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VOLUME 14 | NUMBER 7 | JULY 2019
 
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IN THIS ISSUE
 
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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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Save the Date
 
LACBA Trusts and Estates Lecture Series
(formerly known as ”Brown Bags”)
Impact of Anti-SLAPP Motions on Enforcement of No Contest Clause Presented by Marshal Oldman, Esq.

Date: August 12, 2019
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court
Cost: Free

More information TBA.


September Symposium

Date: September 13, 2019
Time: 12:00 p.m. to 4:30 p.m.
Location: Millennium Biltmore Hotel in Downtown Los Angeles

Topics:
• The Honorable Daniel Juarez and Stephen M. Lowe of Freeman, Freeman & Smiley, LLP
How to Account for the Rights of Contingent Remainder Beneficiaries in the Event of Incapacity, featuring a discussion on the following cases: Evangelho, Giraldin, and Drake.

• Allan Cutrow and Andrew Spitser of Mitchel, Silberberg, & Knupp, LLP
Ethical issues surrounding attorneys’ representing trustees who actively participate with the trustee in committing breaches of fiduciary duty to the detriment of a trust, focusing on the Wolf v. Mitchell, Silberberg & Knupp case.

• Elizabeth Glasgow of McDermott Will & Emery, LLP and Anna Soliman, Managing Director and Trust Counsel at Fiduciary Trust Company
Providing an in-depth discussion on the new Probate Code Decanting laws.

More information TBA.


 

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

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Court News
 
The Los Angeles Superior Court is Recruiting Temporary Judges

Click here for more information

Efiling for Attorney Orders:

The new efiling system for attorney orders continues to be a top priority for probate staff. The existing backlog has largely been taken care of and discussions are ongoing as to how the system can be further improved in the immediate future.

New System for Appointment of Probate Referees:

Effective July 15, a new system for appointment of Probate Referees will be implemented in decedent’s estates, conservatorships of the estate and guardianships of the estate. The standalone Application and Order Appointing Probate Referee (local form PRO-001) will no longer be used. A referee will automatically be appointed on a random basis at the same hearing where the personal representative, conservator or guardian is appointed. The judge will announce the name from the bench and the attorney will insert the name in the appropriate place on the order of appointment.

The appointee name will also be in the minute order for the hearing which can be checked online for decedent’s estates (in case of an RFA and no appearance) so that the name can be included in the proposed order.

Court Appointed Counsel News:

The system for appointment of Court Appointed Counsel will also be changing in the near future. In response to practitioner concerns, the current system of sending an email “blast” simultaneously to three candidates will be eliminated. Instead, the court will email a single attorney selected at random, who will have a specified period of time to accept. The amount of time will depend on the urgency of the case. Judges will still be able to appoint a specific attorney for a particular case and provision will be made for reappointment of the same attorney on an existing case.

In addition, within the next month or so members of the CAC panel will have the opportunity to specify any geographic preferences for appointments. The county will be divided into four areas (including North District, which will continue to be treated separately), allowing attorneys to opt out of appointments located far from their offices.

For any questions regarding Court Appointed Counsel, please contact Lorena Becerra (Lbecerra@lacourt.org). She replaces Susy Wong, who will continue to work on other projects for the Probate Department. The Trusts & Estates Section offers its sincere gratitude to Susy for all of her hard work on the PVP and CAC programs over the years.

 
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Recent Cases
 
Civil Procedure

Disputed funds on deposit with the superior court do not satisfy a judgment for purposes of a post-judgment motion for costs.

Wertheim, LLC v. Currency Corporation - filed June 6, 2019, Second District, Div. One
Cite as 2019 S.O.S. 2653
Full text click here >

The procedure detailed in Welfare & Institutions Code §5152 does not give rise to the exercise of petition or free speech, which the anti-SLAPP statute is designed to protect. Since proceedings under the Lanterman-Petris-Short Act are not presumptively public in nature, speech in connection with it is not the type of speech the anti-SLAPP statute is designed to protect.

Swanson v. County of Riverside - filed June 17, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 2766
Full text click here >

Where a tenant sued a landlord over the landlord’s allegedly unreasonable refusal to consent to a lease assignment, and the landlord rejected and amended the lease assignment request during the pendency of the suit, the communications between the parties regarding the amended assignment request did not constitute protected settlement communications or litigation-related communications for purposes of the anti-SLAPP law.

Valuerock TN Properties v. PK II Larwin Square SC - filed June 28, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 3108
Full text click here >

Family Law

A party who is bound by the automatic temporary restraining order under Family Code §2040(b)(3) must satisfy both the generally-applicable Civil Code requirements and §2040(b)(3)'s notice requirement before the severance of a joint tenancy with the other party is effective to eliminate the right of survivorship, but these requirements may be satisfied in any order; if a party records a joint tenancy severance in compliance with Civil Code §683.2(c) before providing the notice required by §2040(b)(3), the elimination of the right of survivorship takes effect when notice of the severance is filed and served on the other party.

Raney v. Cerkueira - filed June 14, 2019, First District, Div. Five
Cite as 2019 S.O.S. 2801
Full text click here >

Family Code §4062 allows a court to consider a request for childcare costs related to reasonably necessary education for prospective employment to allow a custodial parent to become self-supporting without the need for public assistance.

Greiner v. Keller - filed June 14, 2019, First District, Div. Three
Cite as 2019 S.O.S. 2808
Full text click here >

A court erred in issuing a mutual restraining order when one party had not filed a separate written request for such an order as required by Family Code §6305.

In re Marriage of Ankola - filed June 20, 2019, Sixth District
Cite as 2019 S.O.S. 2920
Full text click here >

The Elder Abuse Act permits an elder to seek a restraining order to protect not only himself, but also named members of his family. Substantial evidence supported a grant of a restraining order where an elder testified credibly to his mental anguish and emotional distress caused by a defendant.

Tanguillig v. Valdez - filed May 20, 2019, publication ordered June 18, 2019, First District, Div. Two
Cite as 2019 S.O.S. 2883
Full text click here >

Healthcare Law

An administrative appeal challenging the overall legality of a Medi-Cal audit reduction does encompass a later challenge to an alleged calculation error within that same audit for purposes of determining timeliness of the calculation error challenge.

Hoag Memorial Hospital Presbyterian v. Kent - filed June 17, 2019, First District, Div. Three
Cite as 2019 S.O.S. 2822
Full text click here >

A trial court did not abuse its discretion in addressing whether any statutory or regulatory provisions impose a ministerial duty on the state Department of Health Care Services to make Medi-Cal eligibility determinations within 45 days to support issuance of a writ of mandate. Welfare and Institutions Code §10000 sets forth a general statement of policy, it does not set forth any specific duty. Title 22 of the California Code of Regulations, §50177 is directed to counties performing eligibility determinations, it does not impose a clear duty on the DHCS. Welfare and Institutions Code §15926(f)(5) does not incorporate into California state statutory law a requirement that DHCS complete all non-disability Medi-Cal eligibility determinations in 45 days; the 45-day deadline is a target, not an absolute requirement.

Rivera v. Kent - filed June 27, 2019, First District, Div. Four
Cite as 2019 S.O.S. 3113
Full text click here >

Insurance Law

A policy exclusion in an additional insured endorsement for damage to "property in the care, custody or control of the additional insured" requires exclusive or complete control.

McMillin Homes Construction v. National Fire & Marine Insurance Company - filed June 5, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 2622
Full text click here >

Professional Responsibility

The purpose of State Bar Rules of Professional Conduct Rule 4.2 is to prevent ex parte contact with employees who engaged in acts or conduct for which the employer might be liable, it is not designed to prevent a plaintiff's lawyer from talking to employees of an organizational defendant who might provide relevant evidence of actionable misconduct by another employee for which the employer may be liable.

Doe v. Superior Court (Southwestern Community College District) - filed June 13, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 2761
Full text click here >

Real Property

A judgment lien on real property is created by recording an abstract of a money judgment with the county recorder, and upon recording, the lien automatically attaches to all real property the judgment debtor owns within that county. A lien is not void if the abstract is recorded by a corporation while its corporate powers were suspended because a corporation can retroactively validate unauthorized actions taken during a suspension by correcting the condition causing the suspension and applying for a certificate of revivor. Recording the abstract of judgment is a procedural act that is retroactively validated once a suspended corporation's powers are reinstated.

Longview International v. Stirling (Catambay) - filed May 31, 2019, Sixth District
Cite as 2019 S.O.S. 2614
Full text click here >

Lawful possession" for purposes of a trespass claim simply means actual, peaceful possession. A person with actual possession can sue for trespass even if he does not have any legal rights in the land. A party's failure to comply with the Uniform Transfers to Minors Act and maintain a property for the benefit of his daughter did not render his possession of the property unlawful for purposes of bringing a trespass claim.

Vaiseh v. Stapp - filed June 6, 2019, Fifth District
Cite as 2019 S.O.S. 2641
Full text click here >

Name-calling and ridicule are not cogent legal arguments. If a party fails to support an argument with the necessary citations to the record, the arguments are deemed waived. A fugitive from justice who willfully disobeyed a court order is not entitled to challenge the sanctions against him on appeal.

United Grand v. Malibu Hillbillies (Sanai), LLC - filed May 22, 2019, publication ordered June 12, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 2745
Full text click here >

An eligible elderly or disabled tenant may defeat an owner’s claim of possession under the Ellis Act by showing that the owner changed a tenancy term during the act’s notice period. A writing that is a contract or a binding confirmation of a lease agreement is an instrument under Evidence Code §622.

Hilaly v. Allen; Superior Court of California, County of San Francisco - filed May 21, 2019
Cite as 2019 S.O.S. 2840
Full text click here >

Language in the covenants, conditions and restrictions for a property limiting construction to a single-story home unless approval was granted by the architectural committee and the developer was not applicable to alterations to the home after a second story was approved and erected; the absence of an entity with the authority to review and approve building plans nullifies that requirement as a precondition to proceeding with renovations and remodeling.

Eisen v. Tavangarian - filed June 20, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 2930
Full text click here >

Taxation

The presence of in-state beneficiaries alone does not empower a state to tax trust income that has not been distributed to the beneficiaries where the beneficiaries have no right to demand that income and are uncertain to receive it.

North Carolina Department of Revenue v. Kimberly Rice Kastner 1992 Family Trust - filed June 21, 2019
Cite as 2019 S.O.S. 18-457
Full text click here >

Trusts and Estates

A probate court did not abuse its discretion in removing the personal representative of an estate who had resisted prior instructions to sell real property, acted in bad faith and was not an impartial fiduciary.

Estate of Sapp - filed June 11, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 2683
Full text click here>

In order for assets in a special needs trust not to be counted in determining if the beneficiary is eligible for Medi-Cal, the trust must include a mandatory payback provision stating that at the death of the beneficiary the state will be reimbursed from the trust remainder for the Medi-Cal expenses incurred; the flexibility afforded to states to design their Medicaid plans does not extend to the standards for reimbursement from a special needs trust; 42 U.S.C. §1396p(d)(4)(A) does not explicitly or implicitly permit a qualification that the state Department of Health Care Services be reimbursed only for services provided to a beneficiary over the age of 55; the trust provisions of §1396p(d)(4), including the payback provisions, are separate and distinct from the estate recovery provisions of §1396p(b).

Gonzalez v. City National Bank - filed June 24, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 2988
Full text click here >

 
 
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