Motion to Strike Petition for Probate of Purported Annexed Will and for Letters of Administration in its Entirety
Superior Court of the State of California County of Orange TENTATIVE RULINGS FOR DEPARTMENT CM3 HON. Judge Erin Rowe Date: 07/01/26 Court Room Rules and Notices
# Case Name Tentative 1 Connolly – Probate Motion to Strike (2026-0153097) Objectors Charles A. Connolly and Patricia Ann Connolly’s Motion to Strike Petition for Probate of Purported Annexed Will and for Letters of Administration in its Entirety (ROA 31) is DENIED.
Pursuant to Code of Civil Procedure sections 435 and 436, objectors Charles A. Connolly and Patricia Ann Connolly (Objectors) ask the court to strike Dana E. Russell’s Petition for Probate and Letters of Administration (ROA 2), as supplemented (ROAs 18 & 25)(collectively Petition). Alternatively, Objectors ask the court to strike certain portions of the Petition pursuant to Code of Civil Procedure section 446, including the will proffered by Russell in support of the Petition and assertions that the will was signed by James Connolly, Jr. (Decedent).
Code of Civil Procedure section 435 (Section 435) permits a party to move to strike “the whole or any part” of a “pleading.” (Section 435(b).) “Pleading” is defined as a “demurrer, answer, complaint, or cross-complaint.” (Section 435(a)(2).) A petition is not one of the pleadings subject to a motion to strike. Code of Civil Procedure section 436 does not provide any additional authority for the motion as it simply recognizes a court’s authority to strike on its own motion, or upon a motion properly made under Section 435.
Even if a motion to strike could be directed at a petition, Objectors’ motion does not fall within the parameters of Section 435, which reads in full: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: [¶] Strike out any irrelevant, false, or improper matter inserted in any pleading. [¶] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”
Section 435 authorizes a motion to strike in two situations. Subdivision (a) allows a motion to strike “irrelevant, false, or improper matter.” Objectors “did not attack ‘matter inserted’ in that pleading, but the pleading as a whole. The cited subdivision does not authorize attacks on entire causes of action, let alone entire pleadings. [Citation.] [The] purpose [of Section 435(a)] is to authorize the excision of superfluous or abusive allegations. ‘[M]atter that is essential to a cause of action should not be struck and it is error to do so.’” (Ferraro v.
Camarlinghi (2008) 161 Cal.App.4th 509, 528.)
Subdivision (b) allows a motion to strike a pleading that is “not in conformity” with the law. “While this language might be broadly construed to reach any deficiency in a pleading, including substantive ones, that is not its purpose or effect. Rather it authorizes the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed. This provision is commonly invoked to challenge pleadings filed in violation of a deadline, court order, or requirement of prior leave of court.” (Ferraro, supra, 161 Cal.App.4th at p. 528.)
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
Objectors’ motion to strike asserts the petition fails to state facts sufficient to constitute a cause of action. That is not proper ground for a motion to strike. (Ibid.; see Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340, 342 [“A motion to strike does not lie to attack a complaint for insufficiency of allegations to justify relief; that is a ground for general demurrer” or motion for judgment on the pleadings”].)
However, “[a] motion labeled as a motion to strike a pleading, based upon the ground it fails to state facts sufficient to constitute a cause of action, may . . . be treated as a motion for judgment on the pleadings.” (Velez v. Smith (2006) 142 Cal.App.4th 1154, 1161.) Accordingly, the court deems the motion to strike to be a motion for judgment on the pleadings and, as such, addresses the motion on its merits.
“‘Judgment on the pleadings is akin to a demurrer and is properly granted only if the complaint does not state facts sufficient to state a cause of action against that defendant. [Citations.] The grounds for the motion must appear on the face of the complaint, and in any matter subject to judicial notice. [Citation.] The court accepts as true all material factual allegations, giving them a liberal construction, but it does not consider conclusions of fact or law, opinions, speculation, or allegations contrary to law or judicially noticed facts.’” (Spencer v.
City of Palos Verdes Estates (2023) 88 Cal.App.5th 849, 861–862, emphasis added.) The only issue raised “is whether the facts pleaded state a valid cause of action, not whether they are true. No matter how unlikely or improbable, plaintiff’s allegations must be accepted as true for the purpose of ruling.” (River’s Side at Washington Square Homeowners Assn. v. Superior Court (2023) 88 Cal.App.5th 1209, 1226.) Objectors’ motion is premised on the assertion that the will attached to the Petition does not bear a signature but, rather, is signed by a mark without any indication of a name in asserted violation of Civil Code section 14 and Code of Civil Procedure section 17(b)(11).
The petition, however, alleges the will contains Decedent’s signature. That allegation must be accepted as true on this motion. The court is not entitled to
weigh the truth of the allegation. That is a question of fact and cannot be decided on a motion for judgment on the pleading.
The motion to strike is DENIED.
The accompanying request for judicial notice (ROA 36) is DENIED as immaterial.
Petitioner is directed to give notice. 4 Turner – Conservatorship Demurrer (2017- 00950100) (#4) Respondent Tamara Joy Willits’ Demurrer (ROA 245) is Demurrer OVERRULED.
Respondent’s Request for Judicial Notice in Support of Demurrer to Petition (ROA 243) is GRANTED.
Respondent demurs to the Petition for Surcharge, Redress of Breach of Fiduciary Duty, Theft by Deception, Unjust Enrichment, and Intentional Mismanagement of Conservatorship Pursuant to Probate Code Section 2459(C) and for Punitive Damages Pursuant to CC § 3294 (Petition, ROA 236) filed by Petitioner Melinda Manderbach. The Petition arises out of the conservatorship of Laurie M. Turner (decedent), mother to both Petitioner and Respondent. Respondent was Decedent’s conservator from April 2018 through her death in February 2023.
The Petitioner asserts that while acting as conservator, Respondent wrongfully removed Petitioner and Respondent as the payable-on-death beneficiaries of Decedent’s IRA and named instead Respondent’s children, Bryce Thomas Willits and Trevor James Willits. Based on those allegations, Petitioner asserts four causes of action: (1) Breach of Fiduciary Duty; (2) Theft by Deception; (3) Unjust Enrichment; and (4) Intentional Mismanagement.
Respondent demurs to each of the four causes of action on the grounds they are barred by the doctrine of claim preclusion and the relevant statute of limitations. Respondent argues the change of beneficiary issue was preclusively determined by this court’s approval of the Second Verified Accounting (2nd Accounting) submitted by Respondent in her capacity as conservator. (ROAs 176, 181, & 194.) She asserts the change of beneficiaries was disclosed in banking statements attached to the 2nd Accounting and, accordingly, the change was approved when the 2nd Accounting was approved. Respondent argues the same banking statement provided actual or inquiry notice of the change in beneficiaries to Plaintiff in 2021 when the 2nd Accounting was filed. As set forth below, neither of these arguments is sufficient at this pleading stage.
Claim preclusion. Respondent acknowledges she removed Petitioner as a beneficiary on the IRA and replaced her with