Probate and trust disputes are fertile grounds for appeal. That is because under Probate Code section 1300, most categories of probate orders, including orders instructing a fiduciary to act, are immediately appealable. That, coupled with automatic stay rules, allows litigants to delay the administration of trusts and estates indefinitely, simply by filing a notice of appeal. (Probate Code §§ 1300, 1310(a).)

But not always. The Legislature has carved out a safe harbor exception that validates certain actions of a fiduciary regardless of the result of any appeal. Under Probate Code section 1310(b), “for the purpose of preventing injury or loss to a person or property,” a trial court may direct a fiduciary to act “as if no appeal is taken.” All acts of the fiduciary taken pursuant to those directions are “valid, irrespective of the result of the appeal.”

The effect and import of a Probate Code section 1310(b) order was recently confirmed by the California Court of Appeal in East Bay Regional Park Dist. v. Griffin (2016) 2 Cal.App.5th 734 (dismissing as moot two appeals seeking to undue the acts of a fiduciary made pursuant to a Probate Code section 1310(b) order). In so holding, the Court recognized that in many cases, the “statute effectively deprives an appellant of his or her right to appeal altogether.” Rejecting a due process objection, the Court explained: “[w]e recognize depriving a litigant of his or her right to appeal is an extraordinary measure. But the Legislature appears to have determined that, in certain cases, expeditious resolution of disputes is more important than allowing for a right of review.”  (Id. at p. 747.)

Whether to issue a section 1310(b) order is within the sound discretion of the Probate Court. Presumably, an aggrieved party may still seek relief through writ review. But that must be done expeditiously (i.e., before the fiduciary acts) and there is no guarantee a reviewing court would even consider it. And so at least when it comes to preventing injury or loss to a person or property, a trial court may direct a fiduciary to act and such acts may well be immune from any appeal. So much for fertile ground.

Michael McNaughton
Michael is an experienced trial attorney who has effectively litigated cases involving a broad range of commercial matters. He has experience in contracts, corporate governance, complex antitrust litigation, unfair business practices, healthcare, eminent domain, real estate, probate and trusts. In addition to his trial work, Michael has briefed and argued several cases before the appellate courts.