The Section includes periodically sends email with New Case Alerts to its members. 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.
Cite as C080023
Filed November 29, 2018, Third District
By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation
Headnote: CCP 998 Offers – Insurer as Party Under Probate Code § 550 - Liability of Insurers for Costs
Summary: A decedent’s insurer can be liable for costs beyond policy limits where the insurer obtains an outcome at trial that is less favorable than the Plaintiff’s C.C.P. 998 offer.
Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. At the time of the accident, Hotlen had a $100,000 policy limit through Allstate Insurance. Hotlen then died and, as authorized by the Probate Code, Meleski filed a probate action against Holten’s estate for the policy limits of $100,000, serving her complaint on Allstate. Allstate rejected Meleski’s C.C.P. 998 offer to compromise of $99,999. At trial, Meleski recovered $180,613.86, and sought costs, including expert fees, of $66,017.08 under C.C.P. 998. The Court denied Meleski’s requests for costs, holding that Plaintiff’s recovery was limited to the $100,000 policy limit. Plaintiff appealed.
The appellate court reversed. Allstate, although technically not a named party, was nevertheless a party for purposes of C.C.P. 998. The notion that the “estate” is the defendant is a legal fiction. In the context of this claim against the decedent’s insurer, Allstate alone controlled the litigation, was exposed to any liability, and rejected Plaintiff’s C.C.P. 998 offer. Allstate had made its own C.C.P. 998 offer, and the legislature did not intend for asymmetrical application of the statute. Lastly, the appellate court held that the insurer is liable for such costs even in excess of the policy limits.
Cite as A151070 and A151073
Filed October 25, 2018
California Court of Appeal, First District
By Golnaz Yazdchi
Sheppard Mullin Richter & Hampton LLP
Walter C. Permann established a trust whereby he provided distributions to employees of his company, so long as each beneficiary remained “employed” by the company at Walter and his spouse’s death or else such gifts would lapse. The trust also included a gift to the drafting attorney, whom had obtained a certificate of independent review before Walter executed the trust. Walter sold the company before his death—something he did not anticipate at the time he established his trust. Following Walter’s death, the former employees brought a petition to determine their status as beneficiaries and to challenge the drafting attorney’s right to inherit because he was allegedly disqualified under Probate Code section 21380. The trial court found that the drafting attorney was disqualified, that one of the employee’s gifts lapsed because she retired before Walter sold the company, and that the gifts to two other named employees were valid and enforceable, but only if both survived the trustor’s spouse.
The Court of Appeal affirmed in part, and reversed and remanded in part. The employment condition in the trust was not a latent ambiguity, despite the fact that it failed to express clearly the trustor’s intent in the event of a sale. Nevertheless, the doctrine of impossibility continues to apply in California, and may excuse a condition precedent. To determine the question of impossibility, the court must look at the testator’s intent. Walter did not anticipate selling his company at the time he executed his trust, therefore the fact that he failed to modify his trust after the sale did not prove Walter’s intent for the gifts to lapse. The two employees named complied with the terms of the trust to the extent possible—they remained employed until the company was sold, therefore further performance was excused. The same was not true for the employee who retired before the sale. As to that gift, the court reversed and remanded for further factual findings regarding whether the beneficiary remained “employed” for Walter in other ways. Lastly, the drafting attorney’s gift was denied because the certificate of review failed to meet the requirements of Probate Code section 21384, which apply retroactively.
Cite as G055189
Filed October 17, 2018, Fourth District, Div. Three
By Matthew R. Owens
Withers Bergman LLP
Josephine created a trust in 1997. When Josephine died in 2007, her niece, Rosie, succeeded her as trustee. Rosie was neither legally nor financially sophisticated, but had been close with Josephine and knew her wishes. Under the trust Josephine left a life estate in a residence to her long-time family friend, Paul, and the residue to Orange Catholic Foundation. The trust required Paul to pay “ordinary maintenance expenses” on the residence. Paul was elderly, had dementia, and was unable to afford the expenses. Instead of evicting Paul, Josephine used trust funds to pay the expenses because she thought it was the right thing to do and what Josephine would have wanted. After Paul died in 2012, it took Rosie two years to sell the residence. Orange Catholic Foundation petitioned the court for Rosie’s removal and surcharge based on these breaches of trust. The trial court denied the petition and excused Rosie’s conduct because it found she acted reasonably and in good faith. Orange Catholic Foundation appealed.
The appellate court affirmed. If the court finds a trustee has acted reasonably and in good faith the court has discretion to excuse the trustee from liability if it would be equitable to do so. Substantial evidence supported the trial court’s finding that Rosie acted reasonably and in good faith because she felt her use of trust funds to pay the expenses was consistent with her aunt’s wishes and also helped avoid foreclosure. Her two-year delay in selling the residence was neither unreasonable nor in bad faith, given the health issues she was facing at the time. This was not a case of self-dealing and none of Rosie’s actions benefited her personally. Notably, the two-year delay in selling resulted in $136,000 in appreciation in the value of the house. The trust sustained no damage, and Orange Catholic Foundation received a net benefit from Rosie’s conduct. Therefore, the trial court did not abuse its discretion in excusing Rosie from liability.
Cite as B282202
Filed October 03, 2018, Second District, Div. Two
Marcie Weber was convicted of theft from an elder, Philippa Johnston, and was ordered to pay restitution to the victim’s estate. Following Johnston’s death, her conservator, Sarah Kerley, filed a restitution action and an 850 petition to recover civil damages for the wrongful taking from an elder. In the restitution action, the parties stipulated to a judgment of $700,000. In the 850 action the court, based on principles of res judicata, granted the petition and awarded double damages of $1.4 million. The trial court rejected Weber’s argument that her prior restitution payments should be applied to the principal amount owed.
The appellate court affirmed in part and reversed in part. The trial court had appropriately entered judgment based on collateral and judicial estoppel because all of the elements for a taking under Section 850 had been met from the criminal conviction. Further, the criminal conviction also constituted a finding that Weber had taken property through elder abuse and, therefore, no separate proof of bad faith was needed to warrant double damages under section 859. The trial court also correctly held that the double damages award should not be reduced based on Weber’s restitution payments. Such an interpretation would go against the purpose of section 859 to punish and deter wrongdoers. However, the court of appeal reversed the judgment insofar as it had failed to apply Webber’s restitution payments to principal instead of interest, because the parties had agreed that they would be applied to principal.
Cite as A150284
Filed September 26, 2018
California Court of Appeal, First District
Decedents Fusae Obata and Emi Obata died intestate in 2013, unmarried, and leaving no issue. In 1911, their father Tomejiro Obata had been adopted in Japan under the Japanese practice of yōshi-engumi. Tomejiro’s descendants from his biological parents claimed under the laws of intestate succession, arguing that Tomejiro’s adoption was not valid under California law because (1) it did not create a sufficient parent/child relationship between the adoptee and the adopting parents; (2) it did not terminate the parent/child relationship between the adoptee and the biological parents; (3) it did not require a judicial or neutral third party review process; and (4) it did not result in a permeant relationship – all of which are requirements for a valid adoption in California. The trial court found in favor of the Obata family (Tomejiro’s adoptive family) and ruled that California law recognized Tomejiro’s yōshi-engumi as a legal adoption under Probate Code sections 6450 and 6451. Thus, under California law, the adoption severed Tomejiro’s relationship with his natural parents, and Tomejiro’s biological descendants were not entitled to distribution from either estate. Tomejiro’s biological descendants appealed.
The Court of Appeal affirmed. The status of adoption is determined by the laws of the jurisdiction where the adoption occurred irrespective of whether those laws impose the same requirements as California law, whereas inheritance rights are determined under the law of a decedent’s domicile. Because the concept of yoshi, the primary purpose of which was to create an heir and typically involved adults, is recognized as a legal adoption under Japanese law, the trial court did not err in deeming Tomejiro’s relationship with his natural parents severed and applying California law for purposes of inheritance.
Cite as A152586
Filed August 20, 2018; Modified and Certified for Partial Publication on September 12, 2018
California Court of Appeal, First District
M.B., a minor, appealed an order appointing the Public Guardian as the conservator of her person pursuant to the Lanterman-Petris-Short (“LPS”) Act. Minor contended that the court should have applied the definition in Welfare Institutions Code section 5585.25, which defines “grave disability” of a minor as “a minor who, as a result of a mental disorder, is unable to use the elements of life that are essential to health, safety, and development, including food, clothing, and shelter, even though provided to the minor by others,” instead of the definition contained in section 5008, subdivision (h)(1)(A).
The Court of Appeal affirmed. It held that when evaluating a request to establish an LPS conservatorship for a minor, the court should apply the definition of “grave disability” found in Welfare and Institutions Code section 5008, subdivision (h)(1)(A), which defines “grave disability” as “[a] condition in which a person, as a result of a mental health disorder, is unable to provide for his or her basic personal needs for food, clothing, or shelter.” That definition is in the LPS Act, whereas the definition proposed by Minor is in a different statutory scheme. Furthermore, the fact that a minor may not be legally responsible to provide for his or her basic personal needs, or may be unable to do so, does not require the application of a different standard. Here there was sufficient evidence that the Minor was gravely disabled pursuant to the correct definition.
Cite as F076395
Filed August 14, 2018; Certified for Publication September 10, 2018
California Court of Appeal, Fifth District
Settlor’s daughter Joan challenged the validity of eight amendments to and restatements of the Trust executed by the settlor in a three year period, which ultimately resulted in Joan’s disinheritance and removal as successor trustee of the Trust. Joan’s sister Shana benefited as a result of the challenged amendments with a larger share of the Trust and appointment as successor trustee. Joan filed her contest under Probate Code section 17200, alleging that the settlor was not competent at the time she executed the amendments, and that the settlor executed the amendments as a result of Shana’s undue influence and fraud. Joan alleged standing because she was a beneficiary and trustee of a prior version of the Trust, which would be reinstated if Joan were successful in her suit. Shana moved to dismiss on the grounds that Joan lacked standing under section 17200 because she was neither a beneficiary nor a trustee of the Trust under the latest iteration of the Trust. The trial court found in Shana’s favor and dismissed Joan’s petition without prejudice.
The Court of Appeal affirmed. It held that the plain language of section 17200 makes clear that only a current beneficiary or trustee of a trust can file a petition under section 17200. A former beneficiary under a prior trust instrument is not considered a “beneficiary” for purposes of section 17200, and therefore lacks standing to seek relief concerning the internal affairs of a trust under section 17200. The Court opined that a former beneficiary would not, however, be barred from challenging a trust instrument on the same grounds (i.e., lack of capacity, undue influence, and fraud) by way of a civil complaint.
Cite as D071284
Filed August 29, 2018, Fourth District, Div. One
Arthur and Hildis created a trust and named their children as remainder beneficiaries. Under the trust their son John held a power of appointment over his interest in the trust that, if not exercised, would pass to the other trust beneficiaries. In order to validly exercise the power of appointment it had to be exercised in “a will specifically referring to and exercising this general testamentary power of appointment.” John died in 2014, leaving a will under which he exercised his power of appointment in favor of his brother, Kevin, and named Kevin as executor. Two other trust beneficiaries, Brian and Astrid, contended John’s exercise of the power of appointment was invalid under Probate Code section 632 because it failed to satisfy the trust’s specific-reference requirement. Kevin petitioned the court to probate John’s will and sought to establish the validity of the power of appointment. The probate court granted the petition and found the reference in John’s will to the power of appointment was sufficiently specific to satisfy the trust’s terms and Section 632. Brian and Astrid appealed.
The appellate court affirmed. John’s will provided: “I exercise any Power of Appointment which I may have over that portion of the trust or trusts established by my parents for my benefit or any other trusts for which I have Power of Appointment I exercise [sic] in favor of my brother [Kevin].” This language satisfied the trust’s specific-reference requirement because it reflected John’s intentional and deliberate, not inadvertent, exercise of the particular power of appointment granted to him under the trust. The language John used in his will recited not only the existence of a power of appointment, but also the trust and the donors of the power, John’s parents. Section 632 requires either a reference to the trust or a reference to the power but it does not require both, and therefore the reference in John’s will to the power was sufficient under the terms of the trust and Section 632. It also satisfied the intent underlying Section 632’s specificity requirement because it ensured John made a conscious exercise of the particular power granted to him, and was not merely a “blanket” clause that would create the danger of an unintentional exercise of another power John might hold.
Cite as E062672
Filed August 22, 2018, Fourth District, Div. Two
A’Yana was the beneficiary of a special needs trust established by court order in 2004 and funded with proceeds from the settlement of a medical malpractice lawsuit. Melodie, a professional fiduciary, was appointed trustee in 2004 and signed the trust instrument. Although the trust required biennial court accountings Melodie filed her first accounting in 2012, asserting she was unaware the trust was court-supervised. Melodie also sought to terminate the trust due to uneconomically low principal, after having distributed the last $15,574.85 to A’Yana’s mother to help her purchase a house. She also asked the probate court to approve $34,229.55 in trustee’s fees which she had already paid herself over the course of the seven-year trust administration. A’Yana’s court-appointed attorney objected to the accounting on several grounds and, after a 3-day evidentiary hearing, the probate court denied Melodie any trustee’s fees and surcharged her $93,036.75. On appeal Melodie argued that the trial court had applied the wrong legal standard.
The appellate court affirmed. It was Melodie’s burden to prove the accuracy of the accounting. As for the surcharge claims, it was A’Yana’s burden to prove breach of fiduciary duty, at which point the burden shifted to Melodie to justify her actions. Since the trust only granted Melodie reasonable discretion and not sole and absolute discretion, A’Yana did not have to show Melodie abused her discretion or acted in bad faith, but merely had to show she failed to exercise her discretion reasonably. Substantial evidence supported the surcharge. Whereas the trust only authorized payment of expenses made necessary as a result of A’Yana’s disabilities, Melodie had improperly used trust funds for general expenses unrelated to A’Yana’s disabilities, including vacations, vehicle-related expenses, and rent. Finally, because of Melodie’s multiple breaches of fiduciary duty the probate court acted reasonably in surcharging her for the trustee’s fees she had already paid herself.
Cite as E066177
Filed August 22, 2018, Fourth District, Div. Two
Christie, a professional fiduciary, served as conservator of Lorraine’s person and estate until Lorraine died in 2015. After Lorraine’s death, Christie filed a combined petition seeking (1) approval of her final accounting and (2) conservator’s fees. At the hearing, the probate court expressed concern over Christie’s billing practices, including what appeared to be duplicate time entries charged to several different client files. The probate court, on its own motion, reviewed and took judicial notice of court records in 15 of Christie’s cases in two counties to further evaluate whether her pending fee request was reasonable. The court found that the billing-related portion of Christie’s accounting contained substantial errors that rendered her fees excessive, and therefore reduced Christie’s fees by more than $5,000. Christie appealed.
The appellate court affirmed. The probate court had cited the wrong statute—Probate Code section 2620—as authority for the procedure it used to review Christie’s billing practices. Section 2620 governs scrutiny of accountings, and since a conservator’s fees are not part of an accounting, the powers granted to the court under Section 2620(d) did not apply to Christie’s billing practices. By requesting fees in her accounting petition she did not convert her fee request into an accounting. The error was harmless, however, because probate courts have ample authority to control and regulate the actions of court-appointed agents such as conservators. Here, that authority included the power to review Christie’s fees for abusive or erroneous billing practices, even on the court’s own motion. In conducting its review of Christie’s fees, the probate court considered the appropriate factors. Also, the probate court did not err when it reviewed final orders from some of Christie’s other cases since its ruling was limited to the petition pending before it and did not impact the finality of those other cases.
Cite as A152351
Filed July 31, 2018 (modified and published August 21, 2018), First District, Div. Five
When Francesca died in 1997, her husband, Robert, became sole successor trustee of her trust. Robert was the lifetime beneficiary and Francesca’s two daughters from a prior marriage were the remainder beneficiaries. Christina, one of the remainder beneficiaries, filed a petition alleging Robert breached his fiduciary duties as trustee of Francesca’s trust. She also alleged Robert’s attorney, John, was liable under a cause of action framed as third-party liability for breach of trust. Although the petition did not expressly plead conspiracy, John demurred based on a conspiracy statute requiring a plaintiff to obtain a prefiling order where a cause of action alleges an attorney conspired with the attorney’s client. In overruling the demurrer, the trial court found Christina did not facially bring a conspiracy claim. John appealed.
The appellate court reversed. Based on the allegations in the petition, it must be construed as alleging conspiracy between Robert and John, regardless of the label Christina chose for her cause of action. Christina alleged John participated in Robert’s breaches of fiduciary duty by, among other things, mismanaging Francesca’s trust and terminating it in a manner that benefited Robert. She also alleged John induced her not to challenge Robert’s misconduct as trustee much earlier by representing to her that she would receive a large inheritance from Robert’s estate, which she learned was not the case after Robert’s death in 2016. Christina was therefore required to obtain a prefiling order, and neither of her proffered exceptions to that requirement applied. First, John did not owe Christina an independent legal duty as his only duty was to his client, Robert. Second, Christina failed to adequately allege that John was acting in furtherance of personal financial gain beyond merely providing ordinary legal services to his client for a fee.
Cite as D072566
Filed August 6, 2018 (Published August 15, 2018), Fourth District, Div. One
After a family dispute over a former trustee’s management of trust assets, the grantors removed the former trustee and appointed Claudia, a private professional fiduciary, as successor trustee. Claudia filed and obtained court approval of her first two trust accountings without objection. In 2016, after the second grantor died, Charles, one of the trust beneficiaries, demanded the third trust accounting as well as all supporting documents, including bank statements, attorney billing statements, and engagement letters. Claudia petitioned the probate court for approval of the third accounting, and Charles objected on several grounds. He asserted Claudia had failed to submit a fee declaration required by local rule, that the fees were unreasonable, and that she had committed misconduct both before and after the time period covered by the third accounting. The probate court approved the trustee’s accounting, found that Charles’s objections were made without reasonable cause and in bad faith warranting an award of attorney’s fees under Probate Code section 17211(a), and, in a separate order, fixed the amount of fees recoverable from Charles’s share of the trust or personally if his share was insufficient. Charles appealed both orders.
The appellate court affirmed both orders. The local rule Charles invoked for the proposition a fee declaration was required did not apply because fee approval was not specifically requested in the third accounting. Even if the local rule applied, to the extent it required more content than the Probate Code, it could be viewed as optional. The statutes governing court accountings mandate a financial statement with a statutorily-required summary and statutorily-required schedules, including a disbursements schedule. Claudia’s third accounting satisfied those statutory requirements, and, in any event, her attorney submitted a fee declaration to support the fees. The probate court correctly found that all fees reflected in the third accounting were reasonable, and that due to Charles’s bad faith objections Claudia was entitled to recover from him the attorney’s fees she incurred in defense of those objections, including the fees of her individual attorney.
Cite as B268326
Filed August 6, 2018, Second District, Div. Three
Arthur died in 2011, leaving most of his assets in trust for his four children in unequal subtrusts. The trust provided that Arthur’s son, Raymond, was to receive 35% of the trust and that Raymond’s subtrust would include Arthur’s ranch, which was worth $7.2 million at Arthur’s death. The trust also provided that the income tax of any subtrust was to be paid by that subtrust’s beneficiary. In 2014, the ranch sold for $14 million. The trustee allocated proportionately among the beneficiaries the appreciation between the $7.2 million date-of-death value and the $14 million sale price. The trustee also allocated solely to Raymond’s subtrust the $2.3 million in income tax from the sale. When the trustee filed an accounting reflecting these allocations, Raymond objected and contended he should have received the entire net proceeds from the sale, including the appreciation. The probate court approved the trustee’s accounting over Raymond’s objection, and Raymond timely appealed.
The appellate court affirmed. Raymond correctly noted on appeal that the probate court had ruled that his gift was not a residual gift. As a result, Raymond argued, it was a specific gift, which meant he should have received his 35% of the trust, plus the $4.5 million net proceeds from the sale of the ranch. The appellate court determined, however, that the probate court erred when it ruled the gift was other than a residual gift. Despite its mischaracterization of the gift, the probate court still reached the correct result in its ruling on the trustee’s allocation of value and income tax following the sale of the ranch. The trust’s directive to distribute the ranch to Raymond’s subtrust was merely a mechanism for funding his 35% residual gift, assuming Arthur still owned the ranch at death. The trust’s reference to a specific source of funding—the ranch—did not make it a specific gift. Separately, Raymond had to pay the $2.3 million in income tax because the trust contained a clear provision requiring that income tax of a subtrust be paid by that subtrust’s beneficiary.
Cite as A151975
Filed June 22, 2018, California Court of Appeal, First District, Div. 1
Decedent Jerome Norman Post purchased a life insurance policy during his lifetime and named his then-spouse, Angela Post, as the primary beneficiary, and his sons from a prior marriage, Kenneth Post and Eric Post, as the contingent beneficiaries. Decedent was divorced at the time of his death, but he had not changed the beneficiary designation on his life insurance policy to remove his former spouse as the primary beneficiary. He had executed a codicil to his will shortly before his death expressing his strong desire that his former spouse receive nothing from him after his death, including by beneficiary designation. Decedent’s sons sought an Order designating them as the rightful beneficiaries of the decedent’s life insurance policy under Probate Code Sections 5040 and 9611. The trial court found in favor of the sons, and issued an order naming them as the proper beneficiaries of the life insurance proceeds.
The Court of Appeal reversed. The court, sitting in probate, has no jurisdiction over life insurance policies where the decedent’s estate has no interest in the proceeds. A beneficiary under an insurance policy takes under an insurance contract, and not pursuant to the laws of succession. Thus, because the trial court had no jurisdiction over the subject matter of the order (i.e., the life insurance proceeds), the trial court’s order was void.
Cite as G055377
Filed May 29, 2018, Fourth District, Div. Three
Beverly amended and restated her trust in 2013, naming herself as initial trustee and her son Thomas as her successor. In 2014, Beverly died and Thomas succeeded her as trustee. Beverly’s daughter, Nancy, filed petitions seeking, among other things, to invalidate the trust and to remove Thomas as trustee. After Thomas filed an inadequate accounting, the probate court suspended him and ordered him to turn over all trust records to the interim co-trustees. Although the court order was broad enough to include attorney-client communications between Thomas and his counsel, Thomas refused to produce those communications because a provision in the trust permitted the trustee to withhold privileged communications from a successor trustee. Thomas petitioned for a writ of mandate to reverse the trial court’s order.
The appellate court denied the petition. Under Moeller v. Superior Court, when a trustee seeks legal advice on behalf of a trust, the privilege vests in the office of trustee and the right to assert the privilege passes to the successor trustee. A trust may not allow a former trustee to withhold from a successor trustee communications exchanged between the former trustee and the former trustee’s counsel, and any trust provision seeking to do so violates public policy and is unenforceable. A trust may limit a trustee’s liability to some extent, but not in cases of intentional misconduct, gross negligence, or acts taken in bad faith or with reckless indifference to the interests of the trust’s beneficiaries. Since a trust cannot absolve a trustee of all liability, it also cannot prevent disclosure of the records that may be used to establish liability. In order to protect attorney-client communications, a trustee must retain separate counsel to distinguish personal advice from advice obtained in a fiduciary capacity. Thomas did not retain separate counsel for that purpose and therefore had to produce all trust records to his successor.
Cite as D072298
Filed April 27, 2018, Fourth District, Div. One
Decedent Norman Casserley and Paul Blazevich were neighbors. In 1997, Decedent was convicted of a crime and ordered to pay Blazevich restitution. Ten years later, Blazevich recorded the order and then obtained an amended order which increased the restitution award. In 2008, Blazevich executed and recorded an assignment of the original (but not the amended) order to his wife Emerita Cruz Joya. The amended order was not recorded until after Casserley’s death in 2015. Casserley died intestate, and the estate’s only asset was a modest house, which the administrator sold. The estate was insufficient to pay all claims. Joya filed a creditor’s claim based on the initial order, which was allowed and paid, and an amended claim based on the amended order, which the administrator denied. Joya objected to the administrator’s final accounting, arguing that the post-death recordation of the amended order created a lien on all probate assets. She also argued that, under the Constitution’s restitution provision, her claim to payment of restitution was entitled to priority over other creditors’ claims filed by the state and county. The trial court rejected both arguments.
The appellate court affirmed both rulings. The recordation of an abstract of judgment after the debtor’s death does not create a lien on the debtor’s estate property and, therefore, the recordation of the amended order did not create a lien on estate assets because it was recorded after Casserley’s death. Second, the appellate court evaluated the legislative history of the Constitution’s restitution provision and pertinent statutory schemes and found that the administrator’s sale of the decedent’s house did not constitute “collection of money” for purposes of the Constitution’s restitution provision. Therefore, Joya’s claim did not have priority over other claims.
Cite as 22 Cal.App. 5th 92
Filed April 10, 2018, Second District, Div. One
On August 21, 2015, Gordon B., a 75-year-old disabled veteran, obtained an elder abuse restraining order against his neighbor, Sergio Gomez, based on various acts of misconduct including destruction of personal property, verbal abuse, obscene gestures, attempts to run over Gordon B. with a pickup truck, and setting off large fireworks on Gordon B.’s driveway. The order followed an evidentiary hearing and was effective for one year. Prior to its expiration, Gordon B. filed a request to renew the restraining order based on concerns that the abuse would resume once the order was terminated. He cited to two incidents in which Gomez had arguably violated the restraining order. The trial court denied the request finding that Gordon B.’s concerns were too speculative and that he had insufficient evidence for a renewal.
The appellate court reversed and remanded for further proceedings. Under the proper standard, the party requesting renewal need only show by a preponderance of the evidence that the protected party has a reasonable apprehension of future abuse if the order is not renewed. This means that the evidence must demonstrate it is more probable than not there is a sufficient risk of future abuse to find the protected party’s apprehension is genuine and reasonable. The trial court erred in requiring evidence of further abuse since the initial order, which is expressly not required under the applicable statutes.
21 Cal.App.5th 1163
Filed March 29, 2018
California Court of Appeal, Second District, Div. 6
By Golnaz Yazdchi
Sheppard Mullin Richter & Gampton LLP
P.D. suffered from schizophrenia, and the Public Guardian sought an LPS conservatorship on the ground that P.D. was gravely disabled as a result of a mental disorder. The trial court gave the jury two special instructions concerning the possible consequences of an LPS conservatorship. In the first special instruction, the trial court explained that an LPS conservator would have the right to require the conservatee to obtain medical treatment, to place the conservatee in a facility, and to receive and expend funds for the conservatee. In the second special instruction, the trial court provided information concerning the duration of the LPS conservatorship. The jury found beyond a reasonable doubt that P.D. was gravely disabled as a result of a mental disorder. P.D. appealed, arguing that the special instructions confused the jury as to what matters it could consider in determining whether or not P.D. was gravely disabled, which violated P.D.’s due process rights.
The Court of Appeal affirmed. The trial court erred when it instructed the jury about the duration and types of treatment that may be ordered by an LPS conservator, but the error was harmless. Although LPS proceedings are subject to the due process clause because significant civil liberties are at stake, they are nevertheless civil proceedings. Therefore, the rule in criminal cases that any jury instruction about the consequences of a guilty verdict is a violation of due process is not equally applicable to LPS proceedings. Here, the evidence in support of the jury’s finding was overwhelming, so although the special instructions were irrelevant to the jury’s task, they made no difference to the outcome.
20 Cal.App.5th 1132
Filed March 1, 2018
California Court of Appeal, First District, Div. 1
In prior probate proceedings plaintiff Norman Bartsch Herterich made a claim to his father Hans Bartsch’s entire estate as an omitted child on the basis that Bartsch either did not believe, or forgot, that he had a child when he executed his will. The probate court granted summary judgment against plaintiff, and concluded that substantial evidence showed that Bartsch was aware of plaintiff’s existence when he executed his will. The Court of Appeal affirmed. Plaintiff then sued defendants Arndt Peltner, the executor, and Alice Brown Traeg, the executor’s attorney, for intentional fraudulent misrepresentation, negligent misrepresentation, and fraudulent concealment. Plaintiff alleged that defendants deprived plaintiff of the opportunity to object to the probate petition because when defendants initially filed the probate petition they stated under penalty of perjury that the decedent had no children. As a result, plaintiff alleged that he was led to believe that Bartsch (his father) was not aware that he had a son, or had forgotten it, which caused plaintiff to incur significant legal fees in bringing his claim against the estate. Plaintiff alleged damages because the court relied on defendants’ alleged misrepresentations in rendering rulings adverse to plaintiff. The court granted defendants’ motion for summary judgment on the basis that plaintiff had suffered no damages from defendants’ actions because he had no beneficial interest in the estate.
The Court of Appeal affirmed, but on the basis of the litigation privilege. The Court held that even fraudulent statements made by defendants in the course of the probate proceedings were protected by the privilege when the communications occurred in the context of a judicial proceeding. The Court reasoned that the personal representative of an estate does not waive the litigation privilege by taking an oath of truthfulness under the Probate Code, and that courts have held that the litigation privilege applies to statements made in furtherance of litigation in probate matters even when the relevant communication involves fraudulent statements, forgery, or falsification of documents.
Cite as B283132
Filed January 19, 2018, Second District, Div. Five
Kerkorian executed a will in July 2013 and married Una Davis about a year later. Two days prior to the wedding, he gave Anthony Mandekic $10 million dollars with instructions to give the money to Davis outside of Kerkorian’s estate or any testamentary transfer, and Mandekic complied. The day before the wedding, Davis signed a waiver, relinquishing any right to Kerkorian’s estate, including the right of an omitted spouse. Kerkorian died a year later, and his will did not name Davis as a beneficiary. Davis filed a petition seeking a distribution as an omitted spouse. As executor, Mandekic petitioned for court approval to oppose Davis’s petition pursuant to Probate Code section 11704. The court granted Mandekic’s petition finding, inter alia, that Mandekic was familiar with the estate and Kerkorian’s intentions; that he had no financial interest having already received his distribution and he was not otherwise improperly motivated; and that his participation would be helpful in determining the rightful beneficiaries in accordance with Kerkorian’s intent.
The appellate court affirmed. On appeal, Davis argued that the lower court had misapplied section 11704 in granting Mandekic’s petition for approval to oppose Davis’s petition. Specifically, Davis argued that the lower court had failed to make an express finding that Mandekic’s participation was “necessary to assist the court.” However, the appellate court held that such an express finding of “necessity” was unnecessary because a “good cause” finding under section 11704 naturally i ncorporated a contemplated level of necessary assistance by the petitioning party. The appellate court further found that the Legislature intended the term “necessary” to mean “useful” or “appropriate” and that the lower court had not abused its discretion in finding good cause.
Cite as D070907
Filed January 23, 2018, Fourth District, Div. One
“Grandfather” Gaynor died in 1983, leaving a trust estate split three ways, one share for each of his three children and their issue. Following litigation concerning management and control of the trust, the prevailing beneficiaries filed a surcharge petition against the co-trustees, and later added James Bulen based on his alleged de facto trustee status. The beneficiaries sued for breach of fiduciary duty consisting of distributing income only to the senior generation, transferring the primary asset to an LLC to gain further control, failing to provide accountings, concealing the mental incompetence of a co-trustee, seeking modification of the trustee succession plan, and numerous other claims. Bulen filed an anti-SLAPP motion to strike the claims against him, which was denied. The court found the claims at issue were not governed by the anti-SLAPP statute.
The appellate court affirmed. To invoke the anti-SLAPP statute, Bulen was required to show that the claims against him arose from constitutionally-protected activity. The appellate court found that Bulen failed to meet this initial burden. Although Bulen’s filing of petitions related to trust litigation was constitutionally protected, the alleged breaches of fiduciary duty arose from conduct other than the protected activity. Having affirmed that Bulen had failed to meet his initial burden, the court did not evaluate the second step of the anti-SLAPP statute relating to the probability of success.