Filed 10/1/26 McKenna v. Coates CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
MICHELLE MCKENNA, H053370
(Santa Clara County
Petitioner and Respondent, Super. Ct. No. 24PR198642)
v.
REGINALD COATES,
Objector and Appellant.
Marcia McKenna was the trustor and trustee of the Marcia J. McKenna Revocable
Trust dated December 24, 1991. (We use the name Marcia throughout to refer to Marcia
McKenna.) She amended her trust in 2013 to name her brother, objector Reginald
Coates, as successor trustee. Coates began to manage and administer the trust. Years
later, Marcia’s stepdaughter Michelle McKenna petitioned to be appointed as guardian ad
litem and conservator of Marcia. After McKenna was appointed temporary conservator
and guardian ad litem, Marcia amended her trust to name her stepdaughter as sole
successor trustee and beneficiary of the trust. McKenna began acting as trustee upon
Marcia’s resignation as trustee.
Coates challenges the order granting McKenna’s ex parte petition to confirm her
appointment as successor trustee and to instruct Coates to turn over Marcia’s assets and
legal invoices. He argues the order granted dispositive relief on a disputed amendment
without notice or an evidentiary hearing in direct conflict with a proceeding concerning
the same trust already pending in Santa Cruz County Superior Court and after he had
timely filed a peremptory challenge under Code of Civil Procedure section 170.6. We
conclude the order is void due to Coates’s timely peremptory challenge and will remand
for assignment to a different judge.
I. BACKGROUND
Marcia McKenna executed the trust in Santa Clara County, naming herself as
trustee and sole income and principal beneficiary during her lifetime. The trustee was to
pay for Marcia’s “care,” which included “maintaining [Marcia] during her lifetime in
[Marcia’s] regular residences, or elsewhere as may be appropriate.” The trust instrument
stated that Marcia wished the trustee would allow her to live at home in familiar
circumstances. Marcia was to be the trustee unless she removed herself as trustee,
resigned, or upon her death or disability “evidenced by joint or separate notarized
statements of opinion signed (i) by a licensed physician and the remaining Trustee or
Trustees or (ii) by two licensed physicians.” Coates was listed as a beneficiary and
successor trustee and also appointed as a financial and health agent under power of
attorney.
The trust was amended in March 2013 to list Coates as sole beneficiary and
successor trustee upon Marcia’s death or incapacity. Coates was also named Marcia’s
agent under power of attorney and an advance health care directive. Although Marcia
lived in Santa Clara County, Coates in 2013 began administering the trust and oversaw
his sister’s health care from Santa Cruz County. Marcia had multiple strokes and was
diagnosed with moderate to severe dementia and Alzheimer’s disease in 2022. According
to Coates, he relocated Marcia to a long-term memory care facility after he received
reports that Marcia’s home was unsanitary and hazardous due to compulsive spending
and drug use and after Marcia was diagnosed with “severe emotional instability and
psychotic disturbance,” rendering her unable to make sound medical or financial
decisions. Coates asserted that he had to sell Marcia’s house to fund her care.
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Marcia was admitted to the hospital in January 2024 for progressive debility. A
doctor’s note from January 2024 noted that Marcia was “incapable” of “understand[ing]
choices and mak[ing] healthcare decisions.” In March 2024, a neurologist completed a
cognitive assessment on Marcia, which revealed that Marcia had moderately severe
dementia. A note from the neurologist in September 2024 stated that due to Marcia’s
Alzheimer’s dementia, “she [was] unable to make any medical or financial decisions.”
When Marcia saw her primary care physician for memory loss issues in May 2024, the
doctor’s note stated Marcia was “alert and conscious, oriented to time, place and person.”
The neurologist stated in a May 2025 note that Marcia “lack[ed] capacity and insight.”
None of those notes were notarized.
McKenna petitioned the Santa Clara County Superior Court to be appointed
guardian ad litem and as conservator (case No. 24PR198682) based on the January 2024
note stating that Marcia lacked capacity. McKenna stated that Marcia disputed her
incapacity but argued that guardian ad litem was needed to revoke Coates’s power of
attorney and modify Marcia’s trust because Coates was controlling the estate plan
documents and selling Marcia’s home without her consent after leaving her in a memory
care facility that she despised. She asked that Coates not be provided notice due to fears
of retaliation against Marcia. The court appointed counsel for Marcia and instructed the
parties to coordinate a capacity declaration from an appropriate physician by contacting
Marcia’s appointed counsel. Coates initially objected to the petitions but later withdrew
his objections “to appointing [guardian ad litem].” The court appointed McKenna as
guardian ad litem and temporary conservator of Marcia. According to the Register of
Actions, the guardian ad litem matter was closed the same day McKenna was appointed.
McKenna produced a second trust amendment from April 2025 that removed
Coates as sole beneficiary and successor trustee and named McKenna as sole beneficiary
and successor trustee. Marcia also resigned as trustee, and McKenna began acting as
trustee. According to McKenna, Marcia had undergone a comprehensive capacity
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evaluation in March 2025 and was found to be fully capable of making changes to her
estate plan. (That capacity declaration was filed confidentially.) Marcia had then
prepared and executed the amendment while represented by court-appointed counsel,
who informed the court that Marcia’s wishes were clear and she no longer wished for
Coates to be her trustee or agent or have any management control over her affairs.
McKenna represented the amendment at a conservatorship hearing in April 2025 and
withdrew the conservatorship petition after the probate court determined conservatorship
was no longer necessary. According to Coates, the probate court did not make any
findings regarding the validity of the trust amendments or any breach of fiduciary duty at
the hearing.
Coates filed a petition in Santa Cruz County Superior Court disputing the validity
of the April 2025 amendment (case No. 25PR00218). (Prob. Code, § 17200.) The
petition sought adjudication of the second amendment’s validity, determination of the
rightful trustee, and instructions regarding trust administration and property rights.
Coates argued the April 2025 amendment installing McKenna as sole trustee and
beneficiary was executed during McKenna’s appointment as temporary conservator and
after McKenna had retained an expert to provide a positive capacity declaration that
contradicted extensive medical evidence of Marcia’s limitations. He stated that McKenna
had reentered Marcia’s life during a period of documented cognitive decline and
disrupted Marcia’s established care protocols, emboldened her resistance to treatment,
and influenced Marcia to amend her trust. Coates served McKenna with the petition a
few weeks later. Before McKenna was served with the petition, emails indicate that
Marcia’s investment accounts were frozen due to the petition.
McKenna filed a verified ex parte petition using the case number of the closed
guardian ad litem proceeding to confirm her appointment and Coates’s removal as
successor trustee, order Coates to turn over trust assets and provide invoices for all
relevant legal services, and surcharge Coates. (Prob. Code, §§ 17200, subds. (b)(6),
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(b)(10), (b)(11), (b)(13), 16004, subd. (a), 859.) McKenna argued venue was proper in
Santa Clara County because the trust was created and trust property was held in Santa
Clara County and because Marcia resided in Santa Clara County. She asserted that
Coates withheld trust documents and property, interfered with the marshaling of trust
assets, directed Marcia’s pension payments into a third account, and used trust assets to
pay his attorneys to oppose conservatorship and the appointment of a guardian ad litem in
direct conflict with Marcia’s interests. According to McKenna, Marcia had executed the
amendment independently of McKenna. Marcia had been upset with Coates’s
management of her affairs and asked McKenna to help access and manage her finances to
move her out of the secure memory facility. The petition was served on Coates’s counsel
by email.
Coates opposed the petition, arguing proper venue lay in Santa Cruz County, the
April 2025 amendment was presumptively the product of undue influence, the
amendment dispute was not appropriate for ex parte relief, and the ex parte petition
violated mandatory notice and hearing provisions. He requested an evidentiary hearing.
The Santa Clara County Superior Court granted McKenna’s ex parte petition in
full after considering Coates’s opposition but without conducting an evidentiary hearing.
The order found all allegations in the petition “true and correct.” The probate court
confirmed McKenna as successor trustee and directed Coates to turn over all trust
property and records. Coates filed a peremptory challenge the same day the trial judge
signed the order. The court denied the challenge as untimely five days later, the same day
an opposition to the peremptory challenge and the order granting McKenna’s ex parte
petition were filed.
II. DISCUSSION
A. VENUE WAS PROPER IN SANTA CLARA COUNTY SUPERIOR COURT
“The superior court having jurisdiction over the trust … has exclusive jurisdiction
of proceedings concerning the internal affairs of trusts.” (Prob. Code, § 17000,
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subd. (a).) “Exclusive jurisdiction” under the Probate Code refers to whether a matter
should be heard in a superior court’s probate department or in another department of the
same superior court. (Capra v. Capra (2020) 58 Cal.App.5th 1072, 1083–1084.) In
contrast, venue concerns which county superior court having jurisdiction is the proper
court geographically for the action. (Id. at p. 1083.) The proper venue for a proceeding
concerning a living trust is the county of the trust’s principal place of administration.
(Prob. Code, § 17005, subd. (a)(1).) That is the usual place where the day-to-day activity
of the trust is carried on by the trustee or the representative primarily responsible for the
administration of the trust. (Prob. Code, § 17002, subd. (a).) The principal place of
administration for a trust with a single trustee is the trustee’s residence if it cannot be
determined based on the day-to-day activity of the trust. (Prob. Code, § 17002,
subd. (b)(1).)
Trustor and initial trustee Marcia lived in Santa Clara County. Coates argues he
began administering the trust in Santa Cruz County after the first amendment in 2013,
and he filed and served the petition asking for clarification of the second amendment in
Santa Cruz County Superior Court before McKenna filed the ex parte petition in Santa
Clara County Superior Court. But Coates could only act as a trustee “[o]n the death or
incapacity of the [t]rustor” or when Marcia removed herself as trustee or resigned.
According to the trust instrument, Marcia could be deemed disabled if evidenced by
notarized opinions by two licensed physicians. Coates did not provide evidence that
Marcia removed herself as trustee or resigned in 2013 or qualifying notarized evidence to
establish Marcia’s disability. Venue was proper in Santa Clara County.
B. COATES’S PEREMPTORY CHALLENGE WAS TIMELY
Within 15 days after notice of an all-purpose assignment in a civil case or within
15 days after a party’s first appearance, a party may disqualify a judge through a
peremptory challenge under Code of Civil Procedure section 170.6. (J.O. v. Superior
Court of San Joaquin County (2026) 19 Cal.5th 753, 761 (J.O.).) A party is allowed only
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one peremptory challenge per action. (Pickett v. Superior Court (2012)
203 Cal.App.4th 887, 892–893.) The challenge may be considered untimely if filed in a
proceeding involving the same parties and core issues as an earlier controversy. (Id. at
pp. 893–895.) And even a timely peremptory challenge must be denied if the judge
presided at an earlier hearing involving determination of contested fact issues on the
merits. (Swift v. Superior Court (2009) 172 Cal.App.4th 878, 883 (Swift).)
Coates filed a peremptory challenge months after he opposed the guardian ad litem
and conservatorship petitions and the all-purpose trial judge was assigned to the matter
but days after his opposition to McKenna’s ex parte petition. (See Super. Ct. Santa Clara
County, Local Rules for Probate Division, rule 1(A) [describing assignment of matters to
All-Purpose Judge].) The probate court found the peremptory challenge untimely.
Coates argues that his challenge was timely filed after he first appeared in the action by
opposing the ex parte petition.
McKenna filed the guardian ad litem petition in December 2024. McKenna wrote
that she was filing the petition to revoke Coates’s power of attorney and modify Marcia’s
living trust because Coates was controlling all estate documents and selling Marcia’s
home without Marcia’s consent. According to the Register of Actions, the guardian ad
litem matter was closed a few months later on the day the probate court appointed
McKenna as guardian ad litem. McKenna’s later withdrawal of the conservatorship
petition effectively concluded the conservatorship proceeding.
Weeks later, McKenna filed an ex parte petition concerning control and
administration of the trust using the same case number as the earlier guardian ad litem
matter. Coates opposed the ex parte petition the following day and filed his peremptory
challenge two days later. Although McKenna’s ex parte petition raised issues of trust
control and administration which she had also referenced in her guardian ad litem
petition, the probate court had not decided any fact issues concerning the trust in that
earlier matter. (Swift, supra, 172 Cal.App.4th at p. 883.) Thus McKenna’s later ex parte
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petition seeking confirmation as successor trustee could not be considered a continuation
of the earlier guardian ad litem matter that concerned different rights and had been closed
months before. (Manuel C. v. Superior Court (2010) 181 Cal.App.4th 382, 386.) The
ministerial error of treating McKenna’s trust petition as a part of the already concluded
conservatorship and guardian ad litem proceedings did not divest Coates of a peremptory
challenge in the new proceeding. Because Coates’s peremptory challenge was therefore
timely, disqualification was automatic. (J.O., supra, 19 Cal.5th at p. 761.) As a result, a
new judge must be assigned and the propriety of any order on McKenna’s ex parte
petition is not ripe for review.
III. DISPOSITION
The order granting McKenna’s ex parte petition is reversed and remanded for
assignment to a new judge. (Code Civ. Proc., §§ 170.1, subd. (c), 187; In re Marriage of
Carlsson (2008) 163 Cal.App.4th 281, 295.) Coates shall recover costs on appeal by
operation of California Rules of Court, rule 8.278.
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____________________________________
Grover, Acting P. J.
WE CONCUR:
____________________________
Lie, J.
____________________________
Wilson, J.
H053370
McKenna v. Coates