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VOLUME 14 | NUMBER 3 | MARCH 2019
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Court News
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Practitioner's Notes
>
Recent Cases
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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:

Marc L. Sallus, Esq, Chair
Stefanie S. Cutler, Vice-Chair
Jana G. Garrotto, Secretary & Treasurer
Julia L. Birkel, Esq, Immediate Past Chair

 

 
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Upcoming Events
 

The Top Ten Peeves of the Probate Court

Date: March 15, 2019
Time: 12:15-1:15 pm
Location: Los Angeles County Bar Association Offices

Judge Daniel Juarez and Judge Brenda Penny will present the Top Ten Pet Peeves of the Probate Department. This presentation will advise counsel what not to do and highlight some best practices appreciated by the Court.

Click here for more information and to register

 
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Save the Date
 

Brown Bag
Trial Preparation and Advocacy, Part I and Part II
with Justice Stratton, Judge Klein, Eric Adler, Geri Wyle, Blake Rummel and Stefanie Cutler, Moderator

Date: April 2 and May 7, 2019
Time: 12:15-1:15 p.m.
Location: Los Angeles Superior Court

This program will cover the subjects of strategic considerations when preparing for trial, knowing your burdens of proof, shifting the burden of proof, and effective opening and closing arguments, among other topics.


 

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

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Court News
 

Message from the Probate Court:

The Court wants to communicate its appreciation to the Probate Bar for its patience and understanding in receipt of signed orders as the Court implements its new electronic workflow for processing of orders electronically. Dean Silliman, the Court’s Managing Probate Attorney, and all of the Court’s Probate attorneys and examiners, have been working tirelessly to catch up with the delays caused by implementation of the new system. We understand the frustration in not obtaining orders sooner. The good news is that the new system when fully operational should allow for significantly faster and more seamless turnaround.

 
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Practitioner's Notes
 

Ex Parte Filing Reminder

Always select the ex parte filing codes when submitting ex parte applications, oppositions to ex partes and proposed orders on ex parte matters. If the general code is selected without a designation of ex parte, your e-filing may not be processed as an ex parte.

Letters that require Issuance should not be Efiled

Letters that require issuance should not be submitted electronically as these were exempt from efiling and require that the original be brought to court for issuance.

 
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Recent Cases
 
Civil Law

Code of Civil Procedure Sec. 473(b)'s mandatory provision is only mandatory if the trial court does not find that the default or dismissal was not caused by the attorney's mistake, inadvertence, surprise, or neglect. A party's disclosure of the existence of privileged communications, but not the content of the communications, does not waive the privilege.

Darab N. v. Olivera - filed Feb. 4, 2019, Second District, Div. One
Cite as 2019 S.O.S. 631
Full text click here >

Civil Procedure

An award of costs on an appeal is a final and enforceable judgment, even if trial is yet to be had. The availability of a less expensive option to obtaining an appeals bond does not make a litigant's decision to obtain a bond unreasonable or unnecessary.

Rostack Investments v. Sabella - filed Feb. 5, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 661
Full text click here >

A defendant's challenge to a trial judge pursuant to Code of Civil Procedure Sec. 170.6 was untimely since it was filed more than 15 days after the defendant made an appearance in the action to oppose a transfer motion. Whether the case was or was not formally transferred under required procedures does not affect this conclusion.

Sunrise Financial v. Superior Court (Overland Direct) - filed Feb. 7, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 699
Full text click here >

An order denying relief under Code of Civil Procedure Sec. 473(b) is appealable. While discretionary relief under Sec. 473(b) is available for voluntary judgments and dismissals, mandatory relief provision is unavailable to undo a voluntary dismissal.

Jackson v. Kaiser Foundation Hospitals - filed Feb. 8, 2019, First District, Div. Three
Cite as 2019 S.O.S. 729
Full text click here >

Code of Civil Procedure Sec. 98(a) does not categorically require that all affiants be personally present for service at an address within 150 miles of the place of trial for a reasonable period during the 20 days prior to trial. Such personal presence is required only if it is necessary for lawful service, at the specified location, of process that directs the affiant to appear at trial, under the standard rules prescribing the pertinent types of process and how such process is to be served.

Meza v. Portfolio Recovery Associates, LLC - filed Feb. 15, 2019
Cite as 2019 S.O.S. 762
Full text click here >

A purported arbitral award was not entitled to enforcement under the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards where the parties had fully settled their claims before approaching an arbitrator. The purported arbitration consisted of an impromptu meeting in a building lobby, and the "proceedings" disregarded the terms of three arbitration agreements between the parties and the issuing forum's arbitral rules.

Castro v. Tri Marine Fish Company LLC - filed Feb. 27, 2019
Cite as 2019 S.O.S. 17-35703
Full text click here >

A judgment creditor with a properly recorded judgment lien has priority over an unperfected security interest held by an assignee who did not file a financing statement with respect to distributions irrevocably assigned to it by the judgment debtor before the judgment lien was recorded.

MDQ, LLC v. Gilbert, Kelly, Crowley & Jennett (Cleopatra Records) - filed Feb. 27, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 954
Full text click here>

Criminal Law and Procedure

While a condemned inmate's filings as a pro se litigant are relevant evidence of his ability to communicate, read, and write, the filings lack convincing strength without a determination about whether the inmate wrote the papers on his own. An inmate's adaptive improvements made in prison are not to be relied upon in determining his eligibility for execution. Evidence of a personality disorder or mental-health issue is not evidence that a person does not also have intellectual disability.

Moore v. Texas - filed Feb. 19, 2019
Cite as 2019 S.O.S. 18-443
Full text click here>

Family Law

The plain language of Probate Code Sec. 1510(i) and Family Code Sec. 8802(d) require a court to consolidate a guardianship proceeding with an adoption proceeding when both are simultaneously pending.

Guardianship of C.E. - filed Jan. 31, 2019, Sixth District
Cite as 2019 S.O.S. 527
Full text click here >

A responding party's request for sanction-based attorney fees under Family Code Sec. 271 is not a request for "affirmative relief" for purposes of Sec. 213(a).

In re Marriage of Perow and Uzelac - filed Jan. 31, 2019, Second District, Div. Two
Cite as 2019 S.O.S. 534
Full text click here >

The purpose of Family Code Sec. 3025.5(a) is to protect the privacy of the child and to encourage candor on the part of those participating in the evaluation. Statements made to the evaluator and the evaluator's conclusions about parental abuse and the nature of the relationship between parent and child are well within the protection of the statute. While Sec. 3025.5 carries no penalty for its violation, Sec. 3111 protects both the written evaluator report and the information in the report. An attorney can violate Sec. 3111 by intentionally asking questions that disclosed highly personal information about the child and her family. The litigation privilege does not apply to sanctions imposed by the trial court.

In re Marriage of Anka & Yeager - filed Feb. 4, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 651
Full text click here >

Substantial evidence supported a juvenile court's finding that reasonable services were not provided to a child's father where a social worker ignored the father's requests for assistance, the child welfare agency did not make reasonable efforts to provide therapy to the father, and the agency unreasonably cancelled plans for a 60-day home visit. A juvenile court is authorized to extend reunification services up to the 24-month review date if the court determines that reasonable services were not provided or offered to the parent. A Sec. 366.26 hearing cannot be set at the 12-month and 18-month review hearing when reasonable services have not been provided or offered.

In re M.F. - filed Jan. 11, 2019, publication ordered Feb. 5, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 681
Full text click here >

While previously reported cases have used only two different tracing methods to demonstrate a spouse's separate property was used to purchase an asset, nothing precludes trial courts from relying on any other tracing method. Trial courts are free to consider and credit reasonable, well-supported, and nonspeculative expert testimony, when determining whether the proponent has successfully traced commingled assets to a separate property source.

In re Marriage of Ciprari - filed Feb. 6, 2019, Second District, Div. One 
Cite as 2019 S.O.S. 705 
Full text click here >

The Uniform Voidable Transactions can apply to a premarital agreement in which the prospective spouses agree that upon marriage each spouse's earnings, income, and other property acquired during marriage will be that spouse's separate property.

Sturm v. Moyer - filed Feb. 15, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 798
Full text click here >

A person with autism is not automatically a candidate for a limited conservatorship. There is no authority prohibiting the establishment of a limited conservatorship solely because it may result in an adult student's transfer from a school that has failed to meet her educational needs. A trial judge's personal observations of a proposed conservatee can contribute to the evidence supporting the appointment of a conservator.

Conservatorship of O.B. - filed Feb. 26, 2019, Second District, Div. Six
Cite as 2019 S.O.S. 889
Full text click here >

Healthcare Law

A hospital cannot avoid its obligation to provide notice and a hearing before terminating a doctor's ability to practice in the hospital by directing the medical group employing the doctor to refuse to assign the doctor to the hospital.

Economy v. Sutter East Bay Hospitals - filed Feb. 4, 2019, First District, Div. Four
Cite as 2019 S.O.S. 654
Full text click here >

Professional Responsibility

A legal argument may be raised for the first time in an appeal if it presents a new question of law based on undisputed facts. In professional malpractice cases, expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care except in cases where the negligence is obvious to laymen. An expert witness was not necessary to establish the scope of a broker's duty or a breach of that duty for a professional negligence claim where the broker possessed material information that impacted the value of a property and chose not to disclose that information to its client.

Ryan v. Real Estate of the Pacific - filed Feb. 26, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 913
Full text click here >

 Real Property

A condemnee is entitled to compensation for lost goodwill if any portion of that loss is unavoidable. A condemnee need only prove some or any unavoidable loss of goodwill to satisfy the condemnee's burden to demonstrate entitlement to compensation for goodwill under Code of Civil Procedure Sec. 1263.510.

Los Angeles County Metropolitan Transportation Authority v. Yum Yum Donut Shops, Inc. - filed Feb. 26, 2019, Second District, Div. One
Cite as 2019 S.O.S. 917
Full text click here >

Although Health and Safety Code Sec. 17980.7 does not explicitly provide that a court may issue a super-priority lien which displaces previously existing liens, a court can authorize receiver appointed under Code of Civil Procedure Sec. 568 to issue a super-priority lien in appropriate circumstances. City of Sierra Madre v. Suntrust Mortgage (Pasternak) - filed Feb. 26, 2019, Second District, Div. Three Cite as 2019 S.O.S. 922 Full text click here >

City of Sierra Madre v. Suntrust Mortgage (Pasternak) - filed Feb. 26, 2019, Second District, Div. Three
Cite as 2019 S.O.S. 922
Full text click here >

A borrower who prevails in obtaining a temporary restraining order enjoining a non-judicial foreclosure sale on a residential property can be a "prevailing borrower" within the meaning of Civil Code Sec. 2924.12(h) for purposes of an award of attorney fees.

Hardie v. Nationstar Mortgage LLC - filed Feb. 27, 2019, Fifth District
Cite as 2019 S.O.S. 983
Full text click here >

Tax Law

To prevail on a 26 U.S.C. Sec. 7434 claim, a plaintiff must prove that the defendants willfully issued a fraudulent return. Willfulness requires proof the defendant was aware of the duty imposed by Sec. 7434 and specifically intended to flout the statute. Sec. 7434 does not impose liability for failing to correct 1099s that are later discovered to be inaccurate. There is no authority for the proposition that a person who unwittingly hires an unlicensed contractor to repair work not property performed by someone else is precluded from introducing evidence of the cost of repair. There is also no authority for the proposition that a party may recover cost of proof expenses based upon requests for admission propounded by someone else.

Design Built Systems v. Sorokine - filed Feb. 26, 2019, First District, Div. Two
Cite as 2019 S.O.S. 927
Full text click here

Public Resources Code Sec. 5566 does not require a uniform effect or outcome from a tax, but rather uniform application.

Dondlinger v. Los Angeles County Regional Park and Open Space District - filed Jan. 31, 2019, Second District, Div. One
Cite as 2019 S.O.S. 548
Full text click here >

 
 
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