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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
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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
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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
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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
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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
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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
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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
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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
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