January 3, 2021

Dear Members:

A representative of the Alameda County Bar Association Trusts and Estates section attended the Bench Bar Meeting with Judge Bean and Commissioner Sundeen on December 30, 2021, who asked that we pass along this message to ACBA members, and the probate bar in general.

As you may be aware, Civil Code of Procedure Section 367.75 is the new statute regarding appearances in civil matters, including probate, that is effective January 1, 2022.  The statute provides, generally and in part, that appearances in evidentiary matters shall be deemed to be a remote appearance, whereas all other matters shall be considered in-person appearances.  
For the purposes of the Probate Department, all Guardianship/Conservatorship proceedings will be deemed to be evidentiary in nature and thus remote, by default.  “Other matters” include all probate proceedings (except probate trials) and trust proceedings (except trust trials and actual evidentiary hearings) and shall be deemed to be in-person, by default.  

Parties can, however, request to appear in person in evidentiary matters or remotely in other matters by making a request/notification/stipulation to the court.  Practitioners should note the case number and title of the matter on which they are making the request, and such request shall be valid for all proceedings (i.e., there should not be a need to make a request for each hearing on the same matter).

The statute provides that a party’s request to make an appearance not otherwise prescribed above should be done five court days ahead of the hearing, but both Judge Bean and Comm. Sundeen indicated that they understand that this will take some getting used to, and expressed some leniency in this regard.  The request can be made by filing a separate pleading, adding to a caption on (e.g., similar to a request for jury trial in a civil complaint), or even sending an email to the appropriate department (dept201@alameda.courts.ca.gov and dept202@alameda.courts.ca.gov). If counsel choose to send emails to the department, you should do so within the 5 court day window before the next hearing. Counsel should send separate emails for each matter (no batches). Judge Bean encourages counsel to file a separate pleading at the time you file your initial pleading, so that the request is in the record and readily accessible to the judicial officers.

As an example, Commissioner Sundeen suggested that you could simply indicate a request in the notice of hearing itself.  That way all parties are aware.  Judge Bean also noted that it is her understanding that a judicial council form is to come out soon for this purpose.  When we are made aware of this form, we will notify members.
Alameda Superior Court has issued a press release (attached).  In particular, attention should be paid to LR 190 (linked in the press release), which is the updated local rule on remote appearances.
Masks and social distancing will be requirements for in-person appearances.  It is likely, particularly in Department 202, that only one matter will be allowed in the courtroom at a time.  No decision has been made on a vaccination requirement or mandate for in-person appearances.

The probate department is also transitioning its remote appearances to Zoom.  For now, trials will be done via Zoom, but all other hearings will be conducted via BlueJeans for the time being (eventually migrating to Zoom).  Practitioners should pay attention to any invitations received by court clerks.

The probate department finally received the necessary A/V equipment to conduct hybrid hearings, and that will start January 3, 2022 as well.  With the hybrid equipment, parties and counsel can attend in person or via remote for the same hearing. Judge Bean noted that the courtroom is still having difficulty with microphones, but has ordered a different one and can still make hybrid hearings work, even if it is not elegant at the moment.

Finally, Judge Bean informed us after the meeting that building management implemented HVAC procedures at the outset of Covid, which are still in place:
•           Replaced building’s HVAC filters with a minimum MERV-13 rating.
•           Increased maximum “fresh air” intake to near 100% – this means more fresh air being taken into the system versus using recirculated air which is more energy efficient.

Thank you.
Peter Shelton, on behalf of the ACBA Trusts and Estates Section