Hon. Mary Fingal Schulte (Ret.)

Profile

Hon. Mary Fingal Schulte retired from the Orange County Superior Court in 2017 after 20 years on the bench. She enjoyed a distinguished judicial career as a respected trial judge, having herself been an experienced trial lawyer and civil litigator for nearly 20 years before her appointment to the bench. In 2016, Judge Schulte received the Trial Judge of the Year Award from the Orange County Chapter of the American Board of Trial Advocates (ABOTA).

For the last 14 years of her judicial career, Judge Schulte held various civil assignments and has presided over general jurisdiction civil trials, probate and mental health hearings and trials, appellate panel hearings, and long cause family law trials. She was Supervising Judge of the Probate/Mental Health Panel from 2009-2014, and Assistant Presiding Judge of the Appellate Panel from 2008-2009. In addition, she was actively involved in several court committees, including the executive committee; the temporary judge committee, where she developed and supervised the first courtwide training program for the court’s temporary judges and a settlement training program for the Probate Panel’s temporary judges; and the arbitration and mediation committee.

Prior to her judicial appointment, Judge Schulte began her legal career as a Deputy District Attorney for the Orange County District Attorney’s Office. She was then in private practice in Orange County for 13 years as a business and tort trial attorney, including nine years as a partner at Martin Wilson Fingal & MacDowell, with an emphasis in construction, premises and products liability litigation, insurance coverage, and medical malpractice cases.

Judge Schulte is very proficient in French.

AREAS OF EXPERTISE

  • Probate, Estates & Trusts
  • Medical and Legal Malpractice
  • Insurance Coverage
  • Family and Elder Law
  • Discovery and Judicial Reference
  • Personal Injury and Products Liability
  • Partnership Dispute
  • Employment
  • Breach of Contract, Real Estate
  • Construction Contract Disputes

 

JUDICIAL EXPERIENCE

Judge of the Superior Court of California, County of Orange   1998-2017

Civil Court Assignments:

  • General Jurisdiction Civil Trials Panel, 2014-2017
  • Supervising Judge, Probate/Mental Health Panel, 2009-2014
  • Assistant Presiding Judge, Appellate Panel, 2008-2009
  • Appellate Panel, 2007-2009
  • Long Cause Family Law Trials, 2007-2009
  • General Jurisdiction Civil Trials Panel, 2003-2009

Judge of the Municipal Court of California, County of Orange   1997-1998

  • Appointed by Gov. Pete Wilson, August 25, 1997
  • Elevated to Superior Court, August 10, 1998

LITIGATION EXPERIENCE

Partner and Vice-President, Martin Wilson Fingal & MacDowell   1988-1997

  • Civil litigation practice emphasizing construction, premises and products liability, insurance coverage, and medical malpractice

Associate, Martin & Wilson   1987-1988

Associate, Gardner & Martin   1984-1987

Deputy District Attorney, Orange County District Attorney’s Office   1978-1981

AWARDS

  • Trial Judge of the Year, ABOTA – Orange County Chapter    2016
  • Judicial Civility Award, Robert Banyard Inn of Court 2013
  • Judicial Civility Award, ABOTA – Orange County Chapter     2003
  • St. Thomas More Award, St. Thomas More Society of Orange County        2002

EDUCATION

  • University of California at Davis, Juris Doctor   1977
  • California State University at Fullerton, Bachelor of Arts in History   1974

BAR ADMISSIONS

Admitted to practice before all California State Courts, all Federal District Courts (trial level) in California, and the United States Supreme Court

PROFESSIONAL AFFILIATIONS

  • American Board of Trial Advocates (ABOTA)
  • State Bar of California
  • Robert Banyard Inn of Court
    – Member, Board of Directors, 2000-Present; President, 2010-2012
  • California Judges Association
  • International Academy of Trial Judges
  • Orange County Bar Association
  • Italian American Lawyers of Orange County
  • Orange County Trial Lawyers Association

COMMUNITY INVOLVEMENT

  • Chairperson, Ecumenical and Inter-Religious Commission for the Diocese of Orange, 1999-2005
  • Oblate, Order of St. Benedict, affiliated with St. Andrew’s Abbey in Valyermo, California
  • Member, Advisory Board, St. Andrews Abbey, Valyermo, California
  • Hospice Volunteer
  • Constitutional Rights Foundation
    – Mock trial coach and volunteer judge, 1997-Present

Representative Cases

BREACH OF CONTRACT/REAL ESTATE

  • Defendant submitted an offer to plaintiffs on behalf of a purchaser. Plaintiffs tried to negotiate higher price, claimed defendant made false representations about part of the increased price being used for repairs to property. Defendant claimed plaintiffs failed to disclose that the partnership was being dissolved. Both sides claimed breach of contract. Plaintiffs also alleged fraud, negligence, breaches of fiduciary duty.
  • Breaches of implied warranties of merchantibility and fitness as well as intentional misrepresentation and fraudulent nondisclosure, surrounding purchase of Book PC products designed and manufactured by defendant.
  • Complaint alleged breach of fiduciary duty (arising from attorney-client relationship); breach of fiduciary duty (arising from Joint Venture Agreement); breach of contract (duty of good faith and fair dealing); interference with contractual relations; interference with prospective economic relations; and unjust enrichment.
    Plaintiffs alleged that they entered into a Joint Venture Agreement on 5/22/11 with Defendant Limited Partnership for the acquisition and development of a parcel of real estate located in Kentucky. Defendant drafted the Joint Venture Agreement and undertook to represent both parties to the transaction without adequate disclosures of his conflict of interests and without obtaining Plaintiffs’ informed consent.
    Plaintiffs alleged the Joint Venture Agreement was drafted to take advantage of them.
  • Complaint for (1) Declaratory Relief and (2) Injunctive Relief. Plaintiff was the Ground Lessee and Defendant is the Ground Lessor on a 95-year Ground Lease. The dispute pertained to the second of three rent adjustments set forth and governed by the Lease. The core of the dispute between Lessor and Lessee, which was resolved by earlier litigation was that the Lessee argued that the Lease required that each of the four parcels be separately valued and that the separate values be added together to determine a total value, whereas Lessor argued, despite the lease, that the property should be appraised as combined with values allocated to the individual four parcels.
  • Partition action involving $8 million worth of property on Balboa Island. Dispute between siblings regarding manner of partition: by sale vs “in kind”.
    The dispute between the parties arose after their father passed away and the parties attempted to administer his trust (wherein Sister is the trustee), which includes the distribution of the trust’s 50% interest in the properties.
    The parties entered into a Settlement Agreement to settle all probate court litigation. This Agreement settled all disputes between the parties regarding the disposition of the three properties and stated that the parties shall be entitled to commence an action for Partition pursuant to CCP § 872.010 et seq. There were also liens against the property, and Sister disputed the validity of many of them.
  • Breach of Contract and (2) Breach of Implied Covenant of Good Faith and Fair Dealing. Plaintiff alleged that Plaintiff and Defendant entered into an Independent Contract Services Agreement whereby Plaintiff agreed to recruit students for enrollment in Defendant’s education programs in exchange for $24,000 a month. This was to be a 3 year contract. Defendant breached the contract by failing to make their bi-monthly payments and notifying Plaintiff of an intent to terminate.
    Defendant alleged that Plaintiff did not faithfully perform its obligations under the contract, but rather, it undertook a scheme to defraud Defendant by recruiting unqualified students and providing a structure for those students to wrongfully obtain financial aid.
  • Plaintiffs were leasing property from Defendant and were in the process of purchasing the same. Plaintiffs alleged Defendant breached the Residential Purchase Agreement and was attempting to sell to a back-up purchaser. Claims included specific performance; breach of contract; anticipatory breach of contract; inducing breach of contract; intentional interference with contractual relations; intentional interference with prospective economic relations; negligent interference with prospective economic relations; breach of fiduciary duty; and nuisance.
  • Complaint for (1) Defamation; (2) Intentional Interference with Contract; (3) Interference with Prospective Economic Advantage; (4) Violation of B& P Code§17200. Plaintiffs were previously a party to a coverage agreement with the Hospital whereby the physicians provided coverage for patients in the Hospital’s NICU. Later, the Hospital elected to choose a different group to provide coverage for the NICU. Under CA law, NICU is an “open unit”; that is, the hospital may not enter into exclusive contracts with a medical group to provide all physician services to a hospital. W&I Code 14087.28. Plaintiffs claimed that Defendants, by only calling on certain physicians, were turning the NICU into, effectively, a “closed” unit.
  • Software Company that sold software solutions to businesses, including manufacturers and distributors, sold a system to defendant. Defendant was a master distributor of industrial pipes, valves and fittings. It bought and sold specialized industrial pipes and related products and acted as an intermediary between manufacturers, other distributers and end users of those products. Plaintiff sues for breach of contract, seeking recovery for unpaid software and consulting fees. Defendant countersued for fraud and negligent misrepresentation, and breach of contract, seeking return of monies paid, and damages.
  • Mom sued son for breach of contract, financial elder abuse and conversion. Son told her she could live in his house and share “50/50” if she paid off the mortgage. After a cancer diagnosis, and chemotherapy, her son evicted her. Son crosscomplained to trespass.
  • Plaintiff owned and resided at a condominium property. Defendant was the HOA. Plaintiff alleged she experienced at least seven (7) instances of water intrusion stemming from slab leaks at her unit, causing damage to her dining room area. She claimed that the Association’s remediation effort of the slab leak and damage to her property was subpar, and that defendant engaged in undue delay in remediating the mold caused by the water intrusions.
  • Suit by anesthesiologist for damages against a medical center for recovery of wages, conversion, breach of contract, wrongful termination.
  • Quiet title action between former joint owners of a house, issues of lost deed, forged deed.
  • Action by landlord vs tenant and tenant’s assignee for breach of contract, declaration that assignment was invalid, and injunction prohibiting construction on the property. Landlord argued no waiver of breach of lease by accepting rent. Involved 29 acres of land in South Orange County owned by an individual and several trusts where the landlord and some but not all co-owners sued, challenging the assignment of the ground lease.
  • Suit to recover commissions owed to licensed sales representatives. Issues of breach of contract, misappropriation of proprietary information and trade secrets, unfair competition. Involved issue as to whether a list of names constitutes a trade secret under the UTSA.
  • Contract to sell family residence, question of what was monetary relief “incidental” to a grant of specific performance
  • Suit for specific performance on written contract to sell commercial real estate, countersuit for rescission and restitution, cancellation of instruments and slander of trial, enforceability of contract.
  • Dispute involving purchase of a private college—claims for fraud, negligent misrepresentation, common counts, promissory estoppel.
  • Dispute involving claim for unpaid commissions in regard to yacht sales

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CONSERVATORSHIPS/GUARDIANSHIPS/ELDER LAW

  • Financial, emotional, physical abuse
  • Substituted judgment petitions
  • Family disputes over conservatorships
  • Professional fiduciaries vs family members
  • Contested conservatorship proceedings involving public figures
  • Probate Code section 2357: “Court ordered medical treatment.” Issue of whether hysterectomy would be allowed by the court, not to sterilize patient but to remedy a medical condition.
  • Siblings arguing over conservatorship of mother. Other siblings took “loans” and gifts from mom, issues of undue influence and lack of capacity.
  • Siblings dueling over conservatorship of father, extremely dysfunctional family members, with visitation orders made. Also involved multiple complex accountings and attorney fee orders where there were numerous objections and counter objections.
  • Catastrophic injury to wife and mother, issue of professional vs family member as conservator.
  • Accounting of an inexperienced family member who was conservator, and who made innocent commingling of funds. Objections filed by other family member.
  • Dispute involving multiple fee petitions and objections as to approval of fees in conservatorship matter, analysis as to whether compensation is to the advantage, benefit, and best interests of the conservatee.
  • Handled contested guardianships in high profile cases (children who lost parent due to homicide by other parent—“Seal Beach Shooter Case” and other cases)
  • Handled Grandparent and family visitation issues
  • Petition to terminate guardianship denied, but awarded visitation to mom, as requested by her and teenage daughter. Mom had two kids when a teenager, by a 27 year old.
  • Grandmother was guardian, stipulated to terminate guardianship and was awarded visitation. Issue involving termination of visitation order due to toxic relationship between mom and daughter, finding and what was in best interests of the children (2 girls)
  • Finding of exclusive and continuing jurisdiction in the state of Ohio, under the UCCJEA, of a baby girl residing in Ohio. Court made a finding that neither the adoption proceeding nor the termination of parental rights proceeding fall within the UCCJEA and that the guardianship proceeding cannot be bootstrapped into the adoption/termination of parental rights matter to confer jurisdiction under the UCCJEA. Child living with proposed adoptive mother for 2 years. Paternity was established in Ohio. Petitioner/guardian/prospective adoptive mother sought to terminate father’s rights over his objections.
  • Grandparents competing for guardianship of children. Petition to fix residence out of state.
  • Dispute involving request by mom for visitation, guardians resisted, but they ultimately adopted the children.
  • Grandmothers were sharing custody, under an informal arrangement, and issue was whether there was a need for a formal guardianship as mom was bonded to child.
  • Parents absent from life of child, issue of Court ordered expanded visitation to non-custodial family.
  • Child’s mother died in November of 2007 in Michigan, where she had gone to live and work. From 2004-2007 child’s father saw him every few months. Child had two half-sisters, living with his father. The mother of these girls apparently pretty much abandoned them and child’s father took care of them. Child’s father was never informed of the mother’s death until the petition was filed in April 2009. While he clearly could have done more to be in child’s life before that, he maintained contact. Dispute over guardianship petition of maternal grandparents who had been de facto parents.
  • Competing petitions by grandmothers, one of whom was the only adult member of her household without a significant criminal record.
  • Highly contentious guardianship matter involved multiple petitions. Child went to live with guardian within weeks of his birth. Father was in prison. 3 years after guardianship was established, he got out of prison and received visitation on Sundays for 4 hours. Competing petitions to terminate parental rights, expand visitation, terminate guardianship. Guardian died and no one told the father.
  • Dispute involving grandparent petition for guardianship where child resided with mom.
  • Petition for modification of limited conservatorship and termination of general probate conservatorship. Issues of the two types of proceedings, and powers vested in conservators. The petition alleged that the limited conservatee hadPrader-Willi syndrome, which impaired her ability to make critical decisions involving living arrangements, finances, medical care, diet, and social and contractual relationships. Issues of powers under Probate Code Section 2351.5 (b)
  • Petition to establish conservatorship over a granddaughter of a famous figure. She had suffered a brain aneurism and had been on a temporary conservatorship. Involved protracted litigation in Orange and Los Angeles counties between family members and trustees of granddaughter’s assets. Issues of substantial ability to manage her own financial resources or to resist fraud or undue influence. Family sought conservatorship of person and estate.

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CONSTRUCTION

  • Plaintiff alleged it was hired to perform certain renovations on Defendants’ home; however, Defendants breached the Agreement by refusing to pay for the services rendered and preventing Plaintiff from completing the project.

EMPLOYMENT

  • Employment discrimination, including harassment. Plaintiff alleged she was employed by Defendants and that, during her employment, she was sexually harassed by Defendant supervisor. Plaintiff alleged she suffered retaliation following complaints regarding the harassment.
  • Plaintiff was formerly employed by defendant as a cashier and alleged she developed a physical disability that limited a major life activity. Plaintiff alleged she suffered from this disability and notified employer of the disability, and that she was terminated shortly thereafter.
  • Plaintiff worked at a Japanese Restaurant. His given title was sushi chef; and, as a non-exempt employee, Plaintiff did not spend more than 50% of his time performing managerial tasks—instead he performed tasks commonly associated with non-exempt employees such as preparing food items, taking and preparing customer orders, and general customer service and food service tasks. Despite Plaintiff being a non-exempt employee, he was paid a flat salary of approximately $665 per week and was not provided increased payment for overtime, or granted legally compliant meal and rest breaks.
  • Petition for Writ of Mandate against County and Director of Social Services Agency of the County seeking an order requiring the County to vacate its Notice of Discharge mailed to Petitioner and to immediately reinstate him as Administrative Manager II in his former position.
    Petitioner alleged that until his discharge, he never had any disciplinary actions taken against him; his work performance was always exceptional; and that he encountered opposition from his managers when he began enforcing proper time-keeping practices amongst his subordinates. Petitioner alleged the County lacked “reasonable cause” to discharge him; the discharge violated the County Disciplinary Process Manual guidelines of progressive discipline.
    Petitioner sought: (1) a writ of mandate directing the County to vacate its Notice of Discharge and to reinstate him; (2) repayment of amounts to County Retirement System and adjustment of recorded necessary to reinstate Petitioner; (3) payment of tuition reimbursement; attorneys’ fees and cost of suit; back pay and benefits and interest; destruction of documents pertaining to investigation of him and his dismissal; and any other proper relief.
  • Deaf teacher who was a probationary employee whom school district elected not to offer a job, claimed retaliation for complaints made about outmoded sign language being used in the district.
  • Police officer claimed violations of POBRA and retaliation for filing a grievance.
  • Plaintiff alleged she had been employed by University since 2005 and was a tenured Associate Professor. Plaintiff alleged she was discriminated against based upon her gender; retaliated against for complaining of discrimination and harassment; denied promotion to Full Professor; and demoted by being removed from various committees, denied upper division/graduate courses, and relagated to teaching lower division classes.
  • Plaintiff, a dentist, worked for a dental implant manufacturer and retailer as a training manager in the education department. He alleged wrongful termination for complaining about what he believed were violations of public policy including health and safety risks to himself, co-employees and dental patients; retaliation for reporting of health and safety violations; failure to pay wages. Defendant claimed it eliminated the position for legitimate business reasons.
  • Former district manager for Insurance Company alleged wrongful termination from his position in violation of public policy. He alleged breach of contract. The iissue was whether he was an employee or independent contractor. Defendant terminated him for failure to meet minimum performance standards for recruiting and training agents.
  • Sexual discrimination/harassment matter filed against general and subcontractors by female elevator installer at a hospital. She claimed differential treatment due to her gender.
  • Amtrak engineer claimed he was injured while operating a derail switch. Rotator cuff repair.

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FAMILY LAW

  • High conflict divorce where there were $300,000 in attorney fees incurred by both sides. Family Code sections 1101(g), 2030, 2032 and 271 issues evaluated in ordering husband to pay half of wife’s fees.
    Spousal support orders using the Family Code factors set forth in section 4320 et. seq. Husband had stipulated to spousal support of $1,500 then quit his job. Numerous violations of ATRO’s.
  • Wife incurred fees and costs in the sum of $285,527. She claimed entitlement of contributory attorneys’ fees and costs based on her need and Husband’s ability to pay per Family Code section 2030. She also claimed fees as sanctions under Family Code section 271, as well as in the nature of penalties for violation of fiduciary duties and nondisclosure of assets per Family Code section 1101(g). Case also involved equalization issues and whether Wife unreasonably failed to engage in settlement negotiations or that her conduct frustrated public policy favoring cooperation between the parties and resolution of disputes.
  • High conflict divorce involving cash flow issues, imputation of income, Watts charges, equalization, calculation of arrears, award of residence, vehicles and other property, bank accounts, business evaluation, attorney fees and sanctions.
  • High conflict dissolution involving issues of allocation of debt, division of personal property, multiple residences, determination of medical reimbursements, award of custody of children, timeshare allocations, child and spousal support, attorneys’ fees.
  • Multi-issue matter: business evaluations, five (5) homes plus one ( 1) in Mexico, determination of separate and community property, Epstein credits, equalization issues, IRA’s, pensions, life insurance, Watts charges, child and spousal support, attorney fees.
  • Divorce involving Evidence Code section 662 presumptions, transmutations of property, Moore-Marsden calculations.
  • Dispute involving issues of cash flow, earning capacity, child and spousal support, division of property, and issues re: breach of fiduciary duties. Issues of equalization owed by Wife to Husband and offsets by arrearages in child support.
  • Dissolution where the evidence was clear that Wife was “in charge” of the money and accounts and finances during the marriage. While many of the 45+ accounts were in her name, the evidence supported a conclusion that all accounts held in her name were community accounts. Both spouses contributed funds to the accounts, which were used for community obligations. To the extent that any separate assets went into any account, they were hopelessly commingled. There were personal injury settlements and an inheritance of Husband’s which were all commingled. Wife admitted she read and understood the documents when she was served, and that thereafter she transferred $800,000 out of the accounts. Issues of spousal support, violation of ATRO’s, division of property and equalization of same.
  • Involved issues of income, date of separation, as well as the division of property, issues of credits and reimbursements, attorneys’ fees, and spousal support. One of the main reasons parties were anxious to affix the date of separation had to do with the presumption concerning spousal support. If the earlier date was accepted, the marriage was not deemed “long term” under the Family Code. The parties lived under the same roof until the community home was sold. The marriage, by both parties’ testimony, clearly was over much earlier. Yet for another 16 months, they continued to use community accounts and commingle their money. The parties lived separately in the family home. But, when it came to finances, they acted in many respects as an in tact family, with bills being paid from the community accounts, money going in and out of the community accounts for the family. The couple maintained joint bank accounts and credit cards, filed joint tax returns, and took joint title to property, even after the date wife claimed as the date of separation - in fact for 18 months after that date.
  • Involved issues of child support arrearages, credits for payments on mortgage, fair rental value (Watts credits), Family Code section 721 issues, involving the ongoing fiduciary duty that exists until the asset is disposed of. Evidence Code 662 and Family Code section 842 issues were implicated where Wife put her name on the house to refinance and to keep taxes down. She paid the mortgage, which was in husband’s name. She waived Moore-Marsden credits by a pre-nuptial agreement. Wife asked for award of the house as an offset for unpaid child support. Multiple issues of offsets/credits owed to each party.
  • Dispute involving issue of family law court’s continuing jurisdiction over the parties’ unadjudicated community estate, whether or not jurisdiction is expressly reserved in the prior judgment. Family Code section 2566. Parties asked the Court to “adjudicate and divide an after discovered and undisposed of community property asset...” The asset was a foreign company including China land rights. Issue was whether it was “after discovered” and “undisposed of.” It was not mentioned in the judgment, so moving party argued that the asset was unadjudicated. The weight of the evidence suggested that the reason for this was that it was disposed of by agreement (drafted by petitioner) between the parties prior to the dissolution. Husband knowingly and voluntarily gave up any rights to his share of China business holdings before he prepared the judgment in the case, and before judgment was entered. Issue was whether there was a community property interest in the China business holdings to divide when the judgment was entered.
  • Question as to whether a large sum of money from husband’s mother was his separate property. He argued it was either a gift or an inheritance. Either way it would be presumed to be separate property. The mother purportedly “lent” it for “safekeeping.” Whether the money was or was not a community asset in the first place was found to be irrelevant, but the transfer back to the mother was a clear violation of the mutual restraining order.
  • High conflict custody case. Father ended up shooting mother and taking child to Mexico, where he committed suicide. Evidence Code 730 evaluator recommended 50/50 custody, child testified he was nervous around his father.
  • Property division case. Disclosure issues involving property acquired during the marriage, which is presumed to be community property. Issues of the burden shifting to the separate property proponent to show the asset is section 770 property. Also issues of earnings and accumulations of a spouse while living separate and apart from the other spouse, which are considered the separate property of the spouse. Family Code section 771.

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INSURANCE

  • Bad faith claim re: denial of coverage for corporate theft.
  • Complex title insurance claim arising from protracted litigation between sophisticated, institutional real estate lenders over the priority of multi-million dollar loans they made to the same borrower and secured by the same property. The underlying dispute was largely resolved when the Court of Appeal confirmed that the lien of plaintiff and its assignee/successor plaintiff was in first priority ahead of the lien of another entity.
  • Title insurance company determined it had no duty under the title policy to defend a lawsuit where the claim against the insured was that it had breached the contract by which it acquired title, and not that there was a pre-existing defect in the title. The insurer withdrew from defense after accepting tender subject to a reservation of rights and defending the action for two years at its sole expense while investigating the claim. Insured claimed breaches of express and implied duties under the policy. Case involved issues of priority of trust deeds.
    The insurer asserted it had no duty to defend an action not based on title defects but which sought a determination that the subordination agreement was unenforceable based on allegations of insured’s breaches of contract and post-policy wrongful conduct. Case involved issues of reasonable investigation of claims and coverage determinations. Court conducted an analysis of risks covered by title policies as compared to other forms of insurance, which indemnify against conduct of the insured, while title insurance indemnifies against existing title defects and other title impediments to real property interests that exist in the record title and can normally be found through an examination of title. Court conducted an analysis of exclusion from coverage clauses, reservations of rights, waivers of coverage. Case also involved California Fair Claims Regulations, bad faith.
  • Plaintiff acted as a third party administrator that contracts with numerous hospitals in Mexico providing various services, including confirming medical insurance coverage for American citizens admitted to Mexican facilities, translation of medical records, billing and invoicing. Additionally, as part of the contractual agreements between Plaintiff and hospitals in Mexico, upon admission to a Mexican facility, patients who are American citizens execute an assignment of benefit agreement, assigning their benefits in the insurance policies to Plaintiff.
    Third-Party patient was an insured of Defendant under health insurance policy. Patient had a medical emergency while in Mexico and was admitted to a hospital. At the time of admission, Plaintiff contacted Defendant and advised of patient’s admission, and Defendant’s agent acknowledged that patient’s health insurance policy was active and that Defendant would cover the benefits for the medical services provided to patient upon admission to the hospital.
    After patient was stabilized in the emergency room, Plaintiff contacted Defendant to request an air ambulance or other medical transportation to transport patient to a medical facility of Defendant’s choosing in the United States. Defendant’s representative advised and directed Plaintiff to make arrangements for patient to remain at a hospital in Mexico rather than being transported to the United States. Plaintiff relied on Defendant’s assurances that the insurance policy would cover the medical services provided to patient, and continued to provide patient with non-emergency medical treatment at a hospital in Mexico. Complaint alleged: Promissory estoppel; Breach of Contract – Tortious Breach of Insurance Contract (Bad faith); Breach of implied covenant of good faith and fair dealing.
  • Breach of contract action by medical center against defendant, arising from an Agreement for Health Care Services entered into in 2009 between Plaintiff, and defendant. Pursuant to the Agreement, medical center contracted to provide medically necessary emergency room services to defendant patients. Medical center alleged it provided medically necessary services to certain individuals in the amount of $215,995, submitted invoices to defendant, and was not paid.
  • Involved issues of duty to defend, and interpretation of policy exclusions for intentional and unlawful acts, as well as definitions of “occurrence”, “personal injury” and “bodily injury.” In an underlying case, ex-husband/father alleged that plaintiff (among others) abducted, or aided and abetted the abduction of, his infant son and hid him from his father for almost 18 years, with the knowledge and help of others. Plaintiff tendered defense to insurance company, which declined to defend. Underlying case where Wife took infant from Orange County to parents’ home in India. Husband sued several family members and acquaintances over 19 years later, accusing them of conspiring with ex-wife. Trial court granted nonsuit as to two defendants, jury found against other defendants. In a second suit filed by policyholders who had been sued in Matter #1 and found by jury not to have had knowledge that mom planned to leave the U.S., court granted carrier’s MSJ on grounds that abduction claims were not covered claims. Policyholders had tendered claim under condo/homeowner policies covering them during period in which acts alleged in Matter #1 had occurred. Both trial court decisions were affirmed on appeal.
  • Plaintiff was an Insurance agent who was insured through an “Insurance Agents Error and Omissions Liability Policy” issued by Defendant Insurance Company.
    Plaintiff was sued for professional negligence in another action wherein it was alleged that Plaintiff provided a “sham” 419 plan to the individual who brought suit (i.e. a plan which was not a 419 plan). Plaintiff asserted that, based on the allegations, insurance company had a duty to defend and indemnify Plaintiff. Further, Plaintiff asserted Defendant wrongly denied coverage, on the basis 419 plans were excluded from Plaintiff’s policy.
    Plaintiff alleges that co-Defendant was hired by insurance company to review the claim and falsely concluded that coverage should be denied.
  • Insurance coverage matter: breach of contract and breach of warranty, alleging failure to properly investigate and adjust a claim for partial submergence of insured’s yacht. Claims for breach of the implied covenant of good faith and fair dealing; breach of contract; fraud in the performance; negligent misrepresentation; and intentional interference with contractual relations.
  • Claims for: (1) Declaratory Relief; (2) Breach of Implied Covenant of Good Faith and Fair Dealing; and (3) Breach of Contract.
    Defendant insurance company issued a Homeowner’s Policy of Title Insurance to Plaintiff. Plaintiff sought a determination from the Court that damage to the property, due to a damaged and defective sewage system, was covered by this policy.
  • Suit by residual trust beneficiaries over what was owed under a professional liability policy issued by a bankrupt insurer; issues of covered claims, single claim policy limits and self- liquidating policies, what is restitution versus covered damages. Underlying case involved voiding of a trust wherein attorney designated himself as a beneficiary, resulting in imposition of constructive trusts, and judgments in probate proceedings of close to $4 million against the lawyers representing value of stocks sold; the second underlying petition was for accounting and review of attorney’s exercise of discretionary trustee powers, and an additionally award for premature stock distributions causing tax losses. Insurance carriers made partial satisfaction of judgments, but there remained an unsatisfied portion of over $4 million. Liability carrier became insolvent. Issue was whether the 2 probate petitions were a single claim under the policy. Interpretation of insurance policy was required to determine potential for coverage, as to what part of damage award was covered versus restitution, and what remained under the policy limit. Involved issues of what constituted separate transactions for purposes of coverage limits.

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LEGAL MALPRACTICE

  • Complaint filed by Plaintiffs against Lawyers & asserting causes of action for legal malpractice and breach of written agreement, alleging that Plaintiff hired Defendant to represent him in a dissolution action in which his former wife filed a request for spousal support and attorney’s fees. Defendant failed to file a copy of the prenuptial agreement and Plaintiff’s income and expense declaration; he claimed he would not have had to pay spousal support and attorney’s fees had those documents been filed. Plaintiff retained in another lawyer, also a defendant, as counsel in the divorce action. He claimed that second lawyer also failed to adequately represent him, resulting in a finding by the family court judge that the prenuptial agreement was invalid.
  • Attorney fee suit. Plaintiff alleged he and defendant had a fee agreement whereby defendant would pay him 25% from sale of a dental practice. Defendant claimed no written fee agreement. Plaintiff alternatively sued on quantum meruit theory.
  • Legal malpractice. In underlying matter, Plaintiff retained defendant as her lawyer to prosecute a medical malpractice case on her behalf. Defendant went to trial against doctor, dismissing hospital. Defense verdict in underlying case.
  • Complex legal malpractice action. Plaintiff claimed defendant negligently failed to advise him that an option to purchases was valid and that a previous offer to purchase was not an exercise of the option. Plaintiff was a general partnership which owned residential and commercial properties. Involved preparation of two real estate purchase contracts.
  • Legal malpractice suit arising out of preparation of a trust. Plaintiff claimed that defendants gave negligent legal advice which resulted in her not receiving her half interest in the marital residence purchased by her ex-husband during their marriage.

MEDICAL MALPRACTICE

  • Medical Malpractice/Wrongful Death of a 15 year old mentally ill teenager with history of homicidal violence. He assaulted and tried to kill his psychiatrist. He was placed on Clozaril and died as a result of reaction to drug. Informed consent issues.
  • Plaintiffs alleged that Defendants’ negligence resulted in severe injuries to child, including a fractured cervical spine and other traumatic cervical spine injuries resulting in acute respiratory failure, hypoxic ischemic encephalopathy, neurological impairments and other severe and permanent injuries.
  • Plaintiff was decedent’s wife. She claimed her husband was seen by defendant doctor for sinus pain at his office and he prescribed amoxicillin and steroid for sinus infection. Decedent was allergic to amoxicillin. Another doctor recommended surgery for a possible sinus mass. He performed exploratory excision of the nasal septum He did no pre-op testing for fungal culture or bacterial sensitivity. During the surgery, decedent had a heart attack. Cardiologist convinced him to have heart surgery. Decedent had heart surgery. None of the doctors involved did any bacterial testing, meanwhile fungus was invading his body. Ultimately, it invaded the brain, the blood, and eyes. Two weeks after nasal surgery, decedent went blind and later died.
  • Medical malpractice. Plaintiff, an M.D., underwent coronary artery bypass graft surgery. Two days post-operation he developed complications including a bowel perforation, requiring emergency surgery to repair the bowel.
  • Medical Malpractice/Wrongful Death. Woman with long history of heart problems died during angiogram. Husband claimed failure to obtain informed consent, and negligence in performance of the procedure.
  • Medical Malpractice/Wrongful Death involving patient who had three episodes of chest pain. Patient was seen by defendants who did not feel chest pain was cardiac in origin and discharged him. He died 90 minutes later at home.
  • Surgery to perform pelvic organ prolapse, with complications ultimately resulting in loss of one of plaintiff’s kidneys and surgical removal of some mesh. Plaintiff alleged failure to warn, failure to perform necessary and regular diagnostic tests, and failure to diagnose post.
  • Plaintiff alleged that defendant (deceased at the time lawsuit was filed) negligently examined her right foot resulting in a right trimalleolar ankle fracture.
  • Medical malpractice suit involving claim of loss of the vestibular system and hearing following treatment with antibiotics for a post-surgical wound infection.
  • Medical malpractice suit claiming failure to confirm a diagnosis of HIV and needless treatment for HIV infection.
  • Psychiatric malpractice action involving allegations of negligent supervision of therapists who were treating the plaintiff for multiple personality disorder and abuse.
  • Medical malpractice action in which plaintiff alleged that defendant failed to diagnose and treat congestive heart failure in a diabetic male, resulting in his death at age 48.
  • Plaintiff alleged defendant doctor failed to timely diagnose and treat sudden onset pain and weakness in the left leg, reulsting in gangrene and a below the knee amputation.
  • Medical malpractice matter in which the plaintiff claimed failure to timely diagnose and treat symptoms of a cerebral vascular accident/minor stroke. Following an embolectomy, she had a rapid recovery.
  • Medical malpractice matter in which plaintiff had bilateral breast implants as cosmetic surgery. She developed capsular contractures, alleged negligent surgery, and lack of informed consent.
  • Medical malpractice matter where plaintiff presented to her doctor having had a positive home pregnancy test, pain in the right lower quadrant, and a palpable mass in the area. Eventually she required removal of a portion of her right fallopian tube. She alleged failure to timely diagnose an ectopic pregnancy. Allegations of chart alteration.
  • Wrongful death and medical malpractice matter wherein plaintiff presented to defendant hospital following an auto accident. She had been hospitalized for two (2) weeks following the accident, was released, and then re-hospitalized the next day. 15 hours later she died of a pulmonary embolism. Her widower claimed failure to diagnose a pulmonary embolism.

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PARTNERSHIP DISPUTES

  • 19 causes of action cross-complaint with claims of fraudulent concealment, intentional misrepresentation, conversion of assets, breaches of fiduciary duty and duty of loyalty, breach of corporate opportunities, misappropriation of customer lists, etc.
    Parties requested a judicial declaration of the rights and liabilities of each party. Claim was that one partner refused to terminate the Buy-Sell Agreement, despite requests from the other partner that the business relationship between them be dissolved. Partner requested a judicial declaration as to his rights, and the obligations of co-partner, as well as a mandatory injunction dissolving the business relationship.
  • Plaintiff/cross-defendant was the second largest shareholder and a board member of Defendant/Cross-Complainant and he alleged he held his stock to his detriment based on false representations made by the company regarding its financial performance. Defendant is a publicly traded company.
    Defendants filed a cross-complaint alleging breach of fiduciary duty. In the cross-complaint, defendants alleged that plaintiff violated company policy by putting a significant amount of his stock in a margin account and, when the stock declined, plaintiff was forced to sell 3.65 million shares (6% of the total outstanding shares ), resulting in even further decline in the stock price.
  • Complaint for Breach of Fiduciary Duties, etc. (7 causes of action). Plaintiff alleged that he was ousted as an officer and director of Defendant company because he objected to a certain licensing agreement that other shareholders stood to gain from.

PERSONAL INJURY

  • Deaths of 3 minor girls hit by SUV on Halloween by defendant, who is in prison now. Issues of dangerous condition of public property, defective design.
  • While crossing an intersection in Santa Ana in an unmarked cross-walk, two children were struck in the northbound lanes by two vehicles driven by defendants. One died and one was seriously injured. The children were headed with the rest of their family to In-n-Out Burger.
    Plaintiffs alleged the intersection lacked sufficient warning signs and signals to alert drivers about pedestrians, the street lights were not working, and the subject crosswalk and the adjacent construction zone was defectively designed and controlled. Plaintiff alleged that there were various peculiar conditions at the intersection which made street lights and warning signals necessary, including the high speed of motorists on that street, the high presence of pedestrian traffic, the adjacent construction zone, the average motor vehicle traffic, the street width, street markings, traffic control devices, lights and/or peculiar darkness at the location. Plaintiff also alleged that Defendants had actual knowledge of a high number of prior vehicle versus pedestrian incidents of a similar nature at the same location.
  • Plaintiff, then 17 years old, was hit by a driver under the influence of alcohol who failed to yield while walking in a marked cross-walk in City. The cross-walk is located right outside a High School and at a busy intersection. As to the City, Plaintiff alleged one cause of action for dangerous condition of public property and that considering the accident history in the particular location where the Plaintiff was struck, the City should have installed, among other safety devices, appropriate signage and/or flashing lights to warn vehicles of the pedestrian traffic, pavement markers or other devices to properly control speed at the incident location, should have made efforts to improve visibility around the crosswalk where high school students would cross, and set forth proper crosswalk enforcement.
    The driver is serving a prison sentence as a result of the incident.
    Design immunity, dangerous condition issues.
  • The Complaint alleged Plaintiff was walking through the non-sterile portion of Terminal A of Airport when she tripped on a metal expansion joint.
  • Plaintiffs claimed that after attending a concert at a venue close to their hotel, and while returning to their hotel, they were unlawfully detained, assaulted and battered and falsely imprisoned by police officers.
  • Plaintiff alleged that while working as a consultant operating out of a fire department, she was sexually assaulted and raped by the captain. Plaintiff had long history of charges against police and fire personnel and litigious nature.
  • Plaintiff was a customer at a fast food restaurant, who alleged food was sold to her that was “tainted, dirty, diseased, foul, impure, soiled, spoiled, unclean and contaminated.” Plaintiff asserted the food “had not been properly maintained, processed, handled, prepared, and approved for consumption” and that she suffered food poisoning, and contracted the bacteria clostridum difficile, which resulted in traumatic and permanent brain injury.
  • Plaintiff, a diabetic with bi-lateral foot neuropathy, was injured and burned in a hotel steam shower. Ultimately he suffered a below the knee amputation of the right leg. He claimed inadequate warnings and negligent installation.
  • Negligence and product liability action by a reserve police officer who claimed a head injury from a rear end collision which she claimed caused her to impact the shotgun rack in the police vehicle.
  • Premises liability action. While visiting a shop at a large mall, plaintiff walked into a glass panel of the store as she was attempting to exit.
  • Electrocution injury occurring while plaintiff was trimming trees in a homeowner’s back yard.
  • Woman killed on Pacific Coast Highway, design defect issues, issues of under-insured driver negligence, and relevance of a CDL suspension for a matter unrelated to poor driving.

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PROBATE, ESTATES & TRUSTS

  • Handled the Donahue Trust petitions, including the attorney fees. Donahue Trust was the subject of a published and frequently cited opinion on reasonableness of attorneys’ fees, arising from an order at the trial level from another judge.
  • Petition of decedent’s son to determine title to and require transfer of personal property to estate; for damages for breach of fiduciary duty by executor; for removal of executor; constructive trust; attorney fees. Involved issue of whether a $775,311.11 cashier’s check payable to decedent (who had same name as his son) and which had not been negotiated at the time of his death was subject to probate administration. Decedent’s sister, the executor and trustee, contended that the proceeds of the cashier’s check did not belong to decedent, and that an agreement she signed with decedent’s sons excluded the check from probate administration.
  • Brother and sister embroiled in dispute which generated multiple petitions over a course of years. Issues as to who had a life estate in their father’s home and dueling allegations of breaches of fiduciary duty. Interim trustee was appointed, house ordered sold. Trustee resigned before house sold due to toxic relationship between the siblings. The court appointed a receiver. Receiver evicted the sister and sold home.
  • Petition to compel an accounting in the format set forth in Probate Code section 16063, to surcharge the trustee for failure to secure and protect trust assets to compel distribution of funds for the support of the beneficiary, and to remove the trustee. Petitioner (the Trust’s primary beneficiary) through his guardian ad litem sued trustee alleging he breached his fiduciary duties as trustee. Specifically, he alleged trustee (1) failed to secure the trust’s assets after the trustor died; (2) failed to distribute all of trustor’s personal property to him as the trust required; (3) failed to timely provide an accurate accounting for the trust upon request; (4) paid himself excessive compensation for his trustee services; and (5) failed to make monthly distributions from the trust to cover his living expenses.
  • Extremely complex multi-county probate matter involving decedent who had been living concurrently with two women in two different locations and had fathered children with each woman. Involved issues of Family Code community property presumptions, and determining date of marital separation. Decedent had acquired interests in drill sites and there were issues of characterization of that property. Also involved analysis of numerous deeds and validity of a sheriff’s sale and a settlement agreement with one of the spouses.
  • Dispute involving burden of proof as to a missing or lost will and whether will had been revoked. Former caretaker and agent by virtue of a durable power of attorney filed a petition for probate of a lost or destroyed will. She subsequently withdrew her petition. In her supplemented petition, she stated she did not know if the will was last in decedent’s possession, and even if it was, decedent was not competent until death, and accordingly, the Probate Code section 6124 presumption of revocation did not apply. She offered the photocopy as a “lost” will. Petitioner had acted as decedent’s agent under a power of attorney. The nephews of decedent filed a contest to this probate petition. They also filed their own petition for letters of administration based on intestacy. Thereafter, a brother-in-law and a cousin of the decedent also filed a petition for probate of a lost will, which was contested by the nephews.
    Three grounds were asserted in the two contests: first, that the purported lost will was revoked by decedent prior to her death; second, that the presumption of Probate Code section 6124 applied; third that the purported lost will was not in decedent’s handwriting or not duly executed by her. It was undisputed that decedent never knew the contestants, her nephews.
    The will left everything to decedent’s only daughter, who ultimately predeceased her, so that per the will, the estate would be shared by her husband’s sister and brother. The sister likewise predeceased testator. At the time of sale of decedent’s home, none of her important documents could be located. Lawyer testified as to client’s documents.
  • Two brothers alleged that their father intended to have his Leisure World property distributed in equal shares to his three sons. One brother agreed to purchase the shares of the other two sons and executed an unsecured promissory note for $90,000 to each son. That brother took title to the property, paid each remaining of his other two brothers’ $10,000 and then failed to pay the remainder owed ($80,000). He filed a civil complaint for rescission, cancellation of instrument, restitution, unjust enrichment and declaratory relief, alleging that he and his parents held the subject property in joint tenancy and that he was entitled to 100% of the property.
  • Dueling petitions to admit successive wills and a codicil, to probate. Issues of disqualified beneficiaries due to presumptions of undue influence (Probate Code section 21350), and standing of assignee of decedent’s step-son, beneficiary of an earlier will, to contest the two later created instruments. Also involved analysis of issues of lack of capacity of testator.
  • Issues of ambiguity as to testator’s intent where testator knew of a grandchild’s existence when he created a will, yet he did not mention her in the paragraph identifying his “then living grandchildren”, nor did he expressly exclude her in the Children’s Trust.
  • Two petitions: one was to appoint petitioner as successor personal representative and for issuance of letters of administration with the will annexed. The other was to remove executor, a lawyer who was related to decedent, to compel an accounting, and to award damages based on fraud and breach of fiduciary duty. Petition alleged that personal representative should be removed because he misappropriated assets of the estate for his own personal use. Issues of deference given to testator’s choice of executor.
  • An accounting wherein the Public Administrator (“PA”) requested statutory fees for the PA and County Counsel; extraordinary (“XO”) fees for the PA’s handling of the sale of two parcels of real property and for tax work; XO fees to County Counsel for litigation related fees and a distribution to the Trust after compensation, reserve for contingencies, closing costs, and bond fees. Trustee filed objections to the Account.
  • Three (3) competing petitions for probate of a will alleged to be lost or destroyed, versus revoked by testator who committed suicide and had children from an earlier non-marital relationship, along with children from his current spouse, in which divorce proceedings were pending but not finalized. Will contest and opposition to probate of purported will. Issues of Probate Code 6124 presumption and burden of proof to overcome that presumption.
  • Nephews of decedent petitioned to revoke probate of codicil to their aunt’s will. The central issue was whether the writing that decedent made on top of her previous will “I will change my will to leave everything equalie (sic) to my siblings” contained present testamentary intent so that it constituted a holographic codicil, or whether it contemplated taking action in the future. Affirmed on appeal.
  • Dispute involving successor trustee of decedent’s Trust and Attorney-in-fact under a Durable Power of Attorney (POA). Trustee had been decedent’s caregiver, and was in a fiduciary relationship with her. She moved in with decedent within a month of meeting her. She moved out later but she opened a checking account with decedent pursuant to the POA, which allowed her complete access to the ATM card until the account was closed. There were frequent and sizeable amounts of cash withdrawn from the account. No satisfactory explanation was offered for these withdrawals. Decedent’s home was sold prior to her death, and net proceeds were deposited into the POA checking account. Subsequently, decedent moved into an assisted living facility. While trustee was agent on the checking account, decedent re-financed her home several times. After decedent moved into care facility, there were numerous cash and ATM withdrawals that were not explained. Trustee had a fiduciary duty to decedent and breached that duty by failure to account for her actions. There was a judgment in for failure to pay the bill at the assisted living home and trustee was held responsible for the judgment.
  • First and Final Account Current; Request for Administrator Commissions and Attorney Fees and Costs Reimbursement; Petition for Final Distribution. Estranged spouse pled guilty to murder in the first degree of mother of the minor children.
  • Competing petitions to probate a will, administer estate, and will contest; petition to determine validity of decedent’s living trust and the validity of bank instruments making gifts to respondent . Also involved issues of the care custodian disqualification under Probate Code section 21350 as defined by WIC section 15610.17. Decedent met definition of “dependent adult.” Care custodian had burden of proof that the transfer was not the product of fraud, menace, duress, or undue influence. The “certificate of independent review” did not meet requirements of Probate Code section 21350(a). Petitioner argued she did not meet definition of care custodian. She was a full time driver, property manager, and companion to decedent and was paid anywhere between $500 to $3000 a month. Two weeks after she was hired as a driver, petitioner moved in with decedent. She received room and board and cash. She drove decedent to appointments and meetings, assisted with banking and bill paying, did shopping and took care of the household. While petitioner was living with him, decedent executed a will and trust, leaving his estate to his children (all adults) on his death. Within 2 years he changed all this, leaving everything to petitioner/care custodian.
  • Numerous insurance coverage issues arising out of a complex and highly publicized probate matter.
    Among the controverted issues: Did the Petition to Determine That Particular Acts are Not a Contest in the Estate filed in the Orange County Superior Court on October 9, 1992 qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Insurance Policy issued to Law Firm? Did the “Petition to Declare Void a Trust Provision Designating Lawyer A Beneficiary of The Trust And To Establish A Constructive Trust [Probate Code Section ll200]” filed in the Orange County Superior Court on December 11, 1992 qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Policy? Did the “Petition For Review Of Account of Trustee and His Exercise of Discretionary Powers; Review the Reasonableness of Trustee’s and Attorney’s Compensation; And to Compel Redress of Trustee’s Breach of Trust; And for Surcharge of Trustee [Probate Code Sections 17200(5)(9) and (12), 16420(3) and (7); and 16440(a)]” filed a year later in Orange County Superior Court qualify as a “claim first made against the insured during the policy period and reported to the company during the policy period” of the Professional Liability Policy? If so, was it related to the earlier claim, and thus the two petitions constitute one claim. Does the Corrected Judgment rendered for the December 11, 1992 Petition qualify as “damages” as defined by the Professional Liability Policy? Was coverage under the Professional Liability Policy for the Corrected Judgment on the December 11, 1992 Petition excluded under the “dishonest, deliberately fraudulent, criminal, maliciously or deliberately wrongful acts or omissions committed by the Insured” exclusion in the Professional Liability Policy? Had the payments, if any, made for defense costs exhausted the policy limits in the Professional Liability Policy and the General Purpose Endorsement?
  • Mother changed her will to leave bulk of her estate to the daughter who cared for her during the final years of her life. Other daughter claimed lack of testamentary capacity and undue influence.
  • Complex probate matter involving 5 petitions concerning 3 family trusts; issues of misconduct, validity of trust amendments, removal, accounting, and instructions
  • Dispute involving a life insurance policy that ex husband was required to obtain and maintain naming wife as beneficiary as part of divorce settlement. Petition for imposition of constructive trust, determination of title to insurance policy proceeds and separate property.
  • Accounting and Probate Code section 17200 Petition for Instructions Regarding Validity and Enforceability of Trust Amendment (also described as a codicil to the will). Trustor died of cancer on August 3, 2011, while vacationing in Germany with her parents. She had established a revocable living trust by executing a declaration of trust on November 22, 2010. That same date she validly executed a pour-over will. Her daughter was the only Trust beneficiary. She also executed a grant deed transferring real property on November 22, 2010. Issue of whether that showed intent to amend her will. She prepared what she described as a codicil to her will, leaving $56,000 to various beneficiaries. Petitioner /Trustee, a friend of decedent, contended that document was intended to be an amendment to the trust. She argued that if the document was treated as a codicil, which didn’t amend the trust, the beneficiaries’ dispositions would be affected because the probate estate was likely insolvent. As Trustee, she had an obligation to argue for the beneficiaries, but she also was the beneficiary who would take the most under the “codicil”; no other beneficiary filed responses to the daughter’s objections to Trustee’s petition. Trustee argued that the handwritten document was an amendment to the Trust because it significantly altered the distribution, and if deemed a codicil, it would not amend the will which gifted the entire estate to the Trust.
  • Dispute as to whether a writing constituted a holographic will, a contract, an amendment to the trust or none of the foregoing.
  • Matter involving three (3) petitions and three (3) Trusts: Petition for Instructions by Trustee, Re: Determination of Amounts Due and Owing to Trust By Beneficiary and Charging Distributive Share of Beneficiary for Amounts Due and Owing to Trust; Beneficiary Second Amended Petition for Instructions, Removal of Trustee and Surcharge. Trustor claimed that beneficiary breached an oral agreement with Trustor/decedent by failing and refusing to make payments for costs and expenses of a condo in Ventura. The condo was in Trust A at the time of Trustor’s death. This beneficiary was a beneficiary only of Trust A.
  • Multiple petitions. Prior to establishing the Trust, decedent owned the certain real property as her separate property. Her husband was placed on title due to a lender’s requirement when Wife (decedent) refinanced the property in early 2003. He quitclaimed the property back to his wife later in the year, after the refinancing was completed. She then put the property into the Trust. Husband did not receive any of the funds, but remained on record as a borrower on the note and trust deed. In November of 2009, the court ordered the Trustee to pay off the balance of the Note, when foreclosure was threatened. Decedent’s mother argued the encumbrance was incurred by son-in-law and “his deceased wife,” as she referred to her daughter.
  • The adult children of decedent sought removal of Lawyer who was Trustee of one of the two Family Trusts on five grounds: breaches of trust (duty to serve notification of change in trustee, duty of loyalty, duty to deal impartially)—Probate Code sections 15642(b)(1), 16061.7, 16002, 16003; unfitness to administer the trust--PC 15642(b)(2); failure or declination to act – PC section 15642(b)(4); excessive compensation--PC section 15642(b)(5) and 15687(a) and (e)); and “for other good cause” – PC section 15642(b)(9).
  • Wife was the income beneficiary of a QTIP trust. Upon her death, after taxes and expenses were paid, the corpus was to be divided among the remaining beneficiaries, except that Husband’s share was to be in trust for his life. Principal assets of the trust were stock in closely held corporations. The stock was allocated to the QTIP after Husband’s death, and on Wife’s death, it was to be distributed 51% to Husband’s son, special trustee of the stock, with 49% to the other beneficiaries. The balance of the QTIP assets were ultimately to be split 5 ways. Trustee selected by Husband was a cousin but not a beneficiary. Objections focused on trustee’s alleged failure to adequately explain 6 items of the Account, and his paying himself $180,000 in compensation during the accounting period, particularly when the beneficiaries had told him they were in desperate need of distributions. The primary objection was to the trustee’s fees.
  • Dispute involving three (3) Sub Trusts, A, B and C. Daughter asserted 90 year old father, married to a mid 60s year old woman, had been subject to undue influence by his wife. Her father/trustee (and trustor) filed a petition for instructions and construction of trust instrument, seeking reimbursement of $453,385.60 in expenses he claims he paid out of his personal funds for maintenance of trust property, and litigation and accounting fees re: the trust and trust property. Issue as to whether he had improperly withdrawn principal from Trust C. Respondent was the daughter and the contingent remainder beneficiary of Trust C. (Trust C property consisted of 3 parcels of land including a single family home.) She argued that her father had authority to invade the principal of Trust C only to the extent actually necessary to allow him to maintain his accustomed standard of living, and that he breached his fiduciary duties as a trustee, in multiple ways. She asked the Court to remove her father as trustee of Trust C and appoint an independent fiduciary. She further asked that her father be ordered to account for his actions as Trustee, and surcharged in an amount equal to the amount by which the Trust had been depleted. Father denied he invaded principal of Trust C.
    The primary disputed issue was whether trustee was permitted under the express terms of the Trust to reimburse himself from the principal of Trust C for the expenses he paid out of his own pocket for the benefit of Trust C. The expenses related to payments he made for repair and maintenance, water bills, taxes and insurance, as well as attorney and accounting fees he paid in connection with litigation involving the trust and trust property from 1993 to 2007.
  • Husband and Wife married in August 1995. It was the third marriage for each of them. Husband died at the age of 62. His sons by his first marriage were the designated beneficiaries under earlier trust amendments. They contested later trust documents claiming lack of capacity and undue influence by step-mother (his Wife).
  • Trustor’s nephew asked the Court to determine the validity of a trust amendment. He alleged diminished capacity on the part of his aunt, which made her vulnerable to undue influence and fraud by her husband of over three decades. Nephew claimed aunt’s husband exerted undue influence to obtain execution of the Trust. He also claimed financial elder abuse and breach of fiduciary duty. He sought the imposition of a constructive trust, and a determination that an earlier Trust became irrevocable after his aunt’s death.
  • Dispute involving whether the partnership distributions made to the Trust constitute principal or income. If they are income, which trust beneficiaries are responsible for payment of accrued but undistributed net income due the Estate? Or, against which trust assets should there be placed a lien for payment of accrued but undistributed income? Co-trustee contended that the distributions were income and that accrued but undistributed net income from the distributions were due the Estate and should be charged against the Trust A and Trust B beneficiaries on a pro rata basis. Co-trustee also served as executor, and in that capacity contended that the distributions were income, and should be a lien against the assets of Trust B. Objector contended the distributions were principal and therefore due and payable solely by the residual beneficiary of the trust principal.
    This also involved an issue as to whether the bequest of the Trust’s interest in the residences was a general or specific bequest, and whether the expenses associated with the Trust’s “residences” (“residential property expenses”) should be charged to the beneficiaries of the Trust’s “residences”, prorated between all beneficiaries of Trust B, or prorated among all beneficiaries of Trust A and Trust B.
  • Two siblings petitioned the Court for a determination of the validity of trust amendments; to impose a constructive trust; and to compel trustees, one other sibling and his wife, to account. They dismissed a claim of elder abuse. An amendment excluded the first couple from the Survivor’s Trust. The controversy revolved around testamentary documents relating to the estate plan of the parents. Petitioners claimed parents lacked capacity to execute certain documents. They claimed their parents were the victims of brother and sister-in-law’s undue influence and fraud. They claim anything signed after 1996 contained forged signatures. The original trust provided for equal division among the siblings.
  • Long drawn out dispute between the beneficiaries of a family trust (the Trust) formed in 1973. Interim trustee petitioned for instructions about leasing real property of the Trust and directing the payment of net income to one of the beneficiaries. Interim trustee also petitioned for instructions about what conditions, if any, should be placed on the required distribution of one-half of the Trust’s principal to another beneficiary, in light of an over $5 million civil judgment he owed the Trust.
  • Complex trust litigation involving a family corporation, which was founded by the defendant’s now deceased father. Plaintiff was defendant’s former husband. A Trust petition sought instructions from the Court regarding the Trust’s obligations, if any, to pay for medical and educational expenses to, or on behalf of the Trust’s sole beneficiary, child of plaintiff and defendant, and expenses related to the ownership and maintenance of the Trust house. Concurrently with executing a marital settlement agreement, Husband and Wife established an Irrevocable Trust in their daughter’s name. The entire net income of the Trust was to be paid to the daughter after she reaches age 18. The Custody Agreement obligated Husband to pay 100% of daughter’s clothing, medical, dental, and educational expenses, including college or trade school. The Agreement was not clear as to whether that obligation continued past age 18.
  • Trustor created a trust whereby upon her death her estate would be distributed 1/3 to a friend and 2/3rds equally divided between her twin daughters. She further provided that if either daughter predeceased her, the surviving daughter would receive the other’s share. She gave no instruction as to what should occur if both of her daughters predeceased her. Both daughters left two sons. Trustor outlived both of her daughters. Two grandsons claimed they were entitled to the entire 2/3rd interest because their aunt died first. The other two grandsons argued that since both their mother and aunt died before their grandmother, the remaining 2/3rd interest in the trust should be shared equally by the four grandchildren.
  • Petition for Removal of Trustee, Accounting, Appointment of Successor Trustee, and for Redress of Breach of Trust. Petition alleged that trustee, a lawyer, was guilty of failure to use income and principal of the trust for the benefit of the beneficiary, and of breaches of trust and fiduciary duty. Petitioner was only five years old when her father established an irrevocable trust in her favor. The trust consisted of funds from a personal injury settlement obtained by her father after he was badly burned in an explosion at a refinery. Her father’s personal injury attorney was appointed trustee of the trust. A little less than four years later, attorney, as trustee, lent himself money from the trust – about 80 percent of the trust’s value at the time – giving in return his unsecured personal IOU providing for an 8 percent interest rate and no required payments of either interest or principal for 10 years. Neither the beneficiary nor her mother with whom she lived, were ever informed of the loan from the lawyer as trustee to himself as an individual, and neither learned of the loan until it was revealed in documents later obtained.
  • Objector was a remainder beneficiary of the Trust. The Trust did not contain a spendthrift clause. The creditor sought an order under Probate Code section 15306.5 allowing her to obtain 25% of any distribution to Objector/debtor, to satisfy all or part of her judgment from amounts which Objector was entitled to receive. Enforcement of a money judgment against a settlor’s beneficial interest in an irrevocable trust, requiring a court order per CCP section 709.010(a).
  • An action for determination of invalidity of a trust and for determination of invalidity of an inter-vivos transfer of certain funds, under the common law as well as under Probate Code section 21350. Issue was whether a transfer was made by a dependent adult to someone who was a care custodian of a dependent adult at the time of the transfer. Neither transferee became care custodians until after the trust was set up. Trustor’s condition of terminal cancer progressed rapidly during the final two weeks of his life, but until then, he was fully in charge of his affairs, although relying on his friends for emotional support.
  • Petition to Enforce Money Judgment arising out of a complex Santa Barbara family law matter against an Irrevocable Charitable Remainder Unitrust (“CRUT”). Petitioner sought to collect trust income and principal, and requested an order directing the trustee to withhold from judgment debtor/beneficiary, and pay to him, the quarterly distributions that the trustee would otherwise pay to beneficiary until the judgment, including accrued interest, was satisfied in full. (A court order is required per CCP section 709.010(a), which says, in part, that “The judgment debtor’s interest in the trust may be applied to the satisfaction of the money judgment by such means as the court, in its discretion, determines are proper…” This section describes the exclusive procedure for enforcement of a money judgment against a settlor’s beneficial interest in an irrevocable trust.) Santa Barbara complex family law judgment.
  • A dispute between the children of deceased trustor and the woman (their stepmother) who was married to their father for forty years. Petitioners were remainder beneficiaries of an exemption trust. Petitioners disputed the allocation of trust assets between two sub-trusts, with trustee/stepmother conceding that she inadvertently misallocated splitting of the assets at least once.
  • Complex accounting matter involving a family owned business. Petitioner (conservator of the person and estate of Trustor) filed a petition to compel accounting.
  • Husband and Wife were married for less than four years before Wife died. The probate court approved a settlement of a medical malpractice suit and the terms of a special needs trust (“SNT”). At the time of approval, the SNT provided that upon Wife’s death, the Trust would be divided into two shares, an Exempt Share and a Marital Deduction Share. Husband/father petitioned to modify the Trust to allow for him to withdraw monies for daughter’s support.
  • Petitioners sought an order allowing them to sell the stock of Corporation, the sole principal asset of the Trust. All co-trustees, and the guardian ad litem, agreed to the sale. Issue as to whether Objector had standing to object because she was neither a trustee nor a beneficiary. She had a judgment against Corporation, but did not own an interest in any of the stock.
  • Contest attacking four Amendments to a Revocable Living Trust; Petition for Suspension of Trustee and Appointment of Interim Successor Trustee; Petition for Interpretation and Validity of Trust Provisions. Son alleged that Trustee was a care custodian within the meaning of Probate Code sections 21350 and 21351 and therefore all amendments were invalid. He further alleged that Trustee drafted the last three amendments, so they were invalid under 21350. Shortly after Trustor’s second wife died, he and trustee struck up a romantic relationship, and Trustee moved in with Trustor. One Amendment gave Trustee the right to occupy Trustor’s residence after his death. Petitioner argued this Amendment was the result of undue influence, and furthermore that there was no trust residue to give.
  • Dispute involving an objection which sought to change the settlor’s estate plan by forcing the transfer of certain property, which was to be distributed under the terms of the settlor’s will, to the trust’s residuary beneficiaries, who were not named as beneficiaries under the will. Additionally, the objection challenged the discretion given to the will’s executor; because the will specifically and clearly gave the executor broad discretionary powers to act as she did, the objection contested or sought to invalidate the will’s provisions, thus implicating the trust’s no contest clause.
  • Protracted matter involving multiple trust and conservatorship accountings, surcharge requests for breaches of fiduciary duties. Trust owned properties described as residential care facilities for adults with developmental disabilities

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PUBLIC RECORDS ACT / BROWN ACT

  • Dispute whether public entity has a duty to identify and produce “public records”, as defined by California Public Records Act, that reside on private email servers and drives, controlled by its elected and appointed representatives, when the City publishes their non-City email addresses as its approved means of contacting them. Specific question was: Does the City have a duty to identify and produce calendar entries of its elected and appointed representatives that document dates, participants, times, and topics of activities relation to non-deliberative City business, even if such entries are not physically located on City property but are within the physical or electronic possession or control of its representatives?
    Issue was whether public employees doing work on private email servers are subject to PRA.