PROBATE RULE 1: ADMINISTRATION AND GENERAL POLICIES
B. ALL PURPOSE JUDGE
C. CASE ASSIGNMENT
F. COORDINATION WITH CUSTODY CASES
G. PROBATE CALENDAR
H. TELEPHONIC APPEARANCE
I. DEADLINE FOR SUBMITTING PROPOSED ORDERS IN UNCONTESTED MATTERS
J. OBJECTIONS K. PROBATE EARLY SETTLEMENT CONFERENCE PROGRAM
L. CONTESTED MATTERS
M. APPROVED MATTERS
P. WITHDRAWAL OF ATTORNEY OF RECORD
Q. COURT COMMUNICATION REGARDING RESTRAINING ORDERS
R. PRIVACY REQUIREMENTS FOR DOCUMENTS FILED IN PROBATE MATTERS
S. COURT INVESTIGATOR REPORTS
The Probate Department will hear all matters concerning the Probate Code, or related matters, as well as adoptions, terminations of parental rights, name changes, minor's compromise matters, and mental health matters under the Lanterman Petris Short (LPS) Act.
All matters filed in the Probate Department, including trials, shall be assigned to the Supervising Judge of the Probate Department as the All Purpose Judge (APJ).
If a case is sent for trial to the Civil Division based upon its expected length or for other reasons, the APJ shall hear all issues up to trial, including any ex parte requests, with the exception of discovery issues. Discovery issues shall be heard in the Civil Discovery Department. However, if a Court employee or deputy sheriff working in the Probate Department, or a member of his or her family, is a party to a case, the Supervising Judge of the Probate Department shall transfer the case to the Civil Division for assignment for all purposes.
All probate proceedings in Santa Clara County must be filed in the Probate Department of the Santa Clara County Superior Court, located at 191 N. First Street, San Jose, CA 95113.
Whenever it appears that two or more petitions with different case numbers have been filed with reference to the same decedent, conservatee, minor, or trustee, the Court will consolidate all of the matters with the matter bearing the lowest number.
If there is an action in Family Court regarding the custody of a minor child and an action for Guardianship of the Person or Person and Estate of the minor child in the Probate Court, the cases will be coordinated for hearing purposes and assigned for hearing to the Probate Court. (See also Rule 12C and D.)
Probate cases are heard at 9:30 a.m. Monday, Wednesday, Thursday, and Friday, in the Probate Department, except for petitions to appoint guardians and to terminate guardianships prior to the age of majority, which are heard at 9:30 a.m. on Tuesday, and petitions to appoint conservators and to terminate conservatorships prior to the death of the conservatee, which are heard at 1:30 p.m. on Tuesday. Paperwork must be filed within two weeks of assignment of the case number or the reserved hearing date will be vacated and the case number will be forfeited.
Parties are required to reserve a hearing date by calling the Probate Calendar Clerk prior to the filing of the petition. In order to file a new matter, a party must obtain a case number and hearing date from the Probate Calendar Clerk or Probate Clerk. Paperwork must be filed within two weeks of assignment of the case number or the reserved hearing date will be vacated and the case number will be forfeited
(1) Telephonic appearances on the Probate Calendar are governed by California Rule of Court (CRC) 3.670.
(2) Telephonic appearances must be coordinated in advance by counsel or a self-represented party through an independent vendor, currently CourtCall (888-88-COURT ). However, when a Petition for Writ of Habeas Corpus Re: Quarantine Detention is brought and an Order for Writ Issuance is granted, Petitioner shall directly call the department where the case is assigned. The department direct line shall be indicated on the face of the Writ of Habeas Corpus Re: Quarantine Detention which is issued by the Clerk of the Court.
(3) Telephonic appearances are not permitted for initial conservatorship or guardianship appointments, petitions for temporary restraining orders (including elder abuse cases), or petitions to confirm the sale of real property.
In all matters where no objections are on file, the petitioning party must submit a proposed order not later than four court days in advance of the scheduled hearing date or the matter may be ordered off calendar.
Objections to any petition may be made orally at the noticed hearing. Unless the Probate Code requires written objections, the Court may hear the oral objections at the noticed hearing, or the Court may require the objections to be in writing. The Court would prefer that objections be filed at least two court days prior to the hearing date. If written objections are required by statute or by the Court, the Court will continue the hearing to allow the objecting party time to file and serve such written objections. The Court may in its discretion set dates for the filing of written objections and responses thereto. Failure to file and serve such written objections before the date set may be grounds for overruling the objections. The following are local forms which may be used to object to the matters indicated:
(1) Objection to Petition to Remove Conservator (attached local form PB-4035 )
(2) Objection to Petition to Remove Guardian (attached local form PB-4036 )
(3) Objection to Petition to Remove Personal Representative (attached local form PB-4037 )
(4) Objection to Petition to Remove Trustee (attached local form PB-4038 )
(5) Objection to Petition to Terminate Guardianship (attached local form PB-4039 )
(6) Objection to Guardianship (attached local form PB-4043 )
(7) Objection (attached local form PB-4045 )
The Probate Early Settlement Conference Program is available to parties who stipulate, using the Probate ADR Stipulation and Order Form (see attached form PB-4063 ), to have a neutral conduct a settlement conference in their case. The program is governed by the following rules:
(1) SELECTION OF NEUTRAL
All parties and counsel must agree upon the neutral, or the Court will select the neutral. The parties may, but are not required to, select the neutral from the Court’s list of program neutrals available from the Court’s Probate web page. If parties want to select their own neutral, the Clerk’s Office will hold the stipulation or order to Probate Early Settlement Conference for 10 court days from the date of referral, to allow parties to select their neutral. If the Court does not receive a selection from parties within 10 court days, the Court will assign the case to the next available neutral. If the parties allow the Court to select the neutral, the Court will assign a neutral from the Court’s list. The Court has not screened neutrals for training or experience and makes no warranty regarding their ability.
(2) STIPULATION AND CMC
All parties must complete the Probate ADR Stipulation and Order form (attached local form PB-4063 ) and must file the form in the Clerk’s Office.
(3) LOCATION OF HEARING
Probate Early Settlement Conference sessions will be held in the department of the assigned probate judge or at a location designated by the assigned probate judge.
(4) CONFERENCES NOT CONFIDENTIAL
A settlement conference conducted under the Probate Early Settlement Conference Program is conducted under CRC 3.1380. It is not a mediation, as defined in Evidence Code § 1115. There is no provision for confidentiality of communication, except as provided in Evidence Code § 1152(a).
(5) ATTENDANCE AND AUTHORITY
Parties and counsel must comply with CRC 3.1380(b), unless the neutral excuses compliance.
(6) NOTIFICATION OF SETTLEMENT
Following settlement of the case, counsel must promptly notify the Court.
Any grievance regarding a neutral will be handled pursuant to Local Civil Rule 2G.
(1) SUBMISSION ON THE PLEADINGS
At-issue, contested matters that are ready for hearing and that parties will submit on the pleadings without oral argument may be taken under submission or ruled upon at the scheduled hearing.
At-issue, contested matters that are ready for hearing and for which the total hearing time does not exceed one day may be heard in the Probate Department on the date noticed or a continued hearing date. The setting or assignment of all other contested matters including the assignment of cases to the master trial calendar will be made by the Probate Judge.
(3) TRIAL BRIEFS
If a party elects to file a trial brief relating to an evidentiary hearing set in a probate matter, the trial brief must be filed and served no later than seven court days before the scheduled hearing. Any responsive briefs must be filed and served no later than three court days before the scheduled hearing. Courtesy copies of any trial briefs and responsive briefs shall be delivered to the courtroom of the judicial officer hearing the matter on the date of filing. Attaching copies of previously filed documents as exhibits to trial briefs is discouraged.
Approved matters are those that have been reviewed and found satisfactory before the date set for hearing. Personal appearance by parties is not required on approved matters. A list of approved matters is posted at the door of the probate courtroom at the time of the hearing. Interested parties may call (408) 882-2100 x2650, to hear a recording with a list of pre-approved matters for the following day's calendar, or may consult the preapproved list on this website. Approved matters for which objections are made at the hearing may be continued. There are no pre-approved matters for the Tuesday guardianship and conservatorship calendars.
All approved probate orders will be signed immediately after the calling of the probate calendar. Parties may pick up their orders at that time.
On the call of the calendar, a matter may be continued for such period as the Court in its sole discretion will determine if a party personally appears on the hearing date and requests a continuance. The Court discourages repeated continuances of a matter.
A continuance may be granted without the need for a court appearance only if all parties agree. The request may be made by a telephone call to the Probate Examiner's Office. The Court may deny any continuance request.
If in any matter a party believes a conference with the Probate Examiner or the Probate Staff Attorney would be appropriate, an advance appointment should be made with the Probate Examiner's office (408-882-2100) x2668 .
Any attorney wishing to withdraw from a proceeding under the Probate Code as attorney of record whose client will not consent to sign a substitution of attorney may file a motion or petition seeking such relief and must follow the procedures and use the Judicial Council forms specified in CRC 3.1362.
The court does not favor the substitution of conservator, executor, administrator, guardian or trustee in propria persona in lieu of attorney of record, unless it is clearly shown that the person acting in propria persona is able to perform the necessary duties and file necessary documents without legal representation.
(1) Procedure in Probate Court
a. Subject to available resources, the Family, Juvenile, Civil and Probate Courts shall examine appropriate available databases for existing restraining or protective orders involving the same restrained and protected parties before issuing permanent CLETS Civil Restraining Orders. In the event that this information is not available to the judicial officer, inquiry shall be made of the parties before issuing permanent CLETS Civil Restraining Orders.
(b) Any order of the Family, Juvenile, or Probate Court that permits contact between a defendant/restrained person subject to either CLETS Civil Restraining Orders or Criminal Protective Orders and his or her children, shall contain specific language setting forth the time, day, place, and manner of the transfer of the children, including the safe exchange of the children, in accordance with §3100 of the Family Code. Safety of all parties shall be the Court’s paramount concern. The Court or a Court-related agency may recommend safe and specific contact with the children and direct the defendant/restrained person and/or the victim/protected person to the process for modification of protective orders.
c. In cases where the Court allows for property removal as an exception to the restraining order, Family Attachment FM-1102 (Other Order-Property Removal) may be used as an attachment to the Temporary Restraining Order (Judicial Council form EA-110) and Restraining Order After Hearing (Judicial Council form EA-130 ).
(2) Modification of Criminal Protective Orders
a. Any Court responsible for issuing custody or visitation orders involving minor children of a defendant/restrained person subject to a Criminal Protective Order may modify the Criminal Protective Order if all of the following circumstances are satisfied:
i. Both the defendant/restrained person and the victim/protected person are subject to the jurisdiction of the Family, Juvenile, or Probate Court, and both parties are present before the Court.
ii. The defendant/restrained person has been convicted of or is currently charged with a domestic violence related offense in Santa Clara County and a Criminal Protective Order has issued and is still in effect.
iii. The Family, Juvenile, or Probate Court identifies a Criminal Protective Order issued against the defendant, which is inconsistent with a proposed Family, Juvenile, or Probate Court Order, such that the Family, Juvenile, or Probate Order is/will be more restrictive than the Criminal Protective Order or there is a proposed custody or visitation order which requires recognition in the Criminal Protective Order (Boxes 12 or 13 or both on the Criminal Protective Order form).
iv. The defendant signs an appropriate waiver of rights form or enters a waiver of rights on the record.
v. Both the victim/protected person and the defendant/ restrained person agree that the Criminal Protective Order may be modified to a more restrictive order or to add Box 12 or 13 or both to the Criminal Protective Order.
b. The Family, Juvenile or Probate Court may not modify existing Criminal Protective Orders to be less restrictive. Only if children are not listed as protected persons, a modification of the Criminal Protective Order to check Box 12 or 13 or both shall not be considered less restrictive.
c. The Family, Juvenile, or Probate Court may on its own motion or at the request of a defendant, protected person or other interested party, calendar a hearing before the Criminal Court on the issue of whether a Criminal Protective Order should be modified. The Family, Juvenile, or Probate Court shall provide the Criminal Court with copies of existing or proposed Orders relating to the matter. Notice of the hearing will be provided to all counsel and parties.
(1) Social Security Numbers
If an individual's social security number must be included in a pleading or other court form, only the last four digits of the social security number should be used. If the social security number is required by the Court Investigator to complete the investigation, the number shall be supplied only to the Court Investigator, absent a court order.
(2) Financial Account Numbers
If financial account numbers are relevant, only the last four digits of such numbers should be used.
Court Investigator Reports are confidential documents and are not to be attached, in whole or in part, to any pleadings or other documents to be filed with the Court, other than by the Court Investigator.