Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 11 | NUMBER 6 | JUNE 2016
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Message from the Chair
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Did You Know?
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Court News
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In Memoriam
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Recent Cases
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The Trusts and Estates Bulletin
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
Bloom & Ruttenberg
scutler@bloom-ruttenberg.com

Richard A. Luftman
Richard A. Luftman, Attorney at Law
RLuftman@luftmanlaw.com

Roseann DeRosa
Law Office of Roseann DeRosa roseann@rderosalaw.com



Trusts and Estates Executive Committee:

Officers:
William L. Winslow, Chair
Matthew W. McMurtrey, Vice-Chair
Julia L. Birkel, Secretary
Trudi Schindler, Immediate Past Chair

Members:
Denise T. Ambrosio
Aurora Basa
Susan Ellen Barlevav
Stefanie S. Cutler
Roseann DeRosa
Zachary Dresben
Yolande P. Erickson
Jana Gordon Garrotto
Sibylle Grebe
Duncan Hromadka
Stephen M. Lowe
Richard A. Luftman
Albert F. Mikulencak
Leigh Shipp Muniz
Mary L. O'Neill
John E. Rogers, Jr
Marc L. Sallus
Donald Scoggins

Ex Officio Members:
James R. Birnberg
Susan Jabkowski
Kira S. Masteller
Amy L. McEvoy
Jonathan L. Rosenbloom
Stuart David Zimring



 
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Upcoming Events
 
June 9, 2016

Location: Los Angeles Cathedral

Please join us for our annual View from the Bench lunch program, where the probate judges of the Los Angeles Superior Court will provide an update on the current state of affairs of the probate court; what to expect in the future, and other areas of interest to the Probate Bar.

Please click here for more information


June 18, 2016

Location: Meridien Delfina Hotel, Santa Monica, CA

This year's program provides an overview of the role which PVP attorneys play and the duties they are expected to fulfill.

Please click here for more information
 
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Save the Date
 
Trusts and Estates Symposium
September 23, 2016

More information to follow
 
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Message from the Chair
 
Section Members:

The Trusts and Estates Section Executive Committee met on May 19, 2016 and discussed among other things the May 16 Probate Court Reception. The contents of this email thread were part of the discussion.

As to the venue, the reviews were mixed. On balance the majority preferred the open large-area room at the Omni, where the event was held in 2015, over the restaurant area where we held the reception this year. Our location this year looked classy, and the outdoor patio opportunity was considered a definite plus; but as the crowd grew, the columns and walls tended to inhibit circulation. Since the overriding goal of the Probate Court Reception is a good mingle, with many conversations involving both Probate Department personnel and colleagues (plus new introductions here and there), the ability to spot someone across the room and go visit with that person is considered of paramount importance.

With regard to attendees from the Probate Department, the story is a little complicated; and the attitude or intentions of some who did not attend is not known. First, let me offer a little background. In 2015 and again this year there was some uneasiness toward the event expressed by the office of the Supervising Judge of the Stanley Mosk Courthouse. (I'm not certain exactly who to name in this connection.) But let me be clear, it is the office of the overall Presiding Judge, as opposed to the presiding judges in Probate, Family Law, etc. that I am talking about. The source of uneasiness is the potential for the event to give the appearance that our members, who are mainly private practitioners, are trying to influence the Probate Court. Note: we have not been given a written explanation regarding the uneasiness to which I refer.

Let me try to give some notion of the nature of the concern I have described by this hypothetical example (which I have made up; I did not hear it from someone else): Someone in the court leadership has nightmares about one morning reading a Los Angeles Times headline along these lines: "Lawyers' Group Wines and Dines Court Staff Seeking Favors."

Listmates, please understand, the Executive Committee believes that this kind of fear would be the product of an excessive use of the imagination. I am only trying to give a flavor to the somewhat sketchy explanations we have been given about the restrictions on the Reception's format and attendees. I am not trying to defend the idea that the Probate Court Reception poses a significant risk of appearing to involve any impropriety.

Here are some facts:

  1. Both last year and this year the Executive Committee intended to include all members of the Probate Department. The same was true again this year. However, we were informed about three weeks ago that only the judges and the Probate Attorneys would be allowed to attend. When we inquired why only judges and Probate Attorneys would be able to attend, we were told that the court was opposed to having non-lawyers (including Probate Examiners) in attendance. The Executive Committee regards this edict as quite unfortunate; we very much wish to also thank and recognize the work of the non-attorney staff.

  2. In connection with planning for the 2015 reception, our section was discouraged from "honoring" or "recognizing" the Probate Court staff and judges in the way we always did in earlier years. Again, this was the expression of a policy aimed at avoiding any appearance of coziness between the bar and the court.

  3. This year three judges and Commissioner Penny attended, and about six Probate Attorneys also came to the event. We do not know why the other judges and Probate Attorneys did not attend. Certainly, we always hope for every person we invite to attend. We cannot compel any person to attend.

  4. The comments above should provide some indication of why there was no verbal recognition from the podium of the attendees from the Probate Court this year as well, only my invitation to Judge Stratton to speak. In 2015 we did not name the judges and other members of the Probate Court who attended the reception. In other words, in order to preserve the primary elements of this event that is so popular with our membership (and also popular with many members of the Probate Court), we have had to de emphasize the "honor" or "recognition" aspects of it.

  5. Over 200 people attended the 2016 Probate Court Reception, and it appeared that a pretty good time was had by all or nearly all. Fortunately, though we would have preferred to see a few more judges and Probate Attorneys and other staff, there was still a great deal of lively conversation with professionals from the Probate Court and our members.

The Executive Committee wishes to thank the chairperson of the 2016 Probate Court Reception Committee, Susan Barlevav, and also our LACBA liaison, Andres Aguirre. Putting on an event like the Reception is not the easiest thing in the world.

Also thanks to our Sponsorship Committee leaders, Leigh Shipp Muniz and Albert Mikulencak. The event being free, it could not have happened without our sponsors. Along with our corporate sponsors, The Sanborn Team, Bond Services of California, LLC, City National Bank, Unfurnishers, Judicate West, the Metropolitan News, and California United Bank, we also wish to thank for their generous support the law firms of Hinojosa & Forer LLP and Oldman, Cooley, Sallus, Birnberg & Coleman, LLP.

Bill Winslow
Chair
Trusts and Estates Section

 
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Did You Know?
 
Did you know that . . . Judge Cowan is no longer calling case matters by the assigned calendar item number that appears on the probate notes. Rather, he is calling all calendars by alphabetical order by case surname  with the following exceptions, real property sales will continue to be called at the beginning of the calendar and trust matters will be called at the end of the calendar (also in alphabetical order). Please make sure when you sign in with the clerk in Department 79 that you write the name of your matter of your business card.  Judge Cowan is now calling cases this way because this is how the new Benchview program sorts the cases, by alphabetical order, not by assigning a number.
 
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Court News
 

Please click here for link to New Probate Coversheets-Initial and subsequent filings.

Opening of Filing Window in Room 426 for No—Fee Documents
The Court has opened up a filing window in Room 426. It is Window #7 and at this time, it will be taking no-fee documents, except for same-day filings.

Window #1 in Room 429 was the no-fee window. It is now an all-purpose window. This window is also now designated to accept short-setting documents and same-day documents. Individuals referred from the courtrooms to file same-day documents should be referred to Window #1 in Room 429.

 
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In Memoriam
 

We are sad to inform you that retired LASC Judge Kenneth Black passed away on May 11, after a short illness. He was 66. We send our thoughts and condolences to his family, friends and colleagues.

 
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Recent Cases
 
Family Law
Where title to a home was in the name of both spouses, the home was presumed, under Family Code Sec. 2581 to be community property, and the trial court erred in awarding it to one spouse based on her assertion that it was purchased with her separate funds where she made an inadequate showing to overcome the presumption.

In re Marriage of Cooper - filed May 6, 2016, publication ordered May 27, 2016, Third District
Cite as 2016 S.O.S. 2662
Full text click here


Healthcare Law
The definition of neglect under the Elder Abuse and Dependent Adult Civil Protection Act does not apply when a health care provider--delivering care on an outpatient basis--fails to refer an elder patient to a specialist, unless the provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient.

Winn v. Pioneer Medical Group, Inc. - filed May 19, 2016
Cite as 2016 S.O.S. 2465
Full text click here


Individual Rights
While the due process clause requires that a court-ordered competency hearing for a criminal defendant take place within a reasonable time, district court exceeded its authority in ordering that such hearings take place within seven days of the state court's order.

Trueblood v. Washington State Department of Social and Health Services - filed May 6, 2016
Cite as 2016 S.O.S. 15-35462
Full text click here


Trusts and Estates
Probate Code Sec. 3089 gives authority to probate courts to divide a married couple's community property, even when there is no divorce, if one spouse has a conservator and the remaining competent spouse refuses to "comply" with an order made under article 3 of part 6 of division 4 the Probate Code. This does not apply to orders awarding fees to conservators or attorneys which are the subject of a different part of the Probate Code, and entail a set of safeguards and protections that differ from the family-law style periodic payment of support orders generally contemplated under article 3.

Conservatorship of Bower - filed April 15, 2016, publication ordered May 16, 2016, Fourth District, Div. Three
Cite as 2016 S.O.S. 2438
Full text click here


Carlos McClatchy is the beneficiary of an irrevocable trust administered by William Coblentz, a now-deceased partner of respondent law firm. Carlos filed a petition for breach of trust seeking damages for William's mismanagement of trust assets. Carlos named William individually as a defendant, as well as Doe defendants 1 through 20. Carlos later amended his petition to add the law firm as a Doe defendant because William was a partner at the firm while acting as trustee. The trial court granted the firm's motion to quash, holding that Carlos could not amend the petition to add the firm as a defendant because he knew the firm's identity and facts giving rise to its liability when he filed the original petition.

The court of appeal affirmed, holding that Carlos was not ignorant of the facts establishing a cause of action against the law firm when he filed the original petition. Carlos knew or reasonably should have known to identify the law firm as a defendant in the original petition because William used the firm's business address, offices, letterhead, and resources in carrying out his duties as trustee. Code of Civil Procedure section 474 allows a plaintiff who is ignorant of a defendant's identity at the time of filing a complaint to designate the defendant by a fictitious name. When the plaintiff subsequently discovers the defendant's identity, the plaintiff may file an amended complaint relating back to the date of the complaint. Because Carlos was not ignorant of the law firm's identity and the facts giving rise to his cause of action against the firm when he filed the petition, his amended petition substituting the firm for a Doe defendant did not relate back to the original filing. The trial court properly granted the motion to quash because the statute of limitations had expired when he added the firm as a defendant.

McClatchy v. Coblentz, Patch et al., LLP —Filed May 10, 2016, First District, Div. Five
Cite as A114391
Full text click here


 
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