When Must A Conservatee Demand a Jury Trial Under California’s Probate Code and Code of Civil Procedure?

California law treats probate conservatorship cases as quasi-criminal because the appointment of a conservator has a profound impact on the liberty interests of the proposed conservatee. California Probate Code §1827 therefore grants a proposed conservatee the right to a trial by jury regarding appointment of a conservator. A proposed conservatee’s right to a trial by jury is also protected by Welfare and Institutions Code §5350. This is the only probate issue that can be heard by a jury under normal circumstances.

However, the Probate Code is silent as to when a potential conservatee must assert this right, and whether the proposed conservatee must pay jury fees. This yields confusion, and a careless practioner may accidentally waive a conservatee’s jury trial right.

Under Probate Code § 1000, where there is no specific rule in the Probate Code governing a procedure, the California Code of Civil Procedure controls. A strict reading of Code of Civil Procedure §631 requires the right to a trial by jury to be asserted at the first case management conference, and any jury fees paid then. But there are no case management conferences in probate. This results in ambiguity about when a conservatee must assert their jury trial right. Some courts have required a proposed conservatee to assert his or her right to a trial by jury upon objection to the petition for conservatorship, and then submit the request in writing to the court and pay jury fees. But forcing a proposed conservatee to invoke his or her right to a trial by jury at the initial stages of the proceedings can drastically increase the number of jury trials schedule for already overburden courts.

Not all courts uniformly enforce a strict reading of CCP §631. Some courts grant a request up to the day of the scheduled trial. Other jurisdictions routinely deny the request unless it was made when the court first sets a trial date. A strict enforcement of CCP §631 at the initial stages of the proceedings drastically increases the number of jury trials requested. Since parties in a conservatorship proceeding often attempt to settle the issue of appointment right up to the date of trial in an effort to preserve the dignity of the proposed conservatee, and to preserve family unity, it is not unusual for a proposed conservatee to request a jury trial late in the proceeding.

California courts have not been helpful in offering a uniform resolution to this issue under the Probate Coude. By contrast in mental health conservatorship proceedings, which by their nature often involve a separate court system and different liberty interests of the proposed conservatee, the proposed conservatee can demand a jury trial at any time including up to five days after the court rules against the conservatee.  In re Conservatorship of Person of John L. (2010) 48 Cal.4th 131, 143. But courts have not extended this procedural right to probate conservatorship cases.

Given the inconsistent rules county courts follow regarding the request for a probate jury trial, careful practitioners must establish their client’s request for a jury trial immediately in the proceeding. Even if a settlement is likely, or if the client is unsure about a request for a jury, in order to avoid a court foreclosing a request for a jury, the safe practice is to demand a jury trial upon filing a first objection.

Mark McGuire

Mark McGuire

Mark H. McGuire is an associate attorney with Brown White & Osborn, LLP. Primarily practices in the area of trust, estate and bankruptcy litigation, representing fiduciaries, debtors, beneficiaries and creditors. He is also a court appointed attorney in Riverside County, representing minors and conservatees in contested guardianship and conservatorship matters.
Mark McGuire