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VOLUME 14 | NUMBER 2 | FEBRUARY 2019
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Special Announcements
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Court News
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Practitioner's Notes
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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
 

Brown Bag
Legislative Updates and Recent Court Decisions

Date: February 19, 2019
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court

Click here for more information and to register

 
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Save the Date
 
Brown Bag
Elder Abuse Restraining Orders
with Judge Cowan, Judge Lewis and Dominique Sanz-David

Date: March 5, 2019
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court

This program will include a discussion on: 1) cases in which restraining orders may be useful and appropriate and provide a less restrictive alterative for conservatorship, 2) cases in which restraining orders may not be appropriate, 3) where restraining order cases are assigned, 4) the process for getting restraining orders and 5) what to expect at trial.


The Top Ten Peeves of the Probate Court

Date: March 15, 2019
Time: 12:00-12:30 lunch followed by Program from 12:30 pm-1:30 pm
Location: Los Angeles County Bar Association Offices

Judge Daniel Juarez and Judge Brenda Penny will present the Top Ten Pet Peeves of the Probate Department. This presentation will advise counsel what not to do and highlight some best practices appreciated by the Court.


Brown Bag
Trial Preparation and Advocacy, Part I and Part II
with Justice Stratton, Judge Klein, Stefanie Cutler, Eric Adler, Geri Wyle and Blake Rummel

Date: April 2 and May 7, 2019
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court

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


 

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

Sanborn-Team-Logo

 
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Special Announcements
 

Probate Settlement Officer Training Program:

The next San Fernando Valley Bar Association Probate and Estate Planning Section Probate Settlement Officer Training for the Probate Settlement Program will be held March 20, 2019 at the Stanley Mosk Courthouse, Room 222.
Please click here for more information and how to register.

 
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Court News
 
Please note the following from the Probate Department of the Los Angeles Superior Court:

  1. The Honorable Deborah Christian is starting in Dept. 99 on February 14, 2019, prior to the Honorable Robert Wada’s leave of absence.
  2. The Honorable William Barry will be sitting as an assigned judge in Dept. 29 for much of the next 2 months while the Honorable Elizabeth Ann Lippett is absent.
  3. Ex Parte Application eFiling Update
    Please review the below regarding the electronic filing of Ex Parte Applications:

    • An Ex Parte Application that is electronically filed must be submitted in the same envelope as the proposed order.
    • The proposed order must be submitted in PDF format.
    • Effective immediately, the Court will reject all Ex Parte Applications that are electronically filed without the accompanying proposed order.
    • Lastly, please note that the filer must enter his or her email address in the “service contacts” field to receive the conformed copy of the signed order.
  4. Processing of efiled Court Orders
    The Probate Division of Los Angeles Superior Court launched internal electronic review and processing of proposed orders as of December 10, 2018. Since then Judicial Officers, Probate Legal Unit Attorneys, and court staff have been processing proposed orders both electronically and in paper due to the sheer volume of orders received daily (approximately 150 per day). As we transition to a 100% electronic environment we are focusing on the timeliness of order processing and are making adjustments as needed. We will continue to proactively monitor the workload and thank you for your continued patience and support as we transition to full electronic processing of orders. We anticipate that when electronic processing of order becomes fully operational you will see improved turnaround of orders that have been submitted. Attorneys will continue to receive copies of signed orders electronically, via email.
  5. No Fax Filings in Probate
    Fax filings are no longer permitted in Probate matters.
 
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Practitioner's Notes
 

Practice Tips on Submitting Proposed Orders

Before you submit a proposed order, consider the following:

  1. Do you need an Order beyond your Minute Order? For example, Certified copies of the Minute Order can be used for some purposes; and Minute Orders are typically sufficient on interim accountings in trust and conservatorship matters;
  2. Do you have the necessary signatures of counsel approving your Proposed Order?
  3. The most frequent reason that proposed orders are rejected is when they do not track the Minute Order. The Court strongly advises that where something other than the granting or denial of a motion or a JTD is involved, you request the Court during your hearing to ask the Judicial Assistant to put your requested provisions into the Minute Order. Attorneys can check the language of the minute orders in the court file – now accessible remotely in decedent estate and trust cases – prior to submitting proposed orders to ensure the findings are consistent with those being submitted.
  4. If your relief requires a bond, be sure to post the bond before you submit your proposed order. And, submit your bond at the earliest possible opportunity.
  5. Please note that where mandatory sections of an order have not been completed (just for example, date, time, department, relief granted) the electronic processing of orders will not allow manual corrections as the probate attorneys used to be able to do for you. So, please double check that your proposed order has all the required information before you submit it.
 
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Recent Cases
 
Civil Procedure

A cross-complaint that merely prayed for "damages according to proof" did not provide adequate notice to sustain a default judgment.

Yu v. Liberty Surplus Insurance Corporation - filed Dec. 11, 2018, publication ordered Jan. 4, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 86
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Although courts should evaluate the totality of the facts in deciding whether an offeree had enough facts to evaluate a settlement offer under Code of Civil Procedure Sec. 998, the most pertinent factors are: how far into the litigation the Sec. 998 offer was made; the information available to the offeree prior to the offer's expiration; and whether the offeree let the offeror know it lacked sufficient information to evaluate the offer, and how the offeror responded.

Licudine v. Cedars-Sinai Medical Center - filed Jan. 3, 2019, Second District, Div. Two
Cite as 2019 S.O.S. 90
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Mediation costs fall within the category of costs that may be awarded in the trial court's discretion. Fees incurred for mediation that is not court-ordered are not categorically unnecessary to the conduct of the litigation.

Berkeley Cement v. Regents of the University of California - filed Jan. 7, 2019, Fifth District
Cite as 2019 S.O.S. 156
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Code of Civil Procedure Sec. 685.080(a) requires that a motion for attorney fees incurred in collecting a judgment must be made before the judgment is satisfied.

Conservatorship of Ribal - filed Jan. 18, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 342
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The invalidation of the San Diego Superior Court's policy on providing court reporters to in forma pauperis litigants applies retroactively to all cases not yet final on appeal. Because there is no way to provide a reporter for a trial that has already occurred, an in forma pauperis litigant with a pending case at the time of the invalidation of the San Diego Superior Court's policy is entitled to a new trial at which an official court reporter will be furnished.

Dogan v. Commanche Hills Apartments - filed Jan. 22, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 345
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A party's failure to admit fact-specific requests for admission during discovery did not warrant an assessment of costs where the party reasonably relied on percipient witness testimony, undisputed scientific testing, and the opinions of a qualified expert in denying the RFAs.

Orange County Water District v. Arnold Engineering - filed Dec. 19, 2018, publication ordered Jan. 10, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 196
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Pursuant to the Federal Arbitration Act, arbitration is a matter of contract, and courts must enforce arbitration contracts according to their terms. When the parties' contract delegates the arbitrability question to an arbitrator, a court may not override the contract, even if the court thinks that the arbitrability claim is wholly groundless.

Henry Schein v. Archer & White Sales - filed Jan. 8, 2019
Cite as 2019 S.O.S. 17-1272_7l48
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Code of Civil Procedure Sec. 998 is a cost-shifting statute that allows for the recovery of costs, including attorney fees as costs if there is a contractual or other statutory basis for them. Sec. 998 does not independently create a statutory right to attorney fees. A Sec. 998 offer providing a party bringing a Disabled Persons Act claim with the right to seek attorney fees as "allowed" by law did not entitle her to an award of fees upon acceptance of the offer since the DPA does not authorize attorney fees without a finding of liability.

Linton v. County of Contra Costa - filed Jan. 23, 2019, First District, Div. One
Cite as 2019 S.O.S. 401
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A party did not "purposefully and voluntarily" direct activities toward California where her only contacts with the state were related to litigation filed against her and undertaken in her representative capacity.

Jensen v. Jensen - filed Jan. 24, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 405
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Criminal Law and Procedure

The Sexually Violent Predators Act provides a court with discretionary authority to involuntarily medicate an incompetent person placed with the State Department of State Hospitals pre-commitment.

State Department of State Hospitals v. J.W. - filed Dec. 19, 2018, publication ordered Jan. 15, 2019, Fifth District
Cite as 2019 S.O.S. 287
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A capital defense attorney provided deficient representation where he failed to investigate and consider presenting a diminished capacity defense based on the defendant's mental condition, but this was not prejudicial given the overwhelming evidence of the defendant's specific intent to rape and kill two victims and the relatively weak diminished capacity evidence that counsel could have presented.

Hernandez v. Chappell - filed Jan. 14, 2019
Cite as 2019 S.O.S. 11-99013
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A defendant's claim of intellectual disability must be evaluated based solely on holdings that were clearly established at the relevant time.

Shoop v. Hill - filed Jan. 7, 2019
Cite as 2019 S.O.S. 18-56
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Family Law

A judgment or order of the family court allowing removal of a minor child from the state is stayed pursuant to Code of Civil Procedure Sec. 917.7 for a period of 30 calendar days from the entry of judgment or order, not the date that the move-away request was tentatively granted.

Lief v. Superior Court (Nissan) - filed Dec. 6, 2018, publication ordered Jan. 2, 2018, Fourth District, Div. One
Cite as 2019 S.O.S. 53
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Family Code Sec. 7551 makes genetic testing mandatory when there is a civil proceeding wherein paternity is a relevant fact. A timely motion for genetic testing has been filed by a party and the testing would be for the child, mother, and alleged father.

County of Riverside v. Estabrook - filed Jan. 8, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 159
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A juvenile court erred in failing to recognize a mother's relationship with her children outweighed the benefit to the children that would accrue from termination of parental rights and a plan of adoption where the mother maintained regular contact with the children, the children were bonded with the mother, and the mother continued to participate in programs designed to maintain her sobriety and make her a better parent. The standard for determining whether there is a beneficial relationship between a parent and child is not whether the bond with the parent is strong enough to prevent the child from being happy in an alternate placement, but whether the child benefits from the parent's presence.

In re E.T. - filed Dec. 12, 2018, publication ordered Jan. 10, 2019, First District, Div. Three
Cite as 2019 S.O.S. 241
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A party was entitled to a recovery of attorney fees and costs from his ex-wife for the fees and costs he incurred in defending himself against a civil suit that his ex-wife had commenced pursuant to a provision in the stipulated judgment resolving their marital dissolution action since that stipulated judgment authorized an award of fees and costs to a prevailing party if the party was "forced to seek court intervention" to enforce the stipulated judgment. The family law court did not abuse its discretion in deeming the ex-husband to be the prevailing party because he obtained a judgment of dismissal against the ex-wife's civil lawsuit, thereby achieving his litigation objectives, which is the applicable standard.

Pont v. Pont - filed Dec. 20, 2018, publication ordered Jan. 16, 2019, Second District, Div. One
Cite as 2019 S.O.S. 334
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Without an express statement specifying what interest in real property was being granted to a spouse, a "Trust Transfer" Deed did not give the other spouse "clear notice" that he was changing the property's characterization and ownership, which thus renders the purported transmutation invalid under Family Code Sec. 852(a).

In re Marriage of Begian & Sarajian - filed Dec. 20, 2018, publication ordered Jan. 18, 2019, Second District, Div. Three
Cite as 2019 S.O.S. 347
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A juvenile court's finding that a child was at substantial risk of suffering serious physical harm or illness as a result of his mother's neglectful conduct was not supported by sufficient evidence where the only evidence was that the child had body odor and was wearing clothes that were dirty or too small.

In re Roger S. - filed Dec. 24, 2018, publication ordered Jan. 23, 2019, Second District, Div. One
Cite as 2019 S.O.S. 419
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Healthcare Law

A jury trial is guaranteed for Confidentiality of Medical Information Act claims for nominal statutory damages brought before 2013, but not for attorney fee claims.

Brown v. Mortensen - filed Jan. 3, 2019, Second District, Div. One
Cite as 2019 S.O.S. 98
Full text click here >

When the moving party produces a competent expert declaration showing there is no triable issue of fact on an essential element of the opposing party's claims, the opposing party's burden is to produce a competent expert declaration to the contrary. A declaration that offers no reasoned explanation connecting the factual predicates to the ultimate conclusion is not enough to defeat a motion for summary judgment.

Fernandez v. Alexander - filed Jan. 28, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 442
Full text click here >

Insurance Law

A delegation clause nested in an arbitration provision is severable from the remainder of the contract and the question of its enforceability is for the court to decide if a challenge is directed specifically at the validity of the delegation clause. The focus of the court's attention must be on whether the particular challenge is directed at the delegation clause, not whether the same challenges are also directed at the agreement or agreements into which the delegation clause is embedded. Allowing an insurer to circumvent the comprehensive regulatory structure applicable to the issuance of workers' compensation insurance simply by amending its approved policy forms through a side agreement with a subsidiary is contrary to the public policy underlying California's workers' compensation law. An unfiled and unapproved collateral agreement to a workers' compensation policy is void as a matter of law.

Luxor Cabs, Inc. v. Applied Underwriters Captive Risk Assurance - filed Dec. 4, 2018, publication ordered Jan. 3, 2019, First District, Div. Four
Cite as 2019 S.O.S. 102
Full text click here >

A pre-litigation communication is privileged only when it relates to litigation that is contemplated in good faith and under serious consideration. An insurance carrier and its attorney cannot gain the protection of the privilege to protect their own communications merely by establishing that they anticipated a potential for litigation. There may always be potential for litigation when an insurance claim is denied, but an investigation involved in processing an insurance claim is not necessarily conducted in anticipation of litigation even where there is some basis to suspect fraud by the insured. The seriousness of an alleged invasion of privacy by the release of an individual's tax returns presents a question of fact that cannot be resolved on demurrer. An insurer's bad faith denial of a claim can support a cause of action for financial elder abuse, but an attorney who assists the insurer in investigating the claim, acting solely as representative of the insurer, cannot be liable for financial elder abuse.

Strawn v. Morris, Polich & Purdy - filed Jan. 4, 2019, First District, Div. Two
Cite as 2019 S.O.S. 143
Full text click here >

Professional Responsibility

An attorney was not subject to disqualification from representing a former executive of a company just because he had also been an executive of the company, but he was subject to disqualification that he had access to confidential information as a company executive which was pertinent to the litigation between the company and the former executive.

O'Gara Coach Company, LLC v. Ra - filed Jan. 7, 2019, Second District, Div. 7
Cite as 2019 S.O.S. 149
Full text click here >

Real Property

When a government agency conditions its approval of a real property development project on the grant of an easement or other exaction which would otherwise constitute a taking requiring compensation, the property owner must challenge the condition by petition for writ of mandate filed before, or simultaneously with, a complaint for inverse condemnation. A landowner cannot challenge a condition imposed upon the granting of a permit after acquiescence in the condition by either specifically agreeing to the condition or failing to challenge its validity, and accepting the benefits afforded by the permit. An agency's acceptance of an offer of dedication was valid where the offer was not revoked before the agency accepted the offer by physically occupying the land for the dedicated public use.

Prout v. Department of Education - filed Dec. 18, 2018, publication ordered Jan. 11, 2019, Third District
Cite as 2019 S.O.S. 245
Full text click here >

A right of first refusal contained in a written lease expires when that leasehold ends and the tenant becomes a "holdover" tenant, unless the parties indicate that the right of first refusal will carry forward..

Smyth v. Berman - filed Jan. 10, 2019, Second District, Div. Two Cite as 2019 S.O.S. 251
Full text click here >

Civil Code Sec. 1009 does not prohibit the granting of a prescriptive easement to access to a public recreational area where the easement was appurtenant to a neighbor's property. There is no authority to support the idea that persons paying to stay on a property cannot benefit from such an easement.

Ditzian v. Unger - filed Jan. 24, 2019, First District, Div. Five
Cite as 2019 S.O.S. 432
Full text click here >

Trusts

The common fund doctrine may be used in a probate case to confer equitable fees awards when litigation creates or preserves a fund from which others benefit.

Smith v. Szeyller - filed Jan. 16, 2019, Second District, Div. Six 
Cite as 2019 S.O.S. 315
Full text click here >

Language in a trust requiring that a trustee distribute the balance of each beneficiary's trust upon the beneficiary's attainment of the age of 30 conveyed the trustor's unambiguous intent that the trust be distributed and terminated when all of the beneficiaries reach 30 years of age. However, the trust unambiguously granted the trustee discretion regarding the method of distribution of the trust assets since the trust said the trustee could partition, allot and distribute the trust estate in undivided interests or in kind, or partly in money and partly in kind, at valuations determined by the trustee, or sell such property as the trustee may deem necessary to make division or distribution.

Trolan v. Trolan - filed Jan. 30, 2019, Sixth District
Cite as 2019 S.O.S. 505
Full text click here >

 
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Legal Developments
 
Click here for Internal Revenue Bulletin; 2019-01; Rev Proc 2019-1, regarding getting PLRs and the fees involved.
 
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