October 22, 2016

November 12, 2016

Did you know...The Civil Fee Schedule of filing fees was revised 7/1/16? Click here for more information

Did you know... if the caption of your petition refers to a code section, your petition must make necessary allegations of the probate code and/or case law (commonly known as "Points & Authorities"). Legal authority is necessary to support a court order.

Did you know... that there was a motion reservation process in LASC Central Probate Division?  Click here for more information

When an attorney fee is awarded out of a common fund preserved or recovered by means of litigation, the award is not per se unreasonable merely because it is calculated as a percentage of the common fund. Case law requiring use of the lodestar method to calculate fees under the private attorney general statute has no application in common fund cases, where the use of that method is discretionary.

Lafitte v. Robert Half International, Inc. - filed Aug. 11, 2016
Cite as 2016 S.O.S. 4055
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Arthur Marsh was elderly and suffered from various medical problems, including dementia. In early 2007, he hired Angelina Alhadi to work as his caregiver. He paid her well beyond the scope of her services. By the fall of 2008, Marsh had written Alhadi checks totaling nearly $800,000. In October 2008, he wrote her five checks totaling $500,000. Vanguard Group raised concerns about the five checks and declined to honor them. Vanguard sent an elder abuse report to the California Department of Health and Human Services. After the Department investigated, the Santa Clara Public Guardian petitioned to establish a temporary conservatorship, which the Probate Court granted in January 2009. On behalf of Marsh's trust, Santa Clara County filed Forms 1099 for Alhadi for the years 2007 and 2008. Alhadi failed to report the income she received from Marsh. The IRS asserted deficiencies and penalties on a total unreported income of more than $1 million.

The Tax Court determined the money Alhadi received from Marsh was taxable income. Applying California law, the Tax Court determined the money was not a gift because Alhadi exerted undue influence over Marsh. There was no evidence Marsh loaned the money to Alhadi. Additionally, the Tax Court determined Alhadi owed self-employment tax, and her 2007 and 2008 tax returns were fraudulent.

Alhadi v. Commissioner of Internal Revenue - Filed April 21, 2016, , U.S. Tax Court
Cite as T.C. Memo. 2016-74
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Orders of the probate court, authorizing the immediate distribution of trust land and acceptance of a loan secured by it notwithstanding a pending appeal, was non-appealable. Under Probate Code 1310(b), the actions taken by the trustee were valid, regardless of any outcome on appeal.

East Bay Regional Park District v. Griffin - filed Aug. 18, 2016, First District, Div. One
Cite as 2016 S.O.S. 4286
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Beneficiary sued trustee/administrator for allegedly wasting assets by pursuing litigation that was ostensibly intended to benefit the trust and estates but was actually perpetrated as part of a "personal vendetta" against a family member and others. Most of the causes of action arose primarily from the alleged misuse of assets and not from protected activity, so anti-SLAPP motion was properly denied as to those claims. Claim for constructive fraud based on trustee/administrator's alleged misrepresentations about the underlying litigation arose primarily from protected activity, so denial of anti-SLAPP motion as to that cause of action was error, absent a finding that the beneficiary was likely to prevail.

Greco v. Greco - filed Aug. 23, 2016, Third District
Cite as 2016 S.O.S. 4358
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Former Probate Code Sec. 21320, permitting the filing of a "safe harbor" petition for a judicial determination that a proposed pleading would not violate a "no-contest" clause in a will or trust instrument, has no application to a pleading filed after the statute's Jan. 1, 2010 repeal date. Sec. 21315, applying pre-2010 law to certain "instrument[s]," does not permit a safe harbor petition because such a petition is a pleading and not an instrument.

Funsten v. Wells Fargo, N.A. - filed Aug. 1, 2016, publication ordered Aug. 25, 2016, First District, Div. Four
Cite as 2016 S.O.S. 4405
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