Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 12 | NUMBER 4 | APRIL 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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Recent Cases
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The Trusts and Estates Bulletin
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:

Matthew W. McMurtrey, Chair
Julia L. Birkel, Vice-Chair
Marc L. Sallus, Esq, Secretary & Treasurer
William L. Winslow, Immediate Past Chair

 

Members:
Susan Ellen Barlevav
Aurora Leigh Perez Basa
Steven P. Beltran
Roseann DeRosa
Zachary Dresben
Jana Gordon Garrotto
Sibylle Grebe
Duncan Hromadka
Deborah Keesey
Patricia A. Lobello-Lamb
Stephen M. Lowe
Richard A. Luftman
Mary L. O'Neill
John E. Rogers, Jr.
Donald L. Scoggins
Lisa Greta Wick

Barristers Liaison
Jessica Ghirardo Gordon

County Counsel Liaison
William C. Sias

Public Interest Liaison
Yolande P. Erickson

Ex Officio Members:
James R. Birnberg
Stefanie S. Cutler
Susan Jabkowski
Kira S. Masteller
Amy L. McEvoy
Jonathan L. Rosenbloom
Trudi Schindler
Stuart David Zimring




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Upcoming Events
 
San Fernando Valley Bar Association and LACBA Probate Settlement Officer Training Program

Date: Monday May 8, 2017
Time: 12:30 Registration
1:00-4:00 pm Program
4:00-5:30 pm Recognition Ceremony and Mixer
Location
: Stanley Mosk Courthouse; Room 222
Click here for more information

Trusts and Estates Section Reception

Date: May 15, 2017
Time: 5:30 – 8:00 pm
Location: Omni Hotel Downtown
More info TBA

 
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Save the Date
 
View from the Bench
Date: June 8, 2017
Time: 12:30 – 1:30 pm
Location: Omni Hotel Downtown
More info TBA

Mandatory PVP Training
Date: June 17, 2017
More info TBA

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Did You Know?
 
Did you know that...
the Los Angeles County Superior Court has probate note email parameters? Practitioners should review the email parameters found at http://www.lacourt.org/division/probate/PR0075.aspx prior to emailing the probate attorneys and probate examiners.
 
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Court News
 
We Welcome Judge Johnson to the Probate Division
The Honorable Barbara Johnson has joined the Probate Division. While she presently does not have her own probate department she will be covering for other sitting bench officers and handling MSCs. She will be assigned her own probate department after several Civil judges move to the Spring Street Courthouse.

Probate Court Efiling FAQs
Please click here for Los Angeles Superior Court Probate Efiling.

Efiling Reminder:
This is a reminder that effective May 1, 2017 parties are permitted to e-file. Effective June 5, 2017, attorneys are required to e-file. Also effective June 5, 2017, the ex parte procedures will change. Please see the Court’s Notices for further details.

 
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Recent Cases
 
Bankruptcy

Creditor was entitled to enforce judgment lien, arising from a guaranty signed by debtor but not by his wife, against debtor's interest--but not his wife's--in California realty owned by both spouses. California choice-of-law rules apply to a determination of the status of California realty regardless of where the bankruptcy proceeding takes place. California law--rather than that of the debtor's and spouse's home state, where the underlying and bankruptcy litigation took place--applied, so that the realty was not community property, but was owned by the couple as tenants-in-common, and the debtor's interests as a co-tenant-in-common were subject to the enforcement of the judgment lien.

In re Miller - filed March 31, 2017
Cite as 2017 S.O.S. 14-16854
Full text click here >

Civil Procedure

Fed. R. Civ. P. 25(a)(1), which sets a 90-day deadline for substitution following the death of a party, permits the district court to allow a late substitution if requested, and does not require the district court to dismiss with prejudice if no substitution is made by the deadline. District court did not abuse its discretion in granting Rule 41(a)(2) motion for dismissal without prejudice, thereby permitting deceased plaintiff's widow--a co-plaintiff in the federal action, due to her loss-of-consortium claim--to pursue a survivorship/wrongful death action in state court.

Zanowick v. Baxter Healthcare Corporation - filed Mar. 9, 2017
Cite as 2017 S.O.S. 15-56034
Full text click here >

A referee's order imposing sanction in excess of $5,000, without further action by the trial court, is reviewable on appeal where the reference was "general," not "special."

Lindsey v. Conteh - filed Mar. 23, 2017, Fourth District, Div. Three
Cite as 2017 S.O.S. 1586
Full text click here >

Where a general release included the defendant's "affiliates," it did not bar a subsequent action against the lessor of the property on which personal injuries were incurred who had no type of ownership, fiduciary, agency, or dependent relationship to the former defendants.

Iqbal v. Ziadeh - filed Mar. 24, 2017, Third District
Cite as 2017 S.O.S. 1589
Full text click here >

Contracts

Where a contract contained an incontestability clause requiring any objection to a financial statement to be made within a specified period of time and sue within a specified period, it was error for a trial court to summarily adjudicate that the action was time barred. Oral tolling agreements, the prior failure to enforce the incontestability clause, and the chronic delays in the audit process, created triable issues of material fact as to whether the defendant may be estopped from asserting the contractual limitations period as a defense.

Wind Dancer Production Group v. Walt Disney Pictures - filed Mar. 22, 2017, Second District, Div. Seven
Cite as 2017 S.O.S. 1593
Full text click here >

Evidence

Communications among a litigant, his attorney, and a public relations consultant were discoverable by an opposing party in the litigation. Although in some circumstances the attorney-client privilege may extend to communications with a public relations consultant, it did not do so in this case because the litigant failed to prove the disclosure of the communications to the consultant was reasonably necessary for the attorney's representation of the litigant.

Behunin v. Superior Court (Schwab) - filed Mar. 14, 2017, Second District, Div. Seven
Cite as 2017 S.O.S. 1330
Full text click here >

Healthcare Law

A finding of malice, fraud, or oppression sufficient to support an award of punitive damages may be made in an action for violations of a nursing home patient's rights under Health and Safety Code Sec. 1430 based on the sheer number of violations, where the violations continued after being reported to a managing agent. Court did not err by allowing jury to award plaintiff a separate measure of statutory damages under Sec. 1430 for each of the violations of his rights found by jury, where each violation constituted a separate cause of action.

Jarman v. HCR ManorCare, Inc. - filed Mar. 14, 2017, Fourth District, Div. Three
Cite as 2017 S.O.S. 1338
Full text click here >

Labor and Employment Law

In calculating a fee award for attorneys who successfully contested school district's attempted firing of teacher before the Commission on Professional Competence, pursuant to Education Code Sec. 44944(f), trial court properly exercised its discretion using the lodestar method. Statutory allowance of "reasonable attorney's fees incurred by the employee" does not limit the award to amounts that the client has actually paid or become obligated to pay.

Walent v. Commission on Professional Competence (Los Angeles Unified School District) - filed Feb. 21, 2017, publication ordered Mar. 13, 2017, Second District, Div. Seven
Cite as 2017 S.O.S. 1348
Full text click here >

Family Law

Rulings made at an initial detention hearing in a juvenile dependency case did not preclude a party from making a Code of Civil Procedure Sec. 170.6 challenge to the judge who made those rulings because they did not "involv[e] a determination of contested fact issues related to the merits."

Johnny W. v. Superior Court (E.R.) - filed Mar. 9, 2017, First District, Div. One
Cite as 2017 S.O.S. 1278
Full text click here >

Probate Law

Where a spendthrift trust pays the beneficiary entirely out of principal, and the beneficiary goes into bankruptcy, the bankruptcy estate's access to the trust is not limited by the Probate Code to 25 percent of the beneficiary's interest.

Carmack v. Reynolds - filed Mar. 23, 2017
Cite as 2017 S.O.S. 1565
Full text click here >

Real Property

Where purchaser at foreclosure sale sought to evict the occupant of the property as soon as possible, serving notice to quit after the sale but before recording title to the property, the notice to quit was not premature, because Code of Civil Procedure Sec. 1161a does not require that title be recorded before the notice to quit is served.

Dr. Leevil, LLC v. Westlake Health Care Center - filed Mar. 7, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 1206
Full text click here >

Motion for appointment of receiver is a "law and motion" proceeding under the Rules of Court, so presentation of live testimony requires a request three days prior to hearing, with an explanation of the proposed testimony. Even if the rule is complied with, the trial court may deny leave if the proposed testimony can be adequately presented in written form. Appointment of receiver for motel was not an abuse of discretion where deadline previously set by court for building code compliance had long since passed, and code inspector clearly established that defendant had not complied and that the conditions were a threat to public health and safety.

City of Crescent City v. Reddy - filed Feb. 16, 2017, publication ordered Mar. 7, 2017, First District, Div. Four
Cite as 2017 S.O.S. 1219
Full text click here >

Evidence that defendant lender concluded that plaintiff borrower was ineligible for loan modification under the Making Home Affordable Program, yet continued to accept her mortgage payments, then informed her that she was ineligible but induced her to continue making payments while it explored unexplained "other alternatives," despite knowledge of her advancing age and precarious finances, established a prima facie case of deceptive practices under California's Unfair Competition Law.

Oskoui v. J.P. Morgan Chase Bank, N.A. - filed Mar. 13, 2017
Cite as 2017 S.O.S. 15-55457
Full text click here >

Torts

Service of counsel's motion to withdraw terminated any reasonable expectation by client of continuing representation, triggering the one-year limitations period for a legal malpractice action.

Flake v. Neumiller & Beardslee - filed Jan. 31, 2017, publication ordered Mar. 2, 2017, Third District
Cite as 2017 S.O.S. 1140
Full text click here >

Comparative negligence instructions were appropriately given in ex-client's malpractice suit against lawyer, whose negligence in preparing deeds allegedly led the ex-client to accept an unfavorable settlement of her divorce action rather than risk a ruling that language in the deeds had transmuted her separate property into community property, where it was undisputed that plaintiff read the documents and was entirely conversant with the issue. Client had the basic knowledge to pose a question to the attorney rather than remain quiet.

Yale v. Bowne - filed Feb. 9, 2017, publication ordered Mar. 10, 2017, Second District, Div. Two
Cite as 2017 S.O.S. 1282
Full text click here >

Taxation

Under Revenue and Taxation Code Sec. 5097(a)(3)(A)(i), a property tax refund claim must be filed within one year after the county assessment appeals board makes a final determination on an assessment reduction application and mails a written notice of the determination to the applicant. Taxpayer's argument that the one-year period does not begin to run until after payment of the disputed taxes was inconsistent with the unequivocal statutory language. Equitable tolling does not apply to refund claims under Sec. 5097(a)(3)(A)(i).

California State University, Fresno Association, Inc. v. County of Fresno - filed Mar. 2, 2017, Fifth District
Cite as 2017 S.O.S. 1132
Full text click here >

Trusts and Estates

Attorney fees and costs were properly and lawfully imposed against trust beneficiaries who litigated validity of a property transfer, under trial court's equitable power over the trust, except to the extent the trial court made the beneficiaries personally liable for attorney fees and costs, rather than liable solely from their shares of the trust assets.

Pizarro v. Reynoso - filed Mar. 28, 2017, Third District
Cite as 2017 S.O.S. 1663
Full text click here >

 
 
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