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VOLUME 11 | NUMBER 5 | MAY 2016
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Upcoming Events
Save the Date
Did You Know?
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

Stefanie S. Cutler
Bloom & Ruttenberg

Richard A. Luftman
Richard A. Luftman, Attorney at Law

Roseann DeRosa
Law Office of Roseann DeRosa

Trusts and Estates Executive Committee:

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

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

Upcoming Events
May 16, 2016

Location: Omni Los Angeles Hotel

The Trusts and Estates Section cordially invites you to our annual Los Angeles Court Probate Department Reception. There will be a cash bar and complimentary hors d'oeuvres for all guests. There is no registration fee for Trusts & Estates Section members, Probate Court staff, County Counsel and judges. RSVP is required in order to attend.

Please click here for more information

View from the Bench
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

Save the Date
Annual PVP
June 18, 2016

Location: The Meridien Delfina Hotel, Santa Monica

Please mark your calendars for the LACBA Trusts and Estates Section's Fundamental/Refresher PVP Attorney Training Program on June 18, 2016. It will be held at The Meridien Delfina Hotel in Santa Monica, at 530 Pico Boulevard, from 9:00 to 1:00, with breakfast and registration starting at 8:00.

More information to follow
Did You Know?

Did you know... Effective May 2, 2016, the Probate Division in the Central District (Stanley Mosk Courthouse) and the North District (Michael D. Antonovich Antelope Valley Courthouse) will be the first litigation area in the Los Angeles Superior Court to implement a new case management system. (The implementation of new case management systems in other litigation areas will continue over the next 18-24 months). The new system will provide efficiencies for staff and enhance the court's ability to maintain complete and easily accessible records. Additionally, the new technology will enable parties to file probate documents electronically in the future.

Did you know... Effective May 2, all documents presented for filing must be filed in the Clerk's Office with the following exceptions which must be filed in the assigned courtroom: • Proposed statements of decision • Mandatory settlement conference and trial briefs • Peremptory challenges or affidavits of prejudice

Click here for more information.

Recent Cases
Debt owed by attorney, resulting from an attorney-client fee arbitration mandated by statute, did not fall within the scope of 11 U.S.C. Sec. 523(a)(7). This section excepts from bankruptcy discharge a debt that "is for a fine, penalty, or forfeiture payable to and for the benefit of a governmental unit, and is not compensation for actual pecuniary loss."

In re Scheer - filed April 14, 2016
Cite as 2016 S.O.S. 14-56622
Full text click here

Criminal Law and Procedure
Testimony of defense mental health expert in guilt phase of capital trial that she had evaluated defendant 18 months earlier and found him incompetent did not compel trial court to sua sponte suspend proceedings and commit defendant for an evaluation of competency where witness acknowledged that her conclusion concerning defendant's intellectual functioning was an outlier that may have reflected the unusual circumstances present on the day of her evaluation rather than the true extent of defendant's abilities, and other testimony by experts, including the defendant's, did not support her conclusion. Trial court erred in giving a modified instruction based on CALJIC No. 3.32, which directed the jury to consider the evidence of defendant's intellectual disability solely on the question whether he formed the mental state required to commit murder, effectively telling the jury it must not consider that evidence on any other question before it; the error was prejudicial with respect to a charge of witness tampering and to a witness-murder special circumstance, as jury's implied finding of premeditation and deliberation did not necessary imply that defendant possessed the mental state required to commit the crime of attempting to dissuade a witness or for a true finding on the special circumstance.

People v. Townsel - filed Apr. 21, 2016
Cite as 2016 S.O.S. 1983
Full text click here

Civil Procedure
Settlement offer that would have required "notarized execution and transmittal of a written settlement agreement" by plaintiff was not a valid Code of Civil Procedure Sec. 998 offer.

Sanford v. Rasnick - filed Apr. 25, 2016, First District, Div. Two
Cite as 2016 S.O.S. 2090
Full text click here

Trial court erred in ruling communications between an attorney and his client not privileged based on their content. Because the privilege is absolute, and attaches to all confidential communications between an attorney and a client regardless of whether the information communicated is in fact privileged, it is neither necessary nor appropriate to review a communication to determine whether the attorney-client privilege protects it. Once the proponent makes a prima facie showing of a confidential attorney-client communication, it is presumed the communication is privileged and the burden shifts to the opponent to establish--without reliance on the contents--waiver, an exception, or that the privilege does not for some other reason apply.

DP Pham, LLC v. Cheadle - filed April 15, 2016, Fourth District, Div. Three
Cite as 2016 S.O.S. 1888
Full text click here

Real Property
When a lender acquires by assignment a loan being administered by a loan servicer, the lender may be liable to the borrower for misrepresentations made by the loan servicer, as the lender's agent, after that assignment. A loan servicer may owe a duty of care to a borrower through application of the factors listed in Biakanja v. Irving (1958) 49 Cal. 2d 647, including: "(1) the extent to which the transaction was intended to affect the plaintiff," (2) "the foreseeability of harm to [the plaintiff]," (3) "the degree of certainty that the plaintiff suffered injury," (4) "the closeness of the connection between the defendant's conduct and the injury suffered," (5) "the moral blame attached to the defendant's conduct," and (6) "the policy of preventing future harm."

Daniels v. Select Portfolio Servicing, Inc. - filed Apr. 26, 2016, Sixth District
Cite as 2016 S.O.S. 2102
Full text click here

Homeowners' inverse condemnation complaint failed to state a cause of action where it alleged only impairment of their views and a speculative risk of fire danger, neither of which constituted a taking or damaging of their property.

Boxer v. City of Beverly Hills - filed Apr. 26, 2016, Second District, Div. One
Cite as 2016 S.O.S. 2147
Full text click here

Trusts and Estates
Although the beneficiaries of an irrevocable trust have standing to petition the probate court for an accounting and information after the settlor dies and the trust or a portion of the trust becomes irrevocable, the probate court does not have authority to order the trustee to provide an accounting or information regarding trust assets and transactions while the trust was still revocable, where there is no claim that the deceased settlor was incapacitated or subject to undue influence during the period of revocability.

Babbitt v. Superior Court (McCormack) - filed Apr. 25, 2016, Second District, Div. Seven
Cite as 2016 S.O.S. 2115
Full text click here

Trust language "I transfer to my Trustee the property listed in Schedule A, attached to this agreement," was sufficient to convey to the trust a property listed in the schedule, and the trustor was not required to execute a separate deed in order to effectuate such conveyance. Because at the time the trust was created, a prior trust was a revocable inter vivos trust, and trustor was the sole trustee who owned no interest in the property as an individual, his signature on the later trust was sufficient "to convey good title" to the property from the prior trust to the later trust.

Carne v. Worthington - filed April 13, 2016, Fourth District, Div. One
Cite as 2016 S.O.S. 1877
Full text click here


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