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VOLUME 13 | NUMBER 11 | NOVEMBER 2018
 
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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
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Recent Cases
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Legal Developments
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The Trusts and Estates eBulletin
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
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 Gordon Garrotto, Secretary & Treasurer
Julia L. Birkel, Esq, Immediate Past Chair

 

 
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Upcoming Events
 

A Peek Behind the Curtain of Room 260

Date: November 13, 2018
Time: 12:15-1:30 p.m.
Location: Los Angeles Superior Court

Probate Code §§3600-3611 Minors’ Compromises from Civil Trial Courts include a range of possible payment or delivery of money or other property for the benefit of a minor or person with a disability; i.e., blocked accounts, annuities, special needs trusts.

The procedure followed by the Civil Trial Courts require a review by the Probate Department’s Attorneys relating to various statutory and regulatory requirements which must be satisfied for that Court to approve such a proposed disposition of money or other property.

This program will provide a peek behind the curtain of the interplay between the civil trial courts and the Probate Attorneys’ involvement in such proceedings.

Click here for more information and to register


 

Minor’s Counsel Guardianships Training

Date: December 15, 2018
Time: 8:30 a.m.-12:30 p.m.
Location: Los Angeles County Bar Association

This training complies with Los Angeles Superior Court requirements for Minor’s Counsel Guardianships Training.

Click here for more information and to register


 

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

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Save the Date
 

Brown Bag -
Conservatorships and Trusts Actions – the When and How

Date: December 11, 2018
Location: LA Superior Court

A discussion regarding the interplay between Conservatorships and Trusts specifically focused on when to bring the trust action when there is a revocable trust and there is a need for a conservatorship.

More information to come.

 
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Court News
 
  • On October 24, 2018, Brenda J. Penny was sworn in and enrobed as a Judge of the Los Angeles Superior Court, having been elevated by Governor Brown.  She has been assigned to continue on the Probate Bench.

Presiding Judge - Elect Kevin Brazile and Probate Supervising Judge David Cowan further announced that Judge Penny will be the first Assistant Supervising Judge ever appointed by the Probate Court, to begin January 1, 2019.

  • The court has hired three new probate attorneys, and six new probate examiners, who are either in the process of being trained or about to start.
  • On October 1, 2018, non-confidential documents filed in probate Decedent’s Estate and Trust cases became available to view and purchase from the Court’s website: lacourt.org. The Court has subsequently become aware that some returning customers are experiencing issues when updating their online account information and method of payment. Users are encouraged to contact onlineservices@lacourt.org during regular business hours (Mon-Fri, 7:30 a.m.—5:00 p.m.) for support.
  • Coming Soon:

The Court is working on electronic processing of proposed orders.

 
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Practitioner's Notes
 

Petition or Motion?

Do you ever wonder whether your new filing is a petition or a motion? A guiding principle that almost always works is that if you are requesting relief under the Code of Civil Procedure, it will be a motion, and will be heard on the 10:00 a.m. calendar. The Research Attorneys work up motions. If you are requesting relief under the Probate Code, it will be a new petition. The Probate Attorneys and Examiners handle those.

Proposed Orders

  • Did you know the Probate Court receives approximately 150 proposed orders each day?
  • The most frequent reason that proposed orders are rejected is when they do not track the Minute Order.  The Court strongly advises that where something other than the granting or denial of a motion or a JTD is involved, you request the Court during your hearing to ask the Judicial Assistant to put your requested provisions into the Minute Order.
  • Where an order contains a clerical error, an Application Nunc Pro Tunc is on the LASC website.  Follow the Probate Forms link on the main Probate Division web page.

Reciting Settlement Agreements on the Record

Where a settlement is agreed to on the record, in addition to the settlement terms, recite into the record:

  • Which petitions are granted/denied where there are more than one petition;
  • Specify the relief to which your client is entitled of their petition is granted, including necessary findings, powers, bonds, etc.
  • If your settlement is complicated beyond granting or denying JTDs, submit a stipulated order in lieu of the Judicial Assistants having to write everything down.
 
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Recent Cases
 
Civil Procedure

While the California Rules of Court do not dictate a presumptively reasonable percentage or mathematical method of determining the appropriate attorney fees under a contingency agreement, rule 7.955 requires that a court balance an attorney's interest in fair compensation with the protection of the interests of a minor client, and the court must give consideration to the terms of any representation agreement made between the attorney and the representative of the minor, and must evaluate the agreement based on the facts and circumstances existing at the time the agreement was made. A fee of 10% was unreasonably low where the attorneys had many years of experience in aviation accident cases, the risk of loss was substantial, and the attorneys obtained a very good recovery for its clients considering the circumstances of the case. Although a child's needs are a relevant and important factor in determining a reasonable attorney fee, this single factor cannot overwhelm all other considerations.

Schulz v. Jeppesen Sanderson, Inc. - filed Sept. 5, 2018, publication ordered Oct. 2, 2018, Second District, Div. One
Cite as 2018 S.O.S. 4903
Full text click here >

A child's non-biological parent can be a presumed parent, and the child's right to sue for the wrongful death of a presumed parent is not defeated by the absence of a biological connection between the parent and child.

A.G. v. County of Los Angeles - filed Oct. 1, 2018, publication ordered Oct. 18, 2018, Second District, Div. Seven
Cite as 2018 S.O.S. 5064
Full text click here >

Constitutional Law

A county child welfare agency violated a parent's 14th Amendment substantive due process rights by subjecting the parent's children to medical examinations without notifying the parent, and without obtaining either the parent's consent or judicial authorization, but in an emergency medical situation or when there is a reasonable concern that material physical evidence might dissipate, the county may proceed with medically necessary procedures without parental notice or consent. The agency also violated the children's Fourth Amendment rights by failing to obtain a warrant or to provide these constitutional safeguards before subjecting the children to invasive medical examinations.

Mann v. County of San Diego - filed Oct. 31, 2018
Cite as 2018 S.O.S. 16-56657
Full text click here >

Consumer Protection

Given the California Supreme Court's determination that an interest rate on consumer loans of at least $2,500 may render the loans unconscionable, the district court's contrary conclusion cannot stand.

De La Torre v. CashCall, Inc. - filed Oct. 3, 2018
Cite as 2018 S.O.S. 14-17571
Full text click here >

Family Law

A court properly took jurisdiction over a child custody matter after a court in the child's home state expressly declined jurisdiction in favor of a California forum.

In re E.R. - filed Oct. 10, 2018, Second District, Div. Six
Cite as 2018 S.O.S. 4955
Full text click here >

Probate Law

An individual's conviction under Penal Code Sec. 368(d) established her civil liability for elder financial abuse under Welfare and Institutions Code Sec. 15610.30. The doctrine of judicial estoppel barred the individual from challenging the amount she stole from the elder when she had stipulated to the amount of the restitution award in the criminal proceedings. Probate Code Sec. 859 does not permit a wrongdoer to avoid the statutory penalty of double damages by beginning to make restitution after a criminal conviction, but the restitution payments made before the restitution award was reduced to a judgment should have been credited to the principal amount of the restitution amount rather than to accumulated prejudgment interest.

Kerley v. Weber - filed Oct. 3, 2018, Second District, Div. Two
Cite as 2018 S.O.S. 4930
Full text click here >

Trusts

Josephine created a trust in 1997. When Josephine died in 2007, her niece, Rosie, succeeded her as trustee. Rosie was neither legally nor financially sophisticated, but had been close with Josephine and knew her wishes. Under the trust Josephine left a life estate in a residence to her long-time family friend, Paul, and the residue to Orange Catholic Foundation. The trust required Paul to pay “ordinary maintenance expenses” on the residence. Paul was elderly, had dementia, and was unable to afford the expenses. Instead of evicting Paul, Josephine used trust funds to pay the expenses because she thought it was the right thing to do and what Josephine would have wanted. After Paul died in 2012, it took Rosie two years to sell the residence. Orange Catholic Foundation petitioned the court for Rosie’s removal and surcharge based on these breaches of trust. The trial court denied the petition and excused Rosie’s conduct because it found she acted reasonably and in good faith. Orange Catholic Foundation appealed.

Orange Catholic Foundation v. Arvizu - filed October 17, 2018, Fourth District, Div. Three
Cite as G055189
Full text click here >

By Matthew R. Owens
Withers Bergman LLP
www.withersworldwide.com

A testator's gift to a beneficiary, conditioned upon the beneficiary being "employed" by the testator's company, was not latently ambiguous even though the trust document did not clearly express the testator's intent if the company were sold. Since the testator did not anticipate selling his Company, he could not have intended the word "employed" to include any exception in the event of such a sale. The doctrine of impossibility was not rejected by the repeal of former Probate Code Sec. 142.

Schwan v. Permann - filed Oct. 25, 2018, First District, Div. One
Cite as 2018 S.O.S. 5205
Full text click here >

 
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Legal Developments
 

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