Click for LACBA Trusts and Estates Section Newsletter Online Version
VOLUME 14 | NUMBER 9 |SEPTEMBER 2019
 
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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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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
 

September Symposium

Date: September 13, 2019
Time: 12:00 p.m. to 4:30 p.m.
Location: Millennium Biltmore Hotel in Downtown Los Angeles

Topics:
• The Honorable Daniel Juarez and Stephen M. Lowe of Freeman, Freeman & Smiley, LLP
How to Account for the Rights of Contingent Remainder Beneficiaries in the Event of Incapacity, featuring a discussion on the following cases: Evangelho, Giraldin, and Drake.

• Allan Cutrow and Andrew Spitser of Mitchel, Silberberg, & Knupp, LLP
Ethical issues surrounding attorneys’ representing trustees who actively participate with the trustee in committing breaches of fiduciary duty to the detriment of a trust, focusing on the Wolf v. Mitchell, Silberberg & Knupp case.

• Elizabeth Glasgow of McDermott Will & Emery, LLP and Anna Soliman, Managing Director and Trust Counsel at Fiduciary Trust Company
Providing an in-depth discussion on the new Probate Code Decanting laws.

Click here for more information

 
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Save the Date
 

Aviva K. Bobb CAC Training

Date: October 5, 2019
Time: 9:00 a.m. to 1:15 p.m.
Location: Hotel Indigo, 899 Francisco St, Los Angeles, CA 90017

Topics:
Topics including Community Property Issues in Conservatorships, Bankruptcy in conservatorships, Geriatric Psychiatry and the role of Psychotropics Medication and Elder Abuse Restraining Orders. More information to be announced.


Trusts and Estate Lecture Series

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

Topics:
How to ... File under Seal, Examine A Will that is lodged, Subpoena Confidential Documents (DCSF, Red Memo, Probate Court’s Investigator’s Report, LPS Records). More Information to be announced.


Limited Conservatorship Training

Date: December 7, 2019
Location: LACBA

More Information to be announced.


 

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

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Court News
 

Mental Health Courtrooms Move to Hollywood Courthouse

Click here for more information

 
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Recent Cases
 
Civil Procedure

A 401(k) plan that a judgment debtor creates and controls with the avowed purpose of protecting his assets from creditors is not a plan principally designed and used for retirement purposes that makes the funds in that plan fully exempt from levy; the debtor’s transfer of funds to that 401(k) plan did not negate the partially exempt status those funds previously held while in individual retirement accounts.

O’Brien v. AMBS Diagnostics, LLC - filed Aug. 8, 2019, Second District, Div. Two
Cite as 2019 S.O.S. 3884
Full text click here >

While the general rule is that state courts cannot proceed when a defendant removes a case, a state court retains jurisdiction to strike where there is a frivolous or duplicative notice of removal.

ClipperJet Inc. v. Tyson - filed Aug. 7, 2019, Fourth District, Div. Three
Cite as 2019 S.O.S. 3867
Full text click here >

A law firm is not subject to disqualification because one of its attorneys possesses information concerning an adversary’s general business practices or litigation philosophy acquired during the attorney’s previous relationship with the adversary; where a lawyer had knowledge of the development and implementation of a company’s workplace policies because of his former position as a nonlawyer executive with the company, the lawyer was not subject to disqualification from representing a client in a suit against the company where the origins of the company’s policies were not material to the dispute.

Wu v. O’Gara Coach Company, LLC - filed Aug. 21, 2019, Second District, Div. Seven
Cite as 2019 S.O.S. 2112
Full text click here>

A trial court did not abuse its discretion in denying relief under Code of Civil Procedure §473(b) where the record amply supported a finding that the defendant’s failure to respond to a complaint was knowing and deliberate. An attorney’s declaration of fault was of no legal effect for purposes of granting mandatory relief from default where the attorney was representing an entity that she controlled completely.

McClain v. Kissler - filed Aug. 29, 2016, First District, Div. Two
Cite as 2019 S.O.S. 2346
Full text click here>

Contract Law

A stipulated judgment constituted an unenforceable penalty under Civil Code §1671(b) where the stipulated judgment for $2.8 million bore no reasonable relationship to the range of actual damages the parties could have anticipated from a breach of their agreement to settle a dispute for $2.1 million.

Red & White Distribution v. Osteroid Enterprises - filed Aug. 9, 2019, Second District, Div. Four
Cite as 2019 S.O.S. 3888
Full text click here >

A factual finding cannot be overturned on appeal simply because the record contains credible evidence to the contrary. An agency cannot be created by the conduct of the agent alone; conduct by the principal is essential to create the agency. Where the signatory to an arbitration agreement disputed a nursing home’s account of when the agreement was signed, and she avered that she did not have authorization to sign the agreement on behalf of her mother, sufficient evidence supported a court’s finding that the agreement did not waive the signatory’s ability to litigate claims as the mother’s successor-in-interest. A nursing home’s arbitration agreement was procedurally unconscionable as to a signatory who had signed the agreement as the representative of a resident where the agreement did not state that a person who signs as a resident’s representative is agreeing to be bound in both her individual and representative capacity.

Lopez v. Bartlett Care Center - filed July 30, 2019, publication ordered Aug. 28, 2019, Fourth District, Div. Three 
Cite as 2019 S.O.S. 2321 
Full text click here >

Education Law

Under California’s equal protection clause, a claim is stated when a policy adopted in California has a substantial disparate impact on the minority children of its schools, causing de facto segregation of the schools and an appreciable impact to a district’s educational quality, and no action is taken to correct that policy when its impacts are identified. For purposes of stating a claim, it is reasonable to conclude that students of a district subject to de facto racial segregation due to racially discriminatory disciplinary practices are receiving an education that is fundamentally below the standards provided elsewhere throughout the state where the legal proscriptions on such discriminatory practices are being enforced. Evidence of a disparate impact is sufficient to support an equal protection claim based on unequal treatment affecting the fundamental right to an appropriate education.

Collins v. Thurmond - filed Aug. 27, 2019, Fifth District 
Cite as 2019 S.O.S. 2326 
Full text click here >

Evidence Law

A Final Costs Certificate that purports to be a court document from the Senior Courts of England and Wales was presumptively admissible under Evidence Code §1452 without supporting witness testimony to authenticate it since the document bears the seal of an agency of a nation recognized by the executive power of the U.S.

Palm Finance Corporation v. Parallel Media LLC - filed Aug. 7, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 3846
Full text click here >

Family Law

Although legislation enacted in 2010 and 2015 suspended the accrual of child support for incarcerated parents, these statutes do not apply retroactively; a court could not adjust a father’s obligation for the payment of child support that was ordered in 1995 to account for his incarceration from 1998 to 2005 when the father requested an adjustment for the first time in 2016.

S.C. v. G.S. (Santa Clara County Department of Child Support Services) - filed July 12, 2019, publication ordered Aug. 9, 2019, Sixth District
Cite as 2019 S.O.S. 3892
Full text click here >

Family Code §3044, and its rebuttable presumption against awarding sole or joint custody of a child to certain perpetrators of domestic violence, does not apply to dependency proceedings under Welfare and Institutions Code §300.

In re C.M. - filed July 31, 2019, Second District, Div. Five
Cite as 2019 S.O.S. 3720
Full text click here >

In Welfare and Institutions Code §361.5(c)(3), the term testimony refers to in-court oral statements of live witnesses, not to other forms of evidence.

In re A.E. - filed Aug. 21, 2019, Fourth District, Div. Two
Cite as 2019 S.O.S. 2133
Full text click here >

A juvenile court’s finding of due diligence to locate a father was not supported by the record where the father’s children were cooperative and available to a child welfare agency, but the agency did not take advantage of their Facebook access to their father to provide notice reasonably calculated to apprise him of dependency proceedings involving his children; service by publication is sufficient to meet the requirements of jurisdiction only when a person’s whereabouts remain unknown despite reasonably diligent inquiry.

In re D.R. - filed Aug. 30, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 2415
Full text click here>

Healthcare Law

A pharmacy provider did not act contrary to any requirement under law in purportedly failing to limit its billings to Medi-Cal to the prices paid for medications by its cash customers.

Omlansky v. Save Mart Supermarkets - filed July 31, 2019, publication ordered Aug. 29, 2016, Third District
Cite as 2019 S.O.S. 2391
Full text click here >

Real Property

A mechanic’s lien claim that is filed prematurely is void and cannot be enforced; there is no authority suggesting that a claimant’s subjective knowledge or belief as to whether it has ceased to provide work is relevant. Work ceases for purposes of Civil Code §8414(a) when it has come to an end; a work of improvement can include both construction and repairs.

Precision Framing Systems Inc. v. Luzuriaga - filed Aug. 29, 2016, Fourth District, Div. Two
Cite as 2019 S.O.S. 2394
Full text click here >

A borrower who obtains a temporary restraining order enjoining a trustee’s sale of his home is a prevailing borrower within the meaning of Civil Code §2924.12(h) and therefore may recover attorney fees and costs.

Bustos v. Wells Fargo Bank - filed Aug. 28, 2019, Third District 
Cite as 2019 S.O.S. 2341 
Full text click here >

A quiet title judgment cannot be entered in the absence of all parties with an interest in the property at issue; homeowners who have their lots to the center of the private streets they abut are indispensable parties to litigation over the grant of an easement for use of those streets. Plat maps may be used to precisely define an easement, and when an easement is defined by a map, it is decisive.

Ranch at the Falls v. O’Neal (Eagle Knight Security Systems) - filed July 31, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 3724
Full text click here >

A mortgage lender owes no tort duty to a homeowner during contract negotiations for a mortgage modification.

Sheen v. Wells Fargo Bank, N.A. - filed Aug. 5, 2019, Second District, Div. Eight
Cite as 2019 S.O.S. 3788
Full text click here >

A mortgage lender owes no tort duty to a homeowner during contract negotiations for a mortgage modification.

Potocki v. Wells Fargo Bank, N.A. - filed July 11, 2019, publication ordered Aug. 7, 2019, Third District
Cite as 2019 S.O.S. 3874
Full text click here >

Trusts

Interlineations by a trust settlor did not validly amend a trust where the trust specifically required amendments be made by written instrument signed by the settlor and delivered to the trustee.

Pena v. Dey - filed Aug. 30, 2019, Third District
Cite as 2019 S.O.S. 2419
Full text click here >

 
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