Legal Question in Wills and Trusts in California

I am a litigator who is litigating a probate matter for the first time. We represent the Respondent. We settled with the Petitioner in September 2014. As part of the settlement, he was to have expunged a lis pendens which he filed against real property held by the trust The petitioner has no refused to expunge the lis pendens. We are moving to expunge the lis pendens according to CCP �� 405.30, 405.31, 405.32 and 405.38. The court has not yet approved the settlement. Much to my surprise and the petitioner who is in pro per, the court did not automatically enter the dismissal after Petitioner filed the request. There is a hearing in December to review and approve the settlement. My question is: Can we compel the Petitioner to comply with the terms of the settlement agreement if the court has not yet approved those terms. If we cannot compel Petitioner to comply then I suppose there is no use in trying to force him to expunge until the settlement is approved, correct? Thank you!


Asked on 9/30/14, 10:49 am

1 Answer from Attorneys
Charles Perry Law Offices of Charles R. Perry

Welcome to the world of probate litigation.

This probably isn't helpful, but it really depends on (a) the litigation; (b) the terms of the settlement; (c) whether Petitioner is the trustee or a beneficiary; (d); why the court is reviewing the settlement on its own motion.

If the petitioner is bound to the settlement despite court approval (because, for example, all we're trying to do is protect the other beneficiaries and/or the trustee), then your motion to expunge should work. If settlement is conditional upon court approval, then your motion will fail. If you aren't sure one way or the other, then the motion will fail.

As you know, the devil is in the details. Sorry for the lawyerly answer.

Best.

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Answered on 9/30/14, 11:10 am


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