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VOLUME 14 | NUMBER 4 | APRIL 2019
 
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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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Recent Cases
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Legal Developments
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The Trusts and Estates eBulletin
is published monthly by the Trusts and Estates Law Section, coeditors:

Jana G. Garrotto

Stefanie S. Cutler
Ruttenberg Cutler, LLP
scutler@ruttenbergcutler.com

Jessica G. Gordon
Thompson Coburn LLP
jgordon@thompsoncoburn.com

Trusts and Estates Executive Committee Officers:

Marc L. Sallus, Esq, Chair
Stefanie S. Cutler, Vice-Chair
Jana G. Garrotto, Secretary & Treasurer
Julia L. Birkel, Esq, Immediate Past Chair

 

 
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Upcoming Events
 

Trial Preparation and Advocacy: Part II

Date: May 7, 2019
Time: 12:15-1:15 pm
Location: Stanley Mosk Courthouse, LASC

This program will cover the subjects of strategic considerations when preparing for trial, including knowing your burdens of proof, shifting the burden of proof, and effective opening and closing arguments, among other topics.

Click here for more information and to register


Trusts & Estates Probate Department Reception

Date: May 8, 2019
Time: 5:30-8:00 pm
Location: Omni Los Angeles Hotel

The Trusts and Estates Section cordially invites you to our annual Los Angeles Court Probate Department reception. There will be a cash bar and complimentary hors d'oeuvres for all guests. There is no registration fee for Trusts & Estates Section members, County Counsel and judges. An RSVP is required in order to attend.

Click here for more information and to register

 
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Save the Date
 

Brown Bag:
Title Insurance, Probate Trusts & Estates 2019 Edition

Date: June 4, 2019
Location: LASC Room 222 1215

This program will cover the Federal Foreclosure, SB2 exemptions and an update on different county interpretations of the SB2 fees. As well as title insurance issues in dealing with trusts and probate estates, IRS liens against trust beneficiaries, and various deed issues. More information TBA.


View from the Bench

Date: June 14, 2019
Time: 11:30 a.m.-1:00 p.m.
Location: Omni Hotel

More information TBA.


Fundamental Court-Appointed Counsel Training

Date: June 22, 2019
Time: 8:00 a.m.-1:00 p.m.
Location: Torrance Marriott

More information TBA.


 

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

Sanborn-Team-Logo

 
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Court News
 

After ten years assigned to the Probate Department, Judge Marvin Lager has conducted his last MSC and will be retiring early April. The Trusts & Estates Section will recognize his exceptional service at the May 8, 2019 Probate Reception at the Omni Hotel.

When Judge Robert Wada returns to the Bench in June, he will be taking over the MSC assignment for Probate.

Effective immediately, Judge Deborah Christian’s assignment to Department 99 is now permanent.

 
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Recent Cases
 
Family Law

A juvenile court properly asserted jurisdiction over a mother and her child based on the mother's admitted use of cocaine and a reckless driving conviction the mother sustained shortly before the dependency proceedings commenced.

In re L.W. - filed Feb. 7, 2019, publication ordered Feb. 28, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 1013
Full text click here >

A husband's agreement to pay spousal support did not terminate by operation of law upon the wife's remarriage because the parties had agreed in writing that Family Code sec. 43371 would not apply.

In re Marriage of Martin - filed March 11, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 1146
Full text click here >

A trial court abused its discretion by ordering physical custody of a child changed from his mother to his father without requiring the father to prove that moving the child out of state would not cause detriment and that the change in custody would be in the best interests of the child.

In re Marriage of C.T. and R.B. - filed March 19, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 1245
Full text click here >

In the context of elder abuse protective orders, individual apartments in a multi-unit building are dwellings, but that the building–as a whole–is not. A court can only order a restrained party to stay away and/or move out from the protected party's "dwelling". Restraining orders authorized by two different statutory schemes are not mutual restraining orders. A family court was not required to make a finding of a "primary aggressor" between two parties where one received a restraining order under the Domestic Violence Prevention Act and the other received a restraining order under the elder abuse law.

Herriott v. Herriott - filed March 20, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 1254
Full text click here >

A minor's counsel is entitled to receive a copy of her client's case file, including any Resource Family Approval Program information, upon request. If counsel determines that access to additional confidential information is necessary to fulfill her duties and responsibilities to the child under federal and state law, on a showing of good cause, minor's counsel may petition the juvenile court for access to additional RFA information. Notice must be provided to the relative whose information is being sought. The court may permit disclosure of juvenile case files only insofar as is necessary, and only if the petitioner shows by a preponderance of the evidence that the records requested are necessary and have substantial relevance to the legitimate need of the petitioner, and the child's needs to inspect those records outweigh the relative resource family's interests in confidentiality of the information.

In re Charlotte C. - filed March 25, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 1335 
Full text click here >

Nothing in In re Marriage of Hayden limits a trial court's equitable powers to set the appropriate date of property valuation at remand only where one party acts to the detriment of the other between the date of the underlying trial and the eventual remand of the case. A trial court has discretion to set a property valuation date after appeal according to principles of equity based on the facts of the case. A trial court erred in characterizing a parcel of real property as a husband's separate property where the parties stipulated the property was community property and the property was acquired during marriage in joint form.

In re Marriage of Oliverez - filed Feb. 28, 2019, publication ordered March 25, 2019, Sixth District 
Cite as 2019 S.O.S. 1345 
Full text click here >

A trial court does not need to find that a spouse made absolutely no contribution to the increase in value in a separate property business during the marriage in order to apply the Van Camp apportionment method. The proper consideration is whether the spouse's efforts during the marriage were the "chief contributing factor" causing an increase. A trial court can apply Van Camp when the efforts of others within a company cause the increase in value.

In re Marriage of Brooks - filed March 27, 2019, Sixth District 
Cite as 2019 S.O.S. 1505 
Full text click here >

A restraining order issued under the Domestic Violence Prevention Act prohibiting a spouse from posting anything about his divorce case on Facebook constituted an overbroad, invalid restraint on his freedom of speech.

Molinaro v. Molinaro - filed Feb. 26, 2019, publication ordered March 28, 2019, Second District, Div. Three 
Cite as 2019 S.O.S. 1513 
Full text click here >

A juvenile court abused its discretion in awarding permanent custody of a minor to his father where the mother was ready, willing and able to safely care for him, but the father had done nothing to rectify the dangers he posed as a parent or his relationship with the child, and the child's behavior and emotional health had deteriorated while in the care of his father.

In re C.W. - filed March 29, 2019, First District, Div. Two 
Cite as 2019 S.O.S. 1517 
Full text click here

Insurance Law

Where a plaintiff's complaint alleges facts embraced by an indemnity agreement, the indemnitor has a duty to defend throughout the underlying tort action unless it can conclusively show by undisputed facts that plaintiff's action is not covered by the agreement. The duty to defend arises immediately upon the proper tender of defense of a claim embraced by the indemnity agreement.

Centex Homes v. R-Help Construction Company, Inc. - filed March 11, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 1158
Full text click here >

In corporation of a claim by reference is sufficient to satisfy Code of Civil Procedure Sec. 580. Under Insurance Code Sec. 11580, when a judgment is secured against the insured in an action based upon property damage, the judgment creditor may bring an action on the policy to recover on the judgment. The statute does not require every element of the damages in that judgment to be property damage. Diminution in value can be used as the measure of the physical damages to a property. For the purpose of determining whether there was coverage within the policy period, the relevant "occurrence" is when the complaining party was actually damaged. "An insurer on the risk when continuous or progressively deteriorating damage or injury first manifests itself remains obligated to indemnify the insured for the entirety of the ensuing damage or injury."

Insurance Company of the State of Pennsylvania v. American Safety Indemnity Company - filed March 1, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 1018
Full text click here >

A trial court had authority to resolve a dispute over the validity of an arbitration agreement where the agreement does not contain a delegation clause explicitly designating whether the trial court or an arbitrator should decide the threshold question of the validity of the arbitration agreement and a party specifically challenged the validity of the agreement. An arbitration agreement contained in a document that changed the dispute resolution terms of an insurance policy and was never submitted to the insurance commissioner for approval was an unenforceable collateral agreement.

Jackpot Harvesting, Inc. v. Applied Underwriters, Inc. - filed March 28, 2019, Sixth District 
Cite as 2019 S.O.S. 1529 
Full text click here >

Professional Misconduct

An attorney's reference to the ruling of a female judicial officer as "succubustic" constitutes a demonstration of bias, prejudice, or harassment based upon gender and thus qualifies as reportable misconduct. Accusations of intentional misconduct without any record support also constitute reportable misconduct.

Martinez v. O'hara - filed Feb. 28, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 1028
Full text click here >

Professional Responsibility

Code of Civil Procedure Sec. 340.6(a)'s one-year statute of limitations for an action against an attorney governs malicious prosecution claims against attorneys.

Connelly v. Bornstein - filed March 28, 2019, First District, Div. Five 
Cite as 2019 S.O.S. 1536 
Full text click here >

Real Property 

While a beneficiary or trustee under a deed of trust who conducts an illegal, fraudulent or willfully oppressive sale of property may be liable to the borrower for wrongful foreclosure, a trustee has no duty to verify that the beneficiary received a valid assignment of the loan or to verify the authority of the person who signed a substitution of trustee.

Citrus El Dorado v. Chicago Title Company - filed March 5, 2019, Fourth District, Div. Two 
Cite as 2019 S.O.S. 1071 
Full text click here >

When a landlord returns a tenant's rent check without cashing it based on a de minimis shortage in the agreed-upon rent, a tenant can assert the landlord's bad faith in rejecting the payment as a defense to an unlawful detainer action.

Bawa v. Terhune; Superior Court of California, County of Los Angeles - filed Jan. 30, 2019
Cite as 2019 S.O.S. 1200
Full text click here >

Where rented property is not subject to a rent control ordinance, the property owner cannot be held civilly liable for charging an amount of rent that is expressly allowed under the parties' written lease agreement or is not precluded by law under a month-to-month rental agreement. No authority allows an award of tort and punitive damages against a landlord for charging above-market rental rates that are expressly allowed by the parties' lease agreement or by law applicable to month-to-month tenancies. It unnecessary to invoke the implied covenant of good faith and fair dealing to limit a contracting party's discretion affecting the contractual rights of the other party if that discretion is subject to other prescribed or implied limitations, such as being in proportion to an objectively determined base.

Bevis v. Terrace View Partners - filed February 28, 2019, certified for partial publication March 21, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 1280 
Full text click here >

Taxation Law

A testator may only be allowed a deduction for estate tax purposes for what is actually received by a charity.

Dieringer v. Commissioner of Internal Revenue - filed March 12, 2019 
Cite as 2019 S.O.S. 16-72640 
Full text click here >

Trusts

A revocable inter vivos trust does not prevent creditors of the settlors from reaching trust property. A signature by the sole trustee and beneficiary of an inter vivos revocable trust is sufficient to convey good title to trust property. Where a complaint does not reveal on its face that it is barred by the statute of limitations, a plaintiff has no obligation to plead around the defense. If a verified complaint contains allegations fatal to a cause of action, a plaintiff generally cannot cure the defect by simply omitting those allegations in an amended pleading without explanation. Amendment in this manner is allowed where a plaintiff clearly shows that the earlier pleading is the result of mistake or Inadvertence. A plaintiff may show mistake or inadvertence, or demonstrate a factual basis for the revised allegation, for the first time on appeal.

JPMorgan Chase Bank, N.A. v. Ward - filed March 28, 2019, Fourth District, Div. One 
Cite as 2019 S.O.S. 1541 
Full text click here >

 
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Legal Developments
 

IRS revises EIN application process; seeks to enhance security

 
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