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VOLUME 14 | NUMBER 11 |  NOVEMBER 2019
 
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IN THIS ISSUE
 
Upcoming Events
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Save the Date
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Special Announcements
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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:

Stefanie S. Cutler, Chair
Jana G. Garrotto, Vice-Chair
Deborah Keesey, Secretary & Treasurer
Marc L. Sallus, Immediate Past Chair

 

 
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Upcoming Events
 

LACBA Trusts and Estates Lecture Series: Contempt 101

Date: November 19, 2019
Time: 12:15 p.m. to 1:15 p.m.
Location: Stanley Mosk Courthouse

Topic:
This program will cover how to successfully request and enforce an Order for Contempt.

> Click here for more information

 
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Save the Date
 

Limited Conservatorship Training

Date: December 7, 2019
Location: LACBA

More Information to be announced.


LACBA Trusts and Estates Lecture Series

Date: January 14, 2020
Time: 12:15 p.m. to 1:15 p.m.
Location: Stanley Mosk Courthouse
Topic: Ethical Issues in Trust & Estates
Speakers: Hon. Mary Thornton House, Judge (Ret.) and Stefanie Cutler, Esq.

More Information to be announced.


 

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

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Special Announcements
 

Please see LACBA President Ronald F. Brot’s Statement on Judicial Independence here.

 
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Recent Cases
 
Administrative Law

The doctrine of exhaustion of administrative remedies precludes premature lawsuits, it does not mean that filing a premature lawsuit necessarily waives an administrative remedy.

Stafford v. Attending Staff Association of LAC + USC Medical Center - filed Oct. 30, 2019, Second District, Div. Two
Cite as 2019 S.O.S. 3348
Full text click here >

Civil Procedure

An agreement to arbitrate in an employment contract, written in dense legal language and printed in extremely small font, was procedurally unconscionable. An agreement that is internally inconsistent, and could be read to preclude Private Attorneys General Act representative actions, was substantively unconscionable. A lawyer must disclose legal authority to a court that is known by the lawyer to be directly adverse to the position of the client if not disclosed by opposing counsel.

Davis v. TWC Dealer Group, Inc. - filed Oct. 30, 2019, First District, Div. Two
Cite as 2019 S.O.S. 3352
Full text click here >

A party to an arbitration did not waive its evident partiality claim by failing to timely object when it first learned of potential bias on the part of the arbitrator. Before an arbitrator is officially engaged to perform an arbitration, to ensure that the parties’ acceptance of the arbitrator is informed, arbitrators must disclose their ownership interests, if any, in the arbitration organizations with whom they are affiliated in connection with the proposed arbitration, and those organizations’ nontrivial business dealings with the parties to the arbitration.

Monster Energy Company v. City Beverages, LLC - filed Oct. 22, 2019
Cite as 2019 S.O.S. 17-55813
Full text click here >

While a breach of the implied covenant of good faith and fair dealing may be carried out by means of communications between the parties’ respective counsel, the fact of counsels’ communications does not transform the claim to one arising from protected activity within the meaning of the anti-SLAPP law.

Miller Marital Deduction Trust v. Zurich American Insurance Company - filed Oct. 21, 2019, First District, Div. Three
Cite as 2019 S.O.S. 3219
Full text click here >

Evidence Law

There is no categorical bar to admitting deposition testimony under Evidence Code §1291 based on the unexamined premise that a party’s motive to examine its witnesses at deposition always differs from its motive to do so at trial.

Berroteran v. Superior Court (Ford Motor) - filed Oct. 29, 2019, Second District, Div. One
Cite as 2019 S.O.S. 3307
Full text click here >

Family Law

A transfer of property from one sibling to another was not a transfer by bequest, devise or descent within the meaning of Family Code §770 where the recipient received the property pursuant to an agreement under which the owner deeded the property to him in exchange for valuable consideration. A trial court retains the discretion to deduct principal payments a spouse makes on business loans from the income available for support if it finds, based on substantial evidence, that the payment reasonably and legitimately reduces the spouse's net income available for support, considering the totality of the relevant circumstances; a trial court also has discretion to disallow the deduction of principal payments on business debt from a party's income available for support under appropriate circumstances, such as where the court reasonably finds the principal payments are excessive, the property encumbered by the loan in question was acquired for the purpose of lowering income available for support, or the payments are unnecessary for the operation of the business at a reasonable level.

In re Marriage of Deluca - filed Oct. 30, 2019, Fourth District, Div. One
Cite as 2019 S.O.S. 3314
Full text click here >

The date of separation is a factual issue established by a preponderance of the evidence; substantial evidence supported a trial court’s finding that a husband and wife separated when the husband moved out of the marital residence, returned only to retrieve possessions, and ceased interacting with his wife except to file tax returns and discuss the children. Family Code §70 does not require express findings as to a declaration of intent or conforming conduct.

In re Marriage of Lee and Lin - filed Oct. 30, 2019, Sixth District
Cite as 2019 S.O.S. 3358
Full text click here >

Government Law

Government Code §66001 is in the nature of a penalty or forfeiture, and as a result is subject to the one-year period of limitations.

County of El Dorado v. Superior Court (Austin) - filed Oct. 30, 2019, Third District
Cite as 2019 S.O.S. 3361
Full text click here >

Healthcare Law

The issuance of a national injunction barring enforcement of final federal agency rules that exempt employers with religious and moral objections from the Affordable Care Act’s requirement that group health plans cover contraceptive care without cost sharing did not moot a challenge to an injunction of limited scope on the same issue; given the text, purpose, and history of 42 U.S.C. §300gg–13(a)(4), the district court did not err in concluding that the agencies likely lacked statutory authority under the Affordable Care Act to issue the final rules; even assuming that agencies were authorized to provide a mechanism for resolving perceived Religious Freedom Restoration Act violations, the act likely did not authorize the religious exemption; the accommodation process likely did not substantially burden the exercise of religion.

State of California v. The Little Sisters of the Poor - filed Oct. 22, 2019
Cite as 2019 S.O.S. 19-15072
Full text click here >

Professional Responsibility

When a lawyer unlawfully solicits and accepts payment from a corporate client for legal services that were not authorized by the company’s management, or were otherwise intended to benefit a single shareholder in her personal capacity, a derivative action is the appropriate remedy. An implied attorney-client relationship may be formed between the attorney for a corporate entity and the entities’ individual constituents; when assessing the existence of an implied attorney-client relationship between a corporate attorney and the entity’s individual members, the key inquiry is whether the totality of the circumstances implies an agreement that the corporate attorney will not act adversely to the individual shareholder’s interests with respect to the issues in dispute. There is no authority for the idea that an attorney’s representation of a closely-held corporation gives rise to professional duties to the individual shareholders with respect to personally-held rights that are both separate from, and adverse to, the corporation itself.

Sprengel v. Zbylut - filed Sept. 10, 2019, publication ordered Oct. 7, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 3035
Full text click here >

Taxation

A county that has sold a delinquent taxpayer’s property does not owe a fiduciary duty to the property owner; the owner has no right or property interest in any return on investment or interest the county may have earned on the excess proceeds from selling his property at a tax sale.

Hodges v. County of Placer - filed Oct. 29, 2019, Third District
Cite as 2019 S.O.S. 3336
Full text click here >

Trusts

A plaintiff’s filing of a creditor’s claim against an estate tolls the statute of limitations for actions against a decedent until a representative of the estate took action to reject the claim; the plaintiff’s petition to be appointed as a representative of the estate did not terminate the tolling of the statute of limitations triggered by her claim.

Estate of Holdaway - filed Oct. 7, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 3043
Full text click here >

 
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