IN RE: BETTIE R. ANDREWS LIVING TRUST

23PR001702: IN RE: BETTIE R. ANDREWS LIVING TRUST 11/19/2025 Hearing on Motion - Other Motion to Set Aside in Department 129

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TENTATIVE RULING Moving Parties and Objectors Ronald E. Andrews, Belinda R. (Dumas) Andrews, and Sheila Bell (“Movants”) seek to set aside a January 21, 2025 order approving the first accounting for The Bettie R. Andrews Living Trust Dated January 4, 1990. The motion is DENIED as follows.

Background

Movants seek to set aside the January 21, 2025 order approving the first accounting in this matter, citing mistake and neglect by two of the Movants’ former counsel. Two of the Movants, Belinda R. (Dumas) Andrews and Sheila Bell, were represented by counsel. Ms. Bell filed an objection on 1/10/25, and Ms. Andrews filed her “Declaration in Support” of the objection on 1/16/25. The Court’s probate notes entered on 1/16/25 noted the 1/10/25 objection.

The accounting was approved on 1/21/25 after hearing. The Court’s minute order regarding the general probate hearing, entered 1/21/25, indicates Ms. Bell was present with counsel, and Ms. Andrews’ counsel was present. The minute order further indicates, “[o]n 01/21/2025, good cause having been shown, the Court hereby orders that the hearing requested by Sheila Bell (Petitioner) be dropped from its calendar.” The Court’s minute order regarding the Petition regarding Approval of Accounting, filed 1/21/25, indicates again that Ms. Bell and her counsel attended, as well as Ms. Andrews’ counsel, and the accounting was approved.

Movants now collectively assert that the former counsel, attorneys from different firms, both committed excusable mistake or neglect which led to the approval of the accounting. Respondent Harold Andrews (“Respondent”) opposes on the grounds that the Motion is unsupported by a declaration of an attorney attesting to his or her mistake or neglect, as required under Code of Civil Procedure § 473(b).

Legal Standard

Code of Civil Procedure § 473(b) provides that “[t]he court may, upon any terms as may be just,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23PR001702: IN RE: BETTIE R. ANDREWS LIVING TRUST 11/19/2025 Hearing on Motion - Other Motion to Set Aside in Department 129

relieve a party or his or her legal representative from a judgment, dismissal, order or other proceeding. . . taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect.” Whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, “the court shall vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Id.)

“Inadvertence is defined as lack of heedfulness or attentiveness, inattention, fault from negligence. (Citations omitted.) ‘[S]urprise’ is defined to be some ‘condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.’ (Citation omitted.) ‘Excusable neglect’ is that neglect which might have been the act of a reasonably prudent person under the same circumstances. (Citations omitted.)” (Baratti v. Baratti (1952) 109 Cal.App.2d 917, 921.)

Further, because Section 473(b) is “a causation testing device,” a party seeking relief under section 473 bears the burden of proof. (Milton v. Perceptual Dev. Corp. (1997) 53 Cal.App.4th 861, 867, citing Cisneros v. Vueve (1995) 37 Cal. App. 4th at 912; In re Marriage of Kieturakis (2006) 138 Cal.App.4th 56, 80.)

Discussion

At the outset, the Court notes Objector Ronald E. Andrews was not represented by the former counsel purported to have made the alleged mistake that necessitates this Motion. Mr. Ronald Andrews also did not formally file a timely objection or declaration in support. Thus, relief cannot be granted as to Mr. Andrews’ objection on these grounds.

Second, the mandatory provisions of section 473(b) are not applicable where no dismissal or entry of judgment has occurred. (Code Civ. Proc., §473(b).) There is no mandatory relief procedure under section 473(b) for approval of an accounting based on attorney mistake, inadvertence, surprise, or neglect. (Id.; Loren v. Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 989-990 [“The attorney affidavit provision authorizes relief from the entry of default and the resulting default judgment or dismissal. It does not permit relief from other judgments ”].)

As the order was entered after the objections were filed, and after the hearing on the accounting, rather than as a default judgment or after dismissal, the Motion is DENIED.

Finally, although Movants filed several declarations in support of the Motion, the Motion is not “accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence,

SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO

23PR001702: IN RE: BETTIE R. ANDREWS LIVING TRUST 11/19/2025 Hearing on Motion - Other Motion to Set Aside in Department 129

surprise, or neglect ” (Code Civ. Proc., § 473(b) [emphasis added].) Indeed, Movants’ current counsel attests to the purported mistake and neglect of prior counsel, not his own. Thus, the requirements for mandatory relief have not been met. The Court similarly declines to extend discretionary relief under the circumstances, as Movants do not dispute they were given notice, opportunity to file objections, and opportunity to attend the hearing. As the former counsel for two of the Movants has not provided any basis for the purported mistake and/or neglect, the Court is unable to determine whether any circumstances contributing to the mistake and/or neglect were reasonable.

Accordingly, the Motion is DENIED.

This minute order is effective immediately. No formal order or other notice is required. (Code Civ. Proc. §1019.5; CRC, Rule 3.1312.)