Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 13 | NUMBER 9 | SEPTEMBER 2018
 
dark blue triangle in newsletter heading
IN THIS ISSUE
 
Upcoming Events
>
Save the Date
>
Special Announcements
>
Recent Cases
>
Legal Developments
>

 

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

 

 
triangle-heading-yellow-25h
Upcoming Events
 

Brown Bag: Fiduciary Accounts: Requirements, Issues and Common Mistakes

Date: September 13, 2018
Program: 12:00 p.m.-1:15 p.m.
Location: Los Angeles Superior Court

Program Description: This presentation will explore the requirements surrounding dual signature accounts, blocked accounts, and other fiduciary issues concerning banking and finances in decedent's estates, conservatorships, trusts, and more.
Click here for more information and to register

 

Trusts and Estates Symposium

Date: September 21, 2018
Time: 11:00 a.m.-4:30 p.m.
Location: Millennium Biltmore Hotel

This year's symposium will explore attorney-client conflict issues that arise within the office of the trustee. A second panel will examine the impact People v. Sanchez (2016) 63 Cal.4th 665 has on hearsay evidence in trust context matters. A third panel will detail the impacts Congress's H.R. 1 Act has on the internal Revenue Code, and recommendations for structuring future estate plans and wealth transfer planning.
Click here for more information and to register

 

Concurrent Representation of Multiple Clients

Date: October 17, 2018
Time: 12:15-1:30 p.m.
Location: Los Angeles Superior Court

This program will cover professional ethical duties with drafting estate plans for beneficiaries after the resignation/incapacity of the parent as trustee. The focus will be on cases where the one beneficiary/child's succession as trustee may affect the other children are beneficiaries.
Click here for more information and to register

 

Minor’s Counsel Guardianships Training

Date: December 15, 2018
Time: 8:30 a.m.-1:30 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.

Sanborn-Team-Logo

 
triangle-heading-yellow-25h
Save the Date
 

Limited Conservatorship Training

Date: October 20, 2018
Location: LACBA

More information to come

 

Aviva K. Bobb PVP Training

Date: November 3, 2018
Location: Sportsmen’s Lodge

More information to come

 

Brown Bag

Date: November 13, 2018
Location: LA Superior Court

More information to come

 

Brown Bag

Date: December 11, 2018
Location: LA Superior Court

More information to come

 
triangle-heading-yellow-25h
Special Announcements
 

A very special thank you to Julia Birkel for her service to the Trusts and Estates Executive Committee as Chairperson this past year. We so appreciate all that you have done and look forward to your continued participation.

 
triangle-heading-yellow-25h
Recent Cases
 
Civil Procedure

An arbitration award was subject to vacatur where it was entered by an arbitrator who was aware of at least one grounds for disqualifying him from presiding over the arbitration due to his failure to make disclosures required by the Code of Civil Procedure and the Ethics Standards for Neutral Arbitrators in Contractual Arbitration.

Honeycutt v. JPMorgan Chase Bank, N.A. - filed Aug. 2, 2018, Second District, Div. Seven
Cite as 2018 S.O.S. 3810
Full text click here >

A court must include future attorneys' fees recoverable by statute or contract when assessing whether the amount-in-controversy requirement of the Class Action Fairness Act is met.

Fritsch v. Swift Transportation Company of Arizona - filed Aug. 8, 2018
Cite as 2018 S.O.S. 18-55746
Full text click here >

Where an arbitrator's decision has the effect of violating a party's statutory rights or well-defined public policies--particularly those rights and policies governing the conduct of the arbitration itself--that decision is subject to being vacated or corrected. There is no unwaivable statutory right or public policy preventing an association's declaration of Covenants, Conditions and Restrictions from requiring the consent of its members prior to the board instituting a legal claim against a developer.

Branches Neighborhood Corporation v. CalAtlantic Group, Inc. - filed Aug. 10, 2018, publication ordered Aug. 24, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 4238
Full text click here >

A plaintiff's claim against an attorney was subject to the pre-filing requirements of Civil Code Sec. 1714.10 where the plaintiff has accused the attorney of assisting in a co-defendant's alleged breaches of fiduciary duty as there was no way the attorney could have knowingly participated in the breaches without an implied agreement to do so.

Cortese v. Sherwood - filed July 31, 2018, publication ordered Aug. 21, 2018, First District, Div. Five
Cite as 2018 S.O.S. 4116
Full text click here >

Criminal Law and Procedure

The sham marriage exception, which has been applied to the spousal testimonial privilege, does not extend to the marital communications privilege.

United States v. Fomichev - filed Aug. 8, 2018
Cite as 2018 S.O.S. 16-50227
Full text click here >

Contract Law

An attorney's signature under words such as "approved as to form and content" means only that the document has the attorney's professional okay and it does not objectively manifest the attorney's intent to be bound.

Monster Energy Company v. Schechter - filed Aug. 13, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 3965
Full text click here>

Family Law

"Income" as used in Family Code Sec. 4058(a)(1) includes all compensation that has been conferred upon and is available to the employee. A parent's available compensation from stock options should be included in gross income, regardless of whether the parent elects to exercise the option and sell shares of stock.

In re Marriage of Macilwaine - filed Aug. 22, 2018, First District, Div. Two
Cite as 2018 S.O.S. 4197
Full text click here >

Professional Responsibility

A law firm's failure to inform a client about a conflict of interest renders the engagement agreement with the client unenforceable as against public policy. Even if the client signed a conflicts waiver, the waiver is not effective if the firm failed to disclose a known, current conflict. A law firm's violation of rule 3-310(C)(3) of the Rules of Professional Conduct does not categorically disentitle the law firm from recovering the value of the services it rendered.

Sheppard, Mullin, Richter & Hampton v. J-M Manufacturing - filed Aug. 30, 2018
Cite as 2018 S.O.S. 4322
Full text click here >

Real Property

A property owner has a duty to protect against dangers posed by discrete conditions on the property from which dangerous insects emanate. Golf course operators are not exempted from exercising reasonable care to protect their patrons against the foreseeable risk posed by yellow jacket nests on their premises.

Staats v. Vintner's Golf Club, LLC - filed Aug. 1, 2018, First District, Div. One
Cite as 2018 S.O.S. 3804
Full text click here >

A suit arises under federal law only when the plaintiff's statement of his own cause of action shows that it is based upon federal law. A lawsuit seeking a declaratory judgment as to whether a local government entity had acquired a acquired a full railway easement arose out of federal law because the resolution of the dispute would turn on an interpretation of the Trails Act and because the government has a strong interest in facilitating trail development and preserving established railroad rights-of-way for future reactivation of rail service. A property owner whose land abuts a rail corridor lacked standing to pursue a declaratory judgment quieting title to the corridor where the property owner has no property interest in the corridor itself. The Trails Act preserves––rather than converts––the existing railroad easement, and creates an additional recreational trail easement.

Hornish Joint Living Trust v. King County - filed Aug. 3, 2018
Cite as 2018 S.O.S. 16-35486
Full text click here >

As used in Business and Professions Code Sec. 7026.1, a nursery person is a licensed professional engaged in cultivating plants, whereas a gardener holds no license and generally tends existing landscaping. A property owner who has hired a gardener to perform work requiring a license can be held liable to the gardener's employee under a respondeat superior theory.

Jones v. Sorenson - filed Aug. 2, 2018, Third District
Cite as 2018 S.O.S. 3823
Full text click here >

Agreement to an invalid liquidated damages clause does not insulate it from attack under Civil Code Sec. 1671, but if a landlord cannot show that the losses caused by late payment of rent in this case were extremely difficult or impracticable to determine, liquidated damages are not justified under Sec. 1671. To be valid under Sec. 1671, a liquidated damages clause must be the result of a reasonable endeavor to approximate actual losses caused by the breach being compensated. If no effort was made to estimate the actual losses, then the resulting fee cannot approximate the losses.

Del Monte Properties and Investments, Inc. v. Dolan; Superior Court of California, County of Humboldt - filed May 11, 2018, publication order Aug. 8, 2018
Cite as 2018 S.O.S. 4075
Full text click here >

The filing of an unlawful detainer complaint is anti-SLAPP protected activity, as is service of a notice of termination preceding an unlawful detainer complaint, but the mere fact an action was filed after protected activity took place does not mean it arose from that activity. Code of Civil Procedure Sec. 1942.5(d) and Sec. 1942.5(h) create an exception to the litigation privilege. While a common law cause of action requires actual eviction, a claim under Sec. 1942.5 does not.

Winslett v.1811 27th Avenue, LLC - filed Aug. 15, 2018, First District, Div. Four
Cite as 2018 S.O.S. 4045
Full text click here >

A statement in a deed of trust stating that a transfer of the property without the lender's consent would allow the lender to demand immediate payment on the loan just gives the lender an option to accelerate the entire debt if the borrower transferred the property--it did not impose any sanctions on the assignee. A trial court abused its discretion in denying leave for a plaintiff to amend his claim for wrongful foreclosure where the court was on notice that the plaintiff claimed to have an ownership interest in the disputed property and he has proposed facts that, if true, are sufficient to establish that an assignment of the property was void.

Hacker v. Homeward Residential, Inc. - filed Aug. 16, 2018, Second District, Div. One
Cite as 2018 S.O.S. 4054
Full text click here >

Torts

The field trips and excursions immunity provided by Code of Regulations Sec. 55220 does not apply to an injury suffered by a member of a visiting team during an intercollegiate athletic event.

Anselmo v. Grossmont-Cuyamaca Community College District - filed Aug. 3, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 3828
Full text click here >

Recklessness for purposes of an elder abuse claim involves deliberate conduct undertaken despite knowledge of a probable injury. A care facility's slight understaffing, without any indication that it created an imminent risk of harm, does not amount to recklessness, however understaffing could amount to recklessness if it is sufficiently egregious.

Cochrum v. Costa Victoria Healthcare, LLC - filed July 12, 2018, publication ordered Aug. 8, 2018, Fourth District, Div. Three
Cite as 2018 S.O.S. 3881
Full text click here >

The damages recoverable in a survival action brought by a decedent's personal representative or successor in interest are limited to the loss or damage that the decedent sustained or incurred before death, and do not include "lost years' damages" that would have been incurred had the decedent survived.

Williams v. The Pep Boys Manny Moe & Jack of California - filed Aug. 23, 2018, First District, Div. Four
Cite as 2018 S.O.S. 4270
Full text click here >

Trusts

A division that was to be made only after all other gifts have been made was intended to dispose of the remainder of the testator's estate. A bequest of the residue of an estate is general because such residue is not ascertainable at the time the will is made-if the testator describes certain specific property owned by him as included in it or forming a part of the bequest, that does not alter the character of the residuary gift.

Blech v. Blech - filed Aug. 6, 2018, Second District, Div. Three
Cite as 2018 S.O.S. 3838
Full text click here >

Local rules may not narrow or conflict with statutory requirements in the Probate Code. Substantial evidence supported a trial judge's decision to award higher fees to the attorney representing a trustee in a highly contentious trust dispute. When a trust beneficiary instigates an unfounded proceeding against the trust in bad faith, a probate court has the equitable power to charge the reasonable and necessary fees incurred by the trustee in opposing the proceeding against that beneficiary's share of the trust estate.

Powell v. Tagami - filed Aug. 6, 2018, publication ordered Aug. 15, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 4059
Full text click here >

A "bad faith" standard relates to trustees who have been given absolute discretion. A trustee does not have absolute discretion where the trust instrument repeats the word "reasonably" in reference to discretion, while omitting the words sole, uncontrolled, or absolute in reference to discretion. An "abuse of discretion" standard also applies only to a trustee with absolute discretion. Discretion must be exercised reasonably, so an abuse of discretion is the equivalent of the reasonableness standard. A probate court could reasonably deny compensation to a trustee where the trustee mismanaged the trust estate, failed to make court filings and continued service when she lacked a license.

Scott v. McDonald - filed Aug. 22, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 4140
Full text click here >

The Probate Code treats a petition for approval of an accounting as a separate document from a petition for conservator compensation. A petition for approval of an accounting does not include conservator's fees and an accounting does not include conservator's fees.

Conservatorship of Presha - filed Aug. 22, 2018, Fourth District, Div. Two
Cite as 2018 S.O.S. 4148
Full text click here >

Language in a decedent's will stating "I exercise any Power of Appointment which I may have over that portion of the trust or trusts established by my parents for my benefit or any other trusts for which I have Power of Appointment"– constitutes a valid and effective exercise under Probate Code Sec. 632.

In re Estate of O'Connor - filed Aug. 29, 2018, Fourth District, Div. One
Cite as 2018 S.O.S. 4350
Full text click here >

 

triangle-heading-yellow-25h
Legal Developments
 

•  IRS issues proposed regulations on new 20 percent deduction for passthrough businesses.
Click here for more information

 
LACBA_logo_200w
www.lacba.org

© 2018 Los Angeles County Bar Association Contact LACBA at msd@lacba.org

 

You are subscribed to %%list.name%% as %%emailaddr%% .

You are receiving this message because you are a member of the Los Angeles County Bar Association (LACBA) or one of its sections, have registered to receive correspondence through LACBA's website, or are a member of the legal profession. If you wish to be excluded from any future correspondence, please see instructions below or mail us at 1055 West 7th Street, Suite 2700, Los Angeles, CA 90017-2557.

To unsubscribe from this mailing list, click the following url, %%url.unsub%% or copy and paste the following url into your browser %%url.unsub%%

                                                                                                                                                                         
Trusts and Estates Section facebook icon LACBA twitter icon LACBA linkedin Trusts and Estates Section Homepage