Legal Question in Civil Litigation in California
About 5 months ago I resigned as Trustee of a private trust which I will call Trust X. 3 months after I resigned as Trustee, I was served 2 sets of summons and verified complaint (VC). 3 weeks after I was served, I realized that 1 set was served on me ON BEHALF OF Trust X & the other was served on me as an INDIVIDUAL. I mailed to the Court the summons and VC served on me ON BEHALF OF Trust X, a copy of my letter of resignation as Trustee of Trust X and a cover letter explaining all of the above. I timely filed a Demurrer as an individual defendant arguing Ca CCP sec 430.10(d), (e), (f) and that I am not the Trustee anymore, Memo P&A, Declaration and Exhibits of my mailing to the Court. The Plaintiff did not oppose my Demurrer, however the Court made a Tentative Ruling 13 days before the hearing that states,
�The court cannot consider evidence on Demurrer such as my declaration or my purported letter of resignation as Trustee of Trust X. A demurrer only considers the allegations of a complaint, which are deemed to be true for that proceeding, or matters that are subject to judicial notice as provided in the evidence code. None of the materials attached to the demurrer are subject to judicial notice. Nor can the Demurrer be used to challenge the propriety of service upon Trust X."
The Plaintiff just filed its Opposition to my Demurrer, 5 calendar days before the hearing, violating the 9 day rule to file an opposition and leaving me no time to file my reply.
I intend to make an appearance at the hearing of my Demurrer. Is there anything I can file prior to the hearing? And will do the Judge allow me to answer the complaint?
Thank you.
SBD
2 Answers from Attorneys
I agree completely with the judge's tentative ruling. A demurrer is based on what is in the four corners of the complaint and matters of judicial notice. It is also not the appropriate pleading to challenge defects in service.
The court will most likely overrule the demurrer, and give you several days to file an answer. You should be advised that a former trustee can be sued in California for their conduct while they were the trustee. Resigning alone does not create any sort of legal defense whatsoever.
I am concerned that by representing yourself, you have taken major steps in damaging your own case. I strongly advise you to seek the assistance of a competent attorney.
Mr. Roach is quite right. Further, even if resigning did give you a valid defense to the part of the claim that names you as the trustee (whether it did will depend upon the facts and the allegations), it would not affect the part that names you individually.
You need counsel right away -- preferably in time to go represent you at the upcoming hearing.
Feel free to contact me directly if this case is in Southern California. I have done a lot of litigation work for trusts in recent years.
Good luck.
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