Loser's second chance

[stockton]

CALIFORNIA

I had a hearing to remove the Trustee. He said he quit.

The Trustee nor his attorney appeared.

The judge told me he would grant the petition and he agreed to appoint me, as I am the sole beneficiary, as successor Trustee.

The judge instructed me to give him an ORDER to sign, but he instructed,
to give a copy to the Trustee’s attorney. After 5 days of notice to the Trustee, the judge said he would sign the ORDER.

I had a terrible time locating an order form to make one so I have ordered one made. Today I received a copy of a letter to the judge from the trustees attorney.

He informs the judge he “intended to appear at the hearing, but was unable to do so”; that, his “staff had called the Court at 8:30am” [hearing was set for 8:30am] “to inform them of this circumstance.”

The atty goes on to state the petition should have been denied and instructs the judge to follow Calif. Probate Code 8004(a) which the attorney says is “instructive.”

In a second email, the Trustee’s attorney sent me this:

The minute order for the hearing states that you are required to comply with Cal. Rules of Court No. 3.1312, which states:

Rule 3.1312. Preparation of order
(a) Prevailing party to prepare
Unless the parties waive notice or the court orders otherwise, the party prevailing on any motion must, within five days of the ruling, mail or deliver a proposed order to the other party for approval as conforming to the court's order. Within five days after the mailing or delivery, the other party must notify the prevailing party as to whether or not the proposed order is so approved. The opposing party must state any reasons for disapproval. Failure to notify the prevailing party within the time required shall be deemed an approval. Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.

Based on the above, please submit a copy of your proposed order to me, so that I can respond to it, as allowed by the Rule.

My questions

Q1: If I “won the hearing” because the opponent failed to show or give good cause, why would the Court instruct me to give the opponent 5 days notice of the Order of his ruling in the matter—before he signs it?

It is evident the attorney will object to the order, which I assume means the judge will not then sign it.
That either totally reverses his ruling or gives the opponent a second chance to be heard on the issue.

Q2: what am I missing here? Certainly a simple objection because they changed their mind cannot reverse a lost case—can it?

[Dandy Don]

He deserves to receive notice because he is an interested party in the matter. Of course he will object but that doesn't mean he will win and in fact has already lost. In a matter of this importance to you, why would you not even consult an attorney to make sure everything was done properly. Now you have made a simple mistake that you will need an attorney to correct or you could stand a chance of losing your case simply by making the judge made because you have not followed proper procedure. Do things RIGHT this time and declare victory!!!

[stockton]

thanks for yr reply.

good advice!

i havent made my move yet.

i am having a professional prepare the documents (ORDER).

I expect it today. can i deliver the ORDER to the atty myself or do i have to have it served with proof of service?

the judge didnt ask for it, but do i need a certificate, tax number and consent letter?

i am preparing those in case.

[stockton]

I met with the judge today in chambers.

He told me the attorney wanted to attend the hearing but had complications and the judge was willing to accept that excuse.

So he has reversed and will direct the issues to be heard at a hearing the attorney filed for 30 days from now.

I asked on what basis/reason?

The judge told me the attorney said the next Trustee was already nominated. The judge said if he knew that he could not have appointed me. So he reversed his decision.

1. I informed the Court there is no nomination of trustee
2. I asked him what if there is no nomination – none described in the Trust. He said he will deal with that at the next hearing.
3. The judge has accepted a letter from the opponent stating he wanted to attend but doesn’t specify why he didn’t (flat tire etc);
4. Judge has accepted the letter information that I should not be appointed;
5. The judge has informed me he had other information other than the letter (the nomination of Trustee) and has chosen to accept that over my objection.

This all effectively wipes my hearing away. It is as if I appeared in Court, the opponent did not, but sent in a letter opposing my issues and the Court agrees to postpone my hearing for another filed by the attorney 30 days ahead.

MY QUESTIONS

Q1: can a judge accept a letter after the hearing from the losing party and agree to reverse his ruling based on the info from the letter only?
Q2: can the judge accept a call from the losing party and agree to reverse his decision?
Q3: is reading a letter or phone call from one party the same as having an ex parte hearing?
[NOTE: when the judge told me all this above and I asked to allow me a few questions to be clear what he was saying and the judge told me he could not discuss the case with me.
He relented to a few questions but narrowly restricted the content, as I list in my narrative here]
Q4: is there a way to get his reversal-reversed?

[stockton]

If i have a court hearing set and the opposing party waits until 4 days before my hearing and files for a hearing with the same issues...,

Can the judge postpone my hearing for his so both can be heard without asking me and if so, can he do this off the record?

isnt there a procedure to be followed like in consolidating cases?

what could stop a third party from filing their petition on the 4th day of the new hearing and so on?