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VOLUME 12 | NUMBER 11 | NOVEMBER 2017
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Court News
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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
 
2017 Aviva K. Bobb Advanced PVP Training

Date: November 18, 2017
Program and Lunch: 9 a.m.—1:00 p.m.
Location: Sportsmen's Lodge Events Center
12833 Ventura Blvd., Studio City, CA 91604

Program Description:
This year's program will examine conduct of PVP attorneys at contested hearings and mediation sessions, based on a fact pattern involving a proposed conservatee being isolated by highly annoying in-laws. Among the topics we will cover:

  • What the probate note "T/T" means, in terms of court expectations, preparation, witnesses, parties and time.
  • Evidentiary and privilege issues in examining professional and expert witnesses.
  • Examining percipient witnesses.
  • Examining witnesses with memory and/or other impairments.

This program helps to fulfill the continuing education requirements for PVP attorneys set forth in the LASC Local Rules and the California Rules of Court.

Click here for more information and to register


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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Court News
 
Additional Probate Courtroom

An additional courtroom has been assigned for use by the Probate Division of the Los Angeles Superior Court, effective October 30, 2017. It is Department 57 and the Hon. Barbara R. Johnson, who previously provided coverage for all probate departments is now assigned to that department.

 
New Probate Judge

Hon. Daniel Juarez has been assigned to the Probate Division, effective October 23, 2017. He will provide coverage for all probate departments. Judge Juarez will also be conducting settlement conferences.

 
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Practitioner's Notes
 

Supplements and e-filing

Even with the implementation of e-filing, it is important that Supplements be filed as early as possible and if they are filed less than three days before a scheduled hearing, a paper copy, conformed with the e-filing ribbon, should be brought to court. Please note that although courtesy copies are required for filings two court days or less before the hearing, good practice would be to bring a courtesy copy if filed three days or less before the hearing in view of the time it can take for an e-filed document to be filed by the Clerk after transmission to the Court. In addition, it should be noted that the closer to the hearing date a supplement is filed the less likely there will be time for probate attorney review.

Ex Partes

Ex Parte Filings Should Always Have the Date of the Hearing on the First Page of the Application – If the date of the hearing of the Application is not included on the first page, the Application may not be reviewed prior to the date of the hearing.

Paper Copies of Proposed Ex Parte Orders Should Be Brought to the Hearing.

E-filed Proposed Orders on Ex Partes should be submitted with the Ex Parte application or there will be delay in handling.

Ex Parte Filings that are “drop off” should be labeled as such on the first page.
 
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Recent Cases
 
Contracts

To prevail in a suit for misrepresentations and omissions in connection with the sale of the residence, a plaintiff must present evidence that the defendant had actual knowledge of the facts to be disclosed. In order to create an inference of actual knowledge, circumstantial evidence must suggest that the defendant must have known of the matter to be disclosed. In the absence of some evidence that defendants had reason to know of the defects in a property, the sheer numerosity of the defects does not allow an inference of knowledge. A principal is charged only with the knowledge of an agent acquired while the agent was acting in that role and within the scope of his authority as an agent. The fact that a property is being used for a particular activity does not necessarily imply that the property satisfies all regulatory requirements for the activity.

RSB Vineyards v. Orsi - filed Sept. 29, 2017, First District, Div. Three
Cite as 2017 S.O.S. 4927
Full text click here >

A liquidated damages provision lacking a reasonable relationship to the range of damages the parties reasonably could have anticipated is unenforceable and void as against public policy. A stipulated judgment that includes an unlawful liquidated damages provision is therefore void. A stipulated judgment was void as a matter of law where no reasonable relationship existed between the damages that could have been anticipated based on the defendant’s failure to timely pay a settlement amount to plaintiff, and the amount of the stipulated judgment in the event the defendant did not pay up on time.

Vitatech International, Inc. v. Sporn - filed Sept. 29, 2017, publication ordered Oct. 30, 2017, Fourth District, Div. Three
Cite as 2017 S.O.S. 5276
Full text click here >

Environmental Law

A military contractor should not have been assessed with 100% of the cost of cleaning a contaminated site. The government had required the use of chemicals known to be hazardous, the company maintained compliance with the prevailing environmental standards as they evolved over time, and the government repeatedly agreed to share in the company's environmental cleanup costs over the course of more than 20 years.

TDY Holdings, LLC v. United States - filed Oct. 4, 2017
Cite as 2017 S.O.S. 15-56483
Full text click here >

Family Law

In evaluating whether a parent has made a "reasonable effort" to treat problems that led to the removal of a child's sibling or half-sibling to avoid a bypass of reunification services with the child, a juvenile court may consider the duration, extent and context of the parent's efforts, as well as any other factors relating to the quality and quantity of those efforts, when evaluating the effort for reasonableness. In order to meet its burden to establish, by clear and convincing evidence, a lack of reasonable efforts in this regard, child welfare workers must focus on the facts underlying the previous dependency action and it resolution, as well as on any efforts made by the parent since the sibling removal.

Jennifer S. v. Superior Court (San Francisco Human Services Agency) - filed Oct. 2, 2017, First District, Div. Four
Cite as 2017 S.O.S. 4932
Full text click here >

Income that is being garnished to pay child support for the benefit of children who live outside the home is still included as part of the household's income when determining eligibility for cash aid under the California Work Opportunity and Responsibility to Kids Act.

Christensen v. Lightbourne - filed Oct. 6, 2017, First District, Div. Two
Cite as 2017 S.O.S. 4987
Full text click here >

While the doctrine of quasi-estoppel bars a person who previously took a position that a divorce was valid from subsequently taking a position that the divorce was invalid, the doctrine does not apply to a person who was not a party to the divorce proceeding, did not procure or aid in procuring the divorce decree, and did not have full knowledge of the circumstances under which the divorce decree was obtained.

In re Marriage of Kalinawan - filed Oct. 6, 2017, Sixth District
Cite as 2017 S.O.S. 4984
Full text click here >

A parent whose child is in a probate guardianship and whose parental rights have not been terminated qualifies as a noncustodial parent in a dependency proceeding; a noncustodial parent has standing to participate in the child's dependency case and to have appointed counsel represent her at the disposition hearing.

In re Kayla W. - filed July 26, 2017, publication ordered Oct. 18, 2017, Second District, Div. Three
Cite as 2017 S.O.S. 5126
Full text click here >

An estranged husband’s act of purposefully sending a video of a mock suicide to plaintiff in California is indisputably conduct that would disturb plaintiff’s peace of mind within the meaning of the Domestic Violence Prevention Act. This conduct was sufficient to vest personal jurisdiction in the courts of California over defendant to enjoin any further such conduct.

Hogue v. Hogue - filed Sept. 29, 2017, publication ordered Oct. 30, 2017, Third District
Cite as 2017 S.O.S. 5290
Full text click here >

The appropriate standard for ordering a modification in parenting authority that does not rise to the level of a change in legal custody--as with physical custody--is the best interests of the child standard, regardless of any alleged change in circumstances. Orthodontic care clearly falls into the best interests of the child standard. After father requested a child support modification alleging changed circumstances, the trial court was required to determine what resources were available to father to satisfy his child support obligations. A trial court can order a trustee to satisfy all or part of a support judgment out of all or part of future payments that the trustee, pursuant to the exercise of the trustee's discretion, determines to make to or for the benefit of the beneficiary. Collateral estoppel serves only to preclude relitigation of an issue, not to overturn orders entered before the relied-upon order.

Marriage of Furie - filed Oct. 30, 2017, Second District, Div. One
Cite as 2017 S.O.S. 5297
Full text click here >

Real Property

A decrease in the value of property caused by limitations on its use imposed by regional airport authority's new land use compatibility plan did not constitute a governmental taking because the plan is not a final determination with respect to the permissible use of property.

Dryden Oaks v. San Diego County Regional Airport Authority - filed Sept. 26, 2017, publication ordered Oct. 19, 2017, Fourth District, Div. One
Cite as 2017 S.O.S. 5130
Full text click here >

There is a right to a jury trial in an unlawful detainer action on the affirmative defense of breach of the warranty of habitability.

Guttman v. Chiazor; Superior Court of California, County of Los Angeles - filed Sept. 8, 2017
Cite as 2017 S.O.S. 4959
Full text click here >

A district court abused its discretion by declining to stay federal proceeding seeking condemnation of a property when there was a pre-existing state court proceeding which involving the same property and overlapping issues which are governed by state law, and where the state court is able to resolve all the issues and adequately protect the rights of the litigants.

Montanore Minerals Corporation v. Bakie - filed Oct. 18, 2017
Cite as 2017 S.O.S. 15-35707
Full text click here >

A settlement agreement barring a landlord from re-renting certain apartment units for 10 years is an unenforceable prohibition in direct contradiction of the Ellis Act; public entities cannot avoid the Ellis Act's prohibitions by acting through contract.

City of West Hollywood v. Kihagi - filed Sept. 29, 2017, publication ordered Oct. 26, 2017, Second District, Div. One
Cite as 2017 S.O.S. 5261
Full text click here >

Trusts and Estates

When one of the account holders of a joint bank account dies, the sums in the account belong to the surviving account holder – not the decedent's estate – unless there is clear and convincing evidence of the decedent had a contrary intent.

Estate of O'Connor - filed Oct. 13, 2017, Second District, Div. One
Cite as 2017 S.O.S. 5065
Full text click here >

Trusts and Wills

Petitions to enforce a no contest clause under the Probate Code are a form of protected petitioning activity subject to the protection of the anti-SLAPP statute. There may be valid policy reasons to exempt enforcement of no contest clauses from the anti-SLAPP statute, but that is for the Legislature to address.

Urick v. Urick - filed Oct. 5, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 4966
Full text click here >

The costs of a successful defense to a removal or surcharge petition are generally chargeable against the trust even though the trustee personally benefits as a result, but a trustee is not entitled to indemnity for fees incurred in an unsuccessful defense of such a petition absent an additional showing that the trustee subjectively believed that the expense was necessary or appropriate to carry out the purpose of the trust and that belief was objectively reasonable. Where the trust instrument is silent on interim fees, the grant of interim fees should be governed by the following: the court must first assess the probability that the trustee will ultimately be entitled to reimbursement of attorney fees and then balance the relative harms to all interests involved in the litigation, including the interests of the trust beneficiaries.

People ex rel. Harris & Becerra v. Shine - filed Oct. 23, 2017, First District, Div. Five
Cite as 2017 S.O.S. 5184
Full text click here >

Probate Code Sec. 21310, which became operative Jan. 1, 2010, requires that a "protected instrument" either contain the no contest clause or that the instrument be in existence on the date that the instrument containing the no contest is executed and is expressly identified in the no contest clause; thus, a no contest clause does not apply to future trust amendments unless the amendment specifically refers to the no contest clause.

Aviles v. Swearingen - filed Oct. 23, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 5190
Full text click here >

 
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