New Case Alerts from the E-News

Case AlertsThe Section includes New Case Alerts in the E-News that is periodically sent to members of the Section.  Recent New Case Alerts are listed below.  Most cases can be found on the California Courts website. Please note: Opinions more than 120 days old can be found through the process described HERE.

Recent Case Alerts

Stine v. Dell’Osso

Filed October 17, 2014, First District, Div. One
Cite as A137679

Successor conservator sued predecessor conservator’s counsel for malpractice in connection with original conservator’s alleged misappropriation of assets from the estate.  Counsel successfully demurred on the basis she had represented only the original conservator, not the conservatee, and, further, that the claim would be barred by the same defense of unclean hands counsel could assert against the original conservator. Held, the successor fiduciary exception to the rule of privity permits such a malpractice claim, and unclean hands is also not applicable as a defense in those circumstances. 

http://www.courts.ca.gov/opinions/documents/A137679.PDF

Jenkins v. Teegarden

Filed October 23, 2014, Fourth District, Div. Two
Cite as E059692

Trial court decision rejecting claim to invalidate donative transfer (here a quitclaim deed) under former Probate Code § 21350 reversed on grounds that although the statute was repealed and replaced by Probate Code § 21380, the former statute continues to govern an instrument executed before January 1, 2011. Further, the court rejects the argument that a transfer for good consideration is not a “donative transfer” within the meaning of both statutory schemes.  Instead, a transfer is a “donative transfer” if it is for inadequate consideration.

http://www.courts.ca.gov/opinions/documents/E059692.PDF

Aulisio, Jr. v. Bancroft

Filed October 30, 2014, Fourth District, Div. Three
Cite as G048906

Sole trustee of a revocable living trust who is also the sole settlor and beneficiary may appear in court proceedings in propria persona.  General rule requiring trustee to appear via counsel is based on the notion that the trustee represents the interests of others and is thus engaging in the unauthorized practice of law unless represented by counsel.  Where, as here, the sole trustee owes duties only to himself or herself, the rationale of the general rule is inapplicable.

http://www.courts.ca.gov/opinions/documents/G048906.PDF

2012-2013 Case Alerts

Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62.  Filed March 5, 2013, Court of Appeals of California, Second District, Division Three.
Conservatee’s mother lacked standing to appeal order on conservators’ petition setting his visitation schedule, directing change in his living services vendor and ordering disclosure of his personal, medical and financial records.  Mother, who alleged only violations of nonappealing adult conservatee’s rights, was not an aggrieved party for purposes of appeal under Code of Civil Procedure section 902.  Nor did Probate Code section 1829, permitting relative of proposed conservatee to appear at conservatorship hearing below, support mother’s right to appeal.
http://www.courts.ca.gov/opinions/documents/B237896.PDF

Kleveland v. Siegel & Wolensky, LLP – filed April 17, 2013, Fourth District, Div. One
     Cite as D060906
Where a trustee filed a malicious prosecution claim against an heir and his attorneys following the heir’s unsuccessful petition for breach of trust and removal, the attorneys’ motion to strike the claim under California’s anti-SLAPP statute, Code of Civil Procedure section 425.16, was properly denied.  Under the anti-SLAPP statute, the trustee had shown a probability of success on the merits of his claim by demonstrating that the heir’s prior petition was filed with malice and without probable cause.  The Court of Appeal also upheld an award of attorney fees to the trustee, and went on to impose sanctions for the attorneys’ frivolous appeal of the anti-SLAPP ruling.
http://www.courts.ca.gov/opinions/documents/D060906.PDF   

Estate of Lira - filed December 26, 2012, publication ordered January 22, 2013, Second District, Div. Six
     Cite as B231361
In a disqualified transferee case, Probate Code section 21351(a) – which states that a donative transfer is not presumptively invalid if the transferor is related by blood or marriage to the transferee -- merely requires that the transferor and transferee be related when the transferor executed the instruments in question.  This section does not require that they be related at the transferor’s death, and hence a subsequent divorce did not result in stepchildren being disqualified under this statutory scheme. 
http://www.courts.ca.gov/opinions/documents/B231361.PDF

Allen v. Stoddard - filed January 9, 2013, Fourth District, Div. Three
Cite as G046460
Plaintiff’s suit on the decedent’s promise to make distribution from an estate was timely when filed within one year from date of death as required by Code of Civil Procedure section 366.3, even though the plaintiff failed to initiate his suit within 90 days of the personal representative’s rejection of claim as ostensibly required by Probate Code section 9353.  The court held that Code of Civil Procedure section 366.3 was the more specific statute and hence controlled the outcome. 

Estate of Giraldin - filed December 20, 2012
Cite as S197694
When the settlor of a revocable trust appoints a third party to act as trustee and then passes away, the beneficiaries have standing to sue that trustee for breaches of trust that occurred during the period when the trust was revocable.  While the trustee may have owed no duty to the beneficiaries at that time, the beneficiaries can sue for the breach of a duty that was owed to the settlor. 

Estate of Wilson - filed December 13, 2012, First District, Div. Two
Cite as A133952
A domestic partnership agreement is not automatically invalidated by a subsequent marriage license when the domestic partnership agreement is enforceable under Family Code sections 1600-1617 and is made after the enactment of statutes providing that domestic partners have essentially the same property rights as spouses. Accordingly, the surviving spouse of a same-sex marriage was barred by his waiver in the domestic partnership agreement and thus could not claim any interest as a pretermitted spouse in the deceased spouse’s estate.

Thorpe v. Reed - filed December 13, 2012, Sixth District
Cite as H037330
When the trust instrument prohibits compensation to a successor trustee, the successor trustee is not entitled to compensation. Probate Code sections 15642 and 17206 do not provide authority for disregarding the language of the trust instrument.

Estate of Wong - filed June 27, 2012, First District, Div. Two
Cite as A132295
Attorney for the personal representative was entitled to ordinary compensation under Probate Code section 10810 despite having failed to enter into a written fee agreement with the client. Business and Professions Code section 6148, which typically requires that the attorney have a written fee agreement, was inapplicable because the payment for the attorney was to come from the estate and from not the client herself.

Bickel v. Sunrise Assisted Living - filed May 21, 2012, Fifth District
Cite as F062443
Arbitration clause in contract with assisted living facility was unenforceable to the extent it would prevent an elder-abuse plaintiff from recovering attorneys’ fees and costs under Welfare and Institutions Code Section 15657.  

Estates of Collins and Flowers - filed May 10, 2012, Third District
Cite as 2012 S.O.S. 2251
Under the doctrine of unclean hands, an administrator was barred from bringing an action to quiet title to real property where he had previously tried to obtain that property by using an improper mechanic’s lien.  The court declined to accept the administrator’s argument that his personal misconduct should not bar him in his fiduciary capacity, noting that the administrator had failed to show the existence of innocent heirs who would be harmed by the application of the unclean hands doctrine. 

Knox v. Dean - filed April 24, 2012, Fourth District, Div. Two
Cite as E051772
When plaintiff sued her father’s former conservator for elder abuse, the plaintiff was barred to the extent that the former conservator’s accountings had been approved by the probate court.  The plaintiff had received actual notice and had failed to object.  The court ruled that the elder-abuse statutes did not supersede Probate Code section 2103 and the law of res judicata and that the plaintiff had failed to establish extrinsic fraud, which, if proved, could have allowed her to avoid the effect of the prior orders.

King v. Lynch - filed April 10, 2012, Fifth District
Cite as F062232
Trust amendments were properly invalidated when they did not comply with the amendment provision in the trust. The court held that given the effect of Probate Code section 15402, when the trust specifies a method for amendment, the settlor cannot amend the trust by using the method of revocation provided in Probate Code section 15401(a)(2).

Estate of Moss - filed March 20, 2012, Fourth District, Div. One
Cite as D058547
Personal service on a party’s attorney of record constituted personal service on that party when the attorney was served with a petition for revocation of a will under Probate Code section 8270.  The court reasoned that because pre-probate contests had already occurred and involved that same party, the petition for revocation was part of the same case and hence could be served on the attorney of record.  The court also held that the bar against successive will contests did not apply to a post-probate contest when that party's earlier contest was never adjudicated.

Donkin v. Donkin - filed March 23, 2012, Second District, Div. One
Cite as B228704
This case held that the probate court had discretion under Probate Code section 3 to determine that the old law governing the enforceability of no-contest clauses (Probate Code sections 21300 through 21322) applied to the possible contest of a trust and amendment thereto, even though the trust became irrevocable after January 1, 2001 and the amendment in question was executed after January 1, 2001. This case held that the probate court did not abuse its discretion by applying the old law and that the beneficiaries’ proposed challenges to the settlor’s capacity to amend, her failure to make distributions, and her failure to create subtrusts would have violated the no-contest clause.

Scott S. v. Superior Court (Lyon) - filed March 14, 2012, Fourth District, Div. Three
Cite as 2012 S.O.S. 1246
Before the court can authorize an LPS conservator to consent to nonroutine, nonemergency medical treatment under Welf. & Inst. Code section 5358.2, the court must find that conservatee lacks capacity to give informed consent and that the treatment is medically necessary, which must be shown by admissible evidence. Hence, when the conservatee objected to a physician's declaration on the grounds of hearsay, that objection should have been sustained.

Bates v. Presbyterian Intercommunity Hospital, Inc. - filed March 12, 2012, Second District, Div. Four
Cite as 2012 S.O.S. 1190
In an elder abuse action, a defendant can recover costs, including expert witness fees, if the plaintiff fails to recover in excess of an offer that the defendant made under Code of Civil Procedure section 998, even though a prevailing defendant could not recover attorneys' fees under the elder-abuse statutes.  The trial court had discretion to award costs under section 998 for services of an expert who did not testify, when that expert aided in the preparation of the case and was qualified.  Furthermore, the costs recoverable under section 998 could be incurred before the time of the settlement offer. 

K. G. v. Meredith
Filed March 8, 2012, First District, Div. Five
Cite as 2012 S.O.S. 1178
To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2.

Christie v. Kimball
Filed January 26, 2012, Second District, Div. Six
Cite as 2012 S.O.S. 392
The probate court’s sua sponte order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets. 

Estate of Kampen
The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets. 

Estate of Kampen
Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. Two
Cite as 2011 S.O.S. 6662
Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches. 
http://www.courtinfo.ca.gov/opinions/documents/A129849.PDF

Trusts and Estates:
Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will.
Estate of Duke - filed December 5, 2011, Second District, Div. Four
Cite as 2011 S.O.S. 6501

Filed March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501- filed March 12, 2012, Second District, Div. FourCite as 2012 S.O.S. 1190In an elder abuse action, a defendant can recover costs, including expert witness fees, if the plaintiff fails to recover in excess of an offer that the defendant made under Code of Civil Procedure section 998, even though a prevailing defendant could not recover attorneys' fees under the elder-abuse statutes.  The trial court had discretion to award costs under section 998 for services of an expert who did not testify, when that expert aided in the preparation of the case and was qualified.  Furthermore, the costs recoverable under section 998 could be incurred before the time of the settlement offer.  K. G. v. MeredithFiled March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501iled March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501

Smith v. Cimmet
Oregon estate lacked capacity to sue California attorneys in California because that personal representative’s authority did not extend beyond Oregon.  (Code of Civil Procedure §1913(b)).  The Oregon personal representative was trying to bring a malpractice claim against California attorneys who were retained by the predecessor representative.  To bring the action in California, the Oregon personal representative would have to open an ancillary probate in California and then, if he was appointed as the ancillary representative, he would have the capacity to sue.  The court held that the Oregon personal representative had to be given the opportunity to open an ancillary probate and that under both California and Oregon law, the personal representative has standing to sue attorneys who were retained by a predecessor personal representative if those attorneys were hired to benefit the estate.

Estate of Giraldin - filed September 26, 2011, Fourth District, Div. Three
After the settlor died, the trustee was surcharged for acts committed when the trust was revocable, but the court of appeal reversed and held that the trustee only owed duties to the settlor during that period and that therefore the beneficiaries could not maintain their claim. The court held that the trustee of a revocable trust has no duty to question the settlor's capacity and that the beneficiaries have no say in how the trust is managed during that time. The court also held that when she accepted benefits under the trust, the settlor's wife did not forfeit her claim that she had a community property interest in certain assets held in the trust. Assuming that the doctrine of spousal election applied, it was no impediment to the wife, because the settlor was not purporting to dispose of his wife's community property and because his will did not require that she choose between sharing in his estate or retaining her share of the community property. 
http://www.courtinfo.ca.gov/opinions/documents/G041811.PDF

Fall 2011 Case Alerts

Trusts and Estates:
An earlier decision establishing surviving spouse's status with respect to an estate did not result in res judicata relative to an action alleging surviving spouse's financial elder abuse of decedent.
Estate of Dito – filed August 23, 2011, First District

Family Law:
After non-managing spouse made prima facie showing that assets had disappeared, spouse who had control of community assets had burden of accounting for missing assets
Marriage of Margulis filed August 11, 2011, Fourth District

Trusts and Estates:
The Department of Health Care Services is subject to a statute of limitations of three years after the death of the recipient of benefits to seek recovery against a trust holding the recipient’s assets.
Maxwell-Jolly v. Martin (2011) 188 Cal. App. 4th 559, filed August 11, 2011

Taxation:
Full recognition of charitable deduction that was increased based on audit was not precluded as a condition precedent.
Estate of Petter v. Commissioner of Internal Revenue, Court of Appeals, 9th Circuit 2011 No. 10-71854, August 4, 2011.

Trusts and Estates:
Deposit from purchasers of real property was properly retained by conservator after the purchasers failed to comply with the terms of the escrow.
Conservatorship of Buchenau, (2011) 196 Cal. App. 4th 1031, filed May 31, 2011

Trusts and Estates:
A cause of action for breach of contract by an estate administrator was not barred by the statute of limitations applicable to claims against the decedent.
Dacey v. Taraday, (2011) 196 Cal. App. 4th 962, filed June 21, 2011

Trusts and Estates:
The standard for a trustor’s capacity to execute a simple trust amendment is less stringent than for a more complex document.
Andersen v. Hunt (2011) 196 Cal. App. 4th 722, filed June 14, 2011

Trusts and Estates:
The need for further accounting was not precluded by accord and satisfaction between trust beneficiaries.
Bellows v. Bellows (2011) 196 Cal. App. 4th 505, filed June 9, 2011

Civil Practice:
The Probate Code statute of limitations is inapplicable to a breach of contract claim against the administrator rather than the decedent.
Dacey v. Taraday (2011) 196 Cal. App. 4th 962, filed May 19, 2011

Family Law:
When taken out by both spouses, a life insurance policy listing one spouse as the policy owner was that spouse's separate property under form of title presumption.
In re Marriage of Valli (2011) 195 Cal. App. 4th 776, filed May 18, 2011

Family Law:
When finding that father of minor subject of guardianship petition was unfit parent, the Probate court should have referred the case to child protective services.
Guardianship of Christian G. (2011) 195 Cal. App. 4th 581, filed May 13, 2011

Trusts and Estates:
A trust beneficiary could not be compelled to arbitrate disputes under the trust when the beneficiary had not agreed to do so.
Diaz v. Bukey (2011) 195 Cal. App. 4th 315, filed May 10, 2011

Trusts and Estates:
Cause of action for legal malpractice based on allegedly faulty drafting of partnership agreement did not begin to run until circumstances threatening dissolution of partnership arose.
Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal. App. 4th 557

Trusts and Estates:
Equitable estoppel may apply to a late filed Marvin action against a decedent’s estate.
McMackin v. Ehrheart (2011) 194 Cal. App. 4th 128, filed April 8, 2011

Trusts and Estates:
When the probate court issued a final ruling as to whether certain funds were part of the estate, a later objection to an accounting based upon the failure to include the funds was precluded.
Estate of Redfield (2011) 193 Cal. App. 4th 1526, filed April 5, 2011

Spring 2011 Case Alerts

Trusts and Estates:
A claim based on a decedent's promise to leave her cohabitant a life estate in real property is governed by the one-year statute of limitations of Code of Civil Procedure Sec.  366.3; equitable estoppel doctrine may be applied to preclude a party from asserting a timeliness defense where that party's wrongdoing has induced another to forbear filing suit.
McMackin v Ehrheart - filed April 8, 2011, Second District, Div. One
http://www.courtinfo.ca.gov/opinions/documents/B224723.PDF

Trusts and Estates:
Where probate court approved settlement of a will contest and dismissed with prejudice petitions by certain beneficiaries claiming that certain moneys were part of the decedent's estate, those beneficiaries are barred by the doctrine of res judicata from relitigating whether those funds were part of the estate.
Estate of Redfield - filed April 5, 2011, Second District, Div. Three Cite as 2011 S.O.S. 1765

Torts:
A release for consideration of one joint tortfeasor operates as a release of the joint and several liability of the other joint tortfeasors whose independent acts concurrently produced a single injury.
Leung v. Verdugo Hills Hospital - filed March 23, 2011, Second District, Div. Four

Civil Procedure:
Open-ended retainer agreement providing a structure for establishing future attorney-client relationships on an "as-requested" basis did not create a contractual ongoing attorney-client relationship.
Banning Ranch Conservancy v. Superior Court (City of Newport Beach) - filed March 22, 2011, Fourth District, Div. Three

Trusts and Estates:
Son claiming a right to inherit his father's estate as an omitted heir had standing to challenge probate court's interim award of attorneys' fees and costs to executor because such an award would place son at a financial disadvantage by diminishing the estate should son prevail in the will contest. Personal representatives or executors who are also beneficiaries are not incapable of participating "as a party to assist the court" under Probate Code Sec. 11704(b).
Estate of Bartsch - filed March 22, 2011, First District, Div. One

Trusts and Estates:
Where petition to probate will had the practical effect of challenging an earlier trust, filing of such petition was an "action to contest the trust" within the meaning of Probate Code Sec. 16061, which requires that such an action be brought within 120 days following service of notice by the trustee. Will was dictated and signed by decedent and handwritten by another person--but was defective in form because it contained no witnesses' signatures. Trial court did not err in admitting it to probate under Sec. 6110(c)(2) based on clear and convincing evidence of decedent's intent in the form of testimony by two witnesses who saw him sign it. Public policy in favor of validating wills that reflect decedents' intent supports retroactive application of Sec. 6110(c)(2) to wills executed before its effective date. Lack of testamentary language, use of the word will, or reference to death did not preclude finding that document was intended by decedent to be his will.
Estate of Stoker - filed March 3, 2011, Second District, Div. Six

Real Property:
A special power of attorney coupled with an interest in property is terminated upon extinguishment of the interest; erroneous jury instruction as to this principle was prejudicial. Plaintiffs were not required to offer evidence of mental suffering to support their claim of financial elder abuse.
Bonfigli v. Strachan - filed February 23, 2011, First District, Div. Four

Taxation:
Taxpayer could not rely on substantial compliance doctrine to excuse his failure to properly request an extension of time to pay estate tax where he failed to state the period of extension required because such information was essential for IRS to assess reasonableness of request; failure of IRS to notify taxpayer that his extension request was incomplete was insufficient to support claim of equitable estoppel. Taxpayer's reliance on an accountant to obtain an extension did not constitute "reasonable cause" for his failure to pay estate taxes in a timely manner.
Baccei v. United States - filed February 16, 2011, United States Court of Appeals, Ninth Circuit

Individual Rights:
Public administrator's failure to give notice and an opportunity to respond to family of decedent before taking items from decedent's house, absent extraordinary circumstances, violated due process. Official was not entitled to qualified immunity because the law was clearly settled in this area.
Mathis v. Glover - filed February 1, 2011, United States Court of Appeals, Ninth Circuit

Trusts and Estates:
Civil Code Sec. 1624(a)(7), cannot be construed as applying to the transfer of shares of stock to a trust; plain meaning of the words of the statute manifests a legislative intent to limit the statute's application to agreements to loan money or extend credit made by persons in the business of loaning money or extending credit. No California authority invalidates a transfer of shares of stock to a trust because a general assignment of personal property did not identify the shares.
Kucker v. Kucker - filed January 26, 2011, Second District, Div. Six

Family Law:
Form-of-title presumption simply does not apply in cases in which it conflicts with the presumption that one spouse has exerted undue influence over the other. Undue-influence presumption applied where wife testified that she freely and voluntarily executed a quitclaim deed in favor of husband to obtain a more favorable interest rate on a loan to refinance based on his promise to restore her name to the title once the refinance was complete. Trial court lacks discretion to deny attorney fees if aggrieved spouse shows a breach of fiduciary duty as to the management and control of community property that does not rise to the level of fraud, malice, or oppression.
In re Marriage of Fossum - filed January 28, 2011, Second District, Div. One

Trusts and Estates:
In suit for financial abuse of an elderly person, trial court correctly applied collateral source rule by instructing jury that government benefits received by victim based on her long-standing disabilities and financial need could not be considered in awarding damages.
Conservatorship of McQueen - filed January 14, 2011, First District, Div. Four

Trusts and Estates: The term “issue” included issue born out of wedlock when the terms of the trust did not provide a contrary definition.
Citizens Business Bank v. Carrano - filed November 5, 2010, Second Dist., Div. Eight

Trusts and Estates: The fact that a plaintiff's interests in litigation were personal and nonpecuniary did not bar an award of fees under the private attorney general doctrine.
Conservatorship of Whitley - filed Cal.Sup.Ct.; November 8, 2010

Trusts and Estates: Lack of explicit statement that trust's no-contest clause also applied to subtrusts did not entitle petitioner to a "safe harbor" determination that the clause did not apply, where intent to apply the clause to the subtrusts was implicit in the terms and it was unreasonable--considering the "whole of the trust"--to interpret the clause as inapplicable to the subtrusts. Petition for determination that designated successor trustee for trust was not entitled to appointment as successor trustee for subtrusts was a "contest" because it directly contravened trustor's express directive.
Fazzi v. Klein - filed December 14, 2010, Fourth District, Div. Three

Trusts and Estates:
Prospective beneficiary of a will could not maintain a cause of action for legal malpractice against the attorney who drafted the will where it was not executed before the testator's death.
Hall v. Kalfayan - filed December 8, 2010, Second District, Div. Four

Trusts and Estates:
Where husband executed a modified marital settlement agreement with his ex-wife that provided for continuing support payments to the ex-wife after his death, and husband subsequently remarried, the trial court did not err in holding that real property the husband's widow held with him in joint tenancy could be considered under Probate Code Sec. 13551 in determining the extent of the widow's personal liability to the ex-wife. The scope of a surviving spouse's personal liability encompasses all property which, at the time of a decedent's death, is characterized as community property or the decedent's separate property, regardless of the manner in which title to the property is held.
Kircher v. Kircher - filed November 4, 2010, First District, Div. Three

Trusts and Estates:
Beneficiaries of decedent's trust who had already been paid the amounts they were owed under the trust were not "interested persons" for purposes of pursing an elder abuse action after decedent's death pursuant to Welfare and Institutions Code Sec. 15657.3(d); beneficiaries' status as beneficiaries of decedent's trust never gave them standing to pursue the elder abuse action because the beneficial interest they had in the trust estate was not one that could have been "affected by" the elder abuse action. The only way beneficiaries would have standing would be as decedent's successors in interest under subdivision (d)(1)(B) if the requirements of Probate Code Sec. 259 were met as to the residuary beneficiaries. Since defendants' summary judgment motions were based on the premise that plaintiffs lacked standing to pursue any cause of action that belonged to decedent because they could not show defendants were disinherited under Sec. 259, defendants did not have to separately address plaintiffs' claims or make a prima facie showing as to those causes of action. Even though liability for abuse under Sec. 259 could be premised on aiding and abetting abuse by another or on a conspiracy to commit the act of abuse, it still must be shown that the person who is liable for the abuse acted in bad faith and was reckless, oppressive, fraudulent, or malicious. Plaintiffs did not demonstrate prejudicial error in the denial of their motion to compel one defendant to respond to discovery since they did not show that defendant's answers would have led to admissible evidence sufficient to raise a triable issue of fact as to whether defendant acted in bad faith and engaged in reckless, malicious, oppressive, or fraudulent conduct.
Lickter v. Lickter - filed October 27, 2010, Third District

Family Law:
Evidence supported finding that house was community property based on violation of marital fiduciary duty when husband failed to keep promise to put wife on title after purchase (Rubin, Acting P. J.)
Starr v. Starr - filed October 18, 2010, Second District, Div, Eight  

Fall 2010 Case Alert

Bankruptcy:
A state probate court's findings were entitled to preclusive effect, and a tortious interference with inheritance counterclaim was a “non-core proceeding” for which the bankruptcy court could issue only proposed findings of fact and conclusions of law.
Marshall vs. Stern - filed March 19, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
A probate court has discretion under Probate Code § 17211(b) to award attorney fees to a trust beneficiary who contests a trustee's account by challenging the trustee's refusal to make a final distribution based on a collateral dispute among the parties that did not pertain to the trust.
Leader v. Cords - filed March 23, 2010, Fourth District, Div. One

Trusts and Estates:
A probate court erred in upholding a certificate of independent review when the sufficiency of the counseling and independence of the certifying attorney presented a triable issue of material fact.
Estate of Winans - filed March 26, 2010, First District, Div. One

Trusts and Estates:
Trust beneficiaries have standing to seek restitution for misappropriated funds, even when their rights in the decedent's estate have not been conclusively determined.
Estate of Kraus - filed April 27, 2010, Second District, Div. Five

Criminal Law:
Decedent was convicted of operating a Ponzi scheme. While the decedent's death during a pending appeal provided grounds to abate the criminal conviction and its associated restitution order, decedent's stipulation to the appointment of a receiver prior to his death was not dependent upon his later conviction. As a result, the receivership remained in force following the decedent's death.
United States v. Rich - filed May 3, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
The guardian of the decedent's minor children was entitled to priority over the public administrator for appointment as personal representative.
Estate of Lewis - filed May 6, 2010, Fourth District, Div. Three

Trusts and Estates:
Brother who alleged his sister and brother-in-law interfered with his expected inheritance by unduly influencing their mother to sign a codicil to her will that gave $1,000,000 each to sister's children could not bring a cause of action in tort because he had an adequate remedy in probate.
Munn v. Briggs - filed June 10, 2010, Fourth District, Div. One

Trusts and Estates:
Civil action alleging defendants breached their duties as trustees and seeking an injunction to compel defendants to produce an account--in an action in which the existence of a trust was in dispute--was not a contest of a trustee's account within the meaning of Probate Code Sec. 17211(b), which authorizes recovery of attorney fees by a beneficiary who brings such a contest if the trustee unreasonably opposes the contest.
Soria v. Soria - filed June 14, 2010, Fourth District, Div. Three

Trusts and Estates:
A trustee who successfully hid the existence of the trust from a beneficiary was precluded from asserting laches or relying upon the statute of limitations to defeat claims later brought by the beneficiary.
Quick v. Pearson - filed July 1, 2010, Second District, Div. Three

Trusts and Estates:
When donative transfer was allegedly made in violation of Probate Code Sec. 21350--which imposes restrictions on the making of such transfers to certain categories of beneficiaries, including one who has a fiduciary relationship with the donor--and the transfer became irrevocable while the donor was still alive, administrator of donor's estate had three years from the date he became apprised of the relevant facts in which to bring an action to set aside the transfer.
Estate of Hastie - filed July 22, 2010, First District, Div. Two

Trusts and Estates:
District court did not err in granting summary judgment to trustees of Hawaii state agency that administered a portion of a public trust created, along with four other purposes, to benefit native Hawaiians in suit by native Hawaiians because federal law did not oblige the trustees to use proceeds only for native Hawaiians. Where trust gave trustees broad discretion to serve its purposes, the district court properly found that challenged expenditures were sufficiently directed to one or more trust purposes to fall within the range of permissible spending. State's spending of far more money each year on public education--one of the enumerated trust purposes--than it received from the trust did not deprive any beneficiary of standing to bring a claim for breach of trust for lack of injury.
Day v. Apoliona - filed July 26, 2010

Summer 2010 Case Alerts

Bankruptcy:
A state probate court's findings were entitled to preclusive effect, and a tortious interference with inheritance counterclaim was a “non-core proceeding” for which the bankruptcy court could issue only proposed findings of fact and conclusions of law.
Marshall vs. Stern - filed March 19, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
A probate court has discretion under Probate Code § 17211(b) to award attorney fees to a trust beneficiary who contests a trustee's account by challenging the trustee's refusal to make a final distribution based on a collateral dispute among the parties that did not pertain to the trust.
Leader v. Cords - filed March 23, 2010, Fourth District, Div. One

Trusts and Estates:
A probate court erred in upholding a certificate of independent review when the sufficiency of the counseling and independence of the certifying attorney presented a triable issue of material fact.
Estate of Winans - filed March 26, 2010, First District, Div. One

Trusts and Estates:
Trust beneficiaries have standing to seek restitution for misappropriated funds, even when their rights in the decedent's estate have not been conclusively determined.
Estate of Kraus - filed April 27, 2010, Second District, Div. Five

Criminal Law:
Decedent was convicted of operating a Ponzi scheme. While the decedent's death during a pending appeal provided grounds to abate the criminal conviction and its associated restitution order, decedent's stipulation to the appointment of a receiver prior to his death was not dependent upon his later conviction. As a result, the receivership remained in force following the decedent's death.
United States v. Rich - filed May 3, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
The guardian of the decedent's minor children was entitled to priority over the public administrator for appointment as personal representative.
Estate of Lewis - filed May 6, 2010, Fourth District, Div. Three

Trusts and Estates:
Brother who alleged his sister and brother-in-law interfered with his expected inheritance by unduly influencing their mother to sign a codicil to her will that gave $1,000,000 each to sister's children could not bring a cause of action in tort because he had an adequate remedy in probate.
Munn v. Briggs - filed June 10, 2010, Fourth District, Div. One

Trusts and Estates:
Civil action alleging defendants breached their duties as trustees and seeking an injunction to compel defendants to produce an account--in an action in which the existence of a trust was in dispute--was not a contest of a trustee's account within the meaning of Probate Code Sec. 17211(b), which authorizes recovery of attorney fees by a beneficiary who brings such a contest if the trustee unreasonably opposes the contest.
Soria v. Soria - filed June 14, 2010, Fourth District, Div. Three

Trusts and Estates:
A trustee who successfully hid the existence of the trust from a beneficiary was precluded from asserting laches or relying upon the statute of limitations to defeat claims later brought by the beneficiary.
Quick v. Pearson - filed July 1, 2010, Second District, Div. Three

Trusts and Estates:
When donative transfer was allegedly made in violation of Probate Code Sec. 21350--which imposes restrictions on the making of such transfers to certain categories of beneficiaries, including one who has a fiduciary relationship with the donor--and the transfer became irrevocable while the donor was still alive, administrator of donor's estate had three years from the date he became apprised of the relevant facts in which to bring an action to set aside the transfer.
Estate of Hastie - filed July 22, 2010, First District, Div. Two

Trusts and Estates:
District court did not err in granting summary judgment to trustees of Hawaii state agency that administered a portion of a public trust created, along with four other purposes, to benefit native Hawaiians in suit by native Hawaiians because federal law did not oblige the trustees to use proceeds only for native Hawaiians. Where trust gave trustees broad discretion to serve its purposes, the district court properly found that challenged expenditures were sufficiently directed to one or more trust purposes to fall within the range of permissible spending. State's spending of far more money each year on public education--one of the enumerated trust purposes--than it received from the trust did not deprive any beneficiary of standing to bring a claim for breach of trust for lack of injury.
Day v. Apoliona< - filed July 26, 2010

Spring 2010 Case Alerts

Trusts and Estates:
Court hearing Lanterman-Petris-Short Act conservatorship proceeding did not violate the act or the conservatee's constitutional right of due process by accepting representation of conservatee's attorney--that conservatee was waiving his right to be present for hearing and was not contesting petition--where attorney personally discussed the proceedings with conservatee, and there was no allegation that attorney misrepresented the contents of that discussion.
Conservatorship of John L. - filed February 25, 2010 California Supreme Court

Trusts and Estates:
Probate court abused its discretion in awarding fees to trustee without any explanation for what it concluded trustee had reasonably incurred those fees and without specifying the amount of that award. An assessment of reasonableness for a fee award depends not only on what fees were reasonably incurred but also on whether such fees are reasonably and prudently incurred for the trust.
Donahue v. Donahue - filed February 24, 2010 , Fourth District, Div. Three

Trusts and Estates:
A provision in a will that excluded unnamed was heirs not sufficient to defeat the operation of the anti-lapse statute.
Estate of Tolman - February 11, 2010 , Second District, Div. Eight

Trusts and Estates:
Widow was not automatically entitled to surviving spouse rights under ERISA or Internal Revenue Code where husband established an IRA, in part using funds from a 401(k) plan from prior employer.
Charles Schwab & Co., Inc. v. Debickero - January 22, 2010 - 9th U.S. Circuit Court of Appeals

Trusts and Estates:
A person with no connection to the family of minors lacked standing to petition for appointment of guardian of estates for newborn children.
Suleman v. Superior Court (Petersen) - filed January 8, 2010 - Fourth District, Div. Three

Trusts and Estates:
The filing of a petition to modify a special needs trust was not a violation of a trust's no contest provision where the modification was necessary to effectuate the settlor's intent.
Balian v. Balian - filed December 11, 2009 - Second District, Div. Five

Trusts and Estates:
The future distributions owed to a beneficiary could be used to satisfy attorney's fees incurred in defending the trust against a bad faith claim by the beneficiary.
Rudnick v. Rudnick - filed December 3, 2009 - Fifth District

Trusts and Estates:
Where the breach of fiduciary duty by a beneficiary-trustee resulted in harm to the trust, their interest in the spendthrift trust could properly be impounded to satisfy the claim.
Chatard v. Oveross - filed November 30, 2009 - Second District, Div. Four

Trusts and Estates:

A one-year statute of limitations applied to a lawsuit against a trust based on actions of a deceased trustee.
1680 Property Trust v. Newman Trust - filed November 17, 2009 - Second District, Div. Five

Trusts and Estates:

A trust beneficiary had standing to sue a third party for their role in a former trustee's breach of the trust.
King v. Johnston - Filed November 9, 2009 - Fourth District, Div. One

Winter 2010 Case Alerts

Trusts and Estates:
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.
Rudnick v. Rudnick - filed December 3, 2009 , Fifth District
Cite as F056587

Trusts and Estates:
The beneficiary of a spendthrift trust who also acted as trustee and committed a breach causing financial harm to the trust could have her interest in the trust estate impounded to satisfy a claim arising from her misfeasance because the damage resulting from her breach would otherwise be sustained by the beneficiaries.
Chatard v. Oveross - filed November 30, 2009 , Second District, Div. Four
Cite as B213392

Trusts and Estates:
Where two individuals entered into a real estate partnership acting in their capacity as trustee of a family trust, the partners were the individuals, not the trusts. A trust is a relationship by which one person or entity holds property for the benefit of another and is not a separate entity from its trustees; trustees act as individuals when carrying out trust business.
Presta v. Tepper - filed October 28, 2009 , publication ordered November 24, 2009 , Fourth District, Div. Three
Cite as G040427

Civil Procedure:
Code of Civil Procedure Sec. 366.2's one-year period of limitations for actions against a deceased person is applicable to fraud claims based on statements of a decedent on behalf of a trust of which decedent was trustor and trustee, even though fraud action is against successor trustee.
1680 Property Trust v. Newman Trust - filed November 17, 2009 , Second District, Div. Five
Cite as B207613

Trusts and Estates:
Trust beneficiary had standing to sue fellow beneficiary for aiding trustee in transferring property out of trust in breach of trustee's duties. Trial court erred in failing to consider and make necessary findings as to whether plaintiff could recover from defendant under a theory that after trustee's death, defendant--by holding herself out as trustee and purporting to perform trustee's duties--became a trustee de son tort and could thus be held liable for breach of those duties.
King v. Johnston - filed November 9, 2009 , Fourth District, Div. One
Cite as D054136

Trusts and Estates:
A challenge to a surviving spouse's mental capacity to transfer trust assets and appoint a successor trustee did not violate no-contest clause in a family trust. Proceeding contesting a settlor's mental competence to exercise rights under a trust does not amount to an attack on the trust itself, unless it seeks to thwart the estate plan established by the trust.
Johnson v. Greenelsh - filed October 29, 2009
Cite as S166747

Trusts and Estates:
No authority supported objector's proposition that Code of Civil Procedure Sec. 631.8 does not apply to probate proceedings. Guardianship accountings require the same procedure for filings and objections as conservatorship proceedings. Where trust was specifically created to provide for minor's "health, maintenance, education, travel, and welfare, and general welfare," minor's father did not need to exhaust his own resources to provide for minor before dipping into trust assets. Trial court did not abuse its discretion in overruling objection to handling of wrongful death proceeds that funded trust or excluding certain evidence absent any demonstration of error by objector. Totality of facts supported trial court's finding that objector filed objection in bad faith and without reasonable cause. Probate Code Sec. 2622.5 specifically provides compensation for fees incurred to defend an account from unreasonable objections and does not preclude compensation for costs associated with collecting those fees.
Guardianship of K.S. - filed September 30, 2009 , Sixth District
Cite as H032581

Trusts and Estates:
| Where testators instructed that beneficiary's debt to them be offset against that beneficiary's distribution, beneficiary's assertion that his debt was not enforceable violated trust's no-contest provision since beneficiary's pleading attacked testators' plans to distribute their property.
Cook v. Cook - filed September 29, 2009 , Second District, Div. Six
Cite as B205793

Trusts and Estates:
Neither plain language nor legislative history of Probate Code Sec. 21351 supports judicial creation of a fraud or undue-influence exception to rule that a spouse may receive a donative transfer from a dependent or elder adult.
Estate of Pryor - filed September 29, 2009 , Second District, Div. Four
Cite as B207402

Family Law:
Standard of review on a question of annulment is substantial evidence; limitations period and standing provisions are dependent on the ground for annulment invoked. Since a third party is never accorded standing to seek annulment based on fraud, a cause of action does not survive defrauded spouse's death.
Pryor v. Pryor - filed September 29, 2009 , Second District, Div. Four
Cite as B207398

Fall 2009 Case Alerts

Trusts and Estates:
Where testator bequeathed estate to her son and daughter and son disinherited his children, trial court erred in denying petition for an evidentiary hearing on issue of whether son predeceased testator, in which case his children would take his share from testator's estate under anti-lapse statute.
Estate of Lensch - filed August 31, 2009, publication ordered September 9, 2009, First District, Div. Two
Cite as A123296

Civil Procedure:
Where plaintiff filed suit against her ex-husband's attorneys, asserting that their actions--revising estate plan for ex-husband's mother in a manner that appeared to disinherit ex-husband, participating in probate court proceedings to effectuate this revised plan, and defending ex-husband and his siblings in litigation by plaintiff--unlawfully aided a child support obligor to avoid paying child support by transferring or concealing assets, plaintiff's action was predicated on protected activity since counsel's conduct was neither inherently criminal nor otherwise outside the scope of normal, routine legal services even if those actions had the effect of defeating or forestalling plaintiff's ability to execute her judgment for child support. Because ex-husband's expectancy as a probable heir of mother's estate was not an "asset," plaintiff had no reasonable probability of success as to her child support evasion claim as to those actions taken by attorneys to effectuate and defend mother's estate plan. As those actions took place prior to effective date of child support evasion statute and subsequent actions taken by attorneys in probate proceedings, and the litigation defense were absolutely protected by the litigation privilege, plaintiff had no probability of prevailing as to her remaining claims. Trial court did not abuse its discretion in determining the appropriate amount of attorney fees to award.
Cabral v. Martins - filed August 21, 2009, publication ordered September 4, 2009, First District, Div. Four
Cite as A120657

Trusts and Estates:
Where bank account contract incorporated California law relating to such agreements except to the extent that the contract explicitly varies from California law, trial court erred in finding such contract was not governed by California's Multiple-Party Accounts Law absent varying contractual provisions. CAMPAL governs whether a person is a proper party to the account unless the terms of the account vary from CAMPAL's provisions, and CAMPAL does not deprive account holders of recourse against financial institutions that permit a party to withdraw funds from a multiple-party account when the person is not a proper party to the account pursuant to CAMPAL and the account contract.
Stevens v. Tri Counties Bank - filed September 1, 2009, Third District Cite as C058154

Trusts and Estates:
Petition by contingent remainder beneficiaries, seeking information with regard to how trustee who was also income beneficiary was spending trust funds, would not violate trust's no-contest clause.
Salter v. Lerner - filed July 28, 2009, publication ordered August 19, 2009, First District, Div. Three
Cite as A121525

Civil Procedure:
Termination based upon violation of the compulsory cross-complaint rule is a "technical" disposition rather than one "on the merits." Because malice concerns a party's actual mental state, it necessarily presents a question of fact; a reasonable trier of fact could readily find that defendant acted without probable cause when he sued his former clients in tort, threatening them with punitive damages, merely for objecting to his fees and that defendant had acted with spite. Events after defendant's complaint against plaintiffs was filed and dismissed had no logical bearing on question of probable cause because essence of that element was tenability of defendant's claims based upon his knowledge and belief at the time of filing. Fact finder would be entitled to disbelieve defendant's asserted reasons for dismissing action against plaintiff and so that declaration could not establish as a matter of law that plaintiffs would be unable to prove favorable termination. When a malicious prosecution action is stayed on the ground that an appeal from the underlying judgment is pending, and the appeal is thereafter resolved adversely to the malicious prosecution plaintiff, a voluntary dismissal by him in response to that event is a technical determination and not a termination on the merits in favor of his opponent.
Drummond v. Desmarais - filed August 5, 2009, Sixth District
Cite as H031659

Trusts and Estates:
Standards of professional responsibility prepared by the State Bar are not regarded as court orders or local rules for purposes of awarding sanctions, and trial courts do not have responsibility to directly enforce these rules, even when violations of court orders are alleged, since disciplinary authority is lodged in the Supreme Court, which has delegated it to the State Bar Court. Where probate courts issued an order appointing attorney, and court-appointed attorney requested that other attorneys in case make contact with client only though her, violations of that request would amount to violations of the Rules of Professional Conduct, not of a court order. Probate court's determination that counsel's disregard of such a request by court-appointed attorney justified setting a sanctions hearing and finding that counsel had violated a court order was incorrect and exceeded probate court's discretion.
Conservatorship of Becerra - filed July 28, 2009, Fourth District, Div. One
Cite as D053519

Trusts and Estates:
Trial court order removing counsel, based on erroneous legal conclusion that counsel had a conflict of interest, was not entitled to deference. While an attorney may have liability to an intended beneficiary of a will who, because of the attorney's error, does not receive a bequest that testator had intended to grant as a result of negligent performance of a contract, such potential negligence liability does not bring third-party beneficiaries of a contract to draft a will into an attorney-client relationship. An attorney who has drafted a will is not bound to a beneficiary by the duties of an attorney to a client because beneficiary is not a client and does not become a successor client just because the will becomes irrevocable upon testator's death. Attorney for executor does not have a conflict of interest merely because he represents one beneficiary of a will in a dispute with another beneficiary unless such representation presents a conflict between the executor and the represented beneficiary.
Baker Manock & Jensen v. Superior Court (Salwasser) - filed July 22, 2009, Fifth District
Cite as F056973

Summer 2009 Case Alerts

Trusts and Estates:
Decedent's authorization of law firm to act as his "authorized representative" regarding his application for Medi-Cal eligibility and benefits created an agency relationship that was revoked by decedent's death.
Smith v. Shewry - filed April 21, 2009, publication ordered May 11, 2009, Second District, Div. Four
Cite as B207305

Taxation:
If a third party who has no direct interest in tax litigation pays fees on behalf of a taxpayer, that taxpayer "incurs" fees so long as he assumes either an absolute obligation to repay the fees--regardless of whether he successfully moves for a fee award--or a contingent obligation to pay the fees in the event that he is able to obtain a fee award.
Morrison v. Commissioner of Internal Revenue - filed May 13, 2009
Cite as 06-75332

Family Law:
After a conservatorship has been established, a conservatee may file an initial petition for rehearing to challenge her status as a conservatee at any time and is only required to wait six months before filing a another petition for rehearing.
Conservatorship of Amanda B. - filed May 15, 2009, Fourth District, Div. One
Cite as D053732

Trusts and Estates:
Where statutory rules governing the law of intestate succession required decedent's estate be passed onto decedent's first cousins, estate was to be divided into as many shares as there were first cousins who survived decedent and first cousins who predeceased the decedent but left surviving issue of any generation. Surviving issue of a predeceased heir entitled to inherit was not limited to the first generation.
Estate of Beckel - filed May 20, 2009, Fifth District
Cite as F055384

Trusts and Estates:
Where petitioner sought determination that handwritten notations on trust document that reduced petitioner's share of a trust asset were not part of the terms of the trust, such notations were an attempt to amend the trust; since the "amendment" was not part of the original trust agreement, the challenge to its validity was not a contest under Probate Code Sec. 21305(a)(3).
Cory v. Toscano - filed June 8, 2009, Fifth District
Cite as F055231

Family Law:
Protective order under Elder Abuse and Dependent Adult Civil Protection Act may be issued on the basis of evidence of past abuse without any particularized showing that the wrongful acts will be continued or repeated. Issuance of protective order was an abuse of discretion where judge acknowledged that decision was "tipp[ed]" by defendant's counsel's aggressive and confrontational cross-examination of plaintiff, which judge assumed was consistent with defendant's desires; counsel's tone of voice or style of examination is not evidence, and cannot be the basis for the issuance of a protective order under the Elder Abuse Act.
Gdowski v. Gdowski - filed June 23, 2009, Fourth District, Div. Three
Cite as G040975

Taxation:
 Income beneficiaries of a trust that owned a shopping center complex had a present interest in improvements on the property constructed and owned by lessee and sublessees because such improvements were part of the property that had to be surrendered to the lessor in good condition at the close of the lease. By receiving rent income from trust property, beneficiaries had beneficial use of that property even though they did not have legal title. A lifetime beneficiary receiving the rental value of a parcel of real property is considered under the law to be receiving value substantially equal to the value of the fee interest.
Phelps v. Orange County Assessment Appeals Board No. 1 (Guillory) - filed May 27, 2009, publication ordered June 29, 2009, Fourth District, Div. Three
Cite as G040428

Spring 2009 Case Alerts

Trusts and Estates:
California Department of Health Care Services' claim for Medi-Cal expenses paid on behalf of decedent were not governed by general Probate Code provisions for creditor's claims but by specific provisions for creditor's claims by public entities. 
Shewry v. Wooten - filed February 27, 2009, publication ordered March 
24, 2009 , First District, Div. Three 
Cite as A120402 

Trusts and Estates:
Beneficiary's contention that ambiguous language in trust documents was result of scrivener's error and should therefore be reformed in accordance with grantors' intent did not violate trusts' no-contest clauses. Trial court could excuse compliance with trust provision--providing for a conclusive presumption that survivor did not exercise her limited power of appointment over specified property if survivor's will or codicil was not filed within 60 days of her death--if survivor exercised her limited power of appointment in a way that approximated the manner prescribed by trust documents and that did not defeat a significant purpose of trustors. 
Giammarrusco v. Simon - filed March 12, 2009 , Second District, 
Div. One 
Cite as B199998

Torts:
Testator's lawyer owes no duty of care to a nonclient who alleges he or she was a potential beneficiary of the testator's estate in the absence of an executed will or trust instrument expressly reflecting the testator's intent. Testator's lawyer owes no duty of care to a nonclient who was previously named in a will or trust instrument executed by testator and who alleges testator intended to revise his or her estate plan to increase the gift to the beneficiary.
Chang v. Lederman - filed March 16, 2009 , Second District, Div. Seven 
Cite as B199813 

Family Law:
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest--is not facially unconstitutional by adopting the best interests of a child as standard for terminating parental rights. Court of appeal erred in barring termination of father's parental rights without a finding of unfitness if father could demonstrate a commitment to parental responsibility where father was qualified to assert his rights as a presumed father but expressly waived those rights when child was placed in guardianship. 
In re Charlotte D. - filed March 19, 2009 
Cite as S142028

Family Law:
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest--is not facially unconstitutional because a showing of current unfitness is not always necessary when a court terminates parental rights after parent-child family unit has ceased to exist and parent's entitlement to custody is not at issue; when child develops an interest in a stable, continuing placement, and guardian acquires a recognized interest in the care and custody of child; and when statute requires trial court to balance all familial interests in deciding what is best for child. Trial courts have discretion to determine on a case-by-case basis whether to apply Sec. 1516.5 to a guardianship in existence on its effective date. Where mother had not sought visitation during more than three and a half years of probate guardianship and did not see child for an even longer period, reunification was a remote possibility, and retroactive application of Sec.1516.5 was consistent with due process. 
Guardianship of Ann S. - filed March 19, 2009 
Cite as S143723 

Family Law:
The pre-retirement death of a pension plan participant ordinarily irrevocably vests the right to survivor benefits in the existing spouse, but a domestic relations order possessed by a former spouse before the plan participant's death may be qualified postmortem as a "qualified domestic relations order" under the Employee Retirement Income Security Act of 1974 where it substantially complies with ERISA's specificity requirements. When a pension plan participant dies or retires before a former spouse secures an order awarding that spouse any interest in the plan, a domestic relations order entered before the death that does not award the former spouse an interest in the participant's pension plan, but simply "reserves jurisdiction" over the plan, provides an inadequate basis for entry nunc pro tunc of either a QDRO under ERISA or of an order determining the former spouse's interest that later may be qualified as a QDRO. 
In re Marriage of Padgett - filed March 25, 2009 , First District, Div. Two 
Cite as A120644 

Trusts and Estates:
Time limit for admitting new or competing wills to probate under Probate Code Sec. 8226(c) does not apply to proponent of a will who did not receive notice of the petition for letters of administration.
Kelly v. Human Rights Campaign, Inc . - filed April 1, 2009 , Third District 
Cite as C058941 

Trusts and Estates:
Proposed petition by successor trustee to marshal assets in two trusts fell within safe harbor of no-contest provision.   
Bradley v. Gilbert - filed April 1, 2009 , Second District, Div. Seven 
Cite as B201357 

Civil Procedure:
Trial court did not abuse its discretion in denying defendant's motion to compel arbitration where codefendants were third parties unaffected by arbitration agreement and plaintiffs asserted causes of action as successors in interest of decedent as well as in their individual capacities as third parties not bound by the arbitration agreement.
Birl v. Heritage Care LLC - filed March 11, 2009 , publication ordered April 8, 2009 , Second District, Div. Two 
Cite as B206952 

Individual Rights:
Where an out-of-state resident who was born in California petitioned for issuance of a new California birth certificate reflecting her gender reassignment, Health and Safety Code requirement that such a petition be filed in the county of petitioner's residence--which did not permit a change of gender on a birth certificate--violated the Equal Protection clause and Privileges and Immunities clause.
Somers v. Superior Court of San Francisco City and County - filed 
April 10, 2009 , First District, Div. One 
Cite as A123445 

Trusts and Estates:
Homeowners insurer had standing in probate court to challenge validity of judgment claim against decedent's estate (Nicholson, J.) 
Estate of Prindle – filed April 20, 2009 , Third District 
Cite as C055832 

Individual Rights:
Statutory provision allowing state to seek reimbursement from estate of a pretrial detainee committed to a state hospital does not violate equal protection because pretrial detainees are not similarly situated to inmates transferred to state hospital for treatment while incarcerated. Legislature also had a rationale basis for treating two categories of patients differently.
Conservatorship of Edde - filed May 1, 2009 , Fifth District 
Cite as F055054  

December 2008 - January 2009 New Case Alert:

Trusts and Estates:
Where purchaser defaulted on agreement to buy property from estate and property was resold at a lower price, Probate Code Sec. 10350(e)(1) authorized probate court to award estate damages in an amount equal to difference between defaulting and successful purchase prices. Because estate was entitled to retain defaulted buyer's deposit as statutory award for damages, it made no legal difference that deposit amount covered both estate's interest in property and that of co-owner because Sec.10350(e)(1) did not authorize a pro rata share of damages based on sellers' respective interests in the property.
Estate of Felder - filed October 9, 2008, Second District, Div. Five
Cite as 2008 SOS 5706

Trusts and Estates:
Where husband and wife entered into an inter vivos trust that became irrevocable upon death of either spouse, wife could not withdraw her share of community property from trust after husband's death. Joint trust was irrevocable following husband's death and precluded wife from withdrawing any property. Irrevocable trusts are binding, even on their trustors.
Aguilar v. Aguilar - filed November 6, 2008 , Fourth District, Div. Three
Cite as 2008 SOS 6103

Civil Procedure:
Trial court erred in making a wholly independent evaluation of trial evidence and rejecting jury's findings of fact when fashioning equitable relief founded on same evidence and same operative facts as jury's verdict. In a mixed trial of legal and equitable issues where legal issues are first tried to a jury, court must follow jury's factual determinations on common issues of fact. Where legal causes of action and equitable defense were founded on distinct facts, jury's factual determinations on legal claims were not binding. Trial court did not abuse its discretion in ruling upon equitable issues after submitting matter for jury determination.
Hoopes v. Dolan - filed November 12, 2008 , First District, Div. Four
Cite as 2008 SOS 6124

Family Law:
Where property was acquired by wife in wife's name only, property was presumptively wife's separate property as a matter of law, but husband could rebut presumption by clear and convincing evidence of an agreement or understanding between spouses that property was to be held as community property or husband's separate property. Fact that parties were married when wife acquired property had no bearing on whether spouses had an agreement or understanding regarding property. Presumption could not be overcome by tracing source of funds used to purchase property nor husband's unilateral belief he owned property. Having a reason for allowing title to be taken solely in wife's name did not diminish inference that parties intended property to be wife's separate property.
In re Marriage of Brooks and Robinson - filed December 16, 2008 , Fourth District, Div. Two
Cite as 2008 SOS 6705

Trusts and Estates:
Where testator attempted to devise residue of her estate to her sisters who predeceased her, California's antilapse statute--which requires "issue of deceased transferee take in the transferee's place" as provided by Probate Code Sec. 240, which requires residue to be "divided into as many equal shares as there are living members of the nearest generation of issue"--directed that intended devisees' surviving adult children took by right of representation.
Estate of Mooney - filed December 22, 2008 , First District, Div. One

New Case Alerts from the E-News

Case AlertsThe Section includes New Case Alerts in the E-News that is periodically sent to members of the Section.  Recent New Case Alerts are listed below.  Most cases can be found on the California Courts website. Please note: Opinions more than 120 days old can be found through the process described HERE.

Recent Case Alerts

King v. Lynch - filed April 10, 2012, Fifth District
Cite as F062232
Trust amendments were properly invalidated when they did not comply with the amendment provision in the trust. The court held that given the effect of Probate Code section 15402, when the trust specifies a method for amendment, the settlor cannot amend the trust by using the method of revocation provided in Probate Code section 15401(a)(2).

Estate of Moss - filed March 20, 2012, Fourth District, Div. One
Cite as D058547
Personal service on a party’s attorney of record constituted personal service on that party when the attorney was served with a petition for revocation of a will under Probate Code section 8270.  The court reasoned that because pre-probate contests had already occurred and involved that same party, the petition for revocation was part of the same case and hence could be served on the attorney of record.  The court also held that the bar against successive will contests did not apply to a post-probate contest when that party's earlier contest was never adjudicated.

Donkin v. Donkin - filed March 23, 2012, Second District, Div. One
Cite as B228704
This case held that the probate court had discretion under Probate Code section 3 to determine that the old law governing the enforceability of no-contest clauses (Probate Code sections 21300 through 21322) applied to the possible contest of a trust and amendment thereto, even though the trust became irrevocable after January 1, 2001 and the amendment in question was executed after January 1, 2001. This case held that the probate court did not abuse its discretion by applying the old law and that the beneficiaries’ proposed challenges to the settlor’s capacity to amend, her failure to make distributions, and her failure to create subtrusts would have violated the no-contest clause.

Scott S. v. Superior Court (Lyon) - filed March 14, 2012, Fourth District, Div. Three
Cite as 2012 S.O.S. 1246
Before the court can authorize an LPS conservator to consent to nonroutine, nonemergency medical treatment under Welf. & Inst. Code section 5358.2, the court must find that conservatee lacks capacity to give informed consent and that the treatment is medically necessary, which must be shown by admissible evidence. Hence, when the conservatee objected to a physician's declaration on the grounds of hearsay, that objection should have been sustained.

Bates v. Presbyterian Intercommunity Hospital, Inc. - filed March 12, 2012, Second District, Div. Four
Cite as 2012 S.O.S. 1190
In an elder abuse action, a defendant can recover costs, including expert witness fees, if the plaintiff fails to recover in excess of an offer that the defendant made under Code of Civil Procedure section 998, even though a prevailing defendant could not recover attorneys' fees under the elder-abuse statutes.  The trial court had discretion to award costs under section 998 for services of an expert who did not testify, when that expert aided in the preparation of the case and was qualified.  Furthermore, the costs recoverable under section 998 could be incurred before the time of the settlement offer. 

K. G. v. Meredith
Filed March 8, 2012, First District, Div. Five
Cite as 2012 S.O.S. 1178
To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2.

Christie v. Kimball
Filed January 26, 2012, Second District, Div. Six
Cite as 2012 S.O.S. 392
The probate court’s sua sponte order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets. 

Estate of Kampen
The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets. 

Estate of Kampen
Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. Two
Cite as 2011 S.O.S. 6662
Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches. 
http://www.courtinfo.ca.gov/opinions/documents/A129849.PDF

Trusts and Estates:
Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will.
Estate of Duke - filed December 5, 2011, Second District, Div. Four
Cite as 2011 S.O.S. 6501

Filed March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501- filed March 12, 2012, Second District, Div. FourCite as 2012 S.O.S. 1190In an elder abuse action, a defendant can recover costs, including expert witness fees, if the plaintiff fails to recover in excess of an offer that the defendant made under Code of Civil Procedure section 998, even though a prevailing defendant could not recover attorneys' fees under the elder-abuse statutes.  The trial court had discretion to award costs under section 998 for services of an expert who did not testify, when that expert aided in the preparation of the case and was qualified.  Furthermore, the costs recoverable under section 998 could be incurred before the time of the settlement offer.  K. G. v. MeredithFiled March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501iled March 8, 2012, First District, Div. FiveCite as 2012 S.O.S. 1178To deprive an LPS conservatee or proposed LPS conservatee of the right to refuse or consent to treatment related to his or her own grave disability under Welf & Inst Code section 5357(d), the court must find that the conservatee or proposed conservatee lacks the ability to make rational decisions about his or her treatment.  The conservatee or proposed conservatee has the right to proper notice and an opportunity to be heard on this issue, which in this instance was not satisfied by the obtaining of a temporary conservatorship in accordance with Probate Code section 2250.2. Christie v. Kimball Filed January 26, 2012, Second District, Div. SixCite as 2012 S.O.S. 392The probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of KampenThe probate court’s order directing a trustee to account was not appealable where it did not expressly or impliedly decide any other issues.   The probate court had the power to order an accounting on its own initiative under the court’s general power to supervise trust administration and under Probate Code section 17206, where the parties were already disputing the status of trust assets.  Estate of Kampen Filed November 14, 2011, publication ordered December 9, 2011, First District, Div. TwoCite as 2011 S.O.S. 6662Personal representative who failed to distribute estate for approximately 9 years after the order of final distribution was not surcharged for interest.  The court reasoned that (1) the order of final distribution was not a money judgment under Code of Civil Procedure Section 680.270 and thus prejudgment interest did not accrue under that statute; (2) the personal representative had no duty to invest funds of the estate before distribution; (3) prejudgment interest under Civil Code Section 3287 was inapplicable because there was no money judgment or contract; and (4) the beneficiary’s claim for interest was barred by the doctrine of laches.  Will which set forth testator's intent in the event he predeceased his wife or they died at the same moment, but made no disposition in the event he outlived his wife, as he did, did not render the will ambiguous; existence of a disinheritance clause in the will did not prevent testators' legal heirs from taking under the statutory rules of inheritance where testator had to be considered as having died intestate. Testator's purported oral declaration of intent cannot be used to fill in omitted terms of the will. - filed December 5, 2011, Second District, Div. FourCite as 2011 S.O.S. 6501

Smith v. Cimmet
Oregon estate lacked capacity to sue California attorneys in California because that personal representative’s authority did not extend beyond Oregon.  (Code of Civil Procedure §1913(b)).  The Oregon personal representative was trying to bring a malpractice claim against California attorneys who were retained by the predecessor representative.  To bring the action in California, the Oregon personal representative would have to open an ancillary probate in California and then, if he was appointed as the ancillary representative, he would have the capacity to sue.  The court held that the Oregon personal representative had to be given the opportunity to open an ancillary probate and that under both California and Oregon law, the personal representative has standing to sue attorneys who were retained by a predecessor personal representative if those attorneys were hired to benefit the estate.

Estate of Giraldin - filed September 26, 2011, Fourth District, Div. Three
After the settlor died, the trustee was surcharged for acts committed when the trust was revocable, but the court of appeal reversed and held that the trustee only owed duties to the settlor during that period and that therefore the beneficiaries could not maintain their claim. The court held that the trustee of a revocable trust has no duty to question the settlor's capacity and that the beneficiaries have no say in how the trust is managed during that time. The court also held that when she accepted benefits under the trust, the settlor's wife did not forfeit her claim that she had a community property interest in certain assets held in the trust. Assuming that the doctrine of spousal election applied, it was no impediment to the wife, because the settlor was not purporting to dispose of his wife's community property and because his will did not require that she choose between sharing in his estate or retaining her share of the community property. 
http://www.courtinfo.ca.gov/opinions/documents/G041811.PDF

Fall 2011 Case Alerts

Trusts and Estates:
An earlier decision establishing surviving spouse's status with respect to an estate did not result in res judicata relative to an action alleging surviving spouse's financial elder abuse of decedent.
Estate of Dito – filed August 23, 2011, First District

Family Law:
After non-managing spouse made prima facie showing that assets had disappeared, spouse who had control of community assets had burden of accounting for missing assets
Marriage of Margulis filed August 11, 2011, Fourth District

Trusts and Estates:
The Department of Health Care Services is subject to a statute of limitations of three years after the death of the recipient of benefits to seek recovery against a trust holding the recipient’s assets.
Maxwell-Jolly v. Martin (2011) 188 Cal. App. 4th 559, filed August 11, 2011

Taxation:
Full recognition of charitable deduction that was increased based on audit was not precluded as a condition precedent.
Estate of Petter v. Commissioner of Internal Revenue, Court of Appeals, 9th Circuit 2011 No. 10-71854, August 4, 2011.

Trusts and Estates:
Deposit from purchasers of real property was properly retained by conservator after the purchasers failed to comply with the terms of the escrow.
Conservatorship of Buchenau, (2011) 196 Cal. App. 4th 1031, filed May 31, 2011

Trusts and Estates:
A cause of action for breach of contract by an estate administrator was not barred by the statute of limitations applicable to claims against the decedent.
Dacey v. Taraday, (2011) 196 Cal. App. 4th 962, filed June 21, 2011

Trusts and Estates:
The standard for a trustor’s capacity to execute a simple trust amendment is less stringent than for a more complex document.
Andersen v. Hunt (2011) 196 Cal. App. 4th 722, filed June 14, 2011

Trusts and Estates:
The need for further accounting was not precluded by accord and satisfaction between trust beneficiaries.
Bellows v. Bellows (2011) 196 Cal. App. 4th 505, filed June 9, 2011

Civil Practice:
The Probate Code statute of limitations is inapplicable to a breach of contract claim against the administrator rather than the decedent.
Dacey v. Taraday (2011) 196 Cal. App. 4th 962, filed May 19, 2011

Family Law:
When taken out by both spouses, a life insurance policy listing one spouse as the policy owner was that spouse's separate property under form of title presumption.
In re Marriage of Valli (2011) 195 Cal. App. 4th 776, filed May 18, 2011

Family Law:
When finding that father of minor subject of guardianship petition was unfit parent, the Probate court should have referred the case to child protective services.
Guardianship of Christian G. (2011) 195 Cal. App. 4th 581, filed May 13, 2011

Trusts and Estates:
A trust beneficiary could not be compelled to arbitrate disputes under the trust when the beneficiary had not agreed to do so.
Diaz v. Bukey (2011) 195 Cal. App. 4th 315, filed May 10, 2011

Trusts and Estates:
Cause of action for legal malpractice based on allegedly faulty drafting of partnership agreement did not begin to run until circumstances threatening dissolution of partnership arose.
Callahan v. Gibson, Dunn & Crutcher LLP (2011) 194 Cal. App. 4th 557

Trusts and Estates:
Equitable estoppel may apply to a late filed Marvin action against a decedent’s estate.
McMackin v. Ehrheart (2011) 194 Cal. App. 4th 128, filed April 8, 2011

Trusts and Estates:
When the probate court issued a final ruling as to whether certain funds were part of the estate, a later objection to an accounting based upon the failure to include the funds was precluded.
Estate of Redfield (2011) 193 Cal. App. 4th 1526, filed April 5, 2011

Spring 2011 Case Alerts

Trusts and Estates:
A claim based on a decedent's promise to leave her cohabitant a life estate in real property is governed by the one-year statute of limitations of Code of Civil Procedure Sec.  366.3; equitable estoppel doctrine may be applied to preclude a party from asserting a timeliness defense where that party's wrongdoing has induced another to forbear filing suit.
McMackin v Ehrheart - filed April 8, 2011, Second District, Div. One
http://www.courtinfo.ca.gov/opinions/documents/B224723.PDF

Trusts and Estates:
Where probate court approved settlement of a will contest and dismissed with prejudice petitions by certain beneficiaries claiming that certain moneys were part of the decedent's estate, those beneficiaries are barred by the doctrine of res judicata from relitigating whether those funds were part of the estate.
Estate of Redfield - filed April 5, 2011, Second District, Div. Three Cite as 2011 S.O.S. 1765

Torts:
A release for consideration of one joint tortfeasor operates as a release of the joint and several liability of the other joint tortfeasors whose independent acts concurrently produced a single injury.
Leung v. Verdugo Hills Hospital - filed March 23, 2011, Second District, Div. Four

Civil Procedure:
Open-ended retainer agreement providing a structure for establishing future attorney-client relationships on an "as-requested" basis did not create a contractual ongoing attorney-client relationship.
Banning Ranch Conservancy v. Superior Court (City of Newport Beach) - filed March 22, 2011, Fourth District, Div. Three

Trusts and Estates:
Son claiming a right to inherit his father's estate as an omitted heir had standing to challenge probate court's interim award of attorneys' fees and costs to executor because such an award would place son at a financial disadvantage by diminishing the estate should son prevail in the will contest. Personal representatives or executors who are also beneficiaries are not incapable of participating "as a party to assist the court" under Probate Code Sec. 11704(b).
Estate of Bartsch - filed March 22, 2011, First District, Div. One

Trusts and Estates:
Where petition to probate will had the practical effect of challenging an earlier trust, filing of such petition was an "action to contest the trust" within the meaning of Probate Code Sec. 16061, which requires that such an action be brought within 120 days following service of notice by the trustee. Will was dictated and signed by decedent and handwritten by another person--but was defective in form because it contained no witnesses' signatures. Trial court did not err in admitting it to probate under Sec. 6110(c)(2) based on clear and convincing evidence of decedent's intent in the form of testimony by two witnesses who saw him sign it. Public policy in favor of validating wills that reflect decedents' intent supports retroactive application of Sec. 6110(c)(2) to wills executed before its effective date. Lack of testamentary language, use of the word will, or reference to death did not preclude finding that document was intended by decedent to be his will.
Estate of Stoker - filed March 3, 2011, Second District, Div. Six

Real Property:
A special power of attorney coupled with an interest in property is terminated upon extinguishment of the interest; erroneous jury instruction as to this principle was prejudicial. Plaintiffs were not required to offer evidence of mental suffering to support their claim of financial elder abuse.
Bonfigli v. Strachan - filed February 23, 2011, First District, Div. Four

Taxation:
Taxpayer could not rely on substantial compliance doctrine to excuse his failure to properly request an extension of time to pay estate tax where he failed to state the period of extension required because such information was essential for IRS to assess reasonableness of request; failure of IRS to notify taxpayer that his extension request was incomplete was insufficient to support claim of equitable estoppel. Taxpayer's reliance on an accountant to obtain an extension did not constitute "reasonable cause" for his failure to pay estate taxes in a timely manner.
Baccei v. United States - filed February 16, 2011, United States Court of Appeals, Ninth Circuit

Individual Rights:
Public administrator's failure to give notice and an opportunity to respond to family of decedent before taking items from decedent's house, absent extraordinary circumstances, violated due process. Official was not entitled to qualified immunity because the law was clearly settled in this area.
Mathis v. Glover - filed February 1, 2011, United States Court of Appeals, Ninth Circuit

Trusts and Estates:
Civil Code Sec. 1624(a)(7), cannot be construed as applying to the transfer of shares of stock to a trust; plain meaning of the words of the statute manifests a legislative intent to limit the statute's application to agreements to loan money or extend credit made by persons in the business of loaning money or extending credit. No California authority invalidates a transfer of shares of stock to a trust because a general assignment of personal property did not identify the shares.
Kucker v. Kucker - filed January 26, 2011, Second District, Div. Six

Family Law:
Form-of-title presumption simply does not apply in cases in which it conflicts with the presumption that one spouse has exerted undue influence over the other. Undue-influence presumption applied where wife testified that she freely and voluntarily executed a quitclaim deed in favor of husband to obtain a more favorable interest rate on a loan to refinance based on his promise to restore her name to the title once the refinance was complete. Trial court lacks discretion to deny attorney fees if aggrieved spouse shows a breach of fiduciary duty as to the management and control of community property that does not rise to the level of fraud, malice, or oppression.
In re Marriage of Fossum - filed January 28, 2011, Second District, Div. One

Trusts and Estates:
In suit for financial abuse of an elderly person, trial court correctly applied collateral source rule by instructing jury that government benefits received by victim based on her long-standing disabilities and financial need could not be considered in awarding damages.
Conservatorship of McQueen - filed January 14, 2011, First District, Div. Four

Trusts and Estates: The term “issue” included issue born out of wedlock when the terms of the trust did not provide a contrary definition.
Citizens Business Bank v. Carrano - filed November 5, 2010, Second Dist., Div. Eight

Trusts and Estates: The fact that a plaintiff's interests in litigation were personal and nonpecuniary did not bar an award of fees under the private attorney general doctrine.
Conservatorship of Whitley - filed Cal.Sup.Ct.; November 8, 2010

Trusts and Estates: Lack of explicit statement that trust's no-contest clause also applied to subtrusts did not entitle petitioner to a "safe harbor" determination that the clause did not apply, where intent to apply the clause to the subtrusts was implicit in the terms and it was unreasonable--considering the "whole of the trust"--to interpret the clause as inapplicable to the subtrusts. Petition for determination that designated successor trustee for trust was not entitled to appointment as successor trustee for subtrusts was a "contest" because it directly contravened trustor's express directive.
Fazzi v. Klein - filed December 14, 2010, Fourth District, Div. Three

Trusts and Estates:
Prospective beneficiary of a will could not maintain a cause of action for legal malpractice against the attorney who drafted the will where it was not executed before the testator's death.
Hall v. Kalfayan - filed December 8, 2010, Second District, Div. Four

Trusts and Estates:
Where husband executed a modified marital settlement agreement with his ex-wife that provided for continuing support payments to the ex-wife after his death, and husband subsequently remarried, the trial court did not err in holding that real property the husband's widow held with him in joint tenancy could be considered under Probate Code Sec. 13551 in determining the extent of the widow's personal liability to the ex-wife. The scope of a surviving spouse's personal liability encompasses all property which, at the time of a decedent's death, is characterized as community property or the decedent's separate property, regardless of the manner in which title to the property is held.
Kircher v. Kircher - filed November 4, 2010, First District, Div. Three

Trusts and Estates:
Beneficiaries of decedent's trust who had already been paid the amounts they were owed under the trust were not "interested persons" for purposes of pursing an elder abuse action after decedent's death pursuant to Welfare and Institutions Code Sec. 15657.3(d); beneficiaries' status as beneficiaries of decedent's trust never gave them standing to pursue the elder abuse action because the beneficial interest they had in the trust estate was not one that could have been "affected by" the elder abuse action. The only way beneficiaries would have standing would be as decedent's successors in interest under subdivision (d)(1)(B) if the requirements of Probate Code Sec. 259 were met as to the residuary beneficiaries. Since defendants' summary judgment motions were based on the premise that plaintiffs lacked standing to pursue any cause of action that belonged to decedent because they could not show defendants were disinherited under Sec. 259, defendants did not have to separately address plaintiffs' claims or make a prima facie showing as to those causes of action. Even though liability for abuse under Sec. 259 could be premised on aiding and abetting abuse by another or on a conspiracy to commit the act of abuse, it still must be shown that the person who is liable for the abuse acted in bad faith and was reckless, oppressive, fraudulent, or malicious. Plaintiffs did not demonstrate prejudicial error in the denial of their motion to compel one defendant to respond to discovery since they did not show that defendant's answers would have led to admissible evidence sufficient to raise a triable issue of fact as to whether defendant acted in bad faith and engaged in reckless, malicious, oppressive, or fraudulent conduct.
Lickter v. Lickter - filed October 27, 2010, Third District

Family Law:
Evidence supported finding that house was community property based on violation of marital fiduciary duty when husband failed to keep promise to put wife on title after purchase (Rubin, Acting P. J.)
Starr v. Starr - filed October 18, 2010, Second District, Div, Eight  

Fall 2010 Case Alert

Bankruptcy:
A state probate court's findings were entitled to preclusive effect, and a tortious interference with inheritance counterclaim was a “non-core proceeding” for which the bankruptcy court could issue only proposed findings of fact and conclusions of law.
Marshall vs. Stern - filed March 19, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
A probate court has discretion under Probate Code § 17211(b) to award attorney fees to a trust beneficiary who contests a trustee's account by challenging the trustee's refusal to make a final distribution based on a collateral dispute among the parties that did not pertain to the trust.
Leader v. Cords - filed March 23, 2010, Fourth District, Div. One

Trusts and Estates:
A probate court erred in upholding a certificate of independent review when the sufficiency of the counseling and independence of the certifying attorney presented a triable issue of material fact.
Estate of Winans - filed March 26, 2010, First District, Div. One

Trusts and Estates:
Trust beneficiaries have standing to seek restitution for misappropriated funds, even when their rights in the decedent's estate have not been conclusively determined.
Estate of Kraus - filed April 27, 2010, Second District, Div. Five

Criminal Law:
Decedent was convicted of operating a Ponzi scheme. While the decedent's death during a pending appeal provided grounds to abate the criminal conviction and its associated restitution order, decedent's stipulation to the appointment of a receiver prior to his death was not dependent upon his later conviction. As a result, the receivership remained in force following the decedent's death.
United States v. Rich - filed May 3, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
The guardian of the decedent's minor children was entitled to priority over the public administrator for appointment as personal representative.
Estate of Lewis - filed May 6, 2010, Fourth District, Div. Three

Trusts and Estates:
Brother who alleged his sister and brother-in-law interfered with his expected inheritance by unduly influencing their mother to sign a codicil to her will that gave $1,000,000 each to sister's children could not bring a cause of action in tort because he had an adequate remedy in probate.
Munn v. Briggs - filed June 10, 2010, Fourth District, Div. One

Trusts and Estates:
Civil action alleging defendants breached their duties as trustees and seeking an injunction to compel defendants to produce an account--in an action in which the existence of a trust was in dispute--was not a contest of a trustee's account within the meaning of Probate Code Sec. 17211(b), which authorizes recovery of attorney fees by a beneficiary who brings such a contest if the trustee unreasonably opposes the contest.
Soria v. Soria - filed June 14, 2010, Fourth District, Div. Three

Trusts and Estates:
A trustee who successfully hid the existence of the trust from a beneficiary was precluded from asserting laches or relying upon the statute of limitations to defeat claims later brought by the beneficiary.
Quick v. Pearson - filed July 1, 2010, Second District, Div. Three

Trusts and Estates:
When donative transfer was allegedly made in violation of Probate Code Sec. 21350--which imposes restrictions on the making of such transfers to certain categories of beneficiaries, including one who has a fiduciary relationship with the donor--and the transfer became irrevocable while the donor was still alive, administrator of donor's estate had three years from the date he became apprised of the relevant facts in which to bring an action to set aside the transfer.
Estate of Hastie - filed July 22, 2010, First District, Div. Two

Trusts and Estates:
District court did not err in granting summary judgment to trustees of Hawaii state agency that administered a portion of a public trust created, along with four other purposes, to benefit native Hawaiians in suit by native Hawaiians because federal law did not oblige the trustees to use proceeds only for native Hawaiians. Where trust gave trustees broad discretion to serve its purposes, the district court properly found that challenged expenditures were sufficiently directed to one or more trust purposes to fall within the range of permissible spending. State's spending of far more money each year on public education--one of the enumerated trust purposes--than it received from the trust did not deprive any beneficiary of standing to bring a claim for breach of trust for lack of injury.
Day v. Apoliona - filed July 26, 2010

Summer 2010 Case Alerts

Bankruptcy:
A state probate court's findings were entitled to preclusive effect, and a tortious interference with inheritance counterclaim was a “non-core proceeding” for which the bankruptcy court could issue only proposed findings of fact and conclusions of law.
Marshall vs. Stern - filed March 19, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
A probate court has discretion under Probate Code § 17211(b) to award attorney fees to a trust beneficiary who contests a trustee's account by challenging the trustee's refusal to make a final distribution based on a collateral dispute among the parties that did not pertain to the trust.
Leader v. Cords - filed March 23, 2010, Fourth District, Div. One

Trusts and Estates:
A probate court erred in upholding a certificate of independent review when the sufficiency of the counseling and independence of the certifying attorney presented a triable issue of material fact.
Estate of Winans - filed March 26, 2010, First District, Div. One

Trusts and Estates:
Trust beneficiaries have standing to seek restitution for misappropriated funds, even when their rights in the decedent's estate have not been conclusively determined.
Estate of Kraus - filed April 27, 2010, Second District, Div. Five

Criminal Law:
Decedent was convicted of operating a Ponzi scheme. While the decedent's death during a pending appeal provided grounds to abate the criminal conviction and its associated restitution order, decedent's stipulation to the appointment of a receiver prior to his death was not dependent upon his later conviction. As a result, the receivership remained in force following the decedent's death.
United States v. Rich - filed May 3, 2010, Ninth Circuit Court of Appeals

Trusts and Estates:
The guardian of the decedent's minor children was entitled to priority over the public administrator for appointment as personal representative.
Estate of Lewis - filed May 6, 2010, Fourth District, Div. Three

Trusts and Estates:
Brother who alleged his sister and brother-in-law interfered with his expected inheritance by unduly influencing their mother to sign a codicil to her will that gave $1,000,000 each to sister's children could not bring a cause of action in tort because he had an adequate remedy in probate.
Munn v. Briggs - filed June 10, 2010, Fourth District, Div. One

Trusts and Estates:
Civil action alleging defendants breached their duties as trustees and seeking an injunction to compel defendants to produce an account--in an action in which the existence of a trust was in dispute--was not a contest of a trustee's account within the meaning of Probate Code Sec. 17211(b), which authorizes recovery of attorney fees by a beneficiary who brings such a contest if the trustee unreasonably opposes the contest.
Soria v. Soria - filed June 14, 2010, Fourth District, Div. Three

Trusts and Estates:
A trustee who successfully hid the existence of the trust from a beneficiary was precluded from asserting laches or relying upon the statute of limitations to defeat claims later brought by the beneficiary.
Quick v. Pearson - filed July 1, 2010, Second District, Div. Three

Trusts and Estates:
When donative transfer was allegedly made in violation of Probate Code Sec. 21350--which imposes restrictions on the making of such transfers to certain categories of beneficiaries, including one who has a fiduciary relationship with the donor--and the transfer became irrevocable while the donor was still alive, administrator of donor's estate had three years from the date he became apprised of the relevant facts in which to bring an action to set aside the transfer.
Estate of Hastie - filed July 22, 2010, First District, Div. Two

Trusts and Estates:
District court did not err in granting summary judgment to trustees of Hawaii state agency that administered a portion of a public trust created, along with four other purposes, to benefit native Hawaiians in suit by native Hawaiians because federal law did not oblige the trustees to use proceeds only for native Hawaiians. Where trust gave trustees broad discretion to serve its purposes, the district court properly found that challenged expenditures were sufficiently directed to one or more trust purposes to fall within the range of permissible spending. State's spending of far more money each year on public education--one of the enumerated trust purposes--than it received from the trust did not deprive any beneficiary of standing to bring a claim for breach of trust for lack of injury.
Day v. Apoliona< - filed July 26, 2010

Spring 2010 Case Alerts

Trusts and Estates:
Court hearing Lanterman-Petris-Short Act conservatorship proceeding did not violate the act or the conservatee's constitutional right of due process by accepting representation of conservatee's attorney--that conservatee was waiving his right to be present for hearing and was not contesting petition--where attorney personally discussed the proceedings with conservatee, and there was no allegation that attorney misrepresented the contents of that discussion.
Conservatorship of John L. - filed February 25, 2010 California Supreme Court

Trusts and Estates:
Probate court abused its discretion in awarding fees to trustee without any explanation for what it concluded trustee had reasonably incurred those fees and without specifying the amount of that award. An assessment of reasonableness for a fee award depends not only on what fees were reasonably incurred but also on whether such fees are reasonably and prudently incurred for the trust.
Donahue v. Donahue - filed February 24, 2010 , Fourth District, Div. Three

Trusts and Estates:
A provision in a will that excluded unnamed was heirs not sufficient to defeat the operation of the anti-lapse statute.
Estate of Tolman - February 11, 2010 , Second District, Div. Eight

Trusts and Estates:
Widow was not automatically entitled to surviving spouse rights under ERISA or Internal Revenue Code where husband established an IRA, in part using funds from a 401(k) plan from prior employer.
Charles Schwab & Co., Inc. v. Debickero - January 22, 2010 - 9th U.S. Circuit Court of Appeals

Trusts and Estates:
A person with no connection to the family of minors lacked standing to petition for appointment of guardian of estates for newborn children.
Suleman v. Superior Court (Petersen) - filed January 8, 2010 - Fourth District, Div. Three

Trusts and Estates:
The filing of a petition to modify a special needs trust was not a violation of a trust's no contest provision where the modification was necessary to effectuate the settlor's intent.
Balian v. Balian - filed December 11, 2009 - Second District, Div. Five

Trusts and Estates:
The future distributions owed to a beneficiary could be used to satisfy attorney's fees incurred in defending the trust against a bad faith claim by the beneficiary.
Rudnick v. Rudnick - filed December 3, 2009 - Fifth District

Trusts and Estates:
Where the breach of fiduciary duty by a beneficiary-trustee resulted in harm to the trust, their interest in the spendthrift trust could properly be impounded to satisfy the claim.
Chatard v. Oveross - filed November 30, 2009 - Second District, Div. Four

Trusts and Estates:

A one-year statute of limitations applied to a lawsuit against a trust based on actions of a deceased trustee.
1680 Property Trust v. Newman Trust - filed November 17, 2009 - Second District, Div. Five

Trusts and Estates:

A trust beneficiary had standing to sue a third party for their role in a former trustee's breach of the trust.
King v. Johnston - Filed November 9, 2009 - Fourth District, Div. One

Winter 2010 Case Alerts

Trusts and Estates:
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.
Rudnick v. Rudnick - filed December 3, 2009 , Fifth District
Cite as F056587

Trusts and Estates:
The beneficiary of a spendthrift trust who also acted as trustee and committed a breach causing financial harm to the trust could have her interest in the trust estate impounded to satisfy a claim arising from her misfeasance because the damage resulting from her breach would otherwise be sustained by the beneficiaries.
Chatard v. Oveross - filed November 30, 2009 , Second District, Div. Four
Cite as B213392

Trusts and Estates:
Where two individuals entered into a real estate partnership acting in their capacity as trustee of a family trust, the partners were the individuals, not the trusts. A trust is a relationship by which one person or entity holds property for the benefit of another and is not a separate entity from its trustees; trustees act as individuals when carrying out trust business.
Presta v. Tepper - filed October 28, 2009 , publication ordered November 24, 2009 , Fourth District, Div. Three
Cite as G040427

Civil Procedure:
Code of Civil Procedure Sec. 366.2's one-year period of limitations for actions against a deceased person is applicable to fraud claims based on statements of a decedent on behalf of a trust of which decedent was trustor and trustee, even though fraud action is against successor trustee.
1680 Property Trust v. Newman Trust - filed November 17, 2009 , Second District, Div. Five
Cite as B207613

Trusts and Estates:
Trust beneficiary had standing to sue fellow beneficiary for aiding trustee in transferring property out of trust in breach of trustee's duties. Trial court erred in failing to consider and make necessary findings as to whether plaintiff could recover from defendant under a theory that after trustee's death, defendant--by holding herself out as trustee and purporting to perform trustee's duties--became a trustee de son tort and could thus be held liable for breach of those duties.
King v. Johnston - filed November 9, 2009 , Fourth District, Div. One
Cite as D054136

Trusts and Estates:
A challenge to a surviving spouse's mental capacity to transfer trust assets and appoint a successor trustee did not violate no-contest clause in a family trust. Proceeding contesting a settlor's mental competence to exercise rights under a trust does not amount to an attack on the trust itself, unless it seeks to thwart the estate plan established by the trust.
Johnson v. Greenelsh - filed October 29, 2009
Cite as S166747

Trusts and Estates:
No authority supported objector's proposition that Code of Civil Procedure Sec. 631.8 does not apply to probate proceedings. Guardianship accountings require the same procedure for filings and objections as conservatorship proceedings. Where trust was specifically created to provide for minor's "health, maintenance, education, travel, and welfare, and general welfare," minor's father did not need to exhaust his own resources to provide for minor before dipping into trust assets. Trial court did not abuse its discretion in overruling objection to handling of wrongful death proceeds that funded trust or excluding certain evidence absent any demonstration of error by objector. Totality of facts supported trial court's finding that objector filed objection in bad faith and without reasonable cause. Probate Code Sec. 2622.5 specifically provides compensation for fees incurred to defend an account from unreasonable objections and does not preclude compensation for costs associated with collecting those fees.
Guardianship of K.S. - filed September 30, 2009 , Sixth District
Cite as H032581

Trusts and Estates:
| Where testators instructed that beneficiary's debt to them be offset against that beneficiary's distribution, beneficiary's assertion that his debt was not enforceable violated trust's no-contest provision since beneficiary's pleading attacked testators' plans to distribute their property.
Cook v. Cook - filed September 29, 2009 , Second District, Div. Six
Cite as B205793

Trusts and Estates:
Neither plain language nor legislative history of Probate Code Sec. 21351 supports judicial creation of a fraud or undue-influence exception to rule that a spouse may receive a donative transfer from a dependent or elder adult.
Estate of Pryor - filed September 29, 2009 , Second District, Div. Four
Cite as B207402

Family Law:
Standard of review on a question of annulment is substantial evidence; limitations period and standing provisions are dependent on the ground for annulment invoked. Since a third party is never accorded standing to seek annulment based on fraud, a cause of action does not survive defrauded spouse's death.
Pryor v. Pryor - filed September 29, 2009 , Second District, Div. Four
Cite as B207398

Fall 2009 Case Alerts

Trusts and Estates:
Where testator bequeathed estate to her son and daughter and son disinherited his children, trial court erred in denying petition for an evidentiary hearing on issue of whether son predeceased testator, in which case his children would take his share from testator's estate under anti-lapse statute.
Estate of Lensch - filed August 31, 2009, publication ordered September 9, 2009, First District, Div. Two
Cite as A123296

Civil Procedure:
Where plaintiff filed suit against her ex-husband's attorneys, asserting that their actions--revising estate plan for ex-husband's mother in a manner that appeared to disinherit ex-husband, participating in probate court proceedings to effectuate this revised plan, and defending ex-husband and his siblings in litigation by plaintiff--unlawfully aided a child support obligor to avoid paying child support by transferring or concealing assets, plaintiff's action was predicated on protected activity since counsel's conduct was neither inherently criminal nor otherwise outside the scope of normal, routine legal services even if those actions had the effect of defeating or forestalling plaintiff's ability to execute her judgment for child support. Because ex-husband's expectancy as a probable heir of mother's estate was not an "asset," plaintiff had no reasonable probability of success as to her child support evasion claim as to those actions taken by attorneys to effectuate and defend mother's estate plan. As those actions took place prior to effective date of child support evasion statute and subsequent actions taken by attorneys in probate proceedings, and the litigation defense were absolutely protected by the litigation privilege, plaintiff had no probability of prevailing as to her remaining claims. Trial court did not abuse its discretion in determining the appropriate amount of attorney fees to award.
Cabral v. Martins - filed August 21, 2009, publication ordered September 4, 2009, First District, Div. Four
Cite as A120657

Trusts and Estates:
Where bank account contract incorporated California law relating to such agreements except to the extent that the contract explicitly varies from California law, trial court erred in finding such contract was not governed by California's Multiple-Party Accounts Law absent varying contractual provisions. CAMPAL governs whether a person is a proper party to the account unless the terms of the account vary from CAMPAL's provisions, and CAMPAL does not deprive account holders of recourse against financial institutions that permit a party to withdraw funds from a multiple-party account when the person is not a proper party to the account pursuant to CAMPAL and the account contract.
Stevens v. Tri Counties Bank - filed September 1, 2009, Third District Cite as C058154

Trusts and Estates:
Petition by contingent remainder beneficiaries, seeking information with regard to how trustee who was also income beneficiary was spending trust funds, would not violate trust's no-contest clause.
Salter v. Lerner - filed July 28, 2009, publication ordered August 19, 2009, First District, Div. Three
Cite as A121525

Civil Procedure:
Termination based upon violation of the compulsory cross-complaint rule is a "technical" disposition rather than one "on the merits." Because malice concerns a party's actual mental state, it necessarily presents a question of fact; a reasonable trier of fact could readily find that defendant acted without probable cause when he sued his former clients in tort, threatening them with punitive damages, merely for objecting to his fees and that defendant had acted with spite. Events after defendant's complaint against plaintiffs was filed and dismissed had no logical bearing on question of probable cause because essence of that element was tenability of defendant's claims based upon his knowledge and belief at the time of filing. Fact finder would be entitled to disbelieve defendant's asserted reasons for dismissing action against plaintiff and so that declaration could not establish as a matter of law that plaintiffs would be unable to prove favorable termination. When a malicious prosecution action is stayed on the ground that an appeal from the underlying judgment is pending, and the appeal is thereafter resolved adversely to the malicious prosecution plaintiff, a voluntary dismissal by him in response to that event is a technical determination and not a termination on the merits in favor of his opponent.
Drummond v. Desmarais - filed August 5, 2009, Sixth District
Cite as H031659

Trusts and Estates:
Standards of professional responsibility prepared by the State Bar are not regarded as court orders or local rules for purposes of awarding sanctions, and trial courts do not have responsibility to directly enforce these rules, even when violations of court orders are alleged, since disciplinary authority is lodged in the Supreme Court, which has delegated it to the State Bar Court. Where probate courts issued an order appointing attorney, and court-appointed attorney requested that other attorneys in case make contact with client only though her, violations of that request would amount to violations of the Rules of Professional Conduct, not of a court order. Probate court's determination that counsel's disregard of such a request by court-appointed attorney justified setting a sanctions hearing and finding that counsel had violated a court order was incorrect and exceeded probate court's discretion.
Conservatorship of Becerra - filed July 28, 2009, Fourth District, Div. One
Cite as D053519

Trusts and Estates:
Trial court order removing counsel, based on erroneous legal conclusion that counsel had a conflict of interest, was not entitled to deference. While an attorney may have liability to an intended beneficiary of a will who, because of the attorney's error, does not receive a bequest that testator had intended to grant as a result of negligent performance of a contract, such potential negligence liability does not bring third-party beneficiaries of a contract to draft a will into an attorney-client relationship. An attorney who has drafted a will is not bound to a beneficiary by the duties of an attorney to a client because beneficiary is not a client and does not become a successor client just because the will becomes irrevocable upon testator's death. Attorney for executor does not have a conflict of interest merely because he represents one beneficiary of a will in a dispute with another beneficiary unless such representation presents a conflict between the executor and the represented beneficiary.
Baker Manock & Jensen v. Superior Court (Salwasser) - filed July 22, 2009, Fifth District
Cite as F056973

Summer 2009 Case Alerts

Trusts and Estates:
Decedent's authorization of law firm to act as his "authorized representative" regarding his application for Medi-Cal eligibility and benefits created an agency relationship that was revoked by decedent's death.
Smith v. Shewry - filed April 21, 2009, publication ordered May 11, 2009, Second District, Div. Four
Cite as B207305

Taxation:
If a third party who has no direct interest in tax litigation pays fees on behalf of a taxpayer, that taxpayer "incurs" fees so long as he assumes either an absolute obligation to repay the fees--regardless of whether he successfully moves for a fee award--or a contingent obligation to pay the fees in the event that he is able to obtain a fee award.
Morrison v. Commissioner of Internal Revenue - filed May 13, 2009
Cite as 06-75332

Family Law:
After a conservatorship has been established, a conservatee may file an initial petition for rehearing to challenge her status as a conservatee at any time and is only required to wait six months before filing a another petition for rehearing.
Conservatorship of Amanda B. - filed May 15, 2009, Fourth District, Div. One
Cite as D053732

Trusts and Estates:
Where statutory rules governing the law of intestate succession required decedent's estate be passed onto decedent's first cousins, estate was to be divided into as many shares as there were first cousins who survived decedent and first cousins who predeceased the decedent but left surviving issue of any generation. Surviving issue of a predeceased heir entitled to inherit was not limited to the first generation.
Estate of Beckel - filed May 20, 2009, Fifth District
Cite as F055384

Trusts and Estates:
Where petitioner sought determination that handwritten notations on trust document that reduced petitioner's share of a trust asset were not part of the terms of the trust, such notations were an attempt to amend the trust; since the "amendment" was not part of the original trust agreement, the challenge to its validity was not a contest under Probate Code Sec. 21305(a)(3).
Cory v. Toscano - filed June 8, 2009, Fifth District
Cite as F055231

Family Law:
Protective order under Elder Abuse and Dependent Adult Civil Protection Act may be issued on the basis of evidence of past abuse without any particularized showing that the wrongful acts will be continued or repeated. Issuance of protective order was an abuse of discretion where judge acknowledged that decision was "tipp[ed]" by defendant's counsel's aggressive and confrontational cross-examination of plaintiff, which judge assumed was consistent with defendant's desires; counsel's tone of voice or style of examination is not evidence, and cannot be the basis for the issuance of a protective order under the Elder Abuse Act.
Gdowski v. Gdowski - filed June 23, 2009, Fourth District, Div. Three
Cite as G040975

Taxation:
 Income beneficiaries of a trust that owned a shopping center complex had a present interest in improvements on the property constructed and owned by lessee and sublessees because such improvements were part of the property that had to be surrendered to the lessor in good condition at the close of the lease. By receiving rent income from trust property, beneficiaries had beneficial use of that property even though they did not have legal title. A lifetime beneficiary receiving the rental value of a parcel of real property is considered under the law to be receiving value substantially equal to the value of the fee interest.
Phelps v. Orange County Assessment Appeals Board No. 1 (Guillory) - filed May 27, 2009, publication ordered June 29, 2009, Fourth District, Div. Three
Cite as G040428

Spring 2009 Case Alerts

Trusts and Estates:
California Department of Health Care Services' claim for Medi-Cal expenses paid on behalf of decedent were not governed by general Probate Code provisions for creditor's claims but by specific provisions for creditor's claims by public entities. 
Shewry v. Wooten - filed February 27, 2009, publication ordered March 
24, 2009 , First District, Div. Three 
Cite as A120402 

Trusts and Estates:
Beneficiary's contention that ambiguous language in trust documents was result of scrivener's error and should therefore be reformed in accordance with grantors' intent did not violate trusts' no-contest clauses. Trial court could excuse compliance with trust provision--providing for a conclusive presumption that survivor did not exercise her limited power of appointment over specified property if survivor's will or codicil was not filed within 60 days of her death--if survivor exercised her limited power of appointment in a way that approximated the manner prescribed by trust documents and that did not defeat a significant purpose of trustors. 
Giammarrusco v. Simon - filed March 12, 2009 , Second District, 
Div. One 
Cite as B199998

Torts:
Testator's lawyer owes no duty of care to a nonclient who alleges he or she was a potential beneficiary of the testator's estate in the absence of an executed will or trust instrument expressly reflecting the testator's intent. Testator's lawyer owes no duty of care to a nonclient who was previously named in a will or trust instrument executed by testator and who alleges testator intended to revise his or her estate plan to increase the gift to the beneficiary.
Chang v. Lederman - filed March 16, 2009 , Second District, Div. Seven 
Cite as B199813 

Family Law:
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest--is not facially unconstitutional by adopting the best interests of a child as standard for terminating parental rights. Court of appeal erred in barring termination of father's parental rights without a finding of unfitness if father could demonstrate a commitment to parental responsibility where father was qualified to assert his rights as a presumed father but expressly waived those rights when child was placed in guardianship. 
In re Charlotte D. - filed March 19, 2009 
Cite as S142028

Family Law:
Probate Code Sec. 1516.5--which authorizes termination of parental rights when a probate guardianship has continued for at least two years, and trial court finds that adoption by guardian would be in child's best interest--is not facially unconstitutional because a showing of current unfitness is not always necessary when a court terminates parental rights after parent-child family unit has ceased to exist and parent's entitlement to custody is not at issue; when child develops an interest in a stable, continuing placement, and guardian acquires a recognized interest in the care and custody of child; and when statute requires trial court to balance all familial interests in deciding what is best for child. Trial courts have discretion to determine on a case-by-case basis whether to apply Sec. 1516.5 to a guardianship in existence on its effective date. Where mother had not sought visitation during more than three and a half years of probate guardianship and did not see child for an even longer period, reunification was a remote possibility, and retroactive application of Sec.1516.5 was consistent with due process. 
Guardianship of Ann S. - filed March 19, 2009 
Cite as S143723 

Family Law:
The pre-retirement death of a pension plan participant ordinarily irrevocably vests the right to survivor benefits in the existing spouse, but a domestic relations order possessed by a former spouse before the plan participant's death may be qualified postmortem as a "qualified domestic relations order" under the Employee Retirement Income Security Act of 1974 where it substantially complies with ERISA's specificity requirements. When a pension plan participant dies or retires before a former spouse secures an order awarding that spouse any interest in the plan, a domestic relations order entered before the death that does not award the former spouse an interest in the participant's pension plan, but simply "reserves jurisdiction" over the plan, provides an inadequate basis for entry nunc pro tunc of either a QDRO under ERISA or of an order determining the former spouse's interest that later may be qualified as a QDRO. 
In re Marriage of Padgett - filed March 25, 2009 , First District, Div. Two 
Cite as A120644 

Trusts and Estates:
Time limit for admitting new or competing wills to probate under Probate Code Sec. 8226(c) does not apply to proponent of a will who did not receive notice of the petition for letters of administration.
Kelly v. Human Rights Campaign, Inc . - filed April 1, 2009 , Third District 
Cite as C058941 

Trusts and Estates:
Proposed petition by successor trustee to marshal assets in two trusts fell within safe harbor of no-contest provision.   
Bradley v. Gilbert - filed April 1, 2009 , Second District, Div. Seven 
Cite as B201357 

Civil Procedure:
Trial court did not abuse its discretion in denying defendant's motion to compel arbitration where codefendants were third parties unaffected by arbitration agreement and plaintiffs asserted causes of action as successors in interest of decedent as well as in their individual capacities as third parties not bound by the arbitration agreement.
Birl v. Heritage Care LLC - filed March 11, 2009 , publication ordered April 8, 2009 , Second District, Div. Two 
Cite as B206952 

Individual Rights:
Where an out-of-state resident who was born in California petitioned for issuance of a new California birth certificate reflecting her gender reassignment, Health and Safety Code requirement that such a petition be filed in the county of petitioner's residence--which did not permit a change of gender on a birth certificate--violated the Equal Protection clause and Privileges and Immunities clause.
Somers v. Superior Court of San Francisco City and County - filed 
April 10, 2009 , First District, Div. One 
Cite as A123445 

Trusts and Estates:
Homeowners insurer had standing in probate court to challenge validity of judgment claim against decedent's estate (Nicholson, J.) 
Estate of Prindle – filed April 20, 2009 , Third District 
Cite as C055832 

Individual Rights:
Statutory provision allowing state to seek reimbursement from estate of a pretrial detainee committed to a state hospital does not violate equal protection because pretrial detainees are not similarly situated to inmates transferred to state hospital for treatment while incarcerated. Legislature also had a rationale basis for treating two categories of patients differently.
Conservatorship of Edde - filed May 1, 2009 , Fifth District 
Cite as F055054  

December 2008 - January 2009 New Case Alert:

Trusts and Estates:
Where purchaser defaulted on agreement to buy property from estate and property was resold at a lower price, Probate Code Sec. 10350(e)(1) authorized probate court to award estate damages in an amount equal to difference between defaulting and successful purchase prices. Because estate was entitled to retain defaulted buyer's deposit as statutory award for damages, it made no legal difference that deposit amount covered both estate's interest in property and that of co-owner because Sec.10350(e)(1) did not authorize a pro rata share of damages based on sellers' respective interests in the property.
Estate of Felder - filed October 9, 2008, Second District, Div. Five
Cite as 2008 SOS 5706

Trusts and Estates:
Where husband and wife entered into an inter vivos trust that became irrevocable upon death of either spouse, wife could not withdraw her share of community property from trust after husband's death. Joint trust was irrevocable following husband's death and precluded wife from withdrawing any property. Irrevocable trusts are binding, even on their trustors.
Aguilar v. Aguilar - filed November 6, 2008 , Fourth District, Div. Three
Cite as 2008 SOS 6103

Civil Procedure:
Trial court erred in making a wholly independent evaluation of trial evidence and rejecting jury's findings of fact when fashioning equitable relief founded on same evidence and same operative facts as jury's verdict. In a mixed trial of legal and equitable issues where legal issues are first tried to a jury, court must follow jury's factual determinations on common issues of fact. Where legal causes of action and equitable defense were founded on distinct facts, jury's factual determinations on legal claims were not binding. Trial court did not abuse its discretion in ruling upon equitable issues after submitting matter for jury determination.
Hoopes v. Dolan - filed November 12, 2008 , First District, Div. Four
Cite as 2008 SOS 6124

Family Law:
Where property was acquired by wife in wife's name only, property was presumptively wife's separate property as a matter of law, but husband could rebut presumption by clear and convincing evidence of an agreement or understanding between spouses that property was to be held as community property or husband's separate property. Fact that parties were married when wife acquired property had no bearing on whether spouses had an agreement or understanding regarding property. Presumption could not be overcome by tracing source of funds used to purchase property nor husband's unilateral belief he owned property. Having a reason for allowing title to be taken solely in wife's name did not diminish inference that parties intended property to be wife's separate property.
In re Marriage of Brooks and Robinson - filed December 16, 2008 , Fourth District, Div. Two
Cite as 2008 SOS 6705

Trusts and Estates:
Where testator attempted to devise residue of her estate to her sisters who predeceased her, California's antilapse statute--which requires "issue of deceased transferee take in the transferee's place" as provided by Probate Code Sec. 240, which requires residue to be "divided into as many equal shares as there are living members of the nearest generation of issue"--directed that intended devisees' surviving adult children took by right of representation.
Estate of Mooney - filed December 22, 2008 , First District, Div. One
Cite as 2008 SOS 6890

Trusts and Estates:
A probate court may not, on principles of equity, disinherit a natural parent from distribution in child's estate when child died intestate. Failure to pay child support or lack of a meaningful parent-child relationship does not affect parent's rights as an intestate heir.
Estate of Shellenbarger - filed December 29, 2008 , Second District, Div. Six
Cite as 2008 SOS 6957

 

Cite as 2008 SOS 6890

 

Trusts and Estates:
A probate court may not, on principles of equity, disinherit a natural parent from distribution in child's estate when child died intestate. Failure to pay child support or lack of a meaningful parent-child relationship does not affect parent's rights as an intestate heir.
Estate of Shellenbarger - filed December 29, 2008 , Second District, Div. Six
Cite as 2008 SOS 6957