June 2017

Sections

VOLUME 12 | NUMBER 6 | JUNE 2017

	IN THIS ISSUE
Upcoming Events		>
Practitioner's efiling Notes		>
Recent Cases		>
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 U.S. Trust Roseann.derosa@ustrust.com 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

	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

	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: Consent to Electronic Service and Notice of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-005); Request for Exemption from Mandatory Electronic Filing and Service (Electronic Filing and Service) (Judicial Council Form EFS-007); Order of Exemption from Mandatory Electronic Filing and Service (Electronic Filing and Service) (Judicial Council Form EFS-008); Notice of Change of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-010); Proof of Electronic Service (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050/EFS-050); Attachment to Proof of Electronic Service (Documents Served) (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050(D)/EFS-050(D)); 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.

	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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