Petition to Determine Claim to Property
Case Number
Case Type Decedent's Estate Hearing Date / Time Wed, 07/01/2026 - 09:30 Nature of Proceedings Petition to Determine Claim to Property Tentative Ruling Probate Notes: Appearances required.
The following is noted for the Court at the hearing: No Trust Instrument. Petitioner alleges there is a trust at issue in this case, but there is no copy of the trust on file. A copy of the trust, and all accompanying amendments, must be submitted for review. (Local Rule, 1791(c).)
Recorded Title. Judicial admissions by the petitioner in this case, and case no. 25CV05155 claim that title to the real property at issue in this case is currently held by Georgina Bojorquez. There is no allegation in the petition that settlor held title to the subject property, nor is there a deed on file showing how title to the subject property is currently held. Since "a person may not transfer an estate or interest in property unless that person is the owner of the estate or interest in question or has the legal authority to act on that owner's behalf" (Restatement (Fourth) of Property Sec. 1.1 (2024), the Court must have evidence of how title is held: The nemo dat principle is typically expressed in the full Latin phrase " nemo dat quod non habet," which roughly translates to "one can only transfer what one owns" or, in the negative, "one cannot transfer property that one does not own."
It is sometimes called the "derivation principle" because the transferee's interest derives from the transferor's. (Id., at cmnt. a. See also (Miller & Starr (2024) 3 Cal. Real Est. Sec. 8:58 (4th ed.) Sec. 8:58 ["It is axiomatic that a deed cannot convey more than is owned by the grantor. If a deed purports to convey property that is not owned by the grantor, it is ineffective to convey the property, and it is a "wild deed" that can have no effect on title of the person who holds real title to the property."]; and Romero v.
Shih (2024) 15 Cal.5th 680, 689 [citing same in Miller & Starr].)
Improper, Duplicative Petition. This Court ordered this case related to a civil case (25CV05155) on April 29, 2026. According to the Complaint filed in the civil case, Petitioner here (plaintiff there) is seeking relief in a civil claim that is duplicative of the claims in this case (i.e.quiet title), but far more complex, thus more appropriate in civil court. (Prob. Code, 856.5 ["The court may not grant a petition under this chapter if the court determines that the matter should be determined by a civil action."].) Petitioner's claims in this case are highly dependent on the Court upholding a contract of sale, and subsequent performance issues that are best handled in the civil case. Thus, the court should make a finding that this case should be determined by the civil action.
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Defective Service. There is no Proof of Service on file, showing that anyone entitled to service was given a copy of the Notice of Hearing (DE-115). Service of Petitions pursuant to section 850 of the Probate Code is governed by section 851, which references CCP section 413.10: At least 30 days prior to the day of the hearing, the petitioner shall cause notice of the hearing and a copy of the petition to be served in the manner provided in Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of the Code of Civil Procedure on all of the following persons where applicable: (1) The personal representative, conservator, guardian, or trustee as appropriate. (2) Each person claiming an interest in, or having title to or possession of, the property. (Prob. Code, Sec. 851(a).)
According to that chapter of the CCP, service of the petition must be on the person (CCP, Sec.Sec.413.10; 415.10) the same as a civil summons, with exceptions for mailing and publication as that law provides when the serving party proves the petition "cannot with reasonable diligence be personally delivered to the person to be served..." (CCP, Sec.415.20(b).)
Further, section 851 requires Notices of Petitions pursuant to Probate Code section 850 " shall contain all of the following": (1) A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property's location and assessor's parcel number. (2) If the petition seeks relief pursuant to Section 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested. (3) A statement advising any person interested in the property that he or she may file a response to the petition. (Prob. Code, Sec. 851(c) [emphasis added].)
To ensure this information is in the notice, the Judicial Council created form DE-115 to be used for all petitions pursuant to section 850. Thus, the proof of service must be submitted using Form DE-115, which became mandatory on January 1, 2020.
Once proper service has been completed, any objecting respondents must file a written objection before the next hearing. The court has authority to require all objectors to file a written objection pursuant CRC, Rule 7.801, or else deem the failure to do so a waiver. It is recommended the hearing be continued to a date set by the Court at the hearing, to allow sufficient time for re-service in conformity with the new rule.
Due to staffing limitations, processing times may be delayed. To assist in processing, attorneys and parties should include the next court date in the "Filing Description" field provided by the electronic service provider. That field is also used for further descriptions of the document being e-filed, so be sure to put the calendar date FIRST in the field - BEFORE any further description of the document being e-filed (e.g.: 06/28/16 For XYZ).
Tentative Ruling: Conservatorship of Virceida Garcia Hernandez Tentative Ruling: Conservatorship of Virceida Garcia Hernandez