner in a proceeding under this code may commence discovery as to nonparties, the time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply, except that the time periods shall commence to run upon service of the petition and notice of hearing upon all parties entitled to notice. Nothing in this subdivision shall either alter when a respondent in such a proceeding may commence discovery or increase the extent to which nonparties may be subject to discovery.

SEC. 4.

 Section 17201.1 is added to the Probate Code, to read:

17201.1.
 A petitioner in a proceeding under Section 17200 may commence discovery upon a trustee in accordance with the same time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) except that the time periods shall commence to run upon service of the petition and notice of hearing upon the trustee or the trustee’s appearance in the proceeding, whichever first occurs. Nothing in this section shall alter when a respondent in such a proceeding may commence discovery.