The following is a brief discussion about the recent holding in Goebner v. Superior Court (2025) 110 Cal. App. 5th 1105.

In relevant part, the Court in Goebner held that the timing for the filing of a demurrer in a probate court case is governed by the California Probate Code provisions for the bringing of a response or objection to the petition and is not governed by the California Code of Civil Procedure.

The holding is important not only to the particular case in question but also for attorneys who practice in the Probate Court. This has been an issue that I have run into in my cases many times. For example, in response to a petition a demurrer might be filed in which the respondent argues that the petition is in some manner defective or fails to state a claim. Some Judges in Probate Court are receptive to the filing of a demurrer, some Judges in Probate Court are not receptive to the filing of a demurrer, and as addressed in Goebner, in the Probate Court there can be questions whether Probate Code rules or rules of civil procedure apply.

In Goebner a demurrer was filed just two days before the hearing. Under the Probate Code a response or objection to a petition can be filed in writing at the time of the initial hearing and also can be made orally at the initial hearing. But under the rules of Civil Procedure a response or objection to the complaint is due 30 days after service of the complaint on the party.

In Goebner the Probate trial court held that the demurrer was filed too late. The Court of Appeal overruled, holding that under the Probate Code a responsive objection such as a demurrer can be brought as late as at the initial hearing. Note however, although permissible, if at all possible, I do not recommend waiting until the day of the hearing to file or bring a demurrer to the petition – instead, it is better to file a written demurrer upon available time prior to the initial hearing.

Although not the primary issue, the holding in Goebner also is relevant as it confirms that demurrer can be brought in response to and against a petition that is brought in the Probate Court, and that responses and objections in Probate Court can be made according the Probate Court procedures just prior to and even at the initial hearing (although, again, in my view, if possible it is better practice to try to not wait so long).

As the pleadings (i.e., the petition in a Probate Court case, or the complaint in a civil action) set the scope and boundaries of the relevant claims and issues to be resolved in the case, I do find it useful in appropriate circumstances to file a demurrer to try to ensure that the claims made are sufficient pleaded and are not vague or ambiguous.

The following quotes are some of the relevant discussions from the holding in Goebner:

• Section 1000 provides, in relevant part, “Except to the extent that [the Probate Code] provides applicable rules, the rules of practice applicable to civil actions … apply to, and constitute the rules of practice” in proceedings under the Probate Code. (§ 1000, subd. (a).) This is a rule of default — that is, the Probate Code “adopts the civil practice rules only where special rules are not prescribed.”
• Under the plain language of the Probate Code, it “does provide specially applicable rules” that address the timing for filing a response or objection to a petition. (citations omitted)
• Within that chapter is section 1043, providing “[a]n interested person may appear and make a response or objection in writing at or before the hearing.” (§ 1043, subd. (a), italics added.) Similarly, interested persons “may appear and make a response or objection orally at the hearing.” (Id., subd. (b), italics added.) The statute underscores that oral objections may be made initially at the hearing by noting that the “court in its discretion” may “grant a continuance for the purpose of allowing a response or objection to be made in writing.” (Ibid.)
• While the Probate Code does not expressly define “objection[s]” to include demurrers, we conclude that interpretation is appropriate. Pursuant to section 1000 we look to the Code of Civil Procedure (§ 1000, subd. (a).) The Code of Civil Procedure recognizes that a demurrer is a form of an objection to a petition or complaint. (Code Civ. Proc., §430.30, subd. (a) [a “ground for objection to a complaint, cross-complaint or answer” “may be taken by a demurrer to the pleading”]; see also id. §430.10 [party “may object, by demurrer” on enumerated grounds] . . .. (citations omitted)
• Indeed, Code of Civil Procedure part 2, title 6, chapter 3, article 1, which includes these provisions, is titled “Objections to Pleadings.” Reading these Probate Code and Code of Civil Procedure statutes together, an interested party may file a demurrer to a petition under the Probate Code “at or before the hearing.” (citations omitted) The Probate Code further addresses concerns that a party may present a demurrer at a hearing — thus placing the petitioner at a disadvantage — by allowing a court to “continue or postpone any hearing, from time to time, in the interest of justice.”¹ (§ 1045.) The deadline in the Code of Civil Procedure to respond and object within 30 days after a complaint is served is inapposite.

David W. Tate, Esq.

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David Tate, Esq. (and inactive CPA)

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.