Form of Papers.Rule 400.Form of Papers.
All papers filed in connection with any noticed hearing and all orders presented for a judge's signature shall set forth on the first page underneath the title of the document the date and time for hearing and the particular department or judge, if known. If the court assigns an all-purpose judge to the case, counsel shall include the name of the assigned judge in the caption of every subsequent pleading filed with the court. Every member of the California Bar representing any party to an action, shall set forth his or her California Bar identification number on the first page in the upper left hand corner, directly below his or her name, address and telephone number.
The Court will not consider, and the clerk will not accept for filing, any memorandum of points and authorities filed in connection with any civil or criminal motion, application, petition, opposition or supplemental papers, etc., which exceeds fifteen (15) pages, not including declarations or exhibits incorporated by reference, without prior written approval of the Court, either by court order or by judge's signed notation on the document. When prior approval is sought and obtained, any memorandum of points and authorities in excess of 15 pages shall contain a table of contents and a table of authorities as set forth in California Rule of Court 313(d).
If, in any memorandum of points and authorities, counsel relies on any case or statutory authority of another state, of any federal court, or any ordinance or administrative regulations, counsel shall lodge a photocopy of that authority with the court.
Only relevant sections of any supporting documents and exhibits including but not limited to depositions, contracts, leases, etc., shall be filed. All pleadings already on file which a party desires to reference in any subsequent motion proceedings shall not be duplicated but shall be incorporated by reference; provided, however, that a party may duplicate a particularly significant portion of such a pleading and attach it as an exhibit when incorporation by reference will not suffice. Photocopies of relevant case law shall not be included in the above limitation. All supporting documents and exhibits attached to or incorporated into any points and authorities, declaration, affidavit, etc., must be individually marked and tabbed for the court's easy reference. When the supporting documents and exhibits exceed 10 pages, counsel shall provide a table of contents and summary description of each supporting document and exhibit. Such table of contents and summary description shall include any foreign or federal authorities lodged with the court pursuant to paragraph three of this rule and indicate said authorities have been lodged.
(Amended, effective 1/4/93; 1/1/96)
Rule 401.Ex Parte Orders.
Counsel shall comply with Code of Civil Procedure Section 527, Rule 379 of the California Rules of Court, and Local Rules 610--615 regarding family law matters, in the presentation of any request for an ex parte order.
Except in emergency matters requiring immediate action or matters requiring a conference between counsel and a judge, all ex parte applications and orders shall be delivered to the clerk's office for presentation to a judge in the regular course of business.
Subject to the provisions of Code of Civil Procedure, all applications for orders shall include proof by affidavit or declaration: (1) that the applicant for the order has given at least four hours' notice of the application to the opposing party, and to the attorney of the opposing party (if any), including notice of the time and place where the application for the order will be made; and (2) the application for the order must contain the content of the notice given, the parties to whom it was given, and the time and place at which notice was given.
If unsuccessful efforts to give notice to the opposing party were made by the applicant, the particulars of those efforts shall be set forth in the application. If the applicant contends that notice to the opposing party would defeat or impair the relief requested, or would expose the applicant to immediate threat of harm, then the particular facts relied upon by the applicant in requesting exemption from the requirement of notice shall be specified under oath in the application. Conclusionary statements alleging good cause to dispense with notice, unaccompanied by a particular factual showing, shall be treated as a consent to deny the application, or to set the same for noticed hearing, in the discretion of the judge to whom the application is presented.
(Amended, effective 7/13/92; 1/1/96)
Rule 402.Trial Briefs in Long Cause Civil Cases.
Trial briefs for all civil cases shall be submitted to the court and opposing counsel no later than the day preceding the date set for trial, unless the court orders submission at an earlier date. Trial briefs shall set forth the issues to be tried and any significant evidentiary problems which are likely to be presented.
In long cause domestic relations matters, trial briefs shall include a declaration by counsel that a settlement conference was held and shall also include an offer of proof as to a listing and valuation of all separate and community property by each party.
(Amended, effective 1/1/92)
Rule 403.Compromise of Claims.
Pursuant to CRC Rule 241, in a compromise or incompetent's disputed claim, counsel shall disclose his interest in the proceeding.
Such disclosure shall include a declaration of the attorney's relationship with the liability insurance company settling the claim and, should counsel be employed by said insurance company, a statement that no compensation will be received from any person other than said insurance company.
Rule 404.Continuances.
The court shall strictly follow CRC Rule 375, and Secs. 9(b) and 10(a)(6), as applicable, of the Standards of Judicial Administration as well as Penal Code Sec. 1050. Continuances shall never be granted on the sole basis that the parties alone agree thereto. Court appearances of any kind are appointments by counsel with the court and may not be excused without a judge's specific authorization nor may the matter be placed off calendar without a specific judge's authorization. The court clerk is not authorized to continue a matter or take a matter off calendar. The court's exercise of discretion to grant a continuance shall be in inverse ratio to the nearness of the matter to trial or hearing.
(Amended, effective 7/1/85)
Rule 405.Motions Re Penal Code Sections 995 and 1538.5.
Motions under Penal Code Secs. 995 and 1538.5 should be calendared at the time of arraignment, unless calendared on written notice. The district attorney will be requested to waive written notice when such motion is calendared at the time of arraignment.
Penal Code Secs. 995 and 1538.5 motions on any one case shall be calendared on the same day and heard on the same day, unless the judge hearing same shall sever for good cause shown. Such motion shall be calendared at least five days prior to the readiness and settlement conference date.
The moving party shall file, five court days prior to hearing, a full and complete memorandum of points and authorities, and where the review of a transcript of a preliminary hearing or grand jury proceeding is necessary, the pertinent transcript testimony shall be summarized with a specific page and line reference cited.
Rule 406.Criminal Discovery Motions.
In discovery motions in criminal cases, the moving party shall state that all items specified in said motion have been demanded of the opposing side, and that such demand has been refused, or that five days have elapsed since the making of such demand, and that the demand has not been met. The responding party shall file and serve on opposing counsel at least three days before the hearing a statement setting forth the reasons for not complying with the discovery demand. Failure to do so shall be good cause for granting the demand.
Rule 407.Jury Instructions: Time for Submission in Civil Cases.
Prior to the presentation of evidence in all civil jury trials, each counsel shall present to the trial judge and serve upon opposing counsel, all proposed jury instructions covering the law as disclosed by the pleadings. Thereafter, and before the commencement of the argument, counsel shall deliver to the trial judge, and serve upon opposing counsel, additional proposed jury instructions upon questions of law developed by the evidence and not disclosed by the pleadings, as set forth in CCP Sec. 607a.
(Amended, effective 7/1/85)
Rule 408.Judges' Submission List.
Any judge, whether visiting, retired or pro tem, having a matter under submission for more than 75 days, including the presiding judge, shall handle no further business until such matter is concluded and a decision is filed. This provision shall be mandatory and followed without exception unless a majority of the judges specifically authorize otherwise.
In the event a matter is under submission for more than 90 days, the presiding judge shall, after notifying the individual judge, notify the commission on judicial performance of the fact of such submission.
The chief court clerk shall maintain a list of all matters submitted for decision by each of the judges or judges pro tem of this court which shall contain the name of the judge, the date of the order of submission, and the name and number of the case. This submission list shall be revised weekly and shall be circulated to each judge, to the court administrator and posted on the court bulletin board.
Rule 409.Amendments to Rules.
These rules may be amended at any meeting of the judges of this court upon a majority vote of the judges present.
Rule 410.Establishment of Court Policies and Procedures.
The court may establish policies and procedures relating to all court matters including but not limited to such matters as probate and trial manuals. Such policies and procedures shall, thirty days after having been promulgated, have the same force and effect as the rules of superior court.
Rule 411.Arbitration.
Pursuant to the Judicial Arbitration Statute, CCP Secs. 1141.10 to 1141.32 and CRC Rules 1600 and 1617, and subject to such other legislation or rules of court dealing with arbitration which may hereafter be adopted, the rules hereinafter set forth are adopted as the arbitration rules of the superior court for the County of Santa Barbara.
I.Mandatory arbitration.
A.Referral to arbitration. A case may be referred to arbitration as follows:
1.Pursuant to an underlying agreement to arbitrate, upon a timely motion or petition (CCP Secs. 1281 et seq.). If such a case is referred to arbitration, the terms of the arbitration agreement shall govern, except as provided by the law relating to the arbitration of such agreements.
2.Pursuant to stipulation of the parties before the conclusion of the last readiness and settlement conference, or at a later date, with the approval of the court. Unless the stipulation provides some other arbitration methodology, these rules shall govern.
3.At the request of plaintiff, in a proper case, where the amount in controversy does not exceed $50,000. The request may be filed when the at-issue memorandum is filed. If a notice of election to arbitrate is filed no later than 15 days before the readiness and settlement conference, it shall be referred to arbitration except as provided in CRC Rule 1601(b). An election to proceed to arbitration may also be filed on or before the last readiness and settlement conference, and unless a timely objection is made pursuant to Rule l601(b), it shall be referred to arbitration. If the plaintiff requests arbitration, it shall be pursuant to the judicial aribitration rules and these rules.
4.Upon the determination by the court that the amount in controversy as to any plaintiff does not exceed $50,000 and the case is not exempt from arbitration. Said determination may be made by the judge assigned to the case at the readiness and settlement conference(s). Said determination may also be made at the trial setting conference, or on motion at any time between the date an at-issue memorandum is filed and the commencement of the readiness and settlement conference, providing that no party objects to the court making that determination at that particular time. After the last readiness and settlement conference, the court may not refer the case to arbitration by determining that the case is suitable for arbitration, unless the parties expressly empower the court to do so. Arbitration shall be pursuant to these rules and the determination that the matter in controversy is $50,000 or less shall not be appealable. Arbitration shall proceed in accordance with the judicial arbitration rules and these rules.
5.The provisions of this rule shall not apply to any action maintained pursuant to CC Sec. 1781, CCP Secs. 116.2 and 378, or any action which includes a prayer for equitable relief, except that if the prayer for equitable relief is determined by the court to be frivolous or insubstantial, then arbitration shall be directed and these rules shall be applicable.
B.Removal from civil active list. All cases referred to arbitration shall be removed from the civil active list and may be restored only as set forth in these rules.
C.Notification of prejudice or hardship. Each attorney of record in a case referred to arbitration must inform the court of any grounds which exist for nonreferral, including the proximity of the five year statute of limitations governing mandatory dismissal (CCP Sec. 583.310) and any other matters which could cause prejudice or hardship by such referral.
D.Appointment of arbitration administrator. An arbitration administrator shall be appointed by the presiding judge of the superior court. The arbitration administrator shall administer the arbitration procedure, supervise the selection of arbitrators for the cases on the arbitration hearing list, and generally supervise and be responsible for the operation of the arbitration program, including calendaring and establishing a filing system for all papers and records filed in arbitration matters.
E.Election of arbitrators. The arbitration administrator shall maintain a panel of arbitrators which shall be composed of the names of active members of the State Bar and retired judges of courts of record. When a case is referred for arbitration, whether mandatory or voluntary, the arbitration administrator shall make available to the litigants a list of not less than three arbitrators from the panel, and if the parties cannot stipulate to the selection of one person from the list as an arbitrator, each side shall have the right, without stating a reason, to disqualify one person whose name appears on the list of arbitrators. Any disqualification by any side to the arbitration shall be exercised no later than 10 days from the date the list was mailed by the arbitration administrator to all of the parties. Any such disqualifications shall be filed with the county clerk's office and a copy shall be made available to the arbitration administrator by the clerk's office. An election by any party not to exercise a disqualification when entitled to do so, or failure to exercise a disqualification in a timely fashion, shall result in a lapse of that disqualification. In the event that, after exercise or lapse of all disqualifications, more than one name remains on the list, the arbitration administrator shall appoint an arbitrator from the names of those remaining, by random selection.
In the case of multi-side litigation, each side shall be entitled to one disqualification, but the list furnished by the arbitration administrator shall consist of a number of arbitrators corresponding to the number of sides in the litigation, plus at least one additional name. The same time limit and procedure as set forth hereinabove shall apply to multi-side arbitration election of arbitrators.
F.Disqualification for conflict of interest. After all disqualifications in the selection of an arbitrator, as set forth in subsection E of this rule, no peremptory challenge to an arbitrator thus selected will be permitted. It shall be the duty of the arbitrator to determine whether any cause exists for his own disqualification in the case he is to hear, upon any grounds set forth in CCP Sec. 170 governing the disqualification of judges. If any member of the arbitrator's law firm would be disqualified under CCP Sec. 170.1(2), the arbitrator shall be disqualified. The arbitrator shall promptly notify the arbitration administrator of any grounds for disqualification known to him, and another arbitrator shall be selected as provided in these rules.
G.Hearings; notice; when and where held. The arbitrator shall set the time, date and place of the hearing within 15 days after his appointment and shall give notice of the hearing date to the parties at least 30 days prior to the date set for the arbitration hearing. Hearings shall be scheduled to take place not sooner than 35 days, nor later than 60 days from the date of the assignment of the case to the arbitrator. Hearings shall take place in appropriate facilities selected by the arbitrator. In the event the arbitrator cannot hold a hearing within 60 days from the date of assignment of the case, except when a case has been continued, the arbitrator shall notify the administrator who shall return the case to the civil active list pending appointment of an arbitrator, and a new arbitrator shall be selected pursuant to subsection E of this rule.
In the event that the parties to an arbitration do not agree upon a hearing date within 60 days from the date of the assignment of the case to the arbitrator, the arbitrator shall so notify the arbitration administrator, who may take the matter off calendar subject to a new at-issue memorandum, or take other measures as may be appropriate to dispose of the case, including immediate assignment to a mandatory arbitration date. Refusal to arbitrate in good faith may be grounds for imposition of sanctions on the party failing to show good faith, upon duly noticed motion by the party seeking the arbitration or upon the court's motion.
H.Continuances. The parties may stipulate to a continuance of the arbitration hearing date with the consent of the arbitrator; provided however, that such continuances do not exceed 90 days from the date of the assignment of the case to the arbitrator. Failure to arbitrate the case within said time period may result in one of the actions described in subsection G of this rule. Any such stipulations shall be filed with the office of the Clerk of Superior Court and a copy shall be provided to the arbitration administrator by the clerk's office.
I.Communications with the arbitrator. No disclosure of any offers of settlement made by any party shall be made to the arbitrator prior to the filing of the award. There shall be no ex parte communication by counsel or the parties with the arbitrator except for the purpose of scheduling the arbitration hearing or requesting a continuance.
J.Discovery. The parties shall have the right to take depositions and to obtain discovery, and to that end may exercise all of the same rights, remedies and procedures and shall be subject to all of the same duties, liabilities and obligations as provided in CCP Part 4, Title 3, Chapter 3 of the Code of Civil Procedure for other cases pending in the superior court, except that all arbitration discovery shall be completed not later than 15 days prior to the date set for the arbitration hearing unless the court, upon showing of good cause, makes an order granting an extension of time within which discovery must be completed.
K.Rules of evidence at hearing. CRC Rule 1613, concerning rules of evidence at the arbitration hearing, shall apply to this arbitration program in its entirety.
L.Conduct of hearing. CRC Rule 1614, concerning conduct of the arbitration hearing, shall apply to this arbitration program in its entirety.
M.The award; entry of judgment; motion to vacate. CRC Rule 1615, concerning the arbitration award, entry of judgment and motion to vacate, shall apply to this arbitration program in its entirety.
II.Trial after arbitration.
A.Request for trial. Within 30 days after the arbitration award is filed, any party may request a trial in the court having original jurisdiction of the matter by filing with the office of the Clerk of Superior Court a request for trial after arbitration, with proof of service of a copy upon all other parties appearing in the case, and shall deposit with the clerk of the court as security for payment of the costs of the arbitrator, the sum of $150.00 dollars, said sum to be credited to the superior court account designated by the arbitration administrator. The clerk's office shall immediately provide the arbitration administrator with a copy of any such requests. The 30-day period within which to request a trial may not be extended.
B.Restoration to the civil active list. Upon filing a request for trial after arbitration, the case shall be restored to the civil active list in the same position on the list it would have maintained if arbitration had not been initiated, unless the court orders otherwise for good cause.
C.Trial. The case shall be tried as though no arbitration had occurred. No reference may be made during the trial to the arbitration award; to the fact that there had been arbitration proceedings; to the evidence adduced at the arbitration hearing or to any other aspect of the arbitration proceedings, and none of the foregoing may be used as affirmative evidence or by way of impeachment or for any other purpose at the trial.
D.Effect of judgment after trial. If the judgment upon the trial de novo is not more favorable than the arbitration award in either the amount of damages awarded or the type of relief granted for the party electing the trial de novo, unless the court finds the imposition of such costs and fees would create such a substantial economic hardship as not to be in the interests of justice, the court shall not permit that party to recover costs and fees and shall order the party to pay the following nonrefundable costs and fees:
(1)To the county, state or Bar Association the compensation actually paid to the arbitrator;
(2)To the other party or parties, all costs, including but not limited to, those specified in CCP Sec. 1033.5;
(3)To the other party or parties, the reasonable costs of the services of expert witnesses, who are not regular employees of any party, actually incurred or reasonably necessary in the preparation or trial of the case;
(4)Such costs and fees, other than the compensation of the arbitrator, shall include only those incurred from the time of election of the trial de novo;
(5)If the party electing the trial de novo has proceeded in the action in forma pauperis and has failed to obtain a more favorable judgment, the costs and fees under paragraph (2) and (3) of this subsection shall be imposed only as an offset against any damages awarded in favor of the party. If after deduction of these costs a sufficient amount remains in the judgment, costs under paragraph (1) of this subsection shall be imposed.
E.Discovery after arbitration. No discovery shall be permissible after an arbitration award in cases ordered to arbitration pursuant to subsection IA of this rule, except by stipulation or by leave of court upon a showing of good cause.
F.Withdrawal of request for trial. If a party has requested trial after arbitration the request may not be withdrawn, except by a written instrument signed by all parties appearing in the case, expressly agreeing that a nonappealable judgment may be entered on the arbitration award.
G.Stipulated arbitration. The parties to any litigation under these rules or those electing voluntarily to arbitrate under this rule without referral by a court, may enter into an agreement for binding arbitration, waiving trial de novo or may by stipulation elect to arbitrate less than all of the issues in a case or to limit damages recoverable by way of an arbitration award or, notwithstanding the provisions of these rules, may enter into any stipulation or agreement limiting rights under these rules to costs, fees and other related expenses of arbitration, except those specified in subsection IID(1) of this rule.
(Amended, effective 7/1/88; 1/1/96)
Rule 412.Motions In Limine, Civil Jury Trials.
In civil jury trials, counsel shall give written notice of the fact that counsel intends to make any in limine motions. The notice shall:
1.Be filed, not later than 48 court hours before the first master calendar call of the case. If the case goes off calendar, subject to a new at-issue memorandum, the notice shall be filed anew, not later than two court days before the next master calendar call.
2.Be accompanied at the time of filing with a copy, for delivery by the clerk's office to the jury commissioner's office or personnel responsible for coordination of the jury panels.
3.Recite:
a.Counsel's best estimate of the time that will be required to properly hear and dispose of the motion(s).
b.The general subject(s) of the motion(s). The notice shall present points and/or authorities and a copy of the notice shall be served on opposing counsel.
(Amended, effective 7/1/93)
Rule 413.Family Custody Evaluation, and Parent Education.
A.Requirement to Attend Mediation.
Whenever a party to a dissolution of marriage, guardianship, step-parent adoption, or any other non-juvenile court proceeding requests a hearing at which the custody of or visitation with a minor child or children is at issue, the parties shall participate in mediation of such issue(s) with a family custody mediator prior to any court hearing on the issues, except for emergency situations.
The party (or the party's attorney, if any) requesting a court hearing involving any issues of child custody and/or visitation shall schedule an appointment with the mediator immediately upon discovery that the matter(s) is opposed. It shall be the responsibility of the party requesting the hearing to contact the opposing party (or the party's attorney, if any) in order to verify that the time scheduled for mediation is acceptable. Notice of cancellation of a scheduled mediation appointment must be provided to family custody services no later than three days prior to the appointment. Except for good cause shown, failure to provide such notice or failure to appear at the scheduled mediation may result in sanctions against the responsible party(s) or their attorneys.
B.Custody Evaluation Procedures.
When the court orders the preparation of a custody investigation report in a family law matter pursuant to Family Code Sec. 3111, each party shall complete and return to the court a custody questionnaire, reference questionnaire, release of information, and financial evaluation report or any other appropriate documents required by the court. Failure to complete and return said documents to the court within 10 days of the date the report was ordered by the court may result in a sanction not to exceed $250.00.
C.Requirement to Attend "Children in the Middle" Program in Santa Barbara Division of the Court.
All parties to a Family Law proceeding in which there are minor children, including, but not limited to, actions for legal separation, dissolution of marriage, or actions to establish or modify custody or visitation, including cases which are uncontested, shall attend and complete (once in said Family Law case), the mandatory educational program entitled "Children in the Middle," in the Santa Barbara Division of the Court. Attendance by the parties shall be prior to the first to occur of the following events:
a.Expiration of sixty (60) days of service of the pleadings that commence the proceeding, for Family Law cases filed after January 1, 1996; or
b.Custody mediation provided through the Family Custody Services Division of the Superior Court; or
c.Entry of any order or judgment involving custody or visitation.
1.Instructions, registration and fee for attendance.
Upon the filing of any party's initiating petition, complaint, motion, order to show cause, or ex parte application in a family law proceeding in which there are minor children in the Santa Barbara Division of the Court, such party shall be assessed a fee payable to the Clerk, to defray the cost of the "Children in the Middle" Program, in an amount to be established by the court.
Written instructions regarding the requirement of attendance, registration, and payment of the fee for the "Children in the Middle" Prgoram shall be provided, on a court-approved form, by the Superior Court Clerk to any party filing any of the above desribed documents. A copy of these writen instructions shall be served on the opposing party by the filing party at the time of service of the above described documents. The responding party shall pay the fee for the "Children in the Middle" Program to the clerk's office upon filing of the first responsive pleading(s), or if there are no responsive pleading(s), not later than two court days before the date the responding party attends the "Children in the Middle" Program. Such fee shall be waived for any party who obtains an order from the court to proceed in forma pauperis.
2.Mediation through Family Custody Services.
If any party has not completed the "Children in the Middle" Program by the date set for mediation, to the extent practicable, the mediation date shall be reset to a later time to permit such party(s) to first attend the "Children in the Middle" Program. The mediator may, in his or her discretion, proceed with the mediation if it is in the best interests of the children. In such a case, the mediator shall first require any party who has not attended the program (and who has failed to obtain a waiver of said requirement per subsection 5(c) of this Rule), to sign a written stipulation, which will become a court order, requiring that party to attend "Children in the Middle" Program not later than a specified date.
3.Failure to attend and remedies.
a.If a party does not attend the "Children in the Middle" Program as required by this Rule, the other party may move the court for an order compelling that party to attend, and for an award of attorney fees or sanctions.
b.If on party does not attend the "Children in the Middle" Program as required by this Rule, and the other party seeks the entry of any order or judgment involving custody or visitation of minor children, the party seeking such order shall first move the court for an order compelling the other party to attend the "Children in the Middle" Program and for an award of attorney fees or sanctions. If the court grants the order to compel and the other party does not comply, then the court may, upon application and a showing of good cause, enter the requested order or judgment.
c.If the court allows any order or judgment to be entered for good cause when one party has not completed the "Children in the Middle" Program, that non-complying party may not seek any affirmative relief with respect to any child-related issue(s) until: (1) that party has completed the "Children in the Middle" Program; or (b) that party obtains leave of court to proceed, by application to the court with a showing of good cause.
4.Exceptions to requirements for attendance.
a.Nothing in this Rule supersedes the right of the parties to seek ex parte relief as provided in these Rules prior to attending the "Children in the Middle" Program.
b.The court may require attendance by a party at an equivalent "Children in the Middle" Program located in another county or state if the attendance at the local "Children in the Middle" Program is found to be a hardship to that party.
c.An order delaying or waiving the requirement of attendances at the "Children in the Middle" Program may be obtained from the court upon a showing of good cause.
5.Certification of attendance.
The provider of the "Children in the Middle" Program shall prepare and file with the Superior Court Clerk a certificate of attendance verifying the completion of the "Children in the Middle" Program by each attending party. The provider shall also present a copy of the certificate of attendance to each party upon completion of the "Children in the Middle" Program.
(Amended, effective 1/1/87; 10/2/95; 1/1/96)
Rule 414.Probate Procedures.
A.General policies and procedures.
1.Probate calendar. The probate calendar is heard at 8:30 a.m. on Monday of each week in Santa Barbara. The probate calendar is heard at 8:30 a.m. on Thursday of each week in Santa Maria. All matters concerning decedents who resided in the 1st, 2nd and 3rd supervisorial districts shall be calendared in Santa Barbara. All matters concerning decedents who resided in the 4th and 5th supervisorial districts shall be calendared in Santa Maria.
2.Pleadings. Printed forms approved and published by the Judicial Council shall be used in all cases where applicable unless otherwise permitted or directed by the court. If the form cannot be used, counsel shall prepare their own documents using the form as a guide.
3.Proposed orders. Proposed orders or judgments shall be submitted on or before noon at least two days prior to the hearing.
4.Approved matters. Most uncontested probate matters may be submitted on verified petitions and accounts pursuant to Sec. 1233 of the Probate Code. The judge assigned to hear the probate calendar will review all documents prior to hearing and will tentatively approve all matters which are in proper form and to which no objections have been made. Such matters will be assigned to an approved list. Appearance is required on petitions for sale of real property, in some returns of sale of personal property, and when otherwise required by the court.
5.Objections to approved matters. If petitioner does not appear at the time the matter is called, and if objection is made at the time the approved calendar is called, the court shall continue the matter for a reasonable time to allow for the filing of written objections. If written objections are not on file at the new hearing date, the matter will proceed. In uncontested matters counsel may request a continuance by telephone to the probate clerk.
B.Appointment of executors and administrators.
1.Petition for letters. Petition shall be approved on the Judicial Council form and shall have attached, as an exhibit, a legible copy of each document offered for probate. In the case of a holographic Will, a typed copy of the document shall be attached in addition to a copy of the handwritten original.
2.Notice. The petitioner or petitioner's attorney shall be responsible for publication of notice where required and where notice by mail is required to be given, petitioner or petitioner's attorney shall give the notice and file a proper proof of service.
3.Proof of Wills. Ordinarily, oral testimony will not be necessary to prove the Will. In any uncontested proceeding, the evidence of one or more subscribing witnesses may be received by declaration or affidavit on the approved Judicial Council form.
4.Ancillary probate. A petition to probate a foreign Will must have attached a certified copy of the Will and a certified copy of the order or decree admitting the Will to probate outside this jurisdiction. If the Will has been admitted to probate in a foreign country, the copies must be certified in the manner set forth on Sec. 1530 of the Evidence Code and Sec. 361 of the Probate Code.
C.Bond of personal representative.
1.When required. Bond shall be required in all cases unless waived by the Will. Waiver of bond by heir and/or beneficiaries pursuant to Sec. 541(b) of the Probate Code, will be considered by the court and permitted on a case-by-case basis.
2.Sole heir or beneficiary. If the petition so requests, bond will be waived where the personal representative is the sole heir or beneficiary.
3.Amount of bond. Upon filing the inventory and appraisement, the personal representative or the attorney for the estate shall apply to the court for an increase or reduction in the amount of the bond, if required.
D.Inventory and appraisement.
1.Deadline for filing. Probate Code Sec. 8800 requires the inventory and appraisement to be filed within four months after the appointment or within such further time as the court may allow after a showing of good cause. If the personal representative neglects or refuses to file the inventory within the time prescribed, the court, upon notice, may revoke the personal representative's letters.
2.Statement regarding bond. Counsel for the personal representative is required to complete the "Statement Regarding Bond" on the inventory and appraisement form.
3.Property description. Each inventory item shall be clearly and concisely described. In the case of real property, the full legal description must be included.
E.Creditor's claim.
1.Forms. Claims shall be submitted on the form approved by the Judicial Council.
2.Claims filed with the court. The clerk shall notify the personal representative of any claim filed directly with the court. The personal representative shall allow or reject the claim by endorsement on the original, or by filing a separate allowance or rejection of the claim.
F.Sales.
1.Forms. Petitions to confirm sales of real property shall be on the Judicial Council approved forms. Care must be taken to complete all applicable forms. Failure to do so may require continuance or re-notice of the petition.
2.Broker's commissions. The court will not approve a real estate commission in excess of 6% except in unusual cases where a larger commission is justified because of exceptional circumstances.
3.Description. Petition to confirm sale of real property shall in addition to the legal description, contain the street address or other familiar designation of property.
4.Appearance by attorney. In petitions for confirmation of sale of real property and for sale of personal property where bidding is authorized, the court ordinarily will not proceed with confirmation of the sale in the absence of the attorney of record.
5.Sale of personal property. Sales of personal property will not be approved under Probate Code Sec. 10252 or confirmed under Probate Code Sec. 10250 unless the property has been appraised. When necessary, a partial inventory and appraisement may be filed for this purpose.
6.Bond at sale. The petition to confirm sale must set forth the amount of additional bond required as a result of the sale, or if the bond is waived or if no additional bond is required, must contain a statement to that effect.
7.Approval of overbid. If the sale returned for confirmation is upon credit, a higher bid pursuant to Probate Code Sec. 10310 et seq., whether on the same or additional credit terms, shall not be approved unless the personal representative or the personal representative's attorney, informs the court that the overbid is acceptable.
G.Accounts of executors and administrators.
1.Suggested form of accounts. All accounts must be typewritten or machine printed on letter or legal size pages, which pages must be numbered at the bottom of each page. All accounts of executors and administrators shall, as nearly as possible, conform to the forms suggested in Chapter 17 of the California Estate Administration (CEB 1971). The forms of accounts suggested in this book permit speedy review by the court and will avoid unnecessary delays in obtaining approval of accounts. Each account shall contain a summary or recapitulation showing the following information:
a.Amount of appraisement or amount chargeable from prior account;
b.Amount of receipts;
c.Gains on sales;
d.Amount of disbursements;
e.Losses on sales;
f.Amount of property on hand.
2.Waiver of account. The court will approve a final distribution without an account only when there has been strict compliance with Sec. 10954 of the Probate Code.
H.Fees of executor and administrators.
1.Computation must appear in petition. Whether or not the accounting is waived, the petition for distribution shall state the amount of the statutory commissions requested to be paid to the personal representative and to the attorney. The petition shall set forth the basis and the computation of the statutory fees.
2.Allowance on account of fees. Allowances on account of statutory fees will be granted only in accordance with the actual work completed. In any event, the last 25% of the statutory fees will not ordinarily be allowed before the approval of the final account and decree of distribution.
3.Extraordinary fees. Any application for fees for extraordinary services must set forth with particularity the nature of the extraordinary services rendered. In cases where the statutory fees are substantial, the court will consider the statutory fees in determining whether extraordinary fees are appropriate. (See Estate of Walker, 221 Cal. App. 2d 792 and Estate of Buchman, 138 Cal. App. 2d 228).
4.Non-probate assets. Fees will not be allowed for services rendered with respect to non-probate assets such as life estates, joint tenancy, life insurance, etc.
I.Preliminary and final distribution.
1.Non-probate assets. The petition for distribution must list and describe in detail all property to be distributed either in the body of the petition or by a schedule attached to the petition and incorporated by reference. Description by reference to the inventory is not acceptable.
2.Description of distributees. The petition for distribution must set forth in detail the precise manner in which the estate is to be distributed. A general allegation that the estate is to be distributed in accordance with the terms of the Will is not sufficient. The petition must set forth the name of the distributee and a statement as to whether the distributee is a minor or adult. If the distributee is a minor, the age and date of birth must also be listed and a guardian, trustee, or parent must be identified.
3.Intestacy. Heirs who take by virtue of intestacy must be sufficiently described to permit the court to determine if the laws of intestate succession have been properly applied.
4.Community/separate property. All petitions for distribution shall contain an allegation as to the character of the property whether separate or community.
5.Judgment of distribution. Judgments should be drawn so as to set forth the full plan of distribution. Judgments shall be complete in themselves and may not contain distribution plans which refer to the petition or any other document.
6.Distribution to minors. If distribution to minors pursuant to Secs. 3401 or 3412 of the Probate Code is requested, documents indicating compliance with those sections must be filed before the judgment of distribution is signed. In all other cases of distribution to the guardian of the minor, the guardian shall sign the receipt of distribution.
7.Federal estate tax. Each petition for final distribution shall contain an allegation which will enable the court to determine whether or not the personal representative has complied with the provisions of Sec. 20100 et seq., of the Probate Code concerning payment of federal estate tax.
8.Non-resident beneficiaries. If distribution is to be made to a non-resident beneficiary, the certificate required by Sec. 19262 of the Revenue and Taxation Code, must be filed before judgment of distribution will be signed.
J.Contested matters.
1.Oral objections. If an oral objection is made at the hearing on any petition, the court shall continue the hearing for a reasonable time to allow the filing of written objections. If the written objections are not filed within the prescribed time, the hearing will nevertheless proceed.
2.Trial of contested matters. The judge assigned to the probate calendar shall transfer all contested matters to the department of the presiding judge in Santa Barbara, or to the department of the assistant presiding judge in Santa Maria, who will then assign those matters for hearing in the same manner as civil trials are assigned. Matters in which the time estimate is one hour or less shall be transferred to be heard on the next available civil law and motion calendar.
K.Other petitions and orders.
1.Family allowance. Ex parte petitions for family allowance for the benefit of the surviving spouse and/or minor children will be accepted if presented before the filing of the inventory. Except in unusual cases, the order for family allowance will be made for a period commencing with the date of death and continuing until the inventory is filed, but not to exceed six months. Ex parte petitions from a person other than the personal representative will not be accepted without the written consent of the personal representative.
Petitions for family allowance for the benefit of persons other than the surviving spouse and/or minor children will be heard on the regular probate calendar and will be considered only if notice has been given as required by Sec. 6541(c) of the Probate Code.
Petitions for family allowance made more than six months after the administrator or executor has qualified must be notified and placed on the regular probate calendar. All orders for family allowance must be limited to a specific period of time. The petition of the spouse seeking a family allowance shall contain a description of his or her separate property and a statement of such spouse's income from sources other than the estate.
The petition must contain an itemized estimate of monthly expenses.
2.Petition for instruction. Petitions for instructions are limited to those matters for which no other procedure is provided. They cannot be used in lieu of a petition to determine heirship or a petition to determine title to property or a petition for distribution.
The petition for instructions should set forth the matter on which the personal representative desires instructions in precise detail. The petition shall be accompanied by a proposed order of instructions which set forth the instructions in clear and explicit language.
3.Ex parte orders. All requests for ex parte orders must contain an allegation that no request for special notice has been filed. If any such request has been filed, an ex parte order will not be considered unless accompanied by a properly executed waiver of notice.
4.Orders correcting clerical errors. If, through any inadvertence, the minute order or the signed decree fails to state the order actually made by the court, and such inadvertence is brought to the attention of the court by affidavit, the court will on its own motion make a nunc pro tunc order correcting the mistake.
The nunc pro tunc order must not take the form of an amended order and should be in substantially the following form:
"Upon consideration of the affidavit or declaration of _________________, to correct a clerical error, the (title of order to be corrected), is corrected on the court's own motion by striking the following: _______________________ and by inserting in lieu thereof ________________________."
The original order is not to be physically changed by the clerk, but is to be used in connection with the nunc pro tunc order correcting it. To prevent further errors, a complete clause or sentence should be stricken even if it is intended to correct only one word or a single figure.
5.Order prescribing or dispensing with notice. An order prescribing or dispensing with notice should be submitted to the probate judge before the petition is filed. The proposed order should be accompanied by a declaration and points and authorities in support of the order re notice.
L.Guardianships.
1.Contents of petition. The petition for appointment of guardian shall be on the form prescribed by the Judicial Council and shall comply with the provisions of Sec. 1510 of the Probate Code. Petitions by only one parent for letters of guardianship must be personally served on the other parent, together with notice of the hearing, at least 15 days before the said hearing unless:
a.The petition is accompanied by a consent to appointment and waiver of notice signed by the other parent; or
b.The petition sets forth the fact that the other parent is not living.
2.Notice. Notice shall be given by counsel for the petitioner to the persons listed, and in the manner set forth in Secs. 1460 and 1511 of the Probate Code.
3.Petitioner not close relative. If the petitioner is not a parent, grandparent, brother, sister, aunt or uncle, the court may require a court investigation and report by the department of social services.
4.Inventory and appraisement. The court insists upon strict compliance with Sec. 2610 of the Probate Code. An inventory must be filed by the guardian of the estate in all cases. Where there are no assets on hand, the inventory should so indicate.
Each inventory item shall be clearly and concisely described. In the case of real property, a full legal description must be included.
5.Accounts. The account should detail all receipts and all disbursements of the guardian. If an item is not self-explanatory, an explanation must appear either in the account or in the report accompanying the account. Accounts should conform to the requirements set forth in subsections G.1 and G.2 of this rule.
6.Frequency of accounts. The first account must be filed one year from the date of appointment. Thereafter, accounts must be filed bi-annually unless otherwise ordered by the court. The court will insist upon strict compliance with Sec. 2620 of the Probate Code.
7.Reports accompanying accounts. The petition and account accompanying the guardian's accounts should contain a statement of the age, health, activity and whereabouts of the ward with an explanation of any unusual items appearing in the account. If the account shows expenditures not authorized by prior order of the court, the court will require supporting declarations or testimony before approving said account.
8.Support obligation of parents. In all cases where guardianship funds are to be used for the ordinary expenses of supporting a minor, and where there is a parent living who has the obligation to support the minor, the guardian must obtain court approval prior to the expenditure of funds. A petition for authority to expend funds for support may be included in the petition for appointment of a guardian, or in any subsequent report of the guardian. Such requests must be accompanied by a detailed explanation (including financial statements, if necessary) of the parent's inability to support the child.
9.Allowance of fees. No petition for fees will be considered until the inventory and appraisement has been filed. Any petition for fees made pursuant to Sec. 2640 of the Probate Code before the filing of the first accounting must be accompanied by a complete and detailed statement of the services rendered which support the fee requested.
10.Bond. A bond will not be required when the petition is for appointment of guardian of the person only. Bond will be required of all persons appointed as guardians of the estates of minors unless the guardian can establish that the requirement of bond should be dispensed with pursuant to the provisions of Secs. 2323, 2324 or 2328 of the Probate Code.
11.Investments by guardian. The court will not routinely grant the additional powers to the guardian pursuant to Secs. 2590 and 2591 of the Probate Code. If a guardian wishes to invest or expend funds belonging to the ward, the guardian should petition the court with respect thereto before doing so. If expenditures or investments are made by the guardian without prior authorization, such acts will not be considered for approval except on settlement of account. Except in rare and unusual cases, the court will not approve investment in unsecured loans or loans to a near relative unless secured.
12.Final account. The court does not favor the waiving of the guardian's final account by the ward when the ward has reached majority. A guardian's report will normally not be approved if accompanied by a waiver of account unless the ward is present in court and available to testify.
M.Conservatorships.
1.Temporary conservatorships. No petition for an appointment of a temporary conservator shall be considered prior to the filing of the petition for appointment of a general conservator. The court will appoint a temporary conservator if it is shown that an emergency situation exists that requires immediate attention. A temporary conservator will be appointed without notice only in the most urgent situations.
2.Contents of petition. The petition for appointment of conservator shall be on the form prescribed by the Judicial Council and shall comply with the provisions of Sec. 1821 of the Probate Code. Care should be taken to complete all appropriate portions of the petition.
3.Additional powers. The court may on the petition of the conservator, either at the time of appointment or later, grant additional powers to the conservator. It is the policy of the court to grant only those additional powers necessary or proper under the circumstances of each case. Any powers so granted must be set forth at length in the order and in the letters of conservatorship.
4.Inventory and appraisement. The court insists on strict compliance with the provisions of Sec. 2610 of the Probate Code which require the filing of the inventory and appraisement within 90 days of the appointment.
Each inventory item shall be clearly and precisely described. In the case of real property the full legal description must be included.
5.Accounts. Accounts should conform to the requirements set forth in subections G.1 and G.2 of this rule. The first account must be filed one year from the date of the appointment. Thereafter, accounts must be filed bi-annually unless otherwise ordered by the court. The court will insist upon strict compliance with Sec. 2620 of the Probate Code.
6.Investigator fees. The court will require evidence of compliance with the provisions of Sec. 1851.5 of the Probate Code before a conservatorship is terminated and the conservator discharged.
(Amended effective 7/13/92)
Rule 415.Sanctions.
Failure to comply with these rules, or any other provision of law or local rule, may result in sanctions pursuant to CCP Sec. 575.2 or CRC Rule 227.
(Amended, effective 7/1/86)
Rule 416.Direct Facsimile Filings.
Compliance with Rules 2001 through 2009 of the California Rules of Court are required in the submission of all direct facsimile (hereafter "fax") filings with the court. A party may file by fax directly to the court documents in civil, probate or family law proceedings. No Wills, codicils, bonds, undertakings or at-issue memoranda shall be directly filed by fax, nor shall the court issue by fax any document intended to carry the original seal of the court.
All direct fax filings shall be to the county clerk's office during the working hours of 8:00 a.m. to 4:45 p.m. Monday through Friday, excluding holidays. Direct fax filings shall be sent to the following numbers for the division of the court specified as follows:
Santa Barbara (805) 568-2219
Santa Maria (805) 346-7616
A document received in whole or in part after the close of the business day, as indicated by the time stamp on the court's receiving fax machine, shall be deemed received on the next court day. The clerk shall file the document if it fully complies with Rules 2001 through 2009 of the California Rules of Court and this local rule.
A direct fax filing shall be accompanied by a completed Judicial Council Fax Filing Cover Sheet. Parties shall be charged $1.00 per page for direct fax filings. Payment shall be by a valid Visa or Mastercard account upon the filing of the document in accordance with Rule 2006 of the California Rules of Court.
(Adopted, effective 7/13/92)
