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VOLUME 15 | NUMBER 2 |  FEBRUARY 2020
 
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IN THIS ISSUE
 
Upcoming Events
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Court News
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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:

Stefanie S. Cutler, Chair
Jana G. Garrotto, Vice-Chair
Deborah Keesey, Secretary & Treasurer
Marc L. Sallus, Immediate Past Chair

 

 
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Upcoming Events
 

LACBA Trusts and Estates Lecture Series

Date: February 18, 2020 (* Rescheduled from 1/14/2020)
Time: 12:15 p.m. to 1:15 p.m.
Location: Stanley Mosk Courthouse
Topic: Ethical Issues in Trust & Estates
Speakers: Hon. Mary Thornton House, Judge (Ret.) and Stefanie Cutler, Esq.

Click here for more information


 
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Save the Date
 

No Certificate of Independent Review?
Can the Gifts to A Prohibited Transferee Otherwise Be Salvaged?

Date: March 19, 2020
Location: LACBA
Speakers: Nancy Reinhardt, Esq. (Law Offices of Nancy Reinhardt), Mark Lester, Esq. (Jones, Lester, Schuck, Becker & Dehesa), and Sarah S. Broomer, Esq. (Ruttenberg Cutler Broomer, LLP).

More Information to be announced.


 

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

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Court News
 

Guardianships

The court has announced new procedures involving guardianship proceedings. These hearings are pursuant to Probate Code sec. 1513.2.

Starting January 15, the Court is re-instituting annual or other periodic review hearings in guardianship cases, in the discretion of the assigned bench officer, to monitor the ward’s care and/or as may be needed to further the child’s best interests. Investigator reports may make recommendations in this regard - as they do now related to minors counsel. A new JTD will appear on the notes.

The Los Angeles Superior Court probate department pushed for the Court to bring back this type of hearing, which used to be the practice before the Courts were forced to consolidate operations, particularly in Pomona. These review hearings can be very helpful to keep a child on track where there may be difficulties arising when the child’s parent or parents no longer have custody or as a result of a parent being wholly absent from their life. For example, a court observing a child failing in school - as mandated to be reported on the status conference questionnaire - may allow the court to incentivize the guardian to do something different on behalf of the child. The court’s supervision of guardians and their wards does not end with the appointment hearing. The Code contemplates continuing supervision until the guardianship terminates. While ongoing review hearings may not be helpful in all instances, and themselves may create unneeded instability, discretion resides in the assigned bench officer. The Court believes they can be a useful vehicle to ensure kids having a tough time can be kept in the fold and have better opportunities going forward.


New Procedure for Court Continuances

The Court has provided the below responses to some of the questions posed by practitioners about the new procedures concerning requests for hearing continuances.

NOTE: In addition to the below, please be advised that the signature of court appointed counsel (when appointed) is required to request continuances even if a petition is uncontested.

Does the court staff who implemented these have any idea that the proposed will result in the following?

1. More appearances just to get a continuance that could have been done by email. No one logistically can make the request 5 days in advance because notes don't come out on time.

  • The process is being implemented to:
  • (1) Avoid problems of auto-scheduled dates as to which counsel could not attend, irrespective of posted probate notes. A request may be immediately submitted to request a continuance.
  • (2) Save Probate Attorney and Examiner time in handling of continuances which will adds time dedicated to prepare notes. Using this process keeps the attorneys and examiners out of the continuance loop altogether.
  • (3) Reduces calendars as the granted continuances will not be on the calendars allowing the Court to focus on matters that are ready for hearing.
  • (4) In general, probate notes do get posted more than five days in advance. This process is less expensive than making an appearance at the hearing or appearing ex parte to request continuance.
  • (5) Allows the judges to be more actively involved in ensuring expeditions disposition of petitions and keeps them more in control of hearings for petitions. The Court seeks to reduce the number of continuances that are creating heavy calendars, reducing the time to hear and delaying of other matters, as well as seeking to discourage continuances that are not warranted and promote more timely disposition of petitions. For continuances determined to be necessary, we will avoid clogging calendars with unnecessary hearings. Parties can still come to the hearing and ask for a continuance, or make court call requests, but this process provides an additional tool to request and avoid making an appearance for a petition which is not ready for hearing.

2. More delays in the appointment of CACs due to 48 hours to respond and then another 48 hours for the next person, if the first one declines.

  • We hope that Court Appointed Counsel will not wait 48 hours to accept or decline appointments. This process adds fairness to the appointment process and avoids the current situation where there is a race for appointments by counsel who are otherwise working hard and may miss appointments and be moved to the bottom of the list for a next appointment.
With respect to the Requests for Continuance:  Must the new date be later than the original date?  Or is it now possible to advance the original date and continue it to an earlier date, perhaps to meet a competing petition that is already set?

LASC Rule 4.13 provides as follows:
When a trust or decedent’s estate matter has been set for hearing, or the hearing has been noticed and then continued to a definite date, the hearing will not be advanced to an earlier date. Additionally, the matter will not be heard on an earlier date by filing a new petition or an amended petition. In the distant past, this rule (or an earlier rule on the same subject matter, applied only after notice of the hearing had been given, which makes sense. Refusing to allow a matter to be advanced when it has not yet been noticed, however, makes no sense to me and, I fact, I see it done all the time from the bench.
  • We have a local rule that says you cannot advance dates. This is not changing.
Comment to foregoing Listserve post:

The form says the new date must be at least 30 days AFTER the current hearing date. In the situation described, it appears that the only solution would be to continue the earlier matter to meet the later matter.
  • Yes, a new date must be at least 30 days after current hearing date.

Will the probate court begin to mandate that court appointed counsel be competent to adequately represent the clients from whose money is being used to pay them?

  • The court is seeking update to local rules to further clarify court expectations and will set parameters for removal if necessary.

Thank you for forwarding the new forms and such detailed information. I noticed that PRO 080 is not included on the LASC website (but PRO 081 is included). Do you know if this was intentional? Thank you again!

Suppose I have filed a petition and have sent out notice to various parties for a hearing on the morning of Feb 14, 2020. There are a number of interested parties; some represented by counsel and some not. A number of the parties have indicated they may attend the hearing and may be traveling some distance to attend the hearing. No one has filed any objections or response to the petition, yet. On the afternoon of Friday Feb 7; I e-file a request for a continuance on the new 080 form. On Tuesday around noon+; I am advised my request for continue is granted. The next day (Wednesday) around 4 pm I mail the notice of continuance to all of the parties and e file my proof of service at the same time. The form 080 appears to contemplate mailed notice of continuance.

What happens when various parties including pro pers show up at the hearing on the 14th to be informed the matter has been been continued without any actual notice to them. Since the court has already vacated the Feb 14 hearing date; can the court "change its mind" on Feb 14th when it realizes a lot of people have come a long way for the hearing? Even if I seek to contact the parties by phone and e mail on Wednesday to advise them of the continuance (which would be the right thing to do); since the continuance has already been granted; what rights do the parties( who had no notice and no opportunity to be heard as to the continuance request) have to question  wisdom of the continuance at the Feb 14th hearing. I think the new procedure needs to be reconsidered.

  • If counsel reasonably anticipates that mailed notice will not be adequate, professional conduct would include notice by email or phone if possible to avoid this scenario. We cannot provide an advance opinion as to outcome of a scenario as set forth above as it will be Judicial determination based on various factors that the Court may consider.

 
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Recent Cases
 
Civil Procedure

Code of Civil Procedure §473(b) applies only to defaults, default judgments, and dismissals—it cannot be expanded to analogous situations.

Shayan v. Spine Care and Orthopedic Physicians - filed Jan. 9, 2020, Second District, Div. Eight
Cite as 2020 S.O.S. 102
Full text click here >

Two-year statute of limitation was tolled while plaintiff appealed judgment of dismissal; following reversal and remand time remained within that two-year period and the trial court erred in denying leave to amend to add additional causes of action on the belief that they were time-barred.

Fenimore v. The Regents of the University of California - filed Jan. 27, 2020, Second District, Div. Eight
Cite as 2020 S.O.S. 329
Full text click here >

A party’s noncompliance with an Order to Show Cause can be the basis for a contempt order; a contempt order that was coercive and compensatory was civil in nature. The hourly rate established under section 3006A within the meaning of 42 U.S.C. §1997e(d)(3) is the amount the Judicial Conference authorized and requested from Congress.

Parsons v. Ryan - filed Jan. 29, 2020
Cite as 2020 S.O.S. 18-16358
Full text click here >

There was no public interest in a defendant’s internet post about plaintiff where neither party was in the public eye, their acts did not directly affect a large number of people beyond their households, the topic was not of widespread public interest.

Jeppson v. Ley - filed Jan. 30, 2020, Second District, Div. Eight
Cite as 2020 S.O.S. 399
Full text click here >

Contract Law

Whether a contract may be enforced by or against a non-signatory to the contract is determined by principles of state law. A non-signatory was an intended third-party beneficiary of an insurance policy where the non-signatory was the property manager for a facility that it licensed to the insured, the agreement between the third-party and the insured obligated the insured to obtain coverage in a form acceptable to the third-party and to name the third-party as an additional insured, and the policy obtained by the insured covered managers, landlords, or lessors of the premises as well as any person or organization where required by a written contract executed prior to the occurrence. The third-party beneficiary’s tender of its defense to the carrier constituted a knowing claim of contract benefits, and this estops the third-party beneficiary from disclaiming applicable contract burdens.

Philadelphia Indemnity Insurance Company v. SMG Holdings, Inc. - filed Dec. 31, 2019, publication ordered. Jan. 30, 2020, Third District
Cite as 2020 S.O.S. 403
Full text click here >

Contracts

A violation of former Rule of Professional Conduct 3-410 renders a fee division agreement unenforceable.

Hance v. Super Store Industries (Law Offices of Scott A. Miller) - filed Jan. 23, 2020, Fifth District
Cite as 2020 S.O.S. 296
Full text click here >

Family Law

A dispositional order terminating a father’s parental rights cannot stand where the father did not receive adequate notice of the jurisdiction and disposition hearing, which led to his inability to appear at the hearing and his deprivation of court-appointed counsel; it was reasonably probable that absent the notice error and the related denial of legal representation, the father would have been granted reunification services, and his parental rights would not have been terminated.

In re A.J. - filed Dec. 24, 2019, publication ordered Jan. 23, 2020, Second District, Div. Five
Cite as 2020 S.O.S. 302
Full text click here >

Healthcare Law

The legislative history of Welfare and Institutions Code §14105.28, along with the statement of legislative intent within the statute itself, indicate that the Legislature intended for All Patient Refined Diagnosis Related Group rates to apply to out-of-network inpatient post-stabilization services under Medi-Cal; consistent with this intent, the phrase managed care inpatient days must refer to services provided pursuant to a managed care contract.

Dignity Health v. Local Initiative Health Care Authority of Los Angeles County - filed Jan. 9, 2020, Second District, Div. One
Cite as 2020 S.O.S. 104
Full text click here >

Trusts

A transferor’s record of amounts he periodically distributed to his children is a writing that satisfies the requirements of Probate Code §21135.

Sachs v. Sachs - filed Jan. 7, 2020, Second District, Div. Six
Cite as 2020 S.O.S. 99
Full text click here >

The Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud.

Barefoot v. Jennings - filed Jan. 23, 2020
Cite as 2020 S.O.S. 244
Full text click here >

 
 
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