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VOLUME 13 | NUMBER 12 | DECEMBER 2018
 
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IN THIS ISSUE
 
Upcoming Events
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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 Section, coeditors:

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

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 Gordon Garrotto, Secretary & Treasurer
Julia L. Birkel, Esq, Immediate Past Chair

 

 
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Upcoming Events
 

Why, When, and How to Bring a Revocable Trust Proceeding

Date: December 11, 2018
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court

A conversation addressing the law and strategy of bringing a conservatee’s pre-existing trust into a conservatorship proceeding. This presentation puts together a group of probate litigation attorneys that provide their own perspectives on the tactics and decisions surrounding this process. The program covers the statutes and cases surrounding this topic. In addition to the legal nuts and bolts, the panel addresses the practical realities of these proceedings.

Click here for more information and to register


 

Minor’s Counsel Guardianships Training

Date: December 15, 2018
Time: 8:30 a.m.-12:30 p.m.
Location: Los Angeles County Bar Association

This training complies with Los Angeles Superior Court requirements for Minor’s Counsel Guardianships Training.

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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Court News
 
 
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Recent Cases
 
Civil Procedure

Generally speaking, a fee award under Code of Civil Procedure Sec. 1021.5 is not appropriate when the expected value of the litigant's own monetary award exceeds the actual litigation costs by a substantial margin, but a court can consider the financial situation of the parties in determining whether the financial burden of the litigation was sufficient to merit a fee award. The mere fact that this litigation resulted in a published appellate opinion does not necessarily mean that it involves important rights affecting the public interest, however, the societal importance of public employee pension rights has long been recognized.

City of Oakland v. Oakland Police and Fire Retirement System (Retired Oakland Police Officers Association) - filed Nov. 29, 2018, First District, Div. Four
Cite as 2018 S.O.S. 5637
Full text click here >

The key test for finality of a third-party discovery order in enforcement proceedings is whether the challenged order reflects a final determination of the rights or obligations of the parties or whether it contains language showing it is preparatory to a later ruling that will be embodied in an appealable judgment or order.

Finance Holding Company, LLC v. The American Institute of Certified Tax Coaches, Inc. - filed Nov. 29, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5645
Full text click here >

To establish mandatory intervention, a proposed intervener must show an interest relating to the property or transaction which is the subject of the action, that the party is so situated that the disposition of the action may as a practical matter impair or impede that person's ability to protect that interest, and that the party is not adequately represented by existing parties. Members of a settlement class who can opt-out and protect their interests are not entitled to mandatory intervention.

Edwards v. Heartland Payment Systems, Inc. - filed Nov. 30, 2018, Second District, Div. Eight
Cite as 2018 S.O.S. 5653
Full text click here >

A moving party can "prevail" on a motion to quash or modify a subpoena for purposes of Code of Civil Procedure Sec. 1987.1 if the subpoena has been withdrawn prior to a judicial ruling on the motion.

Roe v. Halbig - filed Nov. 20, 2018, Sixth District
Cite as 2018 S.O.S. 5455
Full text click here >

Any reasonably prudent person, upon being informed that he was being sued for failing to disclose the structure of a transaction, would conduct further investigation into the matter. An attorney's willful concealment of facts tolls only the four-year limitation under Code of Civil Procedure Sec. 340.6.

Genisman v. Hopkins Carley - filed Oct. 16, 2018, publication ordered Nov. 14, 2018, Sixth District
Cite as 2018 S.O.S. 5390
Full text click here >

A trial court did not commit clear error in prohibiting counsel from providing mini-opening statements and discussing case-specific facts after the first day of voir dire. A trial court did not abuse its considerable discretion when it denied a plaintiff's "for cause" challenges two prospective jurors who had made conflicting statements about their ability to remain impartial since neither juror expressed views indicative of an unalterable preference in favor of the defense.

Alcazar v. L.A. Unified School District - filed Oct. 16, 2018, publication ordered Nov. 15, 2018, Second District, Div. One
Cite as 2018 S.O.S. 5394
Full text click here >

Civil Code Sec. 1668 negates a contractual clause exempting a party from responsibility for fraud or a statutory violation only when all or some of the elements of the tort are concurrent or future events at the time the contract is signed. Sec. 1668 does not negate such a clause when all the elements are past events.

SI 59 LLC v. Variel Warner Ventures, LLC - filed Nov. 15, 2018, Second District, Div. Two
Cite as 2018 S.O.S. 5400
Full text click here >

Assuming a party can recover the attorney fees it incurred in an unlawful detainer action as damages for the opposing party's breach of a settlement agreement, a fee award was improper in the absence of any testimony of the attorneys' billing rates and the work performed in the unlawful detainer action.

Copenbarger v. Morris Cerullo World Evangelism - filed Oct. 19, 2018, publication ordered Nov. 13, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 5361
Full text click here >

Code of Civil Procedure Sec. 92 precludes the filing of a special motion to strike in a limited civil case.

1550 Laurel Owner's Association v. Appellate Division (Munshi) - filed Nov. 7, 2018, Second District, Div. Three
Cite as 2018 S.O.S. 5338
Full text click here >

Criminal Law and Procedure

The sham marriage exception, which has been applied to the spousal testimonial privilege, does not extend to the marital communications privilege.

United States v. Fomichev - filed Nov. 30, 2018
Cite as 2018 S.O.S. 16-50227
Full text click here >

Family Law

Family Code Sec. 7540's conclusive presumption of fatherhood is not an exclusive presumption which precludes the operation of any other presumptions of parenting. Nothing in the Family Code exempts conclusive fathers under Sec. 7540 from the text of the three-parent statute and its immanent purpose to preserve extant parent-child relationships.

C.A. v. C.P. - filed Nov. 13, 2018, Third District
Cite as 2018 S.O.S. 5375
Full text click here >

A trial court did not commit an abuse of discretion in issuing a domestic violence restraining order based on specific allegations that had not been contained in the request for the restraining order where the restrained party was on notice that the request was based on a threat of physical violence and the restrained party had an opportunity to respond to the allegations.

In re Marriage of Davila and Mejia - filed Nov. 19, 2018, Second District, Div. Seven
Cite as 2018 S.O.S. 5440
Full text click here >

A family court erred in considering a child's father's greater fluency in English as a factor rebutting the presumption of detriment due to his domestic violence against the mother.

S.Y. v. Superior Court - filed Nov. 21, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 5485
Full text click here >

Government Law

A group of physicians with patients with terminal diseases and an organization that promotes ethical standards in the medical profession both lacked standing to challenge the constitutionality of the End of Life Option Act based on a violation of their patients' rights. Even assuming that a plaintiff would feel some reluctance to diagnose a patient as having a terminal disease because of the possibility the patient may start the assisted suicide process, such "conjectural" and "hypothetical" possibilities do not give rise to standing.

People ex rel. Becerra v. Superior Court (Ahn) - filed Nov. 27, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5557
Full text click here >

Real Property

The lack of specificity to narrow the scope of an easement does not make the easement objectively "ambiguous" as a matter of law. Since the parties to an express right-of-way easement presumptively contemplate "normal future development," such an easement will generally not be restricted to its historic use. A bona fide purchaser for value who acquires his interest in real property without notice of another's asserted rights in the property takes the property free of such unknown rights.

Zissler v. Saville - filed Nov. 29, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 5626
Full text click here >

Torts

A trier of fact could have reasonably concluded that a defendant acted intentionally by repeatedly punching and kicking the plaintiff. Repeatedly striking a person indicates a desire to cause to harm. Malice requires an intent to injure, not actual injury. The Court of Appeal reviews a finding of malice for substantial evidence, not clear and convincing evidence. A defendant's refusal to comply with discovery excuses the plaintiff's failure to product evidence of the defendant's ability to pay a punitive damage award. The Riverside Superior Court's local rule for resolving a party's objection to the admission of unbound pages from a transcript does not conflict with the Evidence Code.

Morgan v. Davidson - filed Nov. 27, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 5577
Full text click here >

Trusts

Even though a decedent's estate is the named defendant in actions under Probate Code Sec. 550 through Sec. 555, it is not a party under Code of Civil Procedure Sec. 998 that must pay specified costs after rejecting a reasonable settlement offer.

Meleski v. Estate of Hotlen - filed Nov. 29, 2018, Third District
Cite as 2018 S.O.S. 5633
Full text click here >

 
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Legal Developments
 

IRS provides tax inflation adjustments for tax year 2019. Click here for more info.

IRS –Making Large Gifts now won’t harm estate after 2025. Click here for more information.

State Board of Equalization LTA No 2018/51; Summary of 2018 Property Tax Legislation, dated November 7, 2018 can be viewed at http://www.boe.ca.gov/proptaxes/pdf/lta18051.pdf

All other Notices of Letters to Assessor issued for the current year can be accessed through - http://www.boe.ca.gov/proptaxes/2018.htm

 
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