Estate Planning in California

Malicious Prosecution of a Probate Action

2026-04-03T14:46:00.000-07:00

Usually when a party loses a case, they do not compound their loss by continuing to litigate. In other words, "if you find yourself in a hole, stop digging." Alas one litigant in a recent unpublished appellate option did not heed this adage.

"This case stems from a family dispute over the probate of the estate of Mohammed Hussain (decedent). After decedent passed away, one of his sons, Asif "Robert" Hussain (Asif) took a document purporting to be decedent's will and instructed one of his friends to sign and backdate the witness attestation clause so he could probate the will. The will named Asif the executor of decedent's estate and distributed most of the estate to Asif. Decedent's other heirs contested Asif's petition to probate the will. Asif subsequently conceded that the will was invalid and abandoned his probate petition.

Decedent's other heirs then filed suit against Asif for malicious prosecution of the probate action. In response, Asif filed a special motion to strike the malicious prosecution claim under our anti-SLAPP statute. (Code Civ. Proc., § 425.16.) The trial court denied the motion. Asif now appeals, arguing the plaintiffs failed to provide sufficient evidence that he acted without probable cause and with malice in filing the probate petition. We disagree and affirm the trial court's ruling."

The declaration submitted by the aggrieved litigant:

"Asif submitted a declaration in support of his motion attesting to the following facts. In 2022, decedent told Asif that he intended to distribute his home in Granada Hills to Asif and Seletskiy, with 60 percent going to Asif and the remainder to Seletskiy. Decedent also indicated that he prepared a will and instructed Asif to sign it. In December 2022, decedent gave Asif the combination to a safe and told him to retrieve the documents stored there in the event of his death. After decedent's passing, Asif opened the safe and retrieved a will. He then took that will to a non-attorney "probate specialist," Cheryl Templeton (Templeton). Templeton told him that "in order to submit the [w]ill to [p]robate it needed to be fully signed and dated by two witnesses who knew [decedent]."

Having been told that the will was defective because it was not signed by two witnesses, Asif concluded that "all [he] needed to do to submit the [w]ill to [p]robate was to get another signature on the [w]ill from a person who knew [decedent]." He went to Gorgone and asked her to sign the witness attestation clause and backdate her signature to July 2022. He then took the signed will to a probate attorney and directed his new counsel to file the probate petition. At some unspecified time after filing the petition, Asif "became aware" that Gorgone's signature was invalid because she did not witness decedent sign the will as she had attested to. Once he learned this information, he instructed his counsel to dismiss the probate petition. Asif claims he did not intend to deceive any of the plaintiffs and would not have submitted the will to probate court if he had known that Gorgone's signature was defective."

Hussain et al. v. Hussain et al., Los Angeles County Superior Court case no. 24VECV04712.

Influence or Undue Influence?

2026-03-09T07:00:00.000-07:00

One method to invalidate a revocable transfer on death deed (TOD) is by proving undue influence. Obviously the beneficiary of a TOD will have some influence over the drafter of the TOD. For example, in the case of a child and parent, the child may converse with the parent, care for the parent, buy groceries for the parent, pay bills for the parent, take the dog out for a walk, etc. These interactions between the child and parent certainly give the child influence with the parent. Still, the threshold question is whether the influence is undue or not. If undue influence, the free will of the parent is overcome by the influence of the child.

A recent unpublished appellate decision articulated the difference between "influence" and "undue influence."

"I find that Ms. Vosburgh influenced Ms. Fries, gave her information regarding, perhaps, Mr. Gribbon's misdeeds from the past; gave Ms. Fries information about the check writing that, again, and I'm not taking this for the truth, but this is information that Ms. Fries received, whether she believed it or not or whether it is true or not, that is not for me to determine, but this is the information she had.

And I do believe that Ms. Vosburgh informed Ms. Fries of the check writing, that it was Mr. Gribbon who wrote himself checks; that it was Mr. Gribbon who — I'm trying to choose my words regarding the bird. I know there was some argument whether it was stolen, sold, boarded, all of those things, but taken away from Ms. Fries, and she was not happy about that. She did not consent to that.

And, also, regarding her apartment being emptied when she came home, again, I'm not accepting those as, necessarily, the truth, but . . . that [information] was otherwise provided to Ms. Fries.

And based on [that] information, and I even thought about this, essentially, whether they be true, whether they be disinformation, misinformation, it was information that she had, and the question is, having [that] information, whether it be true or not, whether it be mis-, dis-, or lies, when she had [the] information, was she of her free mind, her own volition? Did she voluntarily, knowingly, intelligently make a decision to, nonetheless, give both properties to Ms. Vosburgh? And based on the evidence that I have, that Ms. Fries was actually upset with Mr. Gribbon, whether it be the bird, whether it be because of the checks, the emptied out apartment, that she was upset with Mr. Gribbon, she did not want to communicate with Mr. Gribbon, she did not want to — I think one of the . . . statements that was given was she did not want anything to do with Mr. Gribbon, again, whether that be based on truth, misinformation, that's how she felt.

And based on the feeling, based on the belief, then she did execute a transfer of that deed on her own free will, voluntarily, intelligently, informed, or without duress or coercion, and I do believe that it was. So based on those, I do feel that the Petitioner, Mr. Gribbon, has failed to meet his burden to show that Ms. Fries otherwise executed the [TODs] September 2nd, 2019, that she was under undue influence.

I believe she was influenced, but whether it was "undue," I do not find that it was."

Gribbon v. Vosburgh, Riverside County Superior Court case no. PRRI2100639; PRRI2200180

Signing a Will

2026-02-04T15:11:00.000-08:00

In order to be validly executed, a will needs to be signed by the testator, by some other person in the testator’s presence and by the testator’s direction or the testator's conservator pursuant to a court order. Probate Code §6110(b). Typically the signatory on the will is that of the testator. In a will contest, the genuineness of the testator's signature can occasionally be at issue. A recent unpublished appellate decision touched upon the testator's alleged execution of her will.

"After decedent Diane Carreira died on August 26, 2022, appellant Emily Mendoza petitioned to admit to probate a document entitled "Power of Attorney and Last Will and Testament of Diane Carreira," dated August 23, 2022. The probate court determined that the will was not valid because Carreira had not signed it. The court found in the alternative that, even if Carreira had properly executed the document, it was still invalid under the conclusive presumption of fraud or undue influence that applies when the drafter of a will is also a beneficiary."

Typically a handwriting expert is retained to opine as to whether or not the testator in fact signed the will. This case was no different.

"Mendoza testified that she drafted the will during a phone call with Carreira on the Monday before Carreira died. Carreira "pretty much" told her what to put in the will, although Mendoza "added details," including names and terminology. Mendoza testified that she took the document to Carreira, who signed it while inclined in bed. Mendoza said she was familiar with Carreira's signature and recognized the signature on the will as being hers."

"Substantial evidence supports the probate court's finding that Carreira did not sign the will that Mendoza proffered. Lilinoe-Davis's expert witness testified that Carreira's signature was not genuine based on several characteristics distinguishing the signature on the will from other known exemplars of Carreira's signature. These distinguishing characteristics were not explained by Carreira's illness or the fact that she purportedly signed the will in bed. Lilinoe-Davis also provided her own lay opinion that the signature on the will did not resemble Carreira's signature. The testimony of these two witnesses provided substantial evidence that the signature was not genuine. Mendoza emphasizes her own testimony that she saw Carreira sign the will, but it was within the probate court's purview to weigh the conflicting evidence. (Estate of Clark (1949) 93 Cal.App.2d 110, 119 [handwriting expert testimony provided substantial evidence to reject will, despite contrary testimony of other witnesses]; Estate of Kisling (1945) 68 Cal.App.2d 163, 166-167 [handwriting expert testimony and court's own examination of signature were substantial evidence to overcome contrary testimony of two witnesses].)"

Estate of Diane Carreira, Siskiyou County Superior Court case no. SCCV-CVPB-2022-973

Omitted Spouse

2026-01-02T07:00:00.000-08:00

The marital status of a person occasionally changes over time. For example, a person could be married one year, divorced the next year and then re-marry the following year. With the change in marital status, there are estate planning implications that may arise. One such issue is the beneficial interest, if any, of a subsequent spouse in the other spouse's estate. The relevant law provides that "if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate" per CA law. Probate Code §21610. However, a surviving spouse does not automatically qualify as an omitted spouse.

A recent unpublished appellate opinion centered on a surviving spouse's claim to be an omitted spouse.

Oswaldo Herrador, a widower, married Rose Herrador in 2015. Oswaldo had executed a marital trust with his prior spouse, Gloria Herrador, in 2010. The trust was funded with a fourplex in Daly City, CA and a residence in San Bruno, CA. Gloria passed away in 2010 and Oswaldo passed away in 2022. In 2023, Rose filed a petition requesting her share of Oswaldo’s estate as an omitted spouse. The petition alleged that Oswaldo “neglected to create and execute either a Trust or a Will to provide for Rose. Oswaldo also failed to provide for Rose otherwise, commensurate with her spousal share," by naming her as beneficiary "on any account or insurance policy, or granting her an interest in title to either of his two real properties located in San Mateo County."

Oswaldo’s children filed an objection which “disputed that Rose was an omitted spouse since Oswaldo provided for her in a separate testamentary instrument, his "Last Will and Testament," which governed his assets in El Salvador and was subject to probate in El Salvador (El Salvador Will). It also alleged, inter alia, that Rose was not an omitted spouse because Oswaldo designated her as the sole beneficiary of his Wells Fargo Bank account."

“On April 15, 2024, the trial court held a hearing on the motion for summary adjudication. Afterward, the trial court granted the motion, ruling, Petitioner is not an omitted spouse having been named as a beneficiary under decedent Oswaldo Herrador's testamentary instrument, namely his last will and testament governing his assets in El Salvador, executed after his marriage to Petitioner."

Rose appealed the trial court’s decision and this decision was affirmed on appeal.

Herrador v. Herrador, San Mateo County Superior Court case no. 23-PR0-00365

Post-Death Business Operations

2025-12-09T10:24:00.000-08:00

A successor trustee occasionally is tasked with operating a decedent's business post-death. For example, I've had clients in which the decedent leased rental properties, operated a marketing corporation, operated a painting business, operated a consulting business, etc. The successor trustee has basically three options at their disposal. First, the successor trustee can continue to operate the business. In the case of leasing rental properties, past clients have sometimes taken this approach. Second, the successor trustee can sell the business to a third-party. If the business involves leasing rental properties, selling the business, i.e. selling the underlying real estate, is a common approach. Third, the successor trustee can cease business operations. If the decedent operated a sole proprietorship, past clients have typically ceased business operations because the business was intimately tied to the decedent and had limited market value. Whatever the decision made by the successor trustee, they are required by CA law to act in the best interests of the beneficiaries.

A recent unpublished appellate decision found that the successor trustee had breached their fiduciary duty by continuing to operate the decedent's business post-death.

"Mark contends the trial court erred in finding he breached the Trust by continuing hard money lending after Howard's death.

Mark argues he had a duty to keep the disputed funds productive. (§ 16007.) But a trustee has a duty to invest trust funds prudently. (Estate of Collins (1977) 72 Cal.App.3d 663, 669.) The trial court could reasonably conclude that hard money lending is not appropriate for a fiduciary. Mark even acknowledged that it is a risky business.

Mark claims that section 4.05 of the Trust authorized him to continue his hard money investments, which provides:

"Section 4.05. On any final or partial distribution of the assets of the Trust Estate and on any division of the assets of the Trust Estate into shares or partial shares, the Trustee may distribute or divide such assets in kind, may distribute or divide undivided interests in such assets, or may sell all or any part of such assets and make distribution or division in cash or partly in cash and partly in kind. The decision of the Trustee, either prior to or on any division or distribution of such assets, as to what constitutes a proper division of such assets of the Trust Estate shall be binding on all persons in any manner interested in any trust provided for in this Declaration."

Section 4.05 of the Trust governs distribution of Trust assets. Nothing in the section authorizes Mark to engage in an inappropriately risky enterprise."

Braaten v. Braaten, San Luis Obispo County Superior Court case no. 19PR-0393

Estate Tax in 2026

2025-11-03T07:00:00.000-08:00

Since the estate tax exemption amount is currently pegged to inflation, the IRS recently announced the exemption amount for 2026 as detailed below:

Year                   Amount Excluded       Maximum Tax Rate

2001                   $675,000                      55%

2002                   $1M                             50%

2003                   $1M                             49%

2004                   $1M                             48%

2005                   $1M                             47%

2006                   $2M                             46%

2007                   $2M                             45%

2008                   $2M                       45%

2009                   $3.5M                          45%

2010                   Repealed                      0%

2011                   $5M                             35%

2012                   $5.12M                        35%

2013                   $5.25M                        40%

2014                   $5.34M                        40%

2015 $5.43M    40%

2016 $5.45M    40%

2017 $5.49M    40%

2018                   $11.18M                     40%

2019 $11.4M 40%

2020 $11.58M 40%

2021 $11.7M 40%

2022 $12.06M 40%

2023 $12.92M 40%

2024 $13.61M 40%

2025 $13.99M 40%

2026 $15M 40%

Opening a Probate in CA

2025-10-01T07:00:00.000-07:00

Probate can arise in two situations in CA. First, a decedent can pass away while domiciled in CA. Second, a decedent can pass away while domiciled outside CA but own property in CA. For example, a decedent could be a domiciliary of Phoenix, AZ at death but own a house in Needles, CA. In either scenario, a probate court in CA has jurisdiction over the decedent's estate.

A recent unpublished appellate opinion touched upon opening a probate in CA.

"Decedent and her husband, Ernie Musko, established the Musko Family Trust in 2007, with their four children as beneficiaries and their home in Pennsylvania as the only trust asset. They amended the trust in 2010, removing their son, David, as a beneficiary. Ernie died in 2012. According to appellant, after decedent experienced a "serious health crisis" in 2017, she moved from Pennsylvania to live with appellant in California. Decedent died in Santa Monica, California on May 13, 2023 and was a resident of Los Angeles County at the time of her death."

"In September 2023, appellant, in propria persona, filed a petition for probate of lost will in Los Angeles County Superior Court."

"In April 2024, appellant filed a second petition, seeking to "determine whether trustor's handwritten instruments constitute an amendment to, or revocation of, the revocable living trust."

"At the July 15, 2024 hearing, the court indicated it was inclined to deny the petitions because "the only asset is the real property and the real property is located in Pennsylvania, and this Court does not have jurisdiction over real property in Pennsylvania." Appellant responded that the court "does have jurisdiction because even though the property is located in Pennsylvania, the decedent was domiciled here in Los Angeles County." Appellant argued that "Pennsylvania would not have jurisdiction to determine whether or not these handwritten documents constitute wills because the decedent was not domiciled in Pennsylvania." The court replied that "the case law says that as to in rem jurisdiction, when we're talking about something that is like real property, that it has to be within the borders of this city," citing Taylor v. Taylor (1923) 192 Cal. 71, 76 (Taylor). The court concluded that the decedent's domicile in California "doesn't necessarily mean that this Court has jurisdiction of whatever is in the trust or estate if that . . . real property is located outside of this state." The court accordingly denied the petitions with prejudice and denied objectors' motions as moot."

The trial court's decision was reversed on appeal.

"As relevant here, when an interested person files a petition for probate in California, the court has subject matter jurisdiction if it finds as a "jurisdictional fact" that either "the decedent was domiciled in this state or left property in this state at the time of death." (§§ 8000, 8005, subd. (b)(1)(B).) "Domicile" for this purpose means the state where decedent resided with "the intention to remain either permanently or for an indefinite time without any fixed or certain purpose to return to the former place of abode." (Estate of Phillips (1969) 269 Cal.App.2d 656, 659, quoting DeYoung v. DeYoung (1946) 27 Cal.2d 521, 524; see also Estate of Wardani (2022) 82 Cal.App.5th 870, 883.) "Property" is "anything that may be the subject of ownership and includes both real and personal property and any interest therein." (§ 62.)^[3]"

Estate of Musko, Los Angeles County Superior Court case no. 23STPB10480

Will Revocation by Cancellation

2025-09-09T15:56:00.000-07:00

When a client seeks to write a new will invariably the question of what to do with the prior will arises. There are two ways under CA law to revoke a will, express revocation or cancellation. Probate Code §6120. The former is typically used as most wills includes a clause that the will revokes all prior wills. For the latter, a recent partially published appellate case focused on revocation by cancellation.

"In this will contest, siblings Anush Boyajian and Robert Boyajian assert competing documents regarding their deceased mother's testamentary intent—respectively, a will signed in 2006 and a document signed in 2018. The court ruled for Robert, concluding the 2018 document "canceled" the will, thus revoking it. (Prob. Code, § 6120, subd. (b) (section 6120(b).)^[2]

Anush contends the trial court erred because revocation by cancellation must occur by physical alteration of the will—not by a separate, stand-alone document. Robert disagrees but also asserts the revocation was valid pursuant to section 6120, subdivision (a) (section 6120(a)), because the 2018 document qualified as a "subsequent will."

In the published part of this opinion, we conclude California law (1) requires a physical alteration of a will to effect a revocation by cancellation, and (2) a stand-alone revocation does not constitute a subsequent will unless it also transfers property upon death. The court thus erred by giving effect to the 2018 document.

Robert cross-appeals, claiming the record required the trial court to find Anush procured the 2006 will through undue influence. In the nonpublished part of this opinion, we find the court reasonably found there was no undue influence. Thus, we reverse and remand for the court to enter a new judgment giving effect to the 2006 will."

Estate of Boyajian (2025) _____ Cal.App.5th _____.

In terms of physical alteration of the will to effect revocation by cancellation, another appellate case provided the colorful details in which the testator revoked their will.

"At trial, Anne Marie Meier testified that she was a very close friend of decedent. One night in 2005, decedent was discussing "estate planning," and he asked Meier to "get a piece of paper and a pen." He then dictated the terms of the 2005 will. Meier wrote that document in her handwriting "word for word" from decedent's dictation. She handed it to him, "he looked at it and he signed it." Decedent told Meier that this was his last will and testament. Moreover, in front of the witnesses, he urinated on the original copy of the 1997 will and then burned it." (emphasis added).

Estate of Stoker (2011) 193 Cal.App.4th 236, 240.

Missing a Court Hearing

2025-08-01T07:00:00.000-07:00

One circumstance that always surprises me is when a party will attend some court hearings but not others. Suffice to say, there are consequences for not attending a court hearing, especially a trial. A recent unpublished appellate decision was based on a non-appearance by unrepresented parties.

"The court set a trial on the petition for July 9, 2024. At a status hearing on June 18, 2024, the court ordered the trial remain set for July 9. Andrea and Symone personally appeared at the status hearing.

On July 8, 2024—the day before the trial was set to begin—Andrea and Symone filed a motion to compel responses to their discovery requests. According to the motion, Christopher failed to respond to requests for admissions and the production of documents, which Andrea and Symone purportedly served in April 2024. Andrea and Symone requested an order compelling responses and for sanctions against Christopher. It is not clear whether the court ruled on the motion.

Andrea and Symone did not appear at the trial the next day, July 9, 2024. The court found they had received notice at the June 2024 status hearing, and it went forward with the trial without them. After Christopher presented his evidence, the court declared the December 2020 amendment to be invalid. The court overruled Andrea's and Symone's objections. It denied without prejudice Christopher's elder abuse claims, request for restitution, and request for punitive damages.

The next day, Andrea and Symone filed a notice of appeal."

"As we understand their arguments, Andrea and Symone contend the probate court erred by going forward with the trial in their absence and without having provided them notice. Andrea and Symone's arguments are premised on the claim that the probate court granted their motion to compel discovery "on or about" July 8, 2024—the same day they filed the motion—and ordered Christopher to provide responses "not later than January 6, 2025." According to Andrea and Symone, the court clerk told them the trial would be continued in light of the court's discovery order. They believed the trial had been continued automatically, so they did not appear on July 9, 2024."

"Andrea and Symone's due process argument is premised on their contention that the probate court granted their motion to compel discovery the day before the trial and gave Christopher until January 2025 to respond to their requests. However, the record on appeal does not contain such an order. Nor does the probate court's case summary reflect that the court issued any orders on July 8, 2024. Andrea and Symone's opening brief on appeal states the order is attached as "Exhibit B." However, Andrea and Symone did not attach any exhibits to the brief they filed in this court."

As one can imagine, the Court of Appeal affirmed the trial court's decision.

Booker Family Trust, dated August 12, 2003, Los Angeles County Superior Court case no. 21STPB11517.

Lodging a Will

2025-07-01T07:00:00.000-07:00

If a person passes away with a will, the will's custodian is obligated to lodge the will with the superior court in the county in which the decedent resided within 30 days of knowing that the decedent passed away and to deliver a copy of the will to the nominated executor, or a beneficiary if the executor cannot be located and a beneficiary can be located. Probate Code §8200(a).

Periodically I have been involved in cases in which a disinherited heir raises strenuous objections about the will not being lodged within 30 days. These objections are almost invariably rooted in emotion rather than logic. It is hard to foresee the monetary damage caused to a disinherited heir if a will is lodged 25 days after death as opposed to 90 days after death. If the will is valid, the disinherited party will receive nothing from the estate. Therefore, the financial position of the disinherited heir will not change one iota regardless of when the will is filed. Furthermore, lodging the will after 30 days does not invalidate the will. A recent unpublished appellate opinion addressed this issue.

"The decedent, Artis Mae Myrick Finn, died on March 20, 2021. Two days later, a relative notified Crandall, who lived out of state. Crandall then spoke with Myrick, who also lived out of state."

"On April 8, Laura filed a petition to probate Finn's estate. She filed the 1983 will and 1991 codicil with the trial court on May 13—fifty-three days after Finn's death."

"On the other hand, we agree with Myrick that we can review de novo his contention about untimely filings of the will and codicil because it is based on an undisputed timeline. Myrick correctly notes that Finn's will and codicil were filed in the trial court more than 30 days after her death. (§ 8200, subd. (a).)^[6] He concludes that, because the documents were filed untimely, they "[t]herefore, . . . should not have been admitted into evidence."

But Myrick cites no case law requiring a trial court to exclude an untimely filed will, and we have not found any ourselves. Nor has he shown any arguable error was prejudicial. Indeed, the statute itself suggests the only remedy for untimely filing is a claim for money damages for proximately caused harm. (§ 8200, subd. (b); see County of Los Angeles v. Nobel Ins. Co. (2000) 84 Cal.App.4th 939, 945 ["`appellant bears the duty of spelling out in his brief exactly how the error caused a miscarriage of justice'"].)"

Estate of Artis Mae Myrick Finn, Orange County Superior Court case no. 30-2021-01194661

Financial Elder Abuse involving an Attorney

2025-06-02T13:00:00.000-07:00

Occasionally an attorney will have a meeting with a prospective elderly client who is exhibiting signs of frailty, e.g. poor vision, short-term memory loss, labored speech, listlessness, etc. The prospective client may want to engage the attorney to draft a trust or amend an existing trust. While an attorney can certainly represent an elderly and frail client, they should be vigilant that such frailties do not impede the client's ability to know and understand the consequences of their actions. In a recent published appellate opinion, an attorney was found to have committed financial elder abuse.

A daughter and a former spouse scheduled a meeting for an attorney to visit with an 86 year-old because they were unhappy with his estate plan, namely his trust. During the meeting, the attorney obtained the man's signature on a $100,000 retainer agreement. The attorney had determined that the man had capacity during the meeting. The attorney then sent a letter to the co-trustees to request payment of the $100,000 retainer. The man's other daughter, a co-trustee, then filed an elder abuse restraining order against the attorney.

"The petition described the alleged abuse as follows. George, a wealthy 86 year old, has major neurocognitive disorder and lacks capacity. Gabriella, Gabriella's husband, and George's former wife Dalyla are unhappy with his estate plan, so Gabriella had Herren meet in secret with George, and now Herren is seeking payment of a $100,000 retainer. After the meeting, George was agitated and upset, and he experienced high blood pressure, rumination, poor sleep, diarrhea, and paranoia. His caregivers were afraid, and his chef quit. Dr. Sutherland reported the Herren incident to the county Adult Protective Services agency (APS)."

"The trial court ultimately issued a restraining order against Herren. In finding that Herren engaged in elder financial abuse, the court concluded the evidence established that Herren obtained a property right from George by undue influence (§ 15610.30, subd. (a)(3)), and that she knew or should have known the taking would be harmful to George (§ 15610.30, subd. (b)). The order prohibited Herren from abusing and contacting George, and ordered her to stay 100 yards away from him and his home."

The attorney naturally appealed this decision. On appeal, the California Court of Appeal upheld the trial court's decision.

"In the published portion of this opinion, we reject Herren's contentions that a restraining order could not be sought or issued under the Elder Abuse Act without the trial court first adjudicating George's competence. We also conclude that substantial evidence supports the finding that Herren committed financial abuse of an elder. (See §§ 15610.07, 15610.30, subd. (a)(3), 15610.70, subd. (a).) In the unpublished portion of the opinion, we reject Herren's other challenges to the elder abuse restraining order."

Herren v. George ____ Cal.App.5th ____ (2025)

Reasonable Reimbursement

2025-05-19T10:41:00.000-07:00

Clients typically ask what is considered "reasonable" when determining what actions they should take as the personal representative of an estate. As a fiduciary, they are required to exercise good judgment when administering the estate, i.e. act reasonably. For example, a personal representative might ask if they can sell the family home to a friend for a below-market price (no), should they hire a realtor to sell the family home (yes), should they list the home on MLS (yes), should they address the code violations on the property (yes), should they hire an unlicensed contractor to do extensive repairs (no), should they take items from the home and not tell anyone (no), etc.

A recent unpublished appellate decision addressed the issue of reimbursement for a storage unit.

"Accordingly, Suzanne's rental of a unit to store personal property of the estate for distribution is an allowable administrative expense if reasonable and necessary. Here, however, the court found Suzanne's expenditure of more than $27,000 to store personal property valued at only $1,000 was "unreasonable and excessive." We don't disagree. As the court noted, the estate already had paid just over $33,000 to store that property—$15,725.49 that Suzanne paid from the estate between November 2013 and December 2014, and $17,276 the court apparently already had authorized for the estate to reimburse Suzanne."

"It is not our place to resolve these evidentiary conflicts. Moreover, our record is incomplete. The trial court, on the other hand, had "reviewed this file in detail." The court stated, "In fact, I've spent many hours, even though I have a very busy calendar, spent many hours because I really want to understand what's going on. . . . [¶] I've read everything that's been filed more than once." The court also asked the parties questions at the hearing. We can infer the trial court found Wayne's explanation of the events more credible than Suzanne's. Accordingly, we conclude Suzanne has failed to meet her burden on appeal to show the court erred in finding payment of storage fees 25 times greater than the value of the stored property was unreasonable, or in implicitly finding the storage of the property for more than five and a half years was unnecessary."

Estate of Anita M. Polinsky, Los Angeles County Superior Court case no. B329372.

Granting a Continuance

2025-04-10T15:34:00.000-07:00

Occasionally a party will request that a court hearing be continued to a future date for whatever reason. For example, a party is ill, a party is recovering from surgery, an attorney has a scheduling conflict (i.e. they have hearings in multiple locations at the same time), etc. It is fairly common for a continuance to be granted. Seldom will a continuance request be denied. Almost invariably there will be a compelling reason for the denial.

A recent unpublished appellate decision involved an aggrieved party who appealed the denial of a continuance by the trial court.

"On appeal, Curtis first argues that the trial court erred when it denied his oral request for a continuance on the morning of trial. We find no abuse of discretion."

"The trial court correctly ruled that Curtis did not comply with the procedures required by the California Rules of Court, as he failed to file any noticed motion or ex parte application with supporting documentation for his request for a continuance. Indeed, his request was made orally on the day of trial. The court also properly considered the fact that the original trial date had been scheduled eight months earlier, the trial had already been continued once five months earlier, and Curtis was present at the hearing at which that continuance was granted. Finally, according to the minute order, Curtis claimed he would be hiring an attorney named Ryan Anderson, but Anderson was not present at the hearing and there was no confirmation that he was available and willing to represent Curtis or had been contacted to do so.

Even if Curtis had filed the appropriate documentation, it was well within the court's discretion to deny his request for a continuance in these circumstances. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [denial of an oral request for a continuance justified when requested on the morning of trial, the opposing party was ready to proceed, and no supporting documentation was provided].) Although Curtis purportedly requested the continuance to obtain counsel, he had at least eight months to do so and still had not actually retained counsel at the time of the hearing. From the limited record before us, we cannot conclude that the trial court's denial of Curtis's request for a continuance was outside the bounds of reason. Therefore, we find no abuse of discretion."

Roberts v. Curtis, San Diego County Superior Court case no. 37-2020-00019064-PR-GE-CTL

Filing an Untimely Creditor's Claim

2025-03-07T14:59:00.000-08:00

Marin County Civic Center

When a person passes away, they often owe money to various persons, namely creditors. These creditors might be a family member, a government agency, friend, neighbor, credit card company or even an ex-spouse. Creditors have strict filing deadlines when filing a claim in a probate proceeding. The particular filing deadline, or statute of limitations, will depend upon when the decedent passed away, when Letters were first issued or when a notice of administration was provided to the creditor.

A recent unpublished appellate decision focused on the lack of timeliness by a creditor to file her claim.

"After Gary Kelson (Decedent) died, Paul Kelson (Executor) petitioned for probate of Decedent's will. Letters testamentary appointing Executor issued on December 7, 2021.

In May 2022, Objector filed a creditor's claim for more than $650,000.^[1] To support the claim, Objector attached a 2002 judgment in dissolution proceedings between Objector and Decedent. The judgment provided for Decedent to pay family and child support to Objector in specified amounts for specified time periods. In a subsequent filing, Objector explained that Decedent failed to fully pay the ordered support and further failed to return personal property identified as Objector's in the 2002 judgment.

In January 2023, Executor rejected Objector's claim. In filings supporting Executor's petition for final distribution, Executor stated Objector's claim was untimely. Objector filed a response and objections to the petition. Following a hearing, the probate court granted Executor's petition for final distribution. With respect to Objector, the court's order found Objector's claim was filed "more than 120 days following issuance of letters testamentary. [Objector] did not file a petition with this Court to allow her late-filed creditor claim under Probate Code section 9103. [Executor's] rejection of said claim as untimely was therefore proper."

The trial court's decision was later upheld on appeal by the California Court of Appeal.

Estate of Gary Kelson, Marin County Superior Court case no. PRO2103356

Of note, the Marin County Superior Court is housed in the Marin County Civic Center, pictured above. This building was designed by renowned architect Frank Lloyd Wright.

Restraints on Alienation - Civil Code § 711

2025-02-05T15:48:00.000-08:00

A sentiment often expressed by clients is for the family home to be kept "in the family" for generations. While understandable, even the best intentions can be thwarted if language in the trust runs afoul of CA law.

"Silvia Villarreal named her three children, Leticia Linzner, Arturo Villarreal, and Sonia Godoy, as the beneficiaries of her living trust, the assets of which included her longtime home. Upon her death, each sibling was to receive a one-third fee simple interest in the home. In her last amendment to the trust instrument, however, Silvia decreed the siblings could only sell their respective shares for an amount well below the market value and only to each other, citing her desire to keep the home in the family. After Silvia passed, Arturo and Sonia petitioned the probate court, in part, for an order determining the trust instrument unreasonably restrained their ability to alienate their interests in the real property. Over Leticia's objection, the court granted Arturo and Sonia's requested relief and declared the amendment void. Because Silvia's amendment imposed an unreasonable restraint on alienation in violation of Civil Code section 711, we affirm the probate court's order."

"Section 711 only invalidates unreasonable restraints on alienation. (See Carma Developers, supra, 2 Cal.4th at p. 355.) As discussed, when a restraint on alienation encumbers a fee simple interest, the restraint is typically unreasonable because it tends "to defeat the very purpose of the interest created." (Id. at p. 358; see Murray, supra, 64 Cal. at p. 367.) Such is the case here. The trust instrument conveyed the Property in fee simple, which vested the siblings with the right to freely alienate their respective interests. But that right is sabotaged by the language in the 2019 amendment restricting any sale of the interests to $100,000 and only amongst the siblings."

"Although the 2019 amendment does not completely foreclose all alienation, the probate referee's valuations of the Property—$1.05 million at the time of Silvia's death and $1.3 million as of December 2022—indicate the siblings stood to lose hundreds of thousands of dollars if forced to limit a sale of their one-third interests to $100,000. The quantum of restraint is even greater considering a sale could be made in a market of only two possible purchasers. While Silvia meant for these restrictions to ensure the Property stayed in the family, that justification—even if legitimate and well intentioned—does not overcome the heavy presumption in favor of alienability. Thus, the probate court did not err in declaring the 2019 amendment void as an unreasonable restraint on alienation of the siblings' respective interests in the Property."

Godoy v. Linzer 106 Cal.App.5th 765 (2024)

Trust and Will

2025-01-15T11:32:00.000-08:00

Much like how an apple is different than an orange. A trust is different than a will. For example, a trust can nominate John Doe to serve as trustee and Jane Doe to be the sole beneficiary. Conversely, a will drafted by the same individual can nominate Jane Doe to serve as the executor and John Doe to be the sole beneficiary. While it is quite common for a trust and will to be aligned, i.e. a person writes a trust and pour-over will, there is no underlying requirement. A recent unpublished appellate decision highlighted the fact that a trust and will are distinct testamentary documents.

“Quadri died on September 14, 2022. She had four daughters who survived her: Kime, Shoemaker, Laura Mae Haberkorn, and Linda Cherie Kime. Quadri had no other living or deceased children.

On December 10, 1994, Quadri executed a handwritten Last Will and Testament wherein she named Shoemaker as executor. The will equally bequeathed Quadri's entire estate to her four daughters.

On April 9, 2014, Quadri executed the Floy Wanda Quadri Living Trust with herself as grantor and Kime as trustee. The trust was never funded and Quadri never executed a pour-over will.

At the time of Quadri's death, her estate consisted of a condominium, some bank accounts, and tangible personal property. These assets were not titled to the trust.

On March 8, 2023, Shoemaker filed a petition for letters of administration. Two of the three daughters signed nominations of administrator to support Shoemaker's petition. Shoemaker was unable to find Quadri's original handwritten will and for that reason filed for letters of administration.

On April 27, 2023, the probate court held a hearing regarding Shoemaker's petition. No documents or competing petitions were filed. Shoemaker was represented by counsel and Kime appeared in propria persona to oppose Shoemaker's petition.

Kime asserted that the probate court should appoint her as administrator because Quadri had named her as trustee in the 2014 trust. Kime also contended that Shoemaker, Haberkorn, and Linda Cherie Kime conspired to unduly influence and abuse Quadri. Kime asserted that five months before her death, Quadri wanted to update her trust to leave the entire estate to Kime and exclude her other three daughters. Quadri took no further steps, however, to amend and fund the trust.

Following argument by the parties, the probate court granted the petition, appointed Shoemaker as administrator with full authority, and issued letters of administration. In ruling, the court explained that Shoemaker's petition concerned an intestate probate and an undue influence argument was not relevant.”

The Court of Appeal affirmed the trial court's decision.

"The probate court did not abuse its discretion by appointing Shoemaker as the administrator of Quadri's estate. In this intestate probate, each of the four daughters is entitled to an equal share and each has equal priority to be appointed administrator. (§§ 6402, subd. (a) [intestate succession]; 8467 [priority to be appointed administrator].) Only Shoemaker filed a petition seeking to be appointed administrator. Two of her sisters supported her nomination. Appointment of Shoemaker was not unreasonable and we do not substitute our decision for that of the probate court. (Estate of Selb, supra, 93 Cal.App.2d 788, 792.)"

In the Matter of Floy Wanda Quadri, Ventura County Superior Court case no. 202300576149PRLA

Ineffective Assistance of Counsel

2024-12-12T15:20:00.000-08:00

The term "bad lawyering" could be considered an oxymoron because no attorney would ever perform in a substandard manner......

Obviously my facetiousness is painfully obvious to any person who has spent part of their existence reading this blog post. Of course lawyers can perform incompetently just as much as you can find shoddy work done by a plumber, doctor, electrician, engineer, barber, biologist, etc. A peculiar twist to "bad lawyering" is what recourse is available to the aggrieved party. Many people know that a lawyer can be sued for malpractice if they perform below the standard of care. However, another consequence is that a person can seek to have an adverse judgment against them reversed if they received "ineffective assistance of counsel," the legal term used to describe bad lawyering.

A recent unpublished appellate opinion addressed the issue of ineffective assistance of counsel in a probate matter.

"Donald K. Dawson (Dawson) appeals from an order denying a petition to rescind the transfer of title of a mobile home and include it and specified funds in the estate of decedent Doris Rose Dawson. (Prob. Code, § 850 et seq.) Dawson contends the trial court erred when it: (1) excluded an expert opinion that a release of ownership of the mobile home was not signed by decedent, (2) failed to find withdrawals from decedent's bank account were unauthorized, and (3) failed to find elder abuse. He also contends his counsel provided ineffective assistance, and he was denied equal protection of the law."

The appellate court addressed these issues in order before turning to the appellant's ineffective assistance of counsel argument.

"Dawson further contends his counsel was ineffective. We reject this contention because the doctrine of ineffective assistance of counsel applies to criminal cases and limited categories of civil cases not applicable here, such as "`where the litigant may lose his physical liberty if he loses the litigation'" (In re Marriage of Campi (2013) 212 Cal.App.4th 1565, 1574), juvenile dependency proceedings (id. at p. 1575), and LPS conservatorships (Conservatorship of David L. (2008) 164 Cal.App.4th 701, 710)."

Estate of Dawson, Ventura County Superior Court case no. 56-2022-00567630-PR-LA-OXN.

In contrast, in a criminal case, a defendant may seek to have their conviction reversed on appeal if they can prove that they received ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668.

Estate Tax in 2025

2024-11-13T16:24:00.003-08:00

Since the estate tax exemption amount is currently pegged to inflation, the IRS recently announced the exemption amount for 2025 as detailed below:

2019 $11.4M 40%

2020 $11.58M 40%

2021 $11.7M 40%

2022 $12.06M 40%

2023 $12.92M 40%

2024 $13.61M 40%

2025 $13.99M 40%

Vexatious Litigant

2024-10-23T15:02:00.000-07:00

A litigant is generally entitled to file court documents at their discretion. That is, the litigant does not need pre-approval to file a complaint, petition, objection, etc. from a third-party. However, for an unlucky subset of litigants, they do need pre-approval to file because they have been declared a vexatious litigant.

An unpublished appellate opinion described the rationale behind the vexatious litigant law:

"`The vexatious litigant statute (§ 391 et seq.) was enacted "`to curb misuse of the court system'" by "`persistent and obsessive' litigants." [Citation.]' [Citation.] Relevant here, a "`[v]exatious litigant'" is one who, proceeding in propria persona, . . . `repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay' (inter alia)." (Deal, supra, 45 Cal.App.5th at p. 618.)

"`A court exercises its discretion in determining whether a person is a vexatious litigant'" based on statutory criteria. (Deal, supra, 45 Cal.App.5th at p. 621; see § 391, subd. (b).) "Once a person has been declared a vexatious litigant, the court, on its own or a party's motion, may `enter a prefiling order which prohibits [the person] from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.'" (Shalant v. Girardi (2011) 51 Cal.4th 1164, 1170; see § 391.7.)

This unpublished appellate opinion also described how a party had been declared a vexatious litigant by a trial court:

"After a continued hearing, at which all parties had the opportunity to orally present their positions, the temporary judge hearing the motion issued an order granting respondents' motion. The written ruling listed roughly four dozen court filings by appellant since the time of the ruling on the first vexatious litigant motion, and it described them as "repetitive," "difficult to decipher," and unsuccessful. Based on appellant's actions of "repeatedly fil[ing] unmeritorious motions, pleadings, or other papers," the court found appellant to be a vexatious litigant and issued a prefiling order "prohibit[ing] [him] from filing any new litigation in the courts of this state in propria persona . . . without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed."

The appellate court affirmed the the trial court's vexatious litigant determination.

Elias v. Jensen, Orange County Superior Court case no. 30-2018-00980796

Duty of Care Owed to a Nonclient Third-Party

2024-09-17T10:43:00.000-07:00

An attorney owes a duty of care to their client (see act in their best interest). In the context of estate planning, the client is writing an estate plan to benefit a third-party, i.e. the beneficiaries of their estate plan. The question then becomes, does the attorney owe a duty of care to third-party beneficiaries? A recent published appellate decision touched upon this issue.

"Richard died in March 2014 at the age of 81. His estate was valued at $18 million. Richard's 2012 estate planning documents, prepared by appellants, disinherited respondents and Peter. Richard's entire estate was left to his fourth wife, Elizabeth Grossman (Elizabeth), even though she was independently wealthy. Richard married Elizabeth in 2000, and they remained married until his death."

Following Richard's death, the disinherited relatives sued the drafting attorney of Richard's estate plan for legal malpractice and prevailed at the trial court level. This decision was then appealed to the California Court of Appeal.

"The sole issue on appeal is whether appellants owed a duty of care to respondents even though respondents were not their clients. "Whether [such] a duty exists is a question of law that we independently assess." (Gordon, supra, 88 Cal.App.5th at p. 554;"

"In Gordon the Court of Appeal stated: "We hold, as the courts before us uniformly have, that a nonclient third party can maintain a malpractice action only if there is clear, certain and undisputed evidence of the client's intent to benefit the third party, or to benefit the third party in the way [the third party] claims . . ." (Gordon, supra, 88 Cal.App.5th at p. 564.) The third party must show that the client's attorney knew or reasonably should have known of this evidence when the alleged malpractice occurred. Attorneys are not clairvoyants capable of ascertaining the unexpressed intent of their clients. (See id., at p. 556 [nonclient plaintiff must "establish[] that the client, in a clear, certain and undisputed manner, told the lawyer, `Do X,' (where X benefits the plaintiff)"].) Because the evidence of Richard's alleged intent to leave his estate to respondents instead of Elizabeth is not clear, certain, and undisputed, as a matter of law the evidence is insufficient to show that appellants owed a duty of care to respondents in preparing the 2012 restatement of the ARG Trust. Wakeman's testimony, together with the supporting testimony of Elizabeth, Laurel Luby, and Meredith Rattay, shows that the evidence of Richard's alleged intent was disputed.

If Richard had intended to leave his estate to respondents, there would have been no need for him to have obtained the letter from Dr. Miao attesting to his capability of "making competent financial and estate planning decisions." Wakeman advised Richard to obtain the letter because Richard said he wanted to disinherit his children and grandchildren and leave his entire estate to his independently wealthy fourth wife. The imposition of malpractice liability in these circumstances would not only be unjust, it would also "place an `intolerable' `burden' on the legal profession." (Gordon, supra, 88 Cal.App.5th at p. 559.)"

Grossman v. Wakeman (2024) ____ Cal.App.4th ____

Financial Elder Abuse

2024-08-22T14:14:00.000-07:00

Under Welfare & Institutions Code §15610.30(a)(1)–(3), financial elder abuse occurs when an individual

"(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.

(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70."

A recent unpublished appellate opinion focused on the issue of financial elder abuse. The trial court ruled that respondent had committed financial elder abuse and awarded the petitioner $318,000 in compensatory damages and $50,000 in punitive damages. The respondent appealed the trial court's ruling of financial elder abuse. The appellate court agreed with the trial court's finding of financial elder abuse.

"From 2015 through 2017, under the guise of providing comfort and care, Baik repeatedly misrepresented to Mr. Tak that the government could seize his condominium before or after his death unless he created a trust. Fearing the loss of his home and worrying about his ability to reside in it for the rest of his life, Mr. Tak acted upon Baik's misinformation to create a trust.

Subsequently, in March 2017, Baik actively facilitated Mr. Tak's creation of the Trust by driving him to We the People and paying Yi for her services. As a result of her efforts, Mr. Tak signed a slew of complicated legal documents, which he could not read or understand. He believed that, by creating the Trust and signing those documents, he was protecting his home from government seizure and ensuring his testamentary wishes would be carried out. Instead, Mr. Tak unwittingly granted Baik the exclusive rights to his entire estate, including his condominium, upon his death. Two months later, Baik quelled any concerns Mr. Tak may have had by assuring him, in writing, that she would carry out his wishes by distributing $100,000 to his church and $50,000 to Hwang when he died. Her actions taken following Mr. Tak's death, however, reflect that this promise was false.

Rather than following Mr. Tak's testamentary wishes, Baik immediately commenced efforts to sell Mr. Tak's condominium as quickly and surreptitiously as possible. Less than two months after his death, she sold the condominium to a distant family member through a closed sale, after initially concealing the transaction from Hwang. Ultimately, through the relationship she formed with Mr. Tak, her campaign of misrepresentations causing him to fear the loss of his home and believe she would carry out his testamentary wishes, and her active efforts to ensure the Trust's creation, Baik pocketed nearly $200,000 from the sale of Mr. Tak's home, as well as $9,700 from his life insurance policy. As a result of her actions, Mr. Tak's wishes remain unfulfilled: Hwang and Mr. Tak's church have been deprived of gifts they would have received had Baik not kept the entirety of his estate.

On this record, we conclude there is substantial evidence to support a finding that Baik took and retained Mr. Tak's property with the intent to defraud and by undue influence. Thus, the trial court did not err by concluding Baik committed financial elder abuse under section 15610.30, subdivision (a)(1) and (3)."

In the Matter of: Grace S. Hwang, Los Angeles County Superior Court case no. B325870

Can an Email Amend a Revocable Trust?

2024-07-24T16:36:00.000-07:00

Can emails to an estate planning attorney constitute an amendment to an individual's revocable trust? This interesting legal question was the focus of a recent appellate case:

Jerry and Mary Trotter, who were married, established the Trust as a revocable trust in 2011, and named themselves collectively as both "Trustee" and "Trustors." The Trust names Timothy, their son, as the successor trustee in the event neither Jerry nor Mary can act as a trustee. The Trust also provides that upon the death of whichever spouse survives the other, certain stock is to be distributed to Timothy, and the rest of the trust estate should be distributed in equal shares to each of several children, including Jerry's daughter from another marriage, Van Dyck.

When Jerry died in 2012, Mary became the sole trustee. According to declarations in the record, Mary intended to exclude Van Dyck as a beneficiary because Van Dyck had already inherited from Jerry's previous wife, and Mary believed Van Dyck had "been fairly provided for" in 2015. In relevant part, the Trust authorized Mary to amend the Trust "by an instrument in writing signed" by Mary and delivered to the "Trustee" — at the time, herself.

In late June 2020, Mary, Timothy, and Matthew Pribyl, Mary's estate planning attorney, exchanged e-mails about amending the Trust, excerpted below. On June 25, before her scheduled surgery on July 1, Mary e-mailed Timothy stating:

"My mind is quite clear now as [to] how to move forward on the house and will.

"I will write it out and then we need to see that the lawyer gets a copy asap and start redoing the will and trust.

"1. The house will go to you

"2. My cash assets will be divided among my five children; nothing to Wendy [¶] . . . [¶]

"The rest of selected items will be assigned to different children/grandchildren and I'm working on that list.

"Thanks, mom"

Mary underwent surgery the next day on July 1, 2020, and contracted an infection while in the hospital. She suffered two heart attacks and passed away a few weeks after her surgery. Timothy became the successor trustee, and when disputes arose about the administration of the Trust, Timothy petitioned the probate court for instructions. He sought, among other things, guidance about "whether under the express terms of the Trust, [Van Dyck], by reason of Mary's writings, has been removed as a beneficiary of the [Trust]."

Timothy J. Trotter (Timothy), successor trustee of the Trotter Family Revocable Trust (Trust), petitioned the probate court seeking guidance about whether certain e-mails from his mother, Mary Trotter (Mary), constituted a valid amendment to the Trust's beneficiaries. The court found that Mary's writings were insufficient to constitute an amendment to the Trust, and it ordered that the Trust be distributed to its original beneficiaries, including Wendy Trotter Van Dyck (Van Dyck).

The appellate court concluded "that at least two of the grounds the court relied on were proper: (1) there was no signed document amending the Trust and the electronic signature provision of the Uniform Electronics Transaction Act (UETA) does not apply because a unilateral trust amendment does not constitute a "transaction" within the meaning of the statute (Civ. Code § 1633.2, subd. (o)); and (2) Mary's writings did not adequately express an intent to amend the trust by the writings themselves."

Trotter v. Van Dyck (2024) ____ Cal.App.4th ____

Complying with a Filing Deadline

2024-06-27T16:18:00.000-07:00

It is axiomatic that a party is best served to observe filing deadlines. A judge does not impose filing deadlines for no reason. Rather filing deadlines are imposed to ensure the orderly administration of a case. A party who does not comply with a filing deadline does so at their own peril. This point was recently illustrated in an unpublished appellate opinion.

"On March 28, 2022—five days after the probate court's deadline to file objections to Liane's petition, three days after the court's deadline to file short briefs before the continued hearing, and just two days before the continued hearing itself—Tony filed and served objections to Liane's petition and an opposition brief."

"The probate court began by remarking that although the matter was set for an evidentiary hearing, "I don't think we're going to have one based on what I read." The court explained it had ordered any objections to the petition to be filed seven days in advance of the hearing and had received none. The court also observed it ordered the parties to walk their pre-hearing briefs into the courtroom five days before the hearing but had received only Liane's and Jett's briefs.

Tony's attorney, who was retained to represent Tony solely for purposes of appearing at the continued hearing (and the initial, uncompleted hearing earlier in March), explained that his client had difficulty filing his objections and brief through the electronic filing system. The court said Tony should have walked his filings into the courtroom and explained that as a "pro per litigant" Tony had "the luxury of walking in the door with [his] paperwork to the clerk's office and handing it to the clerk and saying `file it.' That is a luxury only pro pers have."

The probate court stated it would only "consider[ ] the briefs that were given to the court in a timely fashion." When Tony's attorney attempted to argue points raised in Tony's opposition and objections, the court rejected those arguments because Tony failed to timely file those documents: in the probate court's words, "[Tony] doesn't have a chance to have this fight because he did not do what he was required to do." When Tony's counsel asked for a short continuance so that the court could read what his client had filed, the court explained it gave Tony ample to time to file his responses to the petition and reiterated, "I'm not going to hear from him, because he did not do what he was ordered to do." When Tony himself attempted to interject, the court stated, "Mr. Bral, . . . I specifically put forth a briefing schedule and you did not comply with it. Therefore, we are not having this evidentiary hearing based on the fact that there is no need for it."

Tony personally interjected to inform the probate court that he had witnesses that would "respond to every item, every allegation." The probate court then invited both sides to make an offer of proof about what their witnesses would say if called to testify. Liane and Jett provided an extensive offer of proof; Tony did not.

"[B]ased on the briefs that were received," the offers of proof presented by Liane and Jett, and the fact that "no objection [was] lodged to th[e] petition," the probate court granted the petition and immediately suspended and removed Tony as co-trustee."

Estate of Ramin Bral, Los Angeles County Superior Court case no. B323383

Promise of an Inheritance

2024-05-30T11:15:00.000-07:00

Probate Code §366.3 provides that a party has one year to file a claim to enforce a promise or agreement made by a decedent regarding a distribution from an estate or trust. A recent unpublished appellate opinion involved the applicability of Probate Code §366.3 to the case's particular facts.

"Between the 1960s and the 1980s, decedent Junichi Frisco Yamasaki made repeated oral promises to leave his entire estate to his two sons, petitioners Daniel and Gene Yamasaki, in exchange for their financial support. In the 2000s, after a falling out with his sons, Junichi executed a will and a revocable living trust, through which he completely disinherited his children. In 2012, Junichi amended his trust, naming his long-time girlfriend and new wife, Reiko Nakazawa, as the trust's trustee and the primary beneficiary of his entire estate."

"Around late January 2013, Junichi was hospitalized, and later moved to a nursing facility, after his health deteriorated.

In April 2013, Gene drafted a new lease agreement for the Whittier Laundromat (Amended Lease). The Amended Lease named Junichi as the landlord and Gene as the tenant, and it provided that Gene would pay Junichi $500 per month for a 10-year term. The Amended Lease included two options, allowing Gene to extend the term of the lease for an additional 10 years. The Amended Lease also included an option allowing Gene to purchase the Whittier Laundromat for $5,000 at any time during the initial 10-year lease term or the extended terms. On April 15, 2013, Junichi signed the Amended Lease. Nakazawa signed the agreement as a witness to Junichi's signature.

Nakazawa later testified that she did not review the Lease and the Amended Lease, or otherwise understand what they were, before she signed them."

"In April 2013, Nakazawa filed a petition to be appointed as Junichi's conservator. Nakazawa alleged Junichi had been diagnosed with dementia, a heart condition, and macular degeneration and, as a result, was incapable of caring for himself, including his financial affairs. Nakazawa also alleged that Junichi never read or understood the Lease and the Amended Lease before he signed them. In December 2013, the trial court granted Nakazawa's petition.

In August 2014, Gene filed a petition to confirm the Lease and the Amended Lease under Probate Code section 850, subdivision (a)(3)(A) (Lease Petition).

In July 2015, Junichi died.

In September 2016, the court denied the Lease Petition, finding the Lease and the Amended Lease were unenforceable because Junichi suffered from dementia when he signed them and, therefore, lacked the capacity to enter into the agreements.

In December 2016, over a year after Junichi died, Daniel and Gene filed another petition under Probate Code section 850, subdivision (a)(3)(A), which sought to enforce Junichi's oral promises to leave them his estate when he died."

"In July 2021, the court issued a 23-page statement of decision. As a preliminary matter, the court found the brothers' claim to enforce Junichi's oral promises was barred by Section 366.3's one-year statute of limitations because they filed their petition more than one year after Junichi died."

The California Court of Appeal affirmed the trial court's decision.

Yamasaki et al. v. Nakazawa, Los Angeles County Superior Court case no. BP148064

Filing an Appeal

2024-04-23T14:22:00.000-07:00

Attorneys often act as gatekeepers. I occasionally read appellate opinions in which it is rather clear that the litigant should have consulted with an attorney before filing an appeal. The attorney would have informed the litigant that their case is not as strong as they may perceive. For example, a recent unpublished appellate opinion involved a litigant who should have consulted with an attorney before filing their appeal.

"Although Washington does not have a lawyer representing her in this appeal, "the same rules apply to a party appearing in propria persona as to any other party." (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 205.) Much of the fact section of Washington's opening brief consists of unsupported allegations of a conspiracy involving, among others, the administrator's counsel, probate court judges, clerks and justices of this court, the justices of the California Supreme Court, an insurance company, the military, the Department of Homeland Security, the CIA, the FBI, two federal judges, the California Highway Patrol, and the police departments of several East Bay cities. The argument section alleges that some or perhaps all of these people and entities violated the federal Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. § 1961 et seq., and obstructed justice; it also cites Penal Code statutes on attempt and aiding and abetting."

It would be reasonable to conclude that a CA attorney would have advised this litigant not to file such an appeal. It was unlikely, to put it mildly, that the aforementioned parties were a cabal that conspired to thwart the appellant.

Washington v. Washington, Alameda County Superior Court case no. RP2008371