Eisenbeisz – Trust

TENTATIVE RULINGS

DEPT. CM7

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Date: 08/26/2026

Case # Case Name Tentative

01489177 Eisenbeisz – TENTATIVE RULING Trust Case: Eisenbeisz – Trust 01489177

Calendar No: 1 Date: 08/26/26

MOTION TO DISMISS OR CHANGE VENUE (ROA 34)

Respondent Shannon Gallagher ("Respondent") moves to dismiss or change venue of the Petition filed by Petitioners Sheridan Heidemann, Roxanne Norville, and Shayne Gallagher (collectively, "Petitioners").

Venue in a trust proceeding is determined based on the principal place of administration of the subject trust. (Prob. Code § 17005.) "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." (Prob. Code § 17002.)

While Probate Code sections 17005 and 17002 establish the proper venue for trust proceedings, they do not provide a procedural mechanism for obtaining an order to change venue. Thus, pursuant to Probate Code section 1000, the procedure for changing venue in a trust proceeding is governed by Code of Civil Procedure section 396b.

To challenge venue, a responding party must file a noticed motion for an order to transfer the matter to the proper court "at the time he or she answers, demurs, or moves to strike, or . . . within the time otherwise allowed to

respond." (Code Civ. Proc. § 396b; Estate of Ivey (1994) 22 Cal.App.4th 873, 880.)

Here, Respondent did not file a motion to change venue at the time he filed his Objection (ROA 21) on 3/18/26. Nor did Respondent file a motion to change venue within the time allowed to respond to the petition. Pursuant to Probate Code section 1043, a response or objection to a petition can be made before or at the first hearing on the petition.

The first hearing on the Petition (ROA 2) in this matter took place on 10/8/25 (ROA 15). Before such hearing, Respondent had filed a motion to dismiss based on lack of notice (ROA 10); he did not move to dismiss or transfer for improper venue. Arguably, Respondent's first appearance was a special appearance, since he only contested the court's jurisdiction and, therefore, he reserved the right to challenge venue. However, Respondent failed to file a motion to change venue by the time of the second hearing on the petition which took place on 3/25/26 (ROA 29). Moreover, after the first motion to dismiss was denied, Respondent filed an Objection to the Petition (ROA 21) on the merits without simultaneously filing a motion to change venue.

Respondent raised the issue of venue in his Objection (ROA 21) and orally at the 3/25/26 hearing (ROA 29). However, such actions are irrelevant. Venue must be challenged by timely filing a noticed motion to change venue. (Code Civ. Proc. § 396b(a); Estate of Ivey (1994) 22 Cal.App.4th 873, 880.) In his Reply in support of the instant motion, Respondent argues that Estate of Ivey is distinguishable because, "[u]nlike Estate of Ivey . . . Respondent's objection to venue was asserted in his initial opposition to the petition." (ROA 58, 3:26-27.) However, the court in Estate of Ivey says nothing about whether the responsive pleading raised the issue of venue. It only states that the "motion for change of venue" was untimely filed six months after the filing of the responsive pleading. (Estate of Ivey, supra, at p. 880, emphasis added)

"Section 396b of the Code of Civil Procedure represents an explicit codification of the general 'waivability' of venue defects, providing that, notwithstanding the governing venue provisions, an action may generally be tried 'in the court where commenced' unless the defendant makes a timely motion for change of venue; if no such motion is urged, the defendant is considered to have waived any defect." (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 115.)

Case law recognizes an exception to the general rule of waiver where there is a sufficient showing that the delay in

bringing the motion to change venue was justified under the circumstances.

In Lyons v. Brunswick-Balke etc. Co. (1942) 20 Cal.2d 579, the plaintiffs filed a lawsuit in Los Angeles County against individual defendants residing in San Franscisco County and San Mateo County, as well as a foreign corporation. (Id. at p. 580.) The San Francisco defendant timely filed a motion to transfer venue to San Francisco County, with the consent of the other co-defendants. (Id. at pp. 580-581.) Two days before the hearing on the motion to change venue, the plaintiffs dismissed the San Franscisco defendant.

Thereafter, the San Mateo defendant promptly moved to change venue to San Mateo County. The trial court granted the motion to change venue over the plaintiffs' objection that it was untimely and, therefore, waived. The California Supreme Court affirmed, finding that the San Mateo defendant had no reason to move to change venue to San Mateo County until the San Francisco defendant had been removed, especially because San Mateo County is adjacent to San Francisco County, and the San Mateo defendant lived near the city of San Francisco. (Id. at pp. 584-585.)

Walt Disney Parks & Resorts U.S., Inc. v. Superior Ct. (2018) 21 Cal.App.5th 872 involved a case filed in Los Angeles County. The defendant initially removed the action to federal court. (Id. at p. 874.) The federal court remanded the matter, and the defendant promptly moved to transfer venue to Orange County pursuant to Code of Civil Procedure sections 396b and 397. (Id.) The trial court denied the motion to change venue as untimely. (Id.) The appellate court found that the time limits of Section 396b do not apply to the discretionary provisions of Section 397. (Id. at p. 879.)

It further found that "there is nothing in section 396b . . . which compels a holding that such waiver occurs as a matter of law where, as in this case, there is sufficient showing that there was no intent to waive the right or invoke the jurisdiction of the court in which the action commenced, and the defendant has acted in good faith and with diligence." (Id. at 878.) Thus, the trial court remanded the matter and ordered the lower court to vacate the order denying the motion to change venue and hold a new hearing as to whether the defendant had waived venue. (Id. at p. 880.)

Here, Respondent's moving papers do not cite to Code of Civil Procedure section 396b or 397. More importantly, there are no facts stated in the moving papers to explain why a motion to change venue was not timely filed. Rather, the moving papers simply state that venue should be transferred because the principal place of administration of the trust is in Los Angeles County. On the record presented, the court is unable to find any justification for

Respondent's failure to file a motion to change venue until over 7 months after he was served with the petition.

Accordingly, the court finds that Respondent waived venue by failing to timely file a motion to change venue.

Further, even if the court were to proceed on the merits, Respondent has offered no facts or evidence to support his contention that the principle place of administration of the trust is in Los Angeles County. Rather, Respondent's declaration in support of the motion makes the conclusory statement that "[t]he principle place of administration of [the Trust] is Los Angeles County" without describing any of the day-to-day activities of the trust. Moreover, Respondent's Reply fails to adequately address why, as trustee, he filed a civil complaint in Orange County against Petitioners and stated in the complaint that he resides in Orange County.

"A party waives venue if the party evinces an intent to invoke the jurisdiction of the court in which the action was commenced for the determination of questions of fact or law.” (Bloom v. Oroville-Wyandotte Irrigation Dist., 34 Cal. App. 2d 102, 104; Lyons v. Brunswick-Balke-Collender Co., 20 Cal. 2d 579, 583.)

Here, Petitioners argue that Respondent invoked the jurisdiction of this court by filing an Accounting. In his Reply, Respondent argues that he only filed the Accounting because he was ordered by the court to do so. However, in Respondent's opposition to an ex parte application, Respondent states that "the parties agreed to continue the hearing [on the Petition] until March 25, 2026 [and] the parties also agreed that Respondent would file an accounting with the Court ...." (ROA 41, 2:13-17.) Such agreements were made by Respondent at the 10/8/25 hearing, at the time his initial motion to dismiss for lack of jurisdiction was denied and before Respondent had raised any venue objection. The agreements to have a hearing on a petition continued and to file an Accounting reflect an intent to invoke the jurisdiction of this court.

Further, Respondent invoked the jurisdiction of this court by filing an Objection (ROA 21) to the Petition (ROA2) on the merits without simultaneously filing a noticed motion to change venue. As stated above, merely raising the issue of venue in a responsive pleading is not sufficient.

Based on the foregoing, the motion to transfer venue is DENIED.