Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 12 | NUMBER 6 | JUNE 2017
 
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IN THIS ISSUE
 
Upcoming Events
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Practitioner's efiling Notes
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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

Roseann DeRosa

Jessica Ghirardo Gordon
Thompson Coburn LLP
jgordon@thompsoncoburn.com

Trusts and Estates Executive Committee Officers:

Matthew W. McMurtrey, Chair
Julia L. Birkel, Vice-Chair
Marc L. Sallus, Esq, Secretary & Treasurer
William L. Winslow, Immediate Past Chair

 

Members:
Susan Ellen Barlevav
Aurora Leigh Perez Basa
Steven P. Beltran
Roseann DeRosa
Zachary Dresben
Jana Gordon Garrotto
Sibylle Grebe
Duncan Hromadka
Deborah Keesey
Patricia A. Lobello-Lamb
Stephen M. Lowe
Richard A. Luftman
Mary L. O'Neill
John E. Rogers, Jr.
Donald L. Scoggins
Lisa Greta Wick

Barristers Liaison
Jessica Ghirardo Gordon

County Counsel Liaison
William C. Sias

Public Interest Liaison
Yolande P. Erickson

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




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Upcoming Events
 
2017 A View from the Bench

Date: June 8, 2017
Program and Lunch: 12:00—1:30 p.m
Location: Omni Hotel Downtown
Program Description:
Please join us for a special lunch program where the Probate Judges of the Superior Court will give the State of Probate Court an update on changes in addition to providing their view of current issues relating to probate.
During the program there will be a question and answer session addressing efiling concerns that practitioners may have.

Click here for more information


2017 Fundamental/Refresher PVP Attorney Training

Date: June 17, 2017
Time: 9:00 a.m.—1:00 p.m.
Location: LA Hotel Downtown
Program Description:
This year's program provides an overview of the role which PVP (Probate Volunteer Panel) attorneys play and the duties they are expected to fulfill. This year's program will offer the Court's perspective and seasoned practitioners' insights on recent developments and issues which frequently arise in appointments, with specific focus on reasonable accommodations of clients' disabilities at every stage of representation.


Click here for more information

 
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Practitioner's efiling Notes
 
Practitioner's efiling Notes

  • LASC Probate efiling FAQs—
    http://www.lacourt.org/division/efiling/pdf/Efiling_FAQ.pdf

  • Practitioners should be advised that while you may submit your filings electronically 24 hours a day, and any filings received up to 11:59 p.m. will be deemed received or filed on the same business day, it can take more than 1 day for the Court to contact the filing party to advise that the submission was accepted or rejected. If a practitioner submits his or her pleading/motion/document on the last day due, there is no procedure in place to accept late filings if the submission is rejected by the Clerk.

  • The following form is mandatory and practitioners should submit with his or her proposed order relating to a noticed motion:
    Proposed Order (Cover Sheet) (Electronic Filing and Service) (Judicial Council Form EFS-020) (http://www.courts.ca.gov/documents/efs020.pdf).  It should be noted that in addition to California Rules of Court, Rule 3.1312(c)(1) which requires that practitioners submit a proposed order in Portable Document Format (PDF), Rule 3.1312(c)(2) states that a proposed order must also be submitted in an editable word-processing format. However, according to the FAQ 49 on the LACSC website, practitioners should only submit the proposed order in PDF format. (http://www.lacourt.org/division/efiling/pdf/efiling_FAQ.pdf). It appears that Judicial Council Form EFS-020 is only applicable to noticed motions.

  • When you efile a Nunc Pro Tunc that you should submit the same using the code "Application – Miscellaneous" and indicate that it is a Nunc Pro Tunc in the comments section.

  • The Judicial Council has adopted the following optional forms for a practitioner's use when efiling:
    1. Consent to Electronic Service and Notice of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-005);
    2. Request for Exemption from Mandatory Electronic Filing and Service (Electronic Filing and Service) (Judicial Council Form EFS-007);
    3. Order of Exemption from Mandatory Electronic Filing and Service (Electronic Filing and Service) (Judicial Council Form EFS-008);
    4. Notice of Change of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-010);
    5. Proof of Electronic Service (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050/EFS-050);
    6. Attachment to Proof of Electronic Service (Documents Served) (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050(D)/EFS-050(D));
    7. Attachment to Proof of Electronic Service (Persons Served) (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050(P)/EFS-050(P)).
  • The Trust and Estates Section of the LACBA has been and is actively working with the Court to address practitioners’ concerns and issues (including many that were shared on the section’s Listserve) with the implementation of efiling. We will keep you updated on developments.
 
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Recent Cases
 
Civil Procedure

Scope of questions asked by a judgment creditor in a third party judgment debtor examination may include the location of assets no longer in the possession of the third party.

Yolanda's, Inc. v. Kahl & Goveia Commercial Real Estate - filed May 3, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 2311
Full text click here


State law holding that a principal is not bound by an arbitration agreement entered into by an agent, absent an express delegation of authority to enter into such an agreement, violates the Federal Arbitration Act by singling out arbitration agreements for disfavored treatment.

Kindred Nursing Centers, L.P. v. Clark - filed May 15, 2017
Cite as 2017 S.O.S. 16-32_o7jp
Full text click here >


Court of Appeal has inherent authority to protect specific persons from repeated frivolous litigation by ordering that a specified individual--who was previously declared a vexatious litigant, be barred from bringing new proceedings--including appeals, against the protected persons, even when the litigant is represented by counsel, absent prefiling approval from the presiding judge or justice of the court.

Kinney v. Clark - filed May 17, 2017, Second District, Div. One
Cite as 2017 S.O.S. 2472
Full text click here >


Trial court did not abuse its discretion by vacating default judgment that should not have been entered because plaintiff brought the action on behalf of a trust, but was not the trustee, and thus lacked standing on the face of the complaint. Trial court did not abuse its discretion by vacating default judgment under Code of Civil Procedure Sec. 473, where defendant had died. Plaintiff had brought a creditor's claim against defendant's trust based on the judgment, and trustee had no prior notice of the default or the judgment.

Grappo v. McMills - filed May 23, 2017, First District, Div. Two
Cite as 2017 S.O.S. 2535
Full text click here >


Family Law

A state court may not order a veteran to indemnify a divorced spouse for the loss in the divorced spouse's portion of the veteran's retirement pay caused by the veteran's waiver of retirement pay to receive service-related disability benefits.

Howell v. Howell - filed May 15, 2017
Cite as 2017 S.O.S. 15-1031_hejm
Full text click here >


Where marital settlement agreement and judgment granted wife a specified dollar amount as her interest in husband's retirement plan, but those funds were not segregated and remained in the plan for several years, family court had jurisdiction to grant wife a "qualified domestic relations order" assigning her gains and losses. The order was not a modification of the original judgment. Family court erred by dating the gains and losses back to the date of separation, rather than the date of the dissolution judgment.

In re Marriage of Janes - filed May 23, 2017, Fourth District, Div. Two
Cite as 2017 S.O.S. 2565
Full text click here>


Healthcare Law

Statute abrogating privilege for communications between physician and patient in the context of Medical Board investigations applies to all physicians, including psychiatrists. A psychiatric patient has a qualified constitutional right to privacy. In the context of a Medical Board investigation, this requires the state to demonstrate a subpoena for the patient's records is supported by a compelling interest and that the information demanded is "relevant and material" to the particular investigation being conducted.

Cross v. Superior Court (Kidane) - filed May 1, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 2278
Full text click here >


Real Property

Defendant mortgage lender--by notifying plaintiff that he had 15 days to appeal denial of his request for loan modification--materially violated Civil Code Sec. 2923.6(d), which allows a borrower 30 days to appeal. Plaintiff pled a cause of action for injunctive relief under the statute notwithstanding his failure to appeal within 30 days.

Berman v. HSBC Bank USA, N.A. - filed April 11, 2017, publication ordered May 3, 2017, Third District
Cite as 2017 S.O.S. 2329
Full text click here >


Trial court did not abuse its discretion by awarding plaintiff an equitable easement--based on a balancing of hardships--over a small portion of defendant's property based on evidence that defendant did not use that portion and that the easement would allow plaintiff to access a third-party property over which he would have an easement by necessity.

Hinrichs v. Melton - filed May 3, 2017, Second District, Div. Six
Cite as 2017 S.O.S. 2334
Full text click here >


Quiet title action failed where judicially noticeable facts showed that plaintiff's interest in the subject property depended on a judgment that had previously been set aside as void.

Thompson v. Ioane - filed May 25, 2017, Sixth District
Cite as 2017 S.O.S. 2646
Full text click here>


Trusts and Estates

Regardless of the form of a bank account, when clear and convincing evidence shows funds were transferred to the account owner to hold in an irrevocable trust for a third party beneficiary and the trustee repudiates the trust, a constructive trust may be imposed on the funds for the beneficiary's estate to prevent unjust enrichment.

Higgins v. Higgins - filed May 9, 2017, Second District, Div. Five
Cite as 2017 S.O.S. 2403
Full text click here >

 
 
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