Filed 9/8/20 McCall v. Dunn CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

CATHERINE MCCALL,

Plaintiff and Respondent,

v.

SANDRA DUNN et al.,

Defendants and Appellants.

F079750

(Super. Ct. No. VPR048408)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Tulare County. Bret D. Hillman, Judge.

Jon P. Adams for Defendants and Appellants.

Richard B. Barron for Plaintiff and Respondent.

-ooOoo-

Respondent Catherine McCall, a beneficiary of a trust, filed a petition in the trial court for an order compelling the trustee to distribute certain trust assets to both her and her sister, Sharon McCall, in accordance with the terms of the trust. Appellants Sandra Dunn, Leanne Gray and James Cunningham, as objecting parties, filed a response requesting a continuance of the hearing under Probate Code section 852 in order to conduct discovery on issues relating to the petition. The trial court denied the request for a continuance and granted the petition. Appellants appeal, contending the trial court erred in denying a continuance because, under the circumstances presented, a reasonable continuance was required under the mandatory language of section 852. We agree, and accordingly reverse the order of the trial court with instructions that a new order be issued granting appellants a reasonable continuance to conduct discovery in preparation for the hearing.

FACTS AND PROCEDURAL HISTORY

The trust that was the subject of the petition in the trial court was established by William W. Cunningham (William) and Jean D. Cunningham (Jean), husband and wife, on September 3, 1999, entitled the William W. and Jean D. Cunningham Revocable Trust (the trust). William and Jean did not have living children in common. William had three children from his prior marriage: appellants Sandra Dunn, Leanne Gray and James Cunningham. Jean had two children from her prior marriage: respondent Catherine McCall, and Sharon McCall. At the time the trust was created, Jean had been diagnosed with pancreatic cancer.

Under section 5.1 of the trust, upon Jean’s death her separate property assets were to be distributed to Jean’s two children, Catherine McCall and Sharon McCall. Jean’s separate property assets were identified by Jean and William in an attached schedule that was made part of the trust. As listed in the schedule, Jean’s separate property assets included among other things the following: (1) PG&E stock, (2) Putnam International Growth Class A (the Putnam account), and (3) Franklin Templeton California Growth Fund Class A (the Franklin account). As noted, section 5.1 of the trust provided that said assets—as Jean’s separate property—must be distributed to Catherine McCall and Sharon McCall upon Jean’s death. At that point, pursuant to other provisions of the trust, including section 5.4, the community property and/or other remaining assets in the trust were to be divided into the “Survivor’s Share,” “Marital Deduction Share,” and “Nonmarital Share” and used for William’s maintenance and support.

Jean died on October 15, 1999, one month after the trust was established.

William died on April 11, 2018.

On June 28, 2019, respondent Catherine McCall filed a petition in the trial court to compel partial distribution of trust assets. According to the petition, Catherine McCall was not provided a copy of the trust until June 2018, and she did not realize until then that she and her sister were entitled to receive the separate property assets. The petition asserted that certain assets identified in the trust as Jean’s separate property were never distributed to Catherine McCall and Sharon McCall as required by section 5.1 of the trust—specifically, the PG&E stock, the Putnam account, and the Franklin account. Allegedly, the PG&E stock and Putnam account had recently been redeemed or liquidated by the trustee, and the cash proceeds for these two assets of $74,425.02 were traced and identified in the petition. Based on these facts, the petition sought an order under section 850 compelling the trustee to distribute to Catherine McCall and Sharon McCall (i) the Franklin account and (ii) the sum of $74,425.02 cash from the trust.

The scheduled hearing date for the petition was July 31, 2019.

On July 25, 2019, appellants Sandra Dunn, Leanne Gray and James Cunningham filed their response to the petition. Appellants argued that they needed time to conduct discovery prior to the hearing, particularly of financial information from the trustee, to ascertain whether Catherine McCall and Sharon McCall may have already received in a like kind or form the assets they now seek. Appellants also noted they were researching whether prenuptial agreements entered into by William and Jean may potentially affect the characterization of the property in the trust. Finally, appellants claimed that respondent, after Jean’s death, entered the residence where Jean had lived and took some personal item of property that had belonged to Jean, even though Jean left such items to William. To adequately prepare for the hearing, a continuance of 60 to 90 days was requested pursuant to section 852, primarily to allow appellants additional time to complete discovery of financial information.

On July 31, 2019, following the hearing, the trial court issued a written order granting the petition to compel partial distribution of the trust assets. The order does not address or refer to appellants’ request for a continuance. However, by granting the petition, the trial court implicitly and necessarily denied the continuance.

Appellants timely filed their notice of appeal from the July 31, 2019 order.

DISCUSSION

I. Standard of Review

The granting or denying of a continuance is ordinarily a matter within the court’s sound discretion, which cannot be disturbed on appeal except upon a clear showing of an abuse of discretion. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.) Here, however, appellants contend the wording of section 852 is mandatory, not permissive or discretionary, and thus the trial court allegedly erred in denying the continuance requested under that section. Issues of statutory construction are questions of law that we review de novo. (Burden v. Snowden (1992) 2 Cal.4th 556, 562.)

II. Construction of Section 852

When a petition under section 850 is filed, notice of the hearing must be given at least 30 days prior to the date of the hearing. (§ 851.) Section 852 provides for a potential continuance of the hearing, stating as follows: “An interested person may request time for filing a response to the petition for discovery proceedings, or for other preparation for the hearing, and the court shall grant a continuance for a reasonable time for any of these purposes.” Appellants argue that because the word “shall” is used in section 852, a trial court must grant any request for a continuance made under that section. As will become apparent from our analysis below, the statute does not operate in such a mechanical fashion. A reasonable continuance is often mandatory, but only where one of the grounds stated in section 852 for seeking a continuance has been shown—i.e., a need for discovery of matters relevant to the hearing or for other preparation.

“When we interpret a statute, ‘[o]ur fundamental task … is to determine the Legislature’s intent so as to effectuate the law’s purpose. We first examine the statutory language, giving it a plain and commonsense meaning. We do not examine that language in isolation, but in the context of the statutory framework as a whole in order to determine its scope and purpose and to harmonize the various parts of the enactment. If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend.’ ” (Sierra Club v. Superior Court (2013) 57 Cal.4th 157, 165–166.)

Section 852 unequivocally states that a reasonable continuance “shall” be granted under the circumstances described therein. (§ 852, italics added.) “Under general rules of statutory interpretation, ‘shall’ denotes something is mandatory.” (Guardianship of C.E. (2019) 31 Cal.App.5th 1038, 1051.) Moreover, the Probate Code explicitly defines the term “shall” as being “mandatory.” (§ 12.) For these reasons, we agree with appellants that the plain meaning of the term “shall” in section 852 is mandatory.

We also observe that such a construction is consistent with the overall statutory context of a petition under section 850. As noted, only 30 days’ notice is required prior to the hearing of a section 850 petition. (§ 851.) However, depending on the nature of the order being sought in the petition and other circumstances of a particular case, such a relatively short notice period may be inadequate to allow an objecting party to prepare. It is reasonable to assume that, in enacting section 852, the Legislature intended to provide a mechanism by which an objecting party would be able to readily secure a continuance in the event there was a reasonable need of additional time for discovery or other preparation before the hearing. (See Parker v. Walker (1992) 5 Cal.App.4th 1173, 1184 [noting, under statutory predecessor to section 852, that the provision allowed an interested person to “secure a continuance” before making a response in order to begin discovery proceedings or to prepare for the hearing].)

At the same time, it must be kept in view that section 852 expressly describes threshold grounds for obtaining a continuance under that section. That is, the request for a continuance under section 852 is to be based on a showing of a reasonable need “for discovery proceedings, or for other preparation for the hearing.” (§ 852.) It is for “these purposes” that the court “shall” grant a continuance for a reasonable time. (Ibid.) Accordingly, the threshold grounds for relief stated in the statute must reasonably be shown before it becomes mandatory for the trial court to grant a continuance. (See, e.g., Park v. First American Title Co. (2011) 201 Cal.App.4th 1418, 1427 [under the continuance provision in the summary judgment statute also using the word “shall,” i.e., Code Civ. Proc., § 437c, subd. (h), a continuance is mandatory only if the threshold showing indicated by the statutory provision is made].) Apart from such a showing, the continuance request would be discretionary only and we would review a denial for abuse of discretion. (Park v. First American Title Co., supra, 201 Cal.App.4th at p. 1428.)

Based on the foregoing discussion, we conclude that a continuance is mandatory under section 852, but only if one of the grounds stated in section 852 for seeking a continuance is reasonably shown—i.e., a need of time for discovery or other preparation relevant to the hearing.

III. Appellants Were Entitled to a Reasonable Continuance

Having outlined the proper construction of section 852, we must decide whether the trial court erred in denying appellants’ request for a continuance.

As noted, appellants through their counsel filed a written request to the trial court for a continuance under section 852. The request asserted a continuance was needed for discovery purposes. Among other things, the request indicated there was reason to believe that discovery of the trustee’s financial records regarding the administration of the trust would show that respondent and her sister received in like kind the equivalent of the particular assets called for under section 5.1 of the trust; and further, it was suggested that prenuptial agreements may have an impact on the property characterizations in the trust and additional time was needed to research that issue prior to the hearing.

We conclude that appellants’ request for a continuance to conduct discovery and prepare for the hearing was sufficient, even if barely so, to trigger the mandatory language of section 852. Under the circumstances, the trial court should have granted a reasonable continuance, as required by section 852. Appellants were prejudiced in that the petition was granted without appellants being allowed an opportunity, by means of a reasonable continuance, to conduct discovery and engage in other preparation in advance of the hearing as contemplated by section 852.

DISPOSITION

The order granting the petition is reversed, and the trial court is instructed to enter a new order granting to appellants a reasonable continuance of the hearing date pursuant to section 852. Appellants are awarded their costs on appeal.