May 2019

Sections

VOLUME 14 | NUMBER 5 | MAY 2019

	IN THIS ISSUE
Upcoming Events		>
Save the Date		>
Court News		>
Practitioner's Notes		>
Recent Cases		>
The Trusts and Estates eBulletin is published monthly by the Trusts and Estates Law Section, coeditors: Jana G. Garrotto Lewitt Hackman Jgarrotto@lewitthackman.com 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

	Upcoming Events

Trial Preparation and Advocacy: Part II Date: May 7, 2019 Time: 12:15-1:15 pm Location: Stanley Mosk Courthouse, LASC This program will cover the subjects of strategic considerations when preparing for trial, including knowing your burdens of proof, shifting the burden of proof, and effective opening and closing arguments, among other topics. Click here for more information and to register Trusts & Estates Probate Department Reception Date: May 8, 2019 Time: 5:30-8:00 pm 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, County Counsel and judges. An RSVP is required in order to attend. Click here for more information and to register

	Save the Date

Brown Bag: Title Insurance, Probate, Trusts & Estates 2019 Edition Date: June 4, 2019 Time: 12:15-1:15 pm Location: Stanley Mosk Courthouse, LASC This program will cover the Federal Foreclosure, SB2 exemptions and an update on different county interpretations of the SB2 fees. This program will also cover title insurance issues in dealing with trusts and probate estates, IRS liens against trust beneficiaries, and various deed issues. More information TBA. View from the Bench Date: June 14, 2019 Time: 11:30 a.m.-1:00 p.m. Location: Omni Hotel More information TBA. Fundamental Court-Appointed Counsel Training Date: June 22, 2019 Time: 8:00 a.m.-1:00 p.m. Location: Torrance Marriott More information TBA.

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

	Court News

Mark S. Priver was recently elected as a Commissioner and has been assigned to Probate & Mental Health. He will rotate as coverage is needed between the Probate and Mental Health departments, and will also handle settlement conferences for Probate. He brings experience in business litigation as a lawyer, prior service as a Judge Pro Tem and his wife, Laura Priver, is a Judge of the Los Angeles Superior Court. Commissioner Priver will begin in Department 29 the week of April 29th. Please be sure to come to the Probate Court reception on May 8th at the Omni Hotel to meet him.

	Practitioner's Notes

Requests for Entry of Default (Judicial Council form CIV-100) will not be processed for Probate matters and should not be submitted for filing. The statutory framework for the filing of petitions in Probate and the open-ended nature of the time within which to respond do not support the use of this Civil form. New submissions will be rejected upon filing. Those already in the system awaiting processing will be rejected or returned as “Not Entered.” Request for Dismissal (Judicial Council form CIV-110) ) will not be processed for Probate matters and should not be submitted for filing. The court must consider and rule upon most petitions to fulfill its super-fiduciary role, even if to deny the abandoned petition without prejudice. A request for withdrawal of petition should not be submitted as a request for dismissal. Where appropriate, the notes will recommend denial of the petition without prejudice or another appropriate action under the circumstances of the case. New submissions of the Request for Dismissal form will be rejected upon filing. Please be aware that Guardian ad Litem appointees are not paid through the Los Angeles Superior Court PACE (Professional Appointee Court Expense) program, with rare exceptions. Court Appointed Counsel may qualify to be paid through PACE when appointed pursuant to Probate Code sections 1470, et. seq., subject to the Court’s determination that the conservatorship estate has insufficient assets. Please do not resubmit proposed orders. Proposed orders are captured the moment you e-file them and can be viewed within the Court system. Resubmitting them will not assist in the process. The Court is continuing to catch up on the backlog of proposed orders. Now that orders are submitted electronically, please note that you need to enter your email address in the service contacts field to enable the Court to provide the filer with an emailed copy of the final order. If your service contact is not included in the service contacts field at the time you submit your e-filing, the Court will not be able to serve a copy of the order electronically through this system. Further, your e-mail address should appear with your firm information on the caption page of the proposed order.

	Recent Cases

Civil Procedure A request to the court that it retain jurisdiction under Code of Civil Procedure Sec. 664.6 must be made by the litigants, not their attorneys of record. Mesa RHF Partners v. City of Los Angeles - filed March 29, 2019, Second District, Div. One Cite as 2019 S.O.S. 1551 Full text click here > While a juror's intentional concealment of material information may demonstrate implied bias sufficient to justify disqualification, unintentional failure to disclose material information will only justify disqualification if the juror was sufficiently biased to constitute good cause for removal. The record evidence supported a judge's determination that a juror did not intentionally conceal the fact he had been party to two prior lawsuits where there was no evidence the juror had ever been served with a complaint or that he was actively involved in the litigation. References to a plaintiff's medical insurance coverage and Social Security that provided context and background information on his past treatments and likely future expenses did not violate the collateral source rule. Stokes v. Muschinske - filed March 14, 2019, publication ordered April 8, 2019, Second District, Div. Eight Cite as 2019 S.O.S. 1689 Full text click here > Family Law For purposes of the Domestic Violence Prevention Act, abuse includes behaviors that were enjoined by a temporary restraining order and is not limited to acts inflicting physical injury. N.T. v. H.T. - filed March 26, 2018, publication ordered April 22, 2019, Fourth District, Div. Three Cite as 2019 S.O.S. 1890 Full text click here > Probate Law The anti-SLAPP statute can apply to petitions to enforce no contest provisions in probate court. A beneficiary's defense of a trust amendment against a claim alleging the change was invalid can meet the statutory definition of a direct contest. The effect of a litigant's conduct establishes whether she has acted in her capacity as a disinterested trustee, not the titles on the pleadings that she filed. The litigation privilege does not apply to actions to enforce no contest provisions. Key v. Tyler - filed April 19, 2019, Second District, Div. Two Cite as 2019 S.O.S. 1894 Full text click here > Assuming that the status of all alleged heirs must be determined simultaneously at a single hearing, an alleged heir did not suffer prejudice if the alleged heir could not show how a different result might have changed absent the error. In order for the mark on a document to be an official seal, it must include a signature by a public official. A court may find evidence to be inadmissible without an objection having been raised by a party. Estate of Herzog - filed March 29, 2019, Fourth District, Div. Two Cite as 2019 S.O.S. 1558 Full text click here > Real Property Landowner who grants someone permission to use land is estopped from revoking the license where the person using the land has made a "substantial expenditure" in reliance on the license. Trial court construed the requirement too permissively and used the wrong legal standard in declaring a license to use an outdoor area be forever irrevocable. Nearly every case where a license has been declared irrevocable has involved the licensee's permanent alteration of the land and the ensuing upkeep, whether by building, altering or upgrading a roadway, constructing a ditch, canal or levee to transport water, erecting a wall, or raising living quarters. Case must be remanded for a determination as to whether landowner's video cameras aimed at disputed area are a nuisance. Shoen v. Zacarias - filed April 4, 2019, Second District, Div. Two Cite as 2019 S.O.S. 1641 Full text click here > The U.S. Supreme Court's decision in Americold Realty Trust v. ConAgra Foods did not upset the rule that a trustee is a real party to a controversy for purposes of diversity jurisdiction when he possesses certain customary powers to hold, manage, and dispose of assets for the benefit of others. When a trustee is sued in her own name, her citizenship is all that matters for diversity purposes. Demarest v. HSBC Bank USA - filed April 8, 2019 Cite as 2019 S.O.S. 17-56432 Full text click here > Tax Law A set of homeowners were entitled to tax relief under Revenue and Tax Code Sec. 69.5 where they sold their original property and constructed a replacement property which, at the time of their claim, they owned and occupied as their primary residence. The fact that, to satisfy a bank requirement, they made temporary use of a limited liability company before taking title to their replacement property provides no justification under the terms of the statute or in logic or fairness for denying them the relief provided by Sec. 69.5. Wright v. County of San Mateo - filed March 29, 2019, First District, Div. Four Cite as 2019 S.O.S. 1565 Full text click here > Treasury Regulation Sec. 301.7502-1(e)(2) is a permissible construction Internal Revenue Code Sec. 7502. According deference to that regulation, Sec. 7502 provides the exclusive means to prove delivery of an amended tax return. Baldwin v. United States - filed April 16, 2019 Cite as 2019 S.O.S. 17-55115 Full text click here >

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