Lashley – Trust

remaining beneficiaries.

Nonetheless, many practitioners choose to plead the entitlement to such fees early to signal the intent to seek such fees in order to avoid claims of waiver or prejudice for not raising it sooner. Moreover, since the prayer for relief in the Petition seeks attorneys fees, it behooves Petitioner to plead facts supporting such prayer for relief to avoid a motion to strike the requested relief. The trial court has discretion to make the determination of whether such equitable fees should be awarded in the judgment or to leave the issue to a post-judgment motion for fees.

While the probate courts apply the code of civil procedure (Prob. Code § 1000), civil procedures do not always perfectly comport with probate procedures. The formatting in the caption and body of this Petition (ROA 65) seemingly indicate that equitable fees are being asserted as a "cause of action." However, the court looks to substance over form. There is nothing in the substance of the Subsequent Petition that indicates the request for fees pursuant to the common fund doctrine is anything other than an equitable remedy.

Based on the foregoing, the Demurrer to the sixth "cause of action" in the Petition is OVERRULED.

Counsel for moving party is requested to give notice of this ruling.

01152663 Lashley – Trust TENTATIVE RULING

Case: Lashley – Trust 01152663

Calendar No: 12 Date: 08/12/26

MOTION TO BE RELIEVED AS COUNSEL (ROA 31)

Attorney Stephen P. Shepard seeks to be relieved as counsel for Co-Trustee Linda Hughes.

An attorney’s right to withdraw as counsel is conditioned upon compliance with California Rules of Court, Rule 3.1362 and, where applicable, Orange County Local Rule 601.21.

Counsel has fully complied with California Rules of Court, Rule 3.1362 by filing and serving all three mandatory forms (i.e., MC-051, MC-052, and MC-053).

However, Counsel has not complied with Orange County Local Rule 601.21, which provides as follows: “If an attorney wishes to withdraw from a probate proceeding as attorney of record for the estate representative or any other fiduciary, in addition to the requirements under CCP 284 and CRC 3.1362, the attorney must have a citation issued and served on such motion or petition directing the representative to appear before the court to show cause why the motion or petition should not be granted or why the representative has not taken the steps to complete his or her duties.”

The client is a co-trustee of the subject trust, and the court’s records do not reflect that a citation was issued to the client. Counsel must file a Citation – Probate (DE-122/GC-322). Once the citation is signed by the court, counsel must have it served on the client in the same manner as a summons. (See Code Civ. Proc. § 415.10.)

If the client appears at the hearing, the motion may be granted. Otherwise, the motion will be continued once for compliance with the foregoing.

TENTATIVE RULING

Case:

Calendar No.:

Date: