I. INTRODUCTION

The burden of proof and who has it can often mean the difference between success or failure at trial. For any civil or probate proceedings—including contests to will or trusts—the default burden of proof is preponderance of the evidence. Analyzing the decisional law to determine if the default burden of proof has been modified to require clear and convincing evidence is a bit more convoluted. Several noteworthy Court of Appeal decisions purportedly stand for the proposition that clear and convincing evidence is required, but a detailed analysis of these cases compels a different conclusion. Instead of requiring clear and convincing evidence, an early California Supreme Court case supports the conclusion that the analysis of undue influence is meant to be similar to the sliding-scale approach under a preponderance of the evidence standard used in determining the requisite level of capacity needed to execute a trust amendment. Continue Reading Undue Influence: Pressure Brought to Bear Directly on the Burden of Proof

I. INTRODUCTION

Form interrogatories can be a cost-effective and simple discovery tool in many types of litigation. However, like any tool, they must be utilized correctly to obtain their fullest potential, and improper use can result in frustration, delay, and harm. While the Judicial Council of California has tailored form interrogatories to family law, unlawful detainer, employment law, and construction litigation, there currently exists no custom series specifically for trusts and estates matters. This leaves the “Form Interrogatories—General” (hereafter “Form Interrogatories” or “Form Interrogatory”), with its various sections related to personal injury and breach of contract, as a barebones discovery instrument for disputes involving estates. Nonetheless, it is a bad workman who blames his tools, so this article presents how attorneys can better utilize and respond to Form Interrogatories in trusts and estates litigation.

II. FORM INTERROGATORIES ARE NOT OBJECTION-PROOF

Whether an attorney is propounding or responding to Form Interrogatories, it is important to understand that Form Interrogatories are not objection-proof. The instructions contained within Form Interrogatories even state that the questions do not affect an answering party’s right to assert any privilege or make any objection.[1] Accordingly, an attorney may be justified in objecting to a Form Interrogatory.
As an example, both the California Supreme Court and the California Third District Court of Appeals have recognized valid work product objections within the Form Interrogatories’ 12.0 series.[2] Interrogatory 12.2 seeks the contact information and interview date for any person “YOU OR ANYONE ACTING ON YOUR BEHALF” (defined to include the responding party’s attorney) interviewed concerning the incident. The Third District Court of Appeals held that compelled production of a list of witnesses interviewed by the opposing counsel invades the work product protections because requiring disclosure of such information would necessarily reflect the counsel’s evaluation of the case by revealing which persons with knowledge of the incident counsel deemed important enough to interview.[3] Thus, interrogatory 12.2 is improper as it relates to anyone the responding party’s attorney interviewed.

Likewise, Form Interrogatory 12.3 may also be subject to work product protections. Form Interrogatory 12.3 asks if “YOU OR ANYONE ACTING ON YOUR BEHALF” (defined to include the responding party’s attorney) has obtained a recorded statement concerning the incident.


1.) Judicial Council of Cal., Form Interrogatories-General, section 1, subd. (c).

2.) Coito v. Superior Court (2012) 54 Cal.4th 480, 499; Nacht & Lewis Architects, Inc., v. Superior Court (1996) 47 Cal.App.4th  214.

3.) Nacht & Lewis Architects, Inc., v. Superior Court, supra, 47 Cal.App.4th at p. 217.

If so, the responding party is directed to provide the contact information of the person interviewed and the date of the statement. The California Supreme Court held that a witness statement obtained through an attorney-directed interview is entitled to at least qualified work product protection. [4] As such, if the responding party has a statement from an attorney-directed interview, he or she should so indicate, but is not required to initially disclose the details of the statement. The party seeking disclosure has the burden of establishing that denial of the disclosure will unfairly prejudice his or her case. [5] If a motion to compel is filed, the trial court is to do an in camera inspection to determine if the statement constitutes work product as a reflection of the attorney’s impressions, conclusions, opinions, or legal theories. [6]

To better avoid these objections, a party could propound a special interrogatory that defines “YOU OR ANYONE ACTING ON YOUR BEHALF” to exclude legal representatives. Alternatively, the propounding party could limit the application of Form Interrogatories 12.2 and 12.3 to exclude the responding party’s attorney either within the definition of “YOU OR ANYONE ON YOUR BEHALF,” or through meet and confer efforts. Notably, Form Interrogatory 12.1 already requires disclosure of the contact information of persons who witnessed the incident or have knowledge of the incident. As such, an attorney can conduct his or her own interviews without having to gather information through Form Interrogatories 12.2 and 12.3.

Another potentially objectionable Form Interrogatory is number 2.6, which seeks the responding party’s current and past employment details. The California Constitution establishes a resident’s right to informational privacy, and employment details have been found to be protected privacy interests. [7] In determining whether a privacy objection is warranted, a trial court is to first consider whether the privacy claimant has a legally protected privacy interest, a reasonable expectation of privacy under the specific circumstances, and if the invasion of the privacy interest is serious. [8] If those three criteria are met, the court is to balance the privacy interest against other competing or countervailing interests like whether the information is essential to the fair resolution of the lawsuit. [9] In trusts and estates matters, employment details may have little relevance, especially current details when the dispute surrounds events that happened to other people years ago (e.g., a trust contest). An attorney advising a responding party who wishes to keep employment details private may be justified in asserting a privacy objection, but could still provide generic details about the client’s employment if doing so removes the client’s concern and pacifies the propounding party’s need to explore whether the information is relevant. While the need for such employment details is highly case specific, a suitable alternative to a discovery dispute over a Form Interrogatory is asking employment-related questions during a deposition. At a deposition, the asking party is more likely to receive a direct response, even if an objection is asserted for the record.


4.) Coito v. Superior Court, supra, 54 Cal.4th at p. 499.

5.)  Ibid.

6.) Ibid.

7.) Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1423-1427.

8.) Id. at p. 1423.

9.) Id. at p. 1424.

While Form Interrogatories are not infallible, an attorney should still be cautious about asserting objections. For example, it would be improper to state that a Form Interrogatory is objectionable on grounds that it contains subparts because that objection only applies to specially prepared interrogatories.  [10] Also, an attorney should be thoughtful about objecting to Form Interrogatory 15.1 on the basis that it seeks protected work product. A common argument is that since Form Interrogatory 15.1 seeks information about a respondent’s denials of material allegations in the complaint, the attorney for the responding party has to divulge his or her impressions and legal opinions as to which denied allegations are material in order to assist the client in answering the interrogatory. Notably, there is no reported case law that recognizes this argument or its merit. On the other hand, there are cases that do recognize the legitimacy, in general, of Form Interrogatory 15.1. [11] As such, an attorney should be cautious about making a work product objection to Form Interrogatory 15.1 since the attorney has the burden of justifying his or her objection, and the trial court has the ability to sanction the attorney should the objection be overruled in a motion to compel. [12] If a responding party asserts such an objection, a practical solution is to remove the need for the opposing counsel to identify which denied allegations are material. To do this, the attorney for the propounding party can supply the responding party an exact list of each denied allegation during the meet and confer process that should be included in the response.

III. CUSTOM DEFINE “INCIDENT” TO UTILIZE MORE FORM INTERROGATORIES AND TAILOR THE RESPONSE TO THE DISPUTED ISSUE

Rather than adopting the generic definition of “INCIDENT,” create a custom definition to better avoid objections, garner more specific responses, and utilize more of the Form Interrogatories. In the Form Interrogatories’ preface, the propounding party may check a box that defines “INCIDENT” to mean “the circumstances and events surrounding the alleged accident, injury, or other occurrence or breach of contract giving rise to this action or proceeding.” Alternatively, the propounding party may insert a custom definition. Because probate related litigation rarely concerns an accident, injury, or breach of contract, adopting the generic definition effectively defines “INCIDENT” as, “the circumstances and events surrounding the alleged occurrence giving rise to this action or proceeding.” Such a non-specific definition could incite an objection based on vagueness, ambiguity, or uncertainty. For example, Form Interrogatory 12.1, subsection (a) seeks contact information for each individual who witnessed the “INCIDENT.” If the petition contains many causes of action or details events that span a period of years, the responding party may be justified in objecting if the generic definition of “INCIDENT” is selected. Since 57 of the Form Interrogatories incorporate “INCIDENT” as a defined term, an objectionable definition may affect many of the interrogatories propounded.


10.) Code Civ. Proc., section 2030.060, subd. (f).

11.) See, e.g., Liberty Mutual Fire Ins. Co. v. LcL Administrators, Inc. (2008) 163 Cal.App.4th 1093, 1096; Saxena v. Goffney (2008) 159 Cal.App.4th 316, 331.

12.) Code Civ. Proc., section 2030.300, subd. (d); Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220.

The best approach is to mold the definition of “INCIDENT” to the issues in dispute. For example, if the dispute concerns objections to an accounting, the proponent of the account could define “INCIDENT” to mean the transactions listed in the account, and propound Form Interrogatories 9.1 and 9.2. This would require the objector to identify the specific account transactions in dispute, the damages claimed as a result of the disputed transactions, and any documents that support the existence or amount of the claimed damages. Similarly, if the lawsuit concerns the contest of a trust amendment, a propounding party could define “INCIDENT” as the actual signing of the disputed document. With such a custom definition, the responding party will have to identify any medication taken by the settlor within 24 hours of the document’s execution (Form Interrogatory 2.13); the date, time, and place of the document’s execution (Form Interrogatory 20.1); the route taken on the trip to sign the amendment (Form Interrogatory 20.4); and the contact information of each person who witnessed the signing or the events immediately before or after the document’s execution (Form Interrogatory 12.1). These facts are often highly relevant to a trust contest, especially when the basis is undue influence or lack of capacity. Obtaining this information through a custom definition of the term “INCIDENT” also allows a party to gather this information without utilizing any of the available 35 special interrogatories.

IV. PROPOUND FORM INTERROGATORIES EARLY AND OFTEN

One of the best advantages of Form Interrogatories is that a set can be drafted quickly and served early in the litigation. In proceedings under Probate Code section 17200 (e.g., trust contest, removal petition, petition for instruction), a petitioner may serve Form Interrogatories upon the trustee just 10 days after the notice of hearing is mail served. [13] Similarly, a respondent in such an action may begin discovery immediately. [14] Given that in many counties the initial hearing on a petition occurs sometimes two to three months after the petition is filed, proactive litigants can attend the hearing with the benefit of already completing some discovery. This could be highly advantageous in certain disputes. For example, one of the factors for removal of a trustee or personal representative, or determining whether a person is competent to serve as a personal representative, is whether the person is insolvent or similarly not qualified. [15] The propounding party could define “INCIDENT” as the date the person began acting in the fiduciary capacity, and by checking Form Interrogatories 2.5, 2.6, and 2.8, obtain the responding party’s residential address for the last five years (useful if the person is transient or has a criminal history), employment details for the last five years (a factor related to insolvency), and information about felony convictions. That information (or lack thereof if no response is received) could persuade the court at the initial hearing to exercise its discretion under Probate Code section 17206 and immediately suspend or remove the fiduciary. Similarly, a trust contest often contains a preliminary request to prohibit or curtail a trustee’s powers to sell property, pay certain expenses like legal fees, or make distributions. Utilizing Form Interrogatory 17.1 and a set of requests for admissions, the trustee could essentially obtain the petitioner’s current evidentiary basis for invalidating the document. If the petitioner lacks an initial offer of proof, the court may be inclined to deny preliminary orders that limit a trustee’s powers.


13.) Prob. Code, section 17201.1.

14.) Ibid.; Code Civ. Proc., section 2030.020.

15.) Prob. Code, section 15642, subd. (b)(2); Probate Code, section 8402 subd. (a)(3).

Conversely, a petitioner can obtain a lot of information early from the respondent by propounding Form Interrogatory 15.1. For each material allegation a respondent denies in the petition, Form Interrogatory 15.1 requires the responding party to provide all of the facts upon which the denial is made, the contact information for each person who has knowledge of those facts, and the identity of all documents and tangible things that support the denial. Thus, in a trust contest, the respondent would have to provide all known evidence for why he or she claims the trust is valid. Similarly, in a Heggstad or Probate Code section 850 petition, the respondent would have to provide this information to support why he or she is the rightful owner of the disputed property. Form Interrogatory 15.1 also requires the same information (facts, witnesses, documents) for each affirmative defense asserted by a respondent. Therefore, a full and complete response to Form Interrogatory 15.1 gives the petitioner a general framework of the opposition’s evidence. Consequently, the attorney will have a list of potential adverse witnesses, and through a simple production request can obtain all of the documents relied on by the respondent.

It is also helpful to propound interrogatories often. In trusts and estates litigation, it may take a party several months to gather facts not initially known at the beginning of a lawsuit. This is because parties often lack personal knowledge of the events, or are unable to obtain a decedent’s bank statements or medical records without a subpoena. Rather than sending a new set of Form Interrogatories, a party may propound supplemental interrogatories to elicit later acquired information bearing on all answers previously made by a party in a response to Form Interrogatories. [16] A supplemental request may be propounded twice before the initial setting of a trial date, and once after the initial setting of trial. [17] Therefore, a simple supplemental request asking for any later acquired information pertaining to previously answered Form Interrogatories may be obtained several times before trial.

V. CONCLUSION

While Form Interrogatories in their current state do leave much to be desired for trusts and estates litigators, like any tool, proper use will lead to better results. Hopefully, the Judicial Council will either develop a custom set of form interrogatories for estate related litigation or include a supplemental section within the Form Interrogatories. In the meantime, an attorney would be wise to remember that Form Interrogatories are not objection-proof, that it is best to create a custom definition of the term “INCIDENT” to garner more specific responses, and to proactively propound Form Interrogatories early and often to better prepare for trial.


16.) Code Civ. Proc., section 2030.070.

17.) Code Civ. Proc., section 2030.070, subd. (b).

I. INTRODUCTION

Determining venue for a proceeding concerning the internal affairs of a trust is ordinarily fairly straightforward: the county in which the principal place of administration of the trust is located. The result arises from a standard application of the mixed venue rule, by which the special venue provision for trust proceedings articulated in Probate Code section 17005 overrides the general venue rule in Code of Civil Procedure section 395, subdivision (a). In many breach of trust litigation cases, this is where the analysis ends. For others, though, the analysis must continue. More particularly, when multiple causes of action are plead, two or more of which are governed by concurrently-applicable and contradictory venue statutes, a determination regarding venue must be considered with the mixed action rule. Although the mixed action rule is ordinarily dispositive, it is not without exception. While no California cases have analyzed the special venue statute for trust proceedings in the context of the mixed action rule, a strong case can be made that the mixed action rule should be subordinate to Probate Code section 17005.

II. VENUE IN CIVIL ACTIONS GENERALLY

Perhaps the first strategic decision in litigating a case is choosing the court in which to file the action. In making this decision, although jurisdiction is statewide, a plaintiff’s choice of county for the trial of the action is fairly limited due to the venue rules, which geographically narrow the location of the trial of the action. In general, a defendant’s right to have an action tried in the county of his or her residence “is an ancient and valuable right, safeguarded by statute and supported by a long line of decisions.” This ancient and valuable right is codified in Code of Civil Procedure section 395. Here, the “general venue rule” provides that, “except as otherwise provided by law,” the superior court in the county where the defendant resides at the commencement of the action is the proper court for the trial of the action.

III. THE MIXED VENUE RULE

When two inconsistent venue provisions appear to be concurrently applicable in the same case—most commonly involving the general venue rule and a “special” venue provision—the special venue provision overrides the general venue rule. This result from the statutory construction of the introductory clause to the general venue rule: “Except as otherwise provided by law . . . .” In this way, the general venue rule is subordinating—applied only when no other venue provision applies.

The first case to construe the “[e]xcept as otherwise provided by law” provision was Delgado v. Superior Court. In this case, the plaintiff initiated legal proceedings against Yolo County, a Sacramento automobile dealership, and an automobile manufacturer for damages resulting from a collision with a Yolo County sheriff’s officer that left the plaintiff with serious injuries and which caused the death of plaintiff’s wife. The lawsuit was initially filed in Sacramento County, where the automobile dealership had its principal place of business (e.g., where the business resides).

Prior to filing an answer, Yolo County filed a motion to transfer the proceedings to Yolo County under the special venue provision set forth in Code of Civil Procedure section 394. In pertinent part, section 394 provides that any action against a county for an injury occurring within the county caused by the alleged negligence of the county or its agents or employees must be tried in such county. Importantly, had Yolo County been the sole defendant was is clear that venue was proper only in Yolo County. Similarly, had the automobile dealership been the sole defendant it was clear that venue was proper only in Sacramento County (the county of “residence” for the automobile dealership). The issue, then, discussed by the Court of Appeal was whether the general venue rule permitting venue in Sacramento County was subordinate to the special venue provision in section 394 requiring transfer to Yolo County—making it “one of those troublesome ‘mixed venue’ cases, in which two inconsistent venue provisions appear to be concurrently applicable to the same case. (citation omitted.)”

In reaching its decision upholding the trial court’s order transferring the proceedings to Yolo County, the Court Appeal found great significance in the 1970 amendment to Code of Civil Procedure section 395. Prior to the 1970 amendment, the introductory phrase of section 395 read, “In all other cases, except as in this section otherwise provided, . . . the county in which defendants, or some of them, reside at the commencement of the action, is the proper county for the trial of the action.” With this introductory language, the controlling authority at the time held that the general venue rule trumped, or was, at least, on par with, the special venue provision of section 394. The 1970 amendment to section 395, though, replaced the introductory language of section 395 with, “Except as otherwise provided by law . . . the county in which the defendants or some of them reside at the commencement of the action is the proper county for the trial of the action.” With this change, the Delgado Court held that the new amendment to the general venue rule “is a true subordinating declaration” and that the general venue rule is to be applied only when there is no other applicable venue provision.

IV. MIXED ACTIONS

While Delgado established a rule for resolving conflicts between contradictory venue provisions applicable to the same cause of action—that is, mixed venue cases—Delgado and its progeny did not address the scenario where a plaintiff alleges two or more causes of action that are each governed by a different venue statute—that is, mixed actions. The law regarding venue in mixed actions is well-settled: “When several causes of action are alleged in a complaint, a motion for change of venue must be granted on all causes if defendant is entitled to a change on any one.” Stated differently, “Where the defendant is entitled to a change of venue as to one cause of action, the entire action is transferred.” While this result may seem harsh for a plaintiff who, for the purposes of judicial economy, brings multiple causes of action, perhaps against multiple defendants, the California Supreme court has stated—as early as 1889—“It is the plaintiff’s own doing if the complaint be so drawn. He cannot deprive the defendant of his right to a change of venue by the addition of something to the complaint. If this were not the rule, it would be very easy for a plaintiff to defeat the defendant’s right in the matter. All that plaintiff would have to do would be to add another cause of action to his complaint.”

V. A SPECIAL VENUE RULE MAY TRUMP THE MIXED ACTION RULE

Lest the mixed action rule be too easy to apply, it is not without exception. In Brown v. Superior Court, the California Supreme Court took up the issue of whether, under certain circumstances, a special venue statute overrides the mixed action rule.

In Brown, the plaintiffs were employed on a highway construction project in Alameda County. As alleged, the defendants discriminated against and ultimately discharged two the plaintiffs because they were black and another plaintiff, the foreman, was discharged because he refused to go along with the defendants’ discriminatory practices. In response, the plaintiffs filed a complaint in the Alameda County Superior Court seeking damages for intentional infliction of emotion distress, wrongful discharge, and violation of the plaintiffs’ federal civil rights. All causes of action were based on the same factual allegations.

Approximately one year after first filing their complaint but before it had been served, the plaintiffs amended their complaint to add a cause of action under California’s Fair Employment and Housing Action (“FEHA”) and to delete the federal civil rights claim. The addition of the FEHA claim was initiated by a letter that the plaintiffs received from the California Department of Fair Employment and Housing, which informed the plaintiffs of their right to sue under FEHA. The FEHA claim was based on the same factual allegations regarding liability and damages as the emotional distress and wrongful discharge claims.

Prior to answering, the defendants moved to transfer the venue of the action to Sacramento. The defendants’ request for a change of venue was based on the fact that three individual defendants resided there, the corporate defendants’ principal places of business were located there, and none of the defendants resided in Alameda County. Without stating the legal basis for its decision, the Alameda County Superior Court granted the motion and ordered the case transferred to Sacramento County. The plaintiffs then sought a writ of mandate to compel the Alameda County Superior Court to vacate its order.

In considering the matter, the California Supreme Court first turned to analyzing the interplay between the general venue rule, the special venue statute under FEHA, and the mixed venue rule. Here, the Court noted that it was undisputed that had the plaintiffs only alleged FEHA violations the FEHA special venue statute would govern, making venue proper in Alameda County. As for the emotion distress and wrongful discharge claims, those would normally be governed by the general venue rule. Neither party disputed the fact that the FEHA special venue statute constitutes an exception to the general venue rule, consistent with the mixed venue rule. Instead, the question was whether the FEHA special venue statute controls both the FEHA and non-FEHA claims.

To resolve this question, the Court resorted to the standard rules of statutory construction: “The fundamental rule of statutory construction is that the court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citations.] Moreover, ‘every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect.’ [Citation.]” To this end, a construction resulting in statutory language surplusage “‘is to be avoided.’” Turning to the language of the FEHA venue statute, it provides in pertinent part that “the person claiming to be aggrieved may bring a civil action under this part against the person, employer, labor organization or employment agency named in the verified complaint . . . . Such an action may be brought in any county in the state in which the unlawful practice is alleged to have been committed . . . .” (Italics added.) The Court determined that the phrase “a civil action under this part” is reasonably susceptible to two constructions: (1) only FEHA claims may be pursued in the county where the discriminatory practice allegedly occurred, and (2) any civil action that contains an FEHA claim may be pursued in the county where the discriminatory practice allegedly occurred.

Because both constructions are reasonable, the Court turned to the purpose of FEHA in order to ascertain the Legislature’s intent. The express purpose of the FEHA is “to provide effective remedies which will eliminate such discriminatory practices.” The Court then examined the practical implications and realities associated with litigating FEHA claims. First, the Court pointed out, venue considerations have a substantial impact on an attorney’s decision to undertake representation, and an attorney is more likely to represent a client if venue is available in a location that facilitates prosecution of the action and minimizes travel and other costs, including the costs of securing the necessary witnesses for trial. Second, employment discrimination cases, by their very nature, give rise to multiple causes of action based on the same set of facts. Given this, “[a] responsible attorney . . . must plead a variety of statutory, tort and contract causes of action in order to fully protect the interests of his or her client.” Third, the Court found that if the FEHA venue statute is construed to apply only to cases involving FEHA causes of action, the plaintiff would be faced with a Hobson’s choice: “If [plaintiffs] wished to avail themselves of the FEHA venue rules, they would be forced to abandon their non-FEHA claims or to try those claims in a separate action in a different county than that in which the FEHA claims were tried. Such a result would fly in the face of judicial economy. On the other hand, if FEHA claimants wished to have the entire action tried in one county, they would be forced to accede to the defendant’s chosen place of venue. This scenario would render the FEHA’s special venue rules mere surplusage. Surely, the Legislature never intended either result.”

In the end, the court held that the FEHA venue statute controls over the general venue statute, consistent with the mixed venue rule. But the Court did not stop there. The Court went on to state that, because of the important public policy and practical considerations behind the FEHA venue statute, the FEHA venue statute controlled even in mixed actions when FEHA claims are joined with non-FEHA claims arising from the same factual allegations. As the Court put it, “A contrary conclusion would render the special venue provisions of the FEHA mere surplusage and frustrate the intent of the Legislature. Although the mixed action rule recognizes a preference for trial in the county of a defendant’s residence, that preference is outweighed by the strong countervailing policy of the FEHA which favors a plaintiff’s choice of venue.”

VI. VENUE IN TRUST PROCEEDINGS

In trust proceedings, the Probate Code provides its own special venue provision. Here, the proper venue for the commencement of a trust proceedings depends, first, on the type of trust involved. For a living trust, the proper county for the commencement of a trust proceeding is the county where the principal place of administration of the trust is located. For a testamentary trust, the proper county for the commencement of a trust proceeding is either the county where the decedent’s estate is administered or the county where the principal place of administration of the trust is located. The principal place of administration of the trust is determined by referring to Probate Code section 17200:

(a) The principal place of administration of the trust is the usual place where the day-to-day activity of the trust is carried on by the trustee or its representative who is primarily responsible for the administration of the trust.

(b) If the principal place of administration of the trust cannot be determined under subdivision (a), it shall be determined as follows:

(1) If the trust has a single trustee, the principal place of administration of the trust is the trustee’s residence or usual place of business.

(2) If the trust has more than one trustee, the principal place of administration of the trust is the residence or usual place of business of any of the cotrustees as agreed upon by them or, if not, the residence or usual place of business of any of the cotrustees.

In practice, the principal place of administration is ordinarily the residence or usual place of business of the trustee or the usual place of business of the attorney for the trustee. Taken together, the proper county for the commencement of a trust proceeding will ordinarily be the county wherein either the trustee resides or the attorney for the trustee maintains his or her office.

VII. VENUE IN BREACH OF TRUST LITIGATION

In pure trust proceedings—proceeding concerning only redress from breach of trust claims—ascertaining the proper venue involves a relatively straightforward analysis. In light of Delgado and the mixed venue rule, it is clear that the general venue rule set forth in Code of Civil Procedure section 395, subdivision (a), is subordinate to the special venue provisions found in Probate Code section 17005. This result is confirmed by Probate Code section 1000, which provides that the rules applicable to civil actions apply to, and constitute the rules of practice in, proceedings under the Probate Code only if the Probate Code itself does not provide an applicable rule. Accordingly, in order to determine venue in breach of trust litigation, even if joined with other trust claims, a petitioner simply needs to identify the principal place of administration of the trust. Oftentimes, if the trust is properly administered, the identification of the principal place of administration is set forth in the notification provided by the trustee pursuant to Probate Code, section 16061.7.

The issue of venue potentially becomes much more complicated, however, when a petition includes additional causes of action or requests for relief. In more complex breach of trust litigation, it is not uncommon for the petition to include—in addition to a request for accounting, removal, and redress from breach of trust (all trust claims)—such additional causes of action as financial elder abuse, transfer of trust property (i.e., an 850 petition), quiet title, rescission, fraud, conversion, or tortious interference with an expectant inheritance. The addition of these non-trust claims implicate multiple venue provisions. For example, the request for accounting, removal, and redress from breach of trust will be governed by Probate Code section 17005. If the 850 petition is for the recovery of real property, it and the quiet title claim will be governed by Code of Civil Procedure, section 392, subdivision (a). Since the trustee-respondent is no doubt being sued in both his or her fiduciary and individual capacities, Code of Civil Procedure section 395. applies to the remaining claims against the respondent in his or her fiduciary capacity, and Code of Civil Procedure section 395 applies to the remaining claims against the respondent in his or her individual capacity.

With the addition of these non-trust claims, the petition now has multiple causes of action, two or more of which are governed by concurrently-applicable and contradictory venue statutes. Accordingly, the determination of venue must now be made with consideration to the mixed action rule. As such, if a defendant is entitled to a change of venue on any cause of action, the entire action must be transferred. In an effort to avoid having the entire action transferred to another county, it is worth considering—and arguing—that the holding in Brown should be extended to breach of trust litigation.

VIII. DOES THE SPECIAL VENUE STATUTE FOR TRUST PROCEEDINGS GOVERN OTHER CAUSES OF ACTION STEMMING FROM THE SAME FACTS?

Remember, Brown stands for the proposition that a special venue statute may govern all causes of action and overrule the mixed action rule if applying the mixed action rule has the effect of undermining the legislative intent behind the special venue statute or results in the special venue statute being reduced mere surplusage. Neither the California Supreme court nor the Courts of Appeal have issued any decisions regarding whether the special trust proceeding venue statute also governs non-trust claims stemming from the same set of facts. Notwithstanding, several notable similarities exist between the basis for the Brown decision and breach of trust litigation that support extending Brown to breach of trust litigation.

In arguing that Probate Code section 17005 should be applied to non-trust claims that arise from the same facts as the trust claims, the Legislature’s intent must be ascertained so as to effectuate the purpose of the law, and the statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect. Here, a construction rendering statutory language surplusage is to be avoided. To determine the Legislatures intent, we must look first to the words of the statute.

A. Probate Code Section 17005 is Subject to Two Reasonable Constructions

Probate Code section 17005, subdivision (a), provides in relevant part, “The proper county for commencement of a proceeding pursuant to this division is . . . the county where the principal place of administration of the trust is located.” As already discussed, the principal place of administration is determined pursuant to the guidelines set forth in Probate Code section 17002. Here, “this division” refers to Division 9 of the Probate Code, or sections 15000 through 19403. Most proceedings commenced pursuant to Division 9 are brought pursuant to Probate Code section 17200. In pertinent part, Section 17200 empowers a trustee or beneficiary of a trust to petition the court concerning the internal affairs of the trust. The statute goes on to provide a non-exclusive list of purposes that are considered to concern the internal affairs of the trust. As relevant to breach of trust litigation, the internal affairs of the trust include proceedings to compel a trustee to account to the beneficiary, removing a trustee, and “[c]ompelling redress of a breach of trust by any available remedy.” Additionally, Probate Code section 16420 (which is also part of Division 9 of the Probate Code) expressly deals with actions against a trustee for breach of trust. This section includes no less than nine available remedies, including removal, the imposition of a constructive trust, and the payment of money. The statute goes on to provide, “The provision of remedies for breach of trust in subdivision (a) does not prevent resort to any other appropriate remedy provided by statute or common law.”

The phrase “by any available remedy” in Probate Code section 17200, subdivision (b), along with the additional non-exclusive language of Probate Code section 16420, leads to the conclusion that “a proceeding pursuant to this division”—as used in the special venue statute applicable to trust proceedings—is reasonably susceptible to two constructions: (1) only the expressly stated remedies in Probate Code section 16420, subdivision (a), and purposes in Probate Code section 17200, subdivision (b), pay be pursued in the county where the principal place of administration of the trust is located, and (2) any action that contains a request for relief from breach of trust, regardless of the remedies sought, may be pursued in the county where the principal place of administration of the trust is located.

B. The Purpose Behind the Special Venue Statute

Because both constructions are reasonable, the analysis must turn to the purpose of the trust proceeding special venue statute in order to ascertain the Legislature’s intent. Unlike FEHA, trust proceedings are not aimed at protecting fundamental or civil rights. As such, Division 9 of the Probate Code does not contain an express recitation of the Legislature’s purpose in enacting the laws applicable to trusts.

More generally, though, the purpose of the Probate Code sections regarding jurisdiction and venue is to “facilitate the exercise of the court’s power” to the fullest extent allowable within constitutional limitations. Further, the probate court has the power and duty to supervise the administration of the trust. Importantly, the probate court with jurisdiction over the trust estate has the “inherent power to decide all incidental issues necessary to carry out its express powers to supervise the administration of the trust.” It is recognized that this inherent equitable power encompasses the authority to take remedial action to prevent or rectify abuses of a trustee’s powers.

Given the function and purpose of the broad equitable powers and authority granted to the probate court with jurisdiction over the trust estate—that is, the probate court in the county where the principal place of administration is located—an overly technical reading of Probate Code section 17005 would frustrate the intent of the statute, curtain and fragment the inherent power and duty of the probate court, and lead to absurd results.

C. Breach of Trust Claims and Non-Trust Claims Generally Arise from the Same Facts

An important factor for the Brown Court in reaching its ruling was that both the FEHA claims and non-FEHA claims arose out of the same facts. Again, the Court noted that employment discrimination claims, by their very nature, give rise to multiple causes of action based on the same set of facts, and that, in order to protect the interest of his or her client, a responsible attorney must plead a variety of statutory, tort, and contract causes of action. Indeed, a footnote to the Brown decision expressly states that a plaintiff may not defeat a defendant’s right to trial in the defendant’s county of residence by adding a FEHA claim to the complaint. Accordingly, in order for the non-FEHA claims to be governed by the FEHA venue statute the non-FEHA claims “must rest on similar factual allegations as the FEHA count.”

Similar considerations apply to breach of trust litigation. A petition for redress from breach of trust, by its very nature, gives rise to multiple causes of action based on the same set facts. As such, a responsible attorney must plead several causes of action in order to protect the interest of his or her client. For example, there may be uncertainty regarding when the respondent-trustee assumed the office of trustee. Thus, other causes of action not predicated on a fiduciary relationship must be plead in order to establish liability and damages. Similarly, at the outset, the petitioner-beneficiary is often at a disadvantage when it comes to specific information regarding the status of the trust estate. More particularly, a trust estate that once consisted of real property may have since been liquidated and the cash proceeds dissipated. As such, a petitioner often pleads causes of action based on the recovery of or an interest in real property, as well as personal property. So long as all claims arise from the same facts, as in Brown, the special venue statute for trust proceedings should apply to causes of action joined to the trust proceeding but normally raised in civil actions.

D. An Application of the Mixed Action Rule Results in Surplusage

Furthermore, if the trust venue statute were to be applied to cases involving only causes of action accruing under Division 9 of the Probate Code, aggrieved beneficiaries would be faced with a Hobson’s choice: If beneficiaries wish to avail themselves of the trust venue rules, they would be forced to abandon their civil claims or to try those claims in a separate action in potentially a different county than that in which the trust claims are tried. Such a result would undermine the public policy of promoting judicial economy and potentially deprive the beneficiaries of desirable remedies, such as the enhanced remedies under the financial elder abuse statutes. On the other hand, if beneficiaries wish to have the entire action tried in one county, they would be forced to accede to the trustee-defendant’s chosen place of venue. This scenario would render the special venue statute mere surplusage.

What is more, the extremely narrow venue afforded petitioners by Probate Code section 17005 facilitates the probate court’s power and duty to supervise the administration of trusts by permitting venue in breach of trust litigation only in the county in which the trust has its principal place of administration. To this end, by allowing petitioners in breach of trust litigation to seek statutory or common law remedies not otherwise expressly provided in the Probate Code, the Legislature clearly intended the trust proceeding special venue statute to apply to related civil claims pled under alternative theories but based on the same set of facts. To hold otherwise dilutes the efficacy of the Probate Code’s special venue provisions, does not give effect to Probate Code section 17200, subdivision (b)—“by any available remedy”—and Probate Code section 16420, subdivision (B)—“any other appropriate remedy”—and reduces these phrases to surplusage.

IX. CONCLUSION

At the end of the day, each party wants to try the case in the county that is most convenient to him or her. While many trust proceedings do not trigger a complicated analysis of concurrently-applicable and contradictory venue provisions, some do. In a portion of these, an applicable of the relevant venue state will not make a practical difference regarding venue since there may be only one defendant and the principal place of administration is the county in which the defendant resides. But there are many instances in which the combination of the causes of the location of the plaintiffs and necessary witnesses, the number and location of the defendants, the location of the principal place of administration of the trust, and the joiner of non-trust claims will result in different venues for different causes of action. In these cases, the plaintiff will surely try to maintain venue in the county that is most convenient to him or her, which will likely compel the defendant or defendants to file a motion to change venue. At this point, the mixed action rule presumably directs the court to transfer the entire proceeding if a defendant is entitled to a change of venue on any cause of action. But the analysis should not stop there. Counsel for the plaintiff should analyze the motion to change venue using the factors and considerations articulated in Brown and, if appropriate, make the case that the mixed action rule should be subordinate to Probate Code section 17005.