September 2020

Sections

VOLUME 15 | NUMBER 9 | SEPTEMBER 2020

	IN THIS ISSUE
Upcoming Events		>
Save the Date		>
Court News		>
Practitioners' Notes		>
Recent Cases		>
The Trusts and Estates eBulletin is published monthly by the Trusts and Estates Law Section, coeditors: Jana G. Garrotto Lewitt Hackman Jgarrotto@lewitthackman.com Stefanie S. Cutler Ruttenberg Cutler Broomer, LLP scutler@lawrcb.com Jessica G. Gordon Thompson Coburn LLP jgordon@thompsoncoburn.com Trusts and Estates Executive Committee Officers: Jana G. Garrotto, Chair Deborah Keesey, Vice-Chair Susan Barlevav Devermont, Secretary & Treasurer Stefanie S. Cutler, Immediate Past Chair

	Upcoming Events

September Symposium - Part 1 What Every Estate Planner Needs to Know About Prenups Date: September 23, 12:00-1:00 p.m. Location: Via Zoom Webinar Presented by: Peter Walzer, Partner at Walzer & Melcher A discussion about the ins and outs of estate planning when your client has entered into a premarital agreement or a postmarital agreement. > Click here for more information CAC Fundamentals Training Date: September 26, 9:30 a.m. - 1:00 p.m. Location: Via Zoom Webinar Required training program for attorneys who want to participate on the probate court appointed counsel panel. This program will go through the basics of Court Appointed Counsel in the probate arena. Areas of focus will include the role of Court Appointed Counsel, different types of appointments, and how to effectively fulfill your duties. This program will, additionally address, the Role of CAC in the time of COVID with specific guidance from a probate judge and the supervising probate investigator. > Click here for more information September Symposium - Part 2 "When Breaking Up is NOT Hard to Do” Date: September 30, 12:00 - 1:00 p.m. Location: Webinar Description: A discussion on trustee breakups and resignation and how to incorporate best practices for determining when the relationship needs to end. Presented by: Julie Min Chayet, Managing Director, Private Client Advisor at Bank of America. More information to be announced.

	Save the Date

Can You Ever Meet the Clear & Convincing Evidence Standard to Save the Gift to a Prohibited Transferee? Date: October 27 Location: Webinar Description: The presenters will discuss: 1) categories of persons to whom “donative transfers” are presumptively assumed to be the product of fraud; 2) certificates of independent review; and 3) the difficulty in satisfying the clear & convincing evidence standard required to overcome the presumption. More information to be announced.

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

	Court News

Update on Probate Division Settlement Conferences: Mandatory Settlement Conferences (MSCs) are currently handled by Judge Robert Wada or Commissioner Mark S. Priver. MSCs are scheduled by the court and parties may not request the scheduling of an MSC online. To participate remotely by video in the Mandatory Settlement Conference that has been scheduled by the Court, each participant may register through LACourtConnect at https://www.lacourt.org/lacc/. Additional information may be found at: http://www.lacourt.org/division/probate/pdf/Remote_MSC_Instructions _250A.pdf Due to the COVID-19 pandemic, Settlement Conferences previously offered by the San Fernando Valley Bar Association (SFVBA) are currently not available. Volunteers for purpose of settlement conference assistance are not yet reporting to courthouse locations for Probate or any other litigation area. When these settlement conferences resume, the Court will instruct participants to schedule with the SFVBA. We hope this helps clarify that currently only Court Ordered Mandatory Settlement Conferences are scheduled by the Court, and that while we intend to also resume Settlement Conferences as conducted by volunteers in the future, Settlement Conferences handled by SFVBA are currently not available. *Does the court remain closed except for emergency matters?* Effective June 22, the Probate Division resumed expanded operations, except for Trials, which will resume in approximately November 2020 or as otherwise noticed by the Court. LASC Announces Temporary Relocation of Eastlake Juvenile Courthouse Department 202 and Department 204 LASC Announces 90 Day Extension to Traffic Relief OC Superior Court Notice of Closure of Clerk's Office on Friday Afternoons Starting October 30 Riverside Superior Court Civil Grand Jury Selection Ventura County Superior Court Administrative Order Re: Resuming Family Law Mandatory Settlement Conferences and Suspending Status Conferences San Bernardino Superior Court Proposed Budget FY2020-21 NOTIFICATION OF KERN COUNTY SUPERIOR COURT POLICY CHANGE Effective September 14, 2020, the Kern County Superior Court's Court Reporter Availability Policy is modified to exclude unlimited civil proceedings from proceedings for which court reporters were provided. Due to budget restraints, court reporters are only provided for Felony Criminal, Juvenile Matters, Limited Family Law Matters for abandonment, adoptions, contempt and domestic violence, and Limited Probate Matters.
	Practitioners' Notes:
How does a person who has not filed a pleading register for a remote appearance using LACourtConnect? A person may register as “Other” as reflected below. The person registering does need to indicate a party association and their role in the case, but they are able to type in their name and register for LACC. Please see sample below.

	Recent Cases

Civil Procedure Code of Civil Procedure §664.6 allows courts to enter judgment under the terms of a settlement agreement, but a court cannot enter a judgment that contains an unenforceable liquidated damages clause. Where a landlord and tenant agreed to a stipulated judgment under which the landlord was entitled to judgment of a sum certain if the tenants did not vacate the property before an agreed-upon deadline, entry of judgement against the tenant pursuant to the stipulation was an unenforceable penalty since the stipulation was a compromise of disputed claims, the parties made no effort to anticipate the amount of damages that may flow from a breach of the stipulation, and there was no meaningful relationship between the amount and the stipulation for the tenant to vacate the property. Graylee v. Castro - filed July 13, 2020, publication ordered Aug. 4, 2020, Fourth District, Div. Three Cite as 2020 S.O.S. 3595 Full text click here > For purposes of Code of Civil Procedure §1021.5, a plaintiff’s lawsuit is a catalyst if it induces the defendant to voluntarily provide the relief sought; a lawsuit induces such relief if it is a material factor in motivating the defendant, or if it contributes in a significant way to the result achieved. Skinner v. Ken’s Foods - filed Aug. 21, 2020, Second District, Div. Six Cite as 2020 S.O.S. 4083 Full text click here > Criminal Law and Procedure Evidence Code §1240 is not an automatically applicable proxy for compliance with due process minima; where the prosecution offers an out-of-court statement as a substitute for live testimony, there will always be some value to the defendant’s right to confront the speaker, and whether that right is so essential as to overcome the state’s showing of good cause for offering hearsay can only be determined by situational weighing of the Arreola balancing factors. While excited utterances may be uniquely valuable as a form of hearsay, that does not mean they must be treated as effectively irrebuttable. People v. Liggins - filed Aug. 6, 2020, First District, Div. Four Cite as 2020 S.O.S. 3659 Full text click here > Evidence Code §240 does not provide an exclusive definitional list of the categories of unavailability cognizable under the Evidence Code; the 2010 addition of subdivision (a)(6) to §240 did not abrogate prior case law. Code of Civil Procedure §1219 (b) is a reasonable limit on the trial court’s contempt power enacted to spare victims of sexual assault from further victimization. People v. Lawson - filed Aug. 4, 2020, First District, Div. Three Cite as 2020 S.O.S. 3627 Full text click here > A failure to specifically object to an expert’s qualifications forfeits the objection. A trial court did not commit an abuse of discretion in allowing an expert to testify as to the sequence of events where there was evidence to support his conclusions, his conclusions were based on his training and experience in crime scene reconstruction, and his sequencing testimony did not add meaningfully to the picture already before the jury. People v. Morales - filed Aug. 10, 2020 Cite as 2020 S.O.S. 3692 Full text click here > Contacts The temporary conservators of a resident of a senior living facility lacked the power to bind the resident to an agreement giving up substantial rights without her consent or a prior adjudication of her lack of capacity. Holley v. Silverado Senior Living Management - filed Aug. 7, 2020, Fourth District, Div. Three Cite as 2020 S.O.S. 3730 Full text click here > A Section 8 beneficiary’s compensation for providing in-home care for a severely disabled adult daughter should be excluded from income in calculating the rental subsidy. Reilly v. Marin Housing Authority - filed Aug. 31, 2020 Cite as 2020 S.O.S. Full text click here > Family Law The absence of a relationship between a noncustodial parent and child is an appropriate factor to consider in determining whether placement with the parent would be detrimental to the child’s emotional well-being; the child’s wishes are not dispositive, but they are relevant; the court’s inquiry properly is more comprehensive than simply whether a child will be physically safe with a noncustodial parent or whether that parent has behaved badly. In re A.C. - filed Aug. 7, 2020, publication ordered Aug. 28, 2020, Second District, Div. Eight Cite as 2020 S.O.S. Full text click here > While health quarantines to prevent the spread of infectious disease constitute good cause for a continuance, a juvenile court erred in continuing a hearing six months beyond the time period allowed by statute as modified by emergency order. In re M.P. - filed Aug. 3, 2020, Second District, Div. Five Cite as 2020 S.O.S. 3609 Full text click here > A juvenile court has the authority to order vaccinations for dependent children under its jurisdiction; Health and Safety Code §120372(d)(3)(C) does not deprive the court of that authority. In re S.P. - filed Aug. 6, 2020, Second District, Div. Six Cite as 2020 S.O.S. 3675 Full text click here > A wife’s lack of involvement or interest in the couple’s finances before they separated sheds little if any light on what she would do to protect her financial interests after retaining divorce counsel, filing for divorce, and serving her husband with restraining orders that barred him from making unilateral decisions involving the community estate. The financial success of one undisclosed investment does not erase the harm to the community estate occasioned by a separate undisclosed transaction. In re Marriage of DeSouza - filed Aug. 10, 2020, publication ordered Aug. 27, 2020, First District, Div. Three Cite as 2020 S.O.S. 4210 Full text click here > Healthcare The $500 cap in Health and Safety Code §1430(b) applies per action, not per regulatory violation. Jarman v. HCR Manorcare, Inc. - filed Aug. 17, 2020 Cite as 2020 S.O.S. 3955 Full text click here > Trusts and Estates Probate Code §21622 does not preclude application of a general disinheritance clause. Rallo v. O’Brian - filed Aug. 3, 2020, Second District, Div. Three Cite as 2020 S.O.S. 3600 Full text click here > California courts have case-linked personal jurisdiction over out-of-state trustees and beneficiaries who have purposefully availed themselves of forum benefits, where the controversy relates to the respondents’ contacts with the forum, and where the exercise of jurisdiction comports with fair play and substantial justice. Buskirk v. Buskirk - Filed August 14, 2020, Second District, Div. Eight Cite as B295648 Full text click here >

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