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VOLUME 15 | NUMBER 12 | DECEMBER 2020
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Recent Cases
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The Trusts and Estates eBulletin
is published monthly by the Trusts and Estates Law Section, coeditors:

Jana G. Garrotto
Lewitt Hackman
Jgarrotto@lewitthackman.com

Stefanie S. Cutler
Ruttenberg Cutler Broomer, LLP
scutler@lawrcb.com

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

Julie Birkel
Hill, Farrer & Burrill LLP
JBirkel@hfbllp.com


Trusts and Estates Executive Committee Officers:

Jana G. Garrotto, Chair
Deborah Keesey, Vice-Chair
Susan Barlevav Devermont, Secretary & Treasurer
Stefanie S. Cutler, Immediate Past Chair

 

 
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Upcoming Events
 

Presented by the South Bay Bar Association in conjunction with the LACBA Trusts and Estates Section:

Proposition 19: Analysis and Timing from the County Tax Assessor and Title

Date: December 17, 2020, 12:00 p.m.—1:15 p.m.

Location: Webinar

Speakers: Jeffrey Prang, Los Angeles County Assessor and Kevin Sayles, Lawyers Title

Registration:
Click to view flyer and for registration information.

 
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Save the Date
 

LACBA Trusts and Estates Section Lecture Series Webinars

Date: February 16, 2021, 12:30 p.m.—1:30 p.m.

Location: Webinar

Description: Dog and Pony Show; Legislation and Case Updates

Speakers: Marshal A. Oldman and Marc L. Sallus of Oldman, Cooley, Sallus, Birnberg, Coleman, & Gold LLP

Registration:
More information to be announced.


Date: March 2021, 12:30 p.m.—1:30 p.m.

Location: Webinar

Description: Judgment Enforcement Issues for Trust and Estate Practitioners

Speaker: Adam L. Streltzer

Registration:
More information to be announced.


 

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

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Recent Cases
 
Administrative

The California Supreme Court decision in Conservatorship of O.B did not abolish the independent judgment standard in administrative mandate proceedings. Actual patient harm is not required as a condition to the imposition of discipline on a licensed professional.

Yazdi v. Dental Board of California - filed Oct. 6, 2020, publication ordered Nov. 3, 2020, Second District, Div. One
Cite as 2020 S.O.S. 5296
Full text click here

Bankruptcy

If a debtor holds property in joint tenancy, only his one-half joint interest becomes part of the bankruptcy estate, and the Chapter 7 trustee may sell the jointly held property and apportion the proceeds; if property is community property, it becomes part of the bankruptcy estate in its entirety, and the trustee may sell the property and distribute all proceeds to the debtor’s creditors, rather than apportioning some of the proceeds to the non-debtor spouse. For joint tenancy property acquired during marriage before 1975, each spouse’s interest is presumptively separate in character; for such property acquired with community funds on or after Jan. 1, 1975, the property is presumptively community in character. For property acquired before 1985, the parties can show a transmutation from community property to separate property by oral or written agreement or a common understanding. For joint tenancy property acquired with community funds on or after January 1, 1985, a written declaration is required.

In re Brace - filed Nov. 9, 2020
Cite as 2020 S.O.S. 17-60032
Full text click here

A court may hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct; an objective, rather than subjective, standard applies.

In re Taggart - filed Nov. 24, 2020
Cite as 2020 S.O.S. 16-35402
Full text click here

Civil Procedure

Code of Civil Procedure §128.7 clearly states the specific criteria that must be satisfied to avoid sanctions and further clearly states that attorney fees or other expenses may be awarded as a result of sanctionable conduct; §1281.4 does not prevent a trial court from hearing and ruling upon sanctions motions that are not based on conduct that occurred in the arbitration proceeding.

McCluskey v. Henry - filed Nov. 2, 2020, First District, Div. Three
Cite as 2020 S.O.S. 5242
Full text click here

The plain language of Code of Civil Procedure §128.5 creates an impossible procedure when the statute is read as a whole because there is no means by which a person could comply with the procedures set forth in the statute; if it is not possible to comply with the safe harbor and separate motion requirements of subdivision (f) when seeking attorney’s fees, then a party should use the procedures set forth in subdivisions (a) and (c).

Changsha Metro Group v. Xufeng - filed Nov. 3, 2020, Fourth District, Div. Two
Cite as 2020 S.O.S. 5304
Full text click here

The individuals who owned and controlled a corporate judgment debtor were properly deemed alter egos of the corporation where there was a disregard of legal formalities, failure to maintain an arm’s-length relationship among legal entities, manipulation of assets, and commingling of funds, and where the individuals agreed to hold themselves out to be personally liable for the corporation’s debts.

Triyar Hospitality Management v. WSI (II) – HWP - filed Oct. 22, 2020, publication ordered Nov. 20, 2020, Second District, Div. Six
Cite as 2020 S.O.S. 5494
Full text click here >

Code of Civil Procedure §170.6 authorizes only one judicial peremptory challenge for each side in a Judicial Council Coordination Proceeding under rule 3.516 of the California Rules of Court.

Prescription Opioid Cases - filed Nov. 25, 2020, Second District, Div. Three
Cite as 2020 S.O.S. 5623
Full text click here >

Contracts

An arbitration agreement was procedurally unconscionable where it was adhesive in nature; the signee was given little time to review the agreement, she was pressured to sign, the agreement was buried in a stack of forms she was given, no one explained the agreement to her, and she did not have an attorney to assist her when she signed the agreement. An opt out provision does not insulate an arbitration agreement from a finding of procedural unconscionability. While the nonessential nature of the goods or services in a contract are relevant to evaluating whether an arbitration agreement is unconscionable, they do not negate the procedural unconscionability of an otherwise adhesive contract. Under a sliding scale of unconscionability analysis, an agreement was substantively unconscionable where the agreement required the splitting of fees which were well in excess of what the signee could afford.

Swain v. Laseraway Medical Group - filed Oct. 13, 2020, publication ordered Nov. 3, 2020, Second District, Div. Seven
Cite as 2020 S.O.S. 5312
Full text click here

Family Law  

A juvenile court erred in conducting a jurisdiction/ disposition hearing regarding an incarcerated father’s children in his absence and without counsel present on his behalf, but the error was harmless where the record clearly established that the father could not have obtained a more favorable result if he had appeared and/or been represented by counsel.

In re Christopher L. - filed Nov. 2, 2020, Second District, Div. One
Cite as 2020 S.O.S. 5283
Full text click here >

A worker’s continued employment after turning 18 does not constitute a ratification of a contract she signed as a minor, nor is it an acknowledgment that she was giving up her right to disaffirmance. There is no California statute or case defining the term reasonable time as used in Family Code §6710, nor any case that establishes as a matter of law that eight months is not a reasonable time; where a minor worked for an employer for two years before she turned 18, then quit four months after she turned 18 and filed a lawsuit four months after that, the filing of the lawsuit was a notice she disaffirmed the arbitration agreement she had signed when she was hired, and her disaffirmance was within a reasonable time.

Coughenour v. Del Taco - filed Nov. 20, 2020, Fourth District, Div. Two
Cite as 2020 S.O.S. 5591
Full text click here >

A father was precluded from contesting a confirmed child support order after the order was registered where he cannot show he could not have asserted his defense to payment at the time of registration.

Marriage of Sawyer - filed Nov. 20, 2020, Sixth District
Cite as 2020 S.O.S. 5595
Full text click here

The Hague Convention on the Civil Aspects of International Child Abduction does not apply after the child who is the subject of the return petition turns 16; so long as a court issued a return order before the child’s 16th birthday, the court has the power to rule on the prevailing party’s motion for fees and costs.

Noergaard v. Noergaard - filed Oct. 29, 2020, publication ordered Nov. 24, 2020, Fourth District, Div. One
Cite as 2020 S.O.S. 5671
Full text click here

Healthcare

Congress did not intend payment by Medicare to be a prerequisite to bringing a private cause of action under the Medicare as Secondary Payer provisions of the Social Security Act.

DaVita v. Virginia Mason Memorial Hospital - filed Nov. 24, 2020
Cite as 2020 S.O.S. 19-35692
Full text click here >

An employee benefit health plan did not violate the Medicare as Secondary Payer provisions of the Social Security Act where the plan reimburses at the same rate for all dialysis services, regardless of underlying diagnosis and regardless of Medicare eligibility.

DaVita v. Amy’s Kitchen - filed Nov. 24, 2020
Cite as 2020 S.O.S. 19-15963
Full text click here

Real Property

The question of whether an exculpatory clause covers a given case turns primarily on contractual interpretation, and it is the intent of the parties as expressed in the agreement that should control. Language in a lease stating the lessor shall not be liable for injury...to the person...of Lessee shields the lessor from liability for ordinary negligence.

Garcia v. D/AQ - filed Nov. 24, 2020, Second District, Div. Eight
Cite as 2020 S.O.S. 5678
Full text click here

 
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