Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 12 | NUMBER 12 | DECEMBER 2017
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Did You Know?
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Court News
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Special Announcements
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Practitioner's Notes
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Recent Cases
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The Trusts and Estates eBulletin
is published monthly by the Trusts and Estates Section, coeditors:

Jana Gordon Garrotto
Wolf, Rifkin, Shapiro, Schulman & Rabkin LLP
jgarrotto@wrslawyers.com

Stefanie S. Cutler
Bloom & Ruttenberg
scutler@bloom-ruttenberg.com

Roseann DeRosa

Jessica Ghirardo Gordon
Thompson Coburn LLP
jgordon@thompsoncoburn.com

Trusts and Estates Executive Committee Officers:

Julia L. Birkel, Chair
Marc L. Sallus, Esq, Vice-Chair
Stefanie S. Cutler, Secretary & Treasurer
Matthew W. McMurtrey, Immediate Past Chair

 

 
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Upcoming Events
 

The Beginning of the End – Effective Ways to Dispose of Litigation,
Trial or No Trial

Date: December 7, 2017
Program: 6:30 - 7:30 pm
Location: LACBA Conference Center

Program Description:
The program will cover the ways by which a litigation can end: Summary Judgment, Mediation (including Enforcing Settlement Agreement under CCP 664.6), MSC's, Judicial Reference, Arbitration, Motion for Judgment (CCP 631.8) Motion for Judgment on the Pleadings (CCP 438), Trial. The discussion will explain each of these mechanisms and the differences between them.

Click here for more information and to register


We'd like to thank The Sanborn Team for their sponsorship of our events.

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Save the Date
 
Trusts and Estates Brown Bag:  What did the Courts do to us in 2017 – Update of Recent Appellate Cases of 2017

Date: January 9, 2018
Speakers: Marc Sallus, Marshal Oldman and Judge Cowan
Registration:  11:45 a.m. - 12:15 p.m.
Program:
12:15 p.m. -1:15 p.m.
Location:  Los Angeles Superior Court
Special Events Center (Old Department 1, Room 222)
111 North Hill St.

 
Trusts and Estates Brown Bag:   LPS Conservatorships, Mental Health Court

Date: February 6, 2018
Speakers: Judge Stratton, Vince Lombardo  Moderator: Deborah Keesey
Registration:  11:45 a.m. - 12:15 p.m.
Program:
12:15 p.m. - 1:15 p.m.
Location:  Los Angeles Superior Court
Special Events Center (Old Department 1, Room 222)
111 North Hill St.

 
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Did You Know?
 
Did you know...

The Bet Tzedek Elder Abuse Restraining Order Clinic is held at Stanley Mosk Courthouse, Room 245 on Mondays and Thursdays?

More information:

 

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Court News
 
$20,000 Minimum Bond to be Recommended

Because the current cost of a $6,000 bond is the same as one for $20,000, the probate attorneys are going to be recommending a minimum bond of $20,000 in the ordinary course for all departments. $20,000 provides estates greater protection for no additional cost. In most cases the eligibility qualifications for personal representatives should not change based on an increased bond amount to this level, however in some instances, such as seeking Full Authority under IAEA when there is equity in real property or significant personal property with Limited Authority under IAEA, there may be increased scrutiny in determining whether a representative will qualify for a bond. If counsel believes this is a potential problem, bonding companies such as Bond Services offer a free prequalification review.

 
Setting Initial Hearing Dates

Generally, the initial hearing date for a petition will be set 70 days after the filing date. In calculating the 70th or other applicable day (when the statute requires a hearing set in less number of days (e.g., for appointment in an estate), do not count days the Court may be closed. If the 70th day falls on that department’s trial day, the initial hearing will generally be set the next day. Below are the trial days for each department:

Dept. 5: Monday
Dept. 9: Tuesday
Dept. 11: Wednesday
Dept. 29: Monday & Tuesday
Dept. 57: Wednesday
Dept. 67: Tuesday
Dept. 79: Monday & Friday
Dept. 99: Wednesday

Occasionally there are days when the matter may not be set in accordance with the general rule for operational reasons, however, for the most part, using the trial day model should determine accurately when a hearing will be set.

New Judicial Assignments

Effective January 19, 2018, Hon. Daniel J. Juarez will preside in D-67, replacing Hon. William P. Barry who is retiring.

Effective January 30, 2018, Hon. Barbara R. Johnson will replace Hon. Lesley C. Green in D-11 who is retiring.

Effective January 30, 2018, Hon. Elizabeth A. Lippitt will preside in D-57.

Commissioner Rob Wada will return to the Probate Division on January 29, 2018 and will provide coverage for all departments and handle settlement conferences.

 
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Special Announcements
 

Did you miss the very informative November 7, 2017 Brown Bag "Managing Real Estate in a Probate Proceeding"?

Click here for copies of the materials provided.

 
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Practitioner's Notes
 

When should Proposed Orders be submitted separately?

Proposed Orders are not final upon initial clerk review and therefore behave differently in the e-filing system upon initial clerical processing.  When more than one proposed order is submitted in the same envelope, proposed orders are not released back with status (such as accepted or rejected) until all orders in that same envelope are finalized.  A helpful tip to keep in mind when submitting proposed orders is to determine whether you want to wait for all orders before receiving conformed copies; if your answer is no, then submit the proposed orders in separate envelopes.  

Proposed Orders for Appointment of a Probate Referee should be submitted separately and must have a prior order granting the petition on file. If they are submitted with other proposed orders, there will be a delay in receiving copies of all orders contained in the envelope or may be rejected and the user will be asked to resubmit if no prior order granting the petition is on file.

Proposed orders for Minor’s Compromise should continue to be submitted together in one envelope. These are processed together and all conformed copies will be returned together upon finalization of the last order entered.

Ex parte applications should have the Proposed Order included in the same envelope.  Since only one order is submitted in the envelope with the Ex Parte application, delay will not be experienced due to processing of other orders.

Filings bearing the same case number may continue to be submitted in one envelope.  Submitting multiple proposed orders in the same envelope may cause a delay in receiving conformed or rejected orders pending processing of all orders in the envelope.

E-filing and Service of Ex Partes

Local Rule 4.12(a) contains the requirements for e-filing ex parte applications.

The service requirements for ex parte applications can be found in California Rules of Court, Rule 3.1206 which states:  “Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity.  Absent exceptional circumstances, no hearing may be conducted unless such service has been made."

California Rule of Court 2.251 governs electronic service, which provides that all ex parte papers must be served electronically except in the case of self-represented parties unless the self-represented party has previously consented to electronic service.

California Rule of Court 2.251((b)(1) also provides that a party indicates that the party agrees to accept electronic service by electronically filing any document with the court, except for self-represented parties unless the self-represented party has previously consented to electronic service

 
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Recent Cases
 
Constitutional Law

The operator of a consumer review website lacks standing to assert the First Amendment rights of an anonymous reviewer. A litigant who alleged facts sufficient to demonstrate a defamatory statement by the anonymous reviewer was entitled to discovery regarding that reviewer's identity.

Yelp v. Superior Court (Montagna) - filed Nov. 13, 2017, Fourth District, Div. Three
Cite as 2017 S.O.S. 5487
Full text click here>

Civil Procedure

A party that invites the trial court to commit error is estopped from challenging that error on appeal. A party, and its attorneys, acted in bad faith by seeking an order denying their own motion to compel arbitration, with the goal of generating pretrial appellate jurisdiction. By engaging in such conduct, the party waived its right to compel arbitration.

Diaz v. Professional Community Management, Inc. - filed Oct. 17, 2017, publication ordered Nov. 8, 2017, Fourth District, Div. Three
Cite as 2017 S.O.S. 5447
Full text click here >

Civil Procedure

A trial court does not have subject matter jurisdiction to enforce a settlement under Code of Civil Procedure Sec. 664.6 where the parties to the agreement failed to request that the court retain such jurisdiction before the court entered a dismissal order for the action resolved by the settlement.

Sayta v. Chu - filed Nov. 29, 2017, First District, Div. Five
Cite as 2017 S.O.S. 5838
Full text click here >

Family Law

Interest began to accrue on an equalization payment incorporated into a stipulated judgment on the date that the payment became due--not the date of the judgment.

In re Marriage of Dalgleish & Selvaggio - filed Nov. 1, 2017, publication ordered Nov. 30, 2017, Second District, Div. One
Cite as 2017 S.O.S. 5887
Full text click here >

The federal Servicemen's Group Life Insurance Act affords service members an unfettered freedom of choice to select the beneficiary of his life insurance proceeds. Once the beneficiary has been duly named, the insurance proceeds cannot be allocated to any other person by operation of state law--even if the insured service member violated a stipulated order in a family law case in naming his beneficiary.

In re Marriage of Steiner - filed Nov. 30, 2017, Fourth District, Div. One
Cite as 2017 S.O.S. 5892
Full text click here >

Healthcare Law

Care and services involving health care cannot be authorized by an attorney-in-fact acting only under a personal care power of attorney. When residential care facilities for the elderly provide health care, they and their employees who provide such care are, respectively, "health care institutions" and "health care providers" for purposes of the Health Care Decisions Law. A third-party contracting for these services as agent for another person may not do so when acting under a personal care power of attorney. An attorney-in-fact made a health care decision by admitting her principal to a residential care facility for the elderly to receive dementia care, thereby exceeding the scope of her authority under a personal care power of attorney. The attorney-in-fact's decision to agree to arbitration as part of admitting the principal was therefore void.

Hutcheson v. Eskaton Fountainwood Lodge - filed Nov. 28, 2017, Third District
Cite as 2017 S.O.S. 5810
Full text click here>

Real Property

A landlord's attempt to fraudulently evict a tenant was sufficiently reprehensible to merit an award of punitive damages where the landlord's conduct left the tenant without a home, food and clothing. The tenant was unable to financially absorb the blow inflicted by the landlord, and the landlord had already made other baseless attempts to evict the tenant. A defendant is in the best position to know his or her financial condition, and cannot avoid a punitive damage award by failing to cooperate with discovery orders. Noncompliance with a court order to disclose financial condition precludes a defendant from challenging the sufficiency of the evidence of a punitive damages award on appeal.

Fernandes v. Singh - filed Oct. 4, 2017, publication ordered Nov. 2, 2017, Third District
Cite as 2017 S.O.S. 5321
Full text click here >

Because a co-owner of property has an absolute right to partition unless barred by a valid waiver, language in a settlement agreement providing that its terms "shall not prevent" the parties from filing a partition action does not imply the creation of a new right, but the preservation of an existing right. Since the right to partition was not a provision of the settlement agreement, a party who prevailed on a partition action did not prevail on an action to enforce the agreement, and under the terms of the agreement, she was not entitled to an award of attorney fees. The presence of contested issues does not bar the allocation of fees in partition actions.

Orien v. Lutz - filed Nov. 3, 2017, Second District, Div. Eight
Cite as 2017 S.O.S. 5326
Full text click here>

Trusts and Estates

An order removing the personal representative of an estate was not a final, appealable order because the order explicitly referred to a forthcoming written decision setting forth the basis for the removal order. By including a statement that a further written order setting forth underlying factual findings would be forthcoming, the trial court effectively reserved jurisdiction over the matter.

Estate of Reed - filed Nov. 8, 2017, First District, Div. Five
Cite as 2017 S.O.S. 5429
Full text click here >

Taxation

Whether a financial arrangement is best characterized as debt or equity is a question of fact which, once resolved by a trial court, cannot be overturned unless clearly erroneous. Within this circuit, the inquiry is primarily directed at determining whether the parties subjectively intended to craft an instrument that is more debt-like or equity-like, but a statement of intent to create an instrument that is "debt" or "equity" doesn't make it so. The 11 factors set forth in A.R. Lantz Co. v. United States also must be considered.

Hewlett-Packard Company v. Commissioner of Internal Revenue - filed Nov. 9, 2017
Cite as 2017 S.O.S. 14-73047
Full text click here >

 
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