BEN E. NORDMAN 2014 PUBLIC SERVICE AWARD NOMINATION FORM

The 2014 PUBLIC SERVICE AWARD NOMINATION FORM is now available for downloading.

To download, click here:  2014 PUBLIC SERVICE AWARD NOMINATION FORM

            Nominations must be submitted on the official form

         NO LATER THAN 5:00 P.M. September 19, 2014

      To:    Ventura County Bar Association
            4475 Market Street, Suite B
                   Ventura, CA 93003
                Attn: Steve Henderson

Arbitration programs resolve fee grievances between attorneys and clients

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By Amy Yarbrough
Staff Writer, via http://www.calbarjournal.com/July2014/TopHeadlines/TH1.aspx

When Mary (not her real name) got into a dispute with her former lawyer over his bill for representing her in a suit against her condo association, she felt stuck, unable to afford to hire another attorney to fight it.

But things began to look up when she participated in the State Bar’s Mandatory Fee Arbitration Program, one of a number of programs in the state that resolve the most common complaint clients have about their attorneys: their fees and costs.

Twenty-nine counties in the state have mandatory fee arbitration programs. Some have more than one. In all, there are 36 mandatory fee arbitration programs in California including the one run by the State Bar, which steps in whenever there’s a conflict or if the county where the dispute originated doesn’t offer fee arbitration.

Mary, who asked that her name not be used, said that although she feels she ended up paying more than she should have, it was nice to have someone with legal expertise involved “who wasn’t connected with the case so I could have more insight.

“I felt positive,” said Mary, who ended up having $1,200 knocked off her bill. “When we went into the office, I felt like I had more power. Here, now I have someone who knows the law like you do.”

William Bachrach, her former lawyer, said he also found it to be a good experience.

“I was particularly impressed with the fee arbitrator in our case because of the great detail she went into,” said the Oakland attorney, who himself served as an arbitrator for the Alameda County Bar Association for many years. The bar association has since discontinued its program.

“I think, this case in particular, the client does not understand what all goes into these things,” he said, noting that his former client was given a good opportunity to tell her side. “It couldn’t have been more pleasant in the arbitration.”

Designed to be less costly and formal as well as faster than other proceedings to resolve disputes, mandatory fee arbitration dates back 35 years in California. In 1979, a law was enacted requiring the State Bar to create a program to arbitrate fee disputes and mandating that attorneys provide clients with a notice of a client’s right to fee arbitration prior to initiating any proceeding to collect fees or costs.

In any given year, 1,100 to 1,500 fee disputes are heard by programs throughout the state, which means that those matters are most likely being kept out of the court system.

In general, arbitrations must be heard in the county where the legal services were rendered and the programs charge a percentage of the amount in dispute, according to Doug Hull, director of the State Bar’s Mandatory Fee Arbitration program. The State Bar’s filing fee, for example, is 5 percent of the amount in dispute, with a minimum of $50 and a maximum of $5,000. The fee is paid by the requesting party, usually the client. However, the law allows the arbitrator to divide the fee between the parties.

As far as the State Bar’s program goes, disputes involving less than $500 are reviewed without a hearing, while those involving $500 to $1,000 are resolved based on submitted evidence or through a telephonic hearing. Disputes involving between $1,000 and $15,000 are heard by a sole arbitrator, while three-member panels hear those more than $15,000.

The program is confidential, and arbitrations are non-binding by default. Either party can seek trial de novo or private arbitration within 30 days of the award, but after that the award becomes binding.

Ideally the arbitrator will host the arbitration at his or her office although there have been instances where court facilities or library space was used.

“A neutral venue is always what we strive for,” Hull said, adding that having an outside party involved can also have a calming effect.

“By the time a matter has gone to fee arbitration, the parties are at odds. It can be very contentious,” he said.

“If there’s some air of authority it helps tamp down the emotions that can flare up.”

According to Hull, 450 volunteers participate in the State Bar’s program. Some do it because they want experience as a neutral, but most volunteer out of a commitment to public service.

Despite its seemingly hearty ranks, the State Bar’s program is always in need of more volunteers, Hull said, particularly those based north of Sacramento and other less-populated counties. The State Bar will be hosting a fee arbitrator training program for all current and prospective volunteers on July 23 in Los Angeles.

Scheduled from 2 to 5 p.m. at the State Bar’s office at 845 S. Figueroa St., the program is for all prospective and current volunteers who arbitrate attorney-client fee disputes through the programs offered by the local bar associations and the State Bar.

Members of the State Bar who participate in the training will receive 2.75 hours of Minimum Continuing Legal Education (MCLE) credit, including 1 hour of legal ethics. To reserve a space, email the State Bar at feearb@calbar.ca.gov. For additional information, contact Hull at 415-538-2015.

July 2014 Classifieds

Help Wanted

Westlake Village Attorney – Exciting opportunity for the right attorney with excellent work ethic, credentials and desire to be an integral part of a well-established (30 years) AV-rated small firm in Westlake Village. Should have minimum five years’ experience in civil litigation and transactional in areas of business, real estate, probate/trust, corporate. Will also consider contract work or Of Counsel. Email résumé in confidence to sam@silverandarsht.com.

Office Space

Executive Office Spaces to Share with Law Firm – 674 County Square Drive, #201, Ventura. Office available in newly remodeled law firm. Large picture windows and beautiful wood floors. Possible separate space for assistant. Offered at $425 and $500, includes WiFi. Great location across from government center – walk to court! Contact Janet at (805)302-8238 or Janet@JanetMertesLaw.com.

Exec’s Dot…Dot…Dot… by Steve Henderson, Executive Director, M.A., CAE

Judge Brian Back presided over the new admittee swearing-in ceremony June 3 inside Courtroom #22. He was capably assisted by Justice Steven Perren and Judge Don Coleman. Their remarks to the 21 new lawyers were eloquent and compelling. Special thanks to Bailiff Gary Morales and Court Executive Assistant Victoria Borjesson for keeping matters calm and organized. New attorney Analise Martinez drove all the way from Henderson, Nevada to participate…The City of Los Angeles has agreed to pay $215,000 to a man who was kicked out of a governmental meeting in 2011 after wearing a Ku Klux Klan hood and a t-shirt with a racial slur and being cited for disturbing a public assembly. Although the case against Michael Hunt was never prosecuted, he sued over the alleged violation of his constitutional free speech rights. Hunt,  who is black, was wearing a KKK hood and a t-shirt with “a profanity and a racial slur used to describe African Americans.” However, the city attorney said in a written report that most witnesses felt Hunt’s attire “was only mildly distracting and confusing”…A fine turnout indeed for Michael Beckwith’s memorial service June 13. A Vietnam vet, he fought the Big C a couple times. There will be a story about Mike in the August issue of CITATIONS.

Now this is pretty cool, no matter what side of the aisle you are from. Barry R e a g a n ’ s son, Clayton, graduated the last week of May from West Point. Look who handed him his diploma…Matt  Mitten, a professor at Marquette University’s law school, recently was named the next president of the Sports Lawyers Association, a 1700-member organization for those who practice and teach sports law. Sports law applies general law fields – labor, contract,
tax and intellectual property – to the wide world of athletics. The lawyers who practice it are generally distinct from sports agents, and might serve as general counsel for a sports  team or a personal lawyer for professional
athletes…William Winfield is on an ABA working group for “consumer protection law reform.” The group is part of the ABA Model Code Project and is exploring what changes should be proposed to congress, at the end of 2016, for revisions to the U.S. Bankruptcy Code. Bill and the ABA are  asking for “input from local practitioners.” Any local bankruptcy attorney is invited to convey ideas to him at wwinfield@lrmmt.com or 981.8555…

Robert Ostrove had two letters-to-the-editor printed only a week apart from one another in the Los Angeles Times. One related to the Dodgers and one to Donald Sterling. The Donald one went like this: “Donald Sterling has the last 2 billion laughs.”…Book of the Month – The Divide: American Injustice in the Age of the Wealth Gap, by Matt Taibbi. 416pp. Spiegel & Grau, $27. He argues that this country’s unequal wealth is producing unequal outcomes in the criminal justice system…A baby is born! Katie C l u n e n g a v e birth May 22 to Courtney Grace Elizabeth. Father Tim is doing fine as well…Long time CITATIONS Editorial Board member Lou Vigorita is taking a well-deserved leave of absence.

Steve Blum, a veteran member of the Law Day 5K Race Committee, was inducted into the Ventura County Sports Hall of Fame June 8. Steve was one of five inductees. The honored group also includes the Bryan brothers, Bob and Mike Bryan. Congrats to Steve may be made at blumper2@gmail.com or 644.0876.

Steve Feder’s son David graduated Number 1 in his law school class at Harvard University this past May. He’ll be hanging his hat at the Tenth Circuit Court of Appeals in Denver.

T h e Gr e e n Law Group has added Dan Spurgeon to its construction, business, real estate, employment and OSHA practice in Simi Valley. Dan remains an officer in the Air Force Reserve and may be reached at 306.1100 ext. 24…Martin Zaehringer had a Letter to the Editor printed in the June issue of California Lawyer. It was about the CLAY Awards and the lack of representation from Ventura County…

Steve Henderson has been the executive director and chief executive officer of the Ventura County Bar Association and its affiliated organizations since November 1990. His housing in Sao Paulo was horrible but the play on the pitch was perfect. He placed all his money on Germany, so the trip paid for  itself. Additionally, it was a very good June as  his favorite teams, the Spurs and the Kings, won titles. Henderson may be reached at
steve@vcba.org, FB, Twitter at stevehendo1, LinkedIn, or better yet, 650.7599.

BARRISTERS’ CORNER: PERREN, BACK AND COLEMAN WELCOME ADMITTEES, By Rachel Coleman

On June 3, Division Six, Second Appellate District, Court of Appeal Justice Steven Z. Perren swore in 21 new admittees to the Bar. The comedy duo of the Ventura County Superior Court Presiding Judge Brian Back and Assistant Presiding Judge Donald Coleman co-hosted the ceremony with Justice Perren. A majority of the admittees reported they planned to practice in the area.

Ventura County Bar Association President Laura Bartels, Barristers President Rachel Coleman, and Barristers Board member/ California Young Lawyers Association Board member Katie Becker gave inspiring speeches welcoming the new attorneys to the practice of law and to become members of the local bar and associated groups. David Cunningham from the American Bar Association, Charmaine Buehner, Past- President of Women Lawyers of Ventura County and Thomas Kitchen from the Ventura County Veterans Legal Clinic also gave congratulatory remarks to the new admittees, and encouraged them to become involved in the local legal community.

The Barristers also invited the new admittees to attend our upcoming Barristers events. The next event is Barristers Bowling Night at Harley’s Bowling Center in Camarillo on July 17, from 6 pm to 8 pm. All proceeds from Bowling Night will benefit the Makea- Wish Foundation. This event is open to the public as well as all attorneys, judges and their friends and family. The Barristers also called upon the new attorneys to fill out an application for the Mentorship Program and to attend the Wine and Cheese Night at Ferguson Case Orr Paterson on August 21 from 5:30 pm to 8 pm. Wine and Cheese Night celebrates the Mentorship Program and introduces the mentors to the mentees. All attorneys, new and well established, as well as local jurists, are invited. Because the admittees would not remember a word  said by the speakers, the new lawyers were provided with a copy of CITATIONS that
contained flyers of all the local bar affiliates’ upcoming events.

Rachel Coleman is an associate at David Lehr Law, where she handles criminal and juvenile matters. She is also president of Barristers.

FILM: “LOCKE” TAKES VIEWERS ON AN UNEXPECTED RIDE, By Bill Paterson

One of the joys of filmgoing is the discovery of a film that breaks the mold and takes you down a path you did not expect. “Locke” is such a film. There is only one actor on screen (the other actors are only heard on the phone). All of the “action” takes place in Ivan Locke’s (Tom Hardy) car over a period of a few hours one fateful night. Alternately ruminating on what he is about to do or constantly on his cell phone, Ivan is trying to extricate himself from the web he has woven.

Were this a normal day, Ivan would be headed home for some sleep. At 5:30 the next morning he is expected at a construction site to supervise the pouring of the foundation of a 50-story office building. It will be the largest
single cement pour in European history and should be the capstone of his career. But for reasons that slowly unfold as the night progresses, Ivan does not intend to be there.

Ivan is a man who lives for his work. He has planned the pour with meticulous precision, knowing that the slightest mistake could compromise the building. He is also a devoted family man who is supposed to be
driving home to catch a soccer game with his son, but Ivan has come to a decision that may sabotage everything he cares about. “Locke” is a showcase for one of the most  compelling solo acting performances of the year and a stellar example of what a director (Steven Knight) can do with a taut and lean story line. Robert Redford’s performance in “All Is Lost” was virtually devoid of dialogue and it worked perfectly. By contrast, Ivan is rarely off his phone as he attempts to fend off his outraged and panicked boss, cajole a nerve-wracked subordinate into covering for him, and tries to explain to his wife the no-win situation he has gotten himself into.

Alone in his car, Ivan is engaged in an existential moral juggling act. On the one hand he is trying to manage the critical cement pour from his phone, much in the way a pilot on the ground would try to guide a passenger who has never flown a plane to land it safely after the pilot collapsed. On the other, he is giving his wife news that will devastate her and doing his best to explain to her why he thinks what he is doing is the only ethical choice left open to him.

“Locke” is an intriguing mixture of a suspense film and a morality play. The suspense comes from wondering whether Ivan can coordinate a complex construction project with nothing but a cell phone and a subordinate who is terrified of the responsibility of being left in charge of such a momentous undertaking. Will the right roads be blocked off, is the rebar is in perfect position and will all the cement trucks get to the site at the right time and in the  right order? Before long things start to spiral out of control and for every problem Ivan solves another rises up to take its place. Imagine your worst anxiety dream. Ivan is living it.

The pressure of trying to run the job by remote control is only one of Ivan’s problems. While he doesn’t feel he needs to tell his boss why he is AWOL, he knows he cannot keep the truth from his wife and hopes she will understand why he has embarked on a path which may well destroy everything they have worked for. He is a man in the unenviable position of trying to square a moral circle. He has done something wrong and is convinced that the only way he can make it right is to continue on his single-minded journey. But no matter which course of action he takes, there will be a heavy price to pay.

“Locke” is a one-of-a-kind story anchored by a mesmerizing performance by Tom Hardy. It is the type of film that lends itself to post-viewing discussion. Did Ivan make the right choice? Were there others? And what were all the considerations one might weigh in making those choices oneself? A truly original and memorable piece of work.

Bill Paterson is Of Counsel at Ferguson Case Orr Paterson, where he is a founding partner.

“I HAVE MADE WINE!” A NEW VENTURA MANTRA? By Antonio Verdiny

There is a wine buzz in Ventura, or is it a hum, like the sound of busy bees working, making the sweet life-sustaining liquid they guard with their lives? Maybe it’s the hum of so many crusher-stemmer machines
squeezing out the bacchanalian nectars of cabernet, syrah, pinot noir, chardonnay, zinfandel and more grape varietals in the cellars of master winemakers and the garages of private oenophile doctors, lawyers, engineers, retired nuclear physisists, test pilots and entrepreneurs. Local people have contracted the wine bug and manifest the symptoms in epic proportions. Well, maybe it is, indeed, a buzz. Not the buzz one gets from overindulgence, but the  groove, the obsession of afficionados, enthusiasts, fanatics, riding the wave of a shared and growing love of wine.

This new love has put catching up on dictation, the golf course, the waves at the Point or Mondos, yard work, and sometimes, even the family, on the back burner. It’s not enough to drink the coveted juice, or collect it in overstocked personal cellars, often sneaking in new bottles past the spouse so as not to incur nuptial wrath for spending  so many hard-earned dollars on libations; we now want to try our hand at making wine. The accomplishment brings to mind that scene from “Castaway” where Tom Hanks, after much perserverance, finally gets a fire going and in jubilation boasts “I have made fire!”

Why would “I have made wine” be on the lips of weekend warriors? Isn’t there enough good wine to go around? Thanks to the likes of Ojai Ridge, Ojai Vineyard, Noble Oaks, Old Creek Winery, Boccali Vineyards and Sine Qua Non, the possibility of the Ojai area being granted American Viticultural Area status could some day be a real possibility. Meanwhile we are largely unknown as a wine-producing region.  With so many top-notch wines pouring out
of Ventura County already, what’s the point?

Maybe it’s not enough to just drink wine. We want to stain our hands with it. We have to be more involved. We want to know how it’s made and share in the joy of producing something not only for personal pleasure but
that others can enjoy as well. When you share a passion enjoyed by so many, it becomes almost like a religion, a brotherhood, a following. Motorcycle clubs are easily recognizable and cultural groups identify one another with bumper stickers, tee-shirts, and places where they all congregate.

In the courts, the catch phrase among attorneys, interpreters and court reporters is, “What have you been drinking lately,” or “Did you try the latest grenache,” or “Have you been to the Cave yet”? Some of us have taken wine classes together and shared tips on our latest finds.

Yes, the wine buzz has more than caught on. It’s in its full revolutionary throes! Better watch where you’re walking, the streets are showing signs of squashed grapes!

Did I really say that? Don’t go by what I say, just head on down to 2351 Main St. in Midtown Ventura and see for yourself! There is your chance to get involved, but let me warn you, once you have had that one special wine moment, you are set for a lifetime of wine obsession. Don’t worry, it’s a good thing. Just sit back with a glass and enjoy the ride. Next stop, you might get to the point of running on a beach chanting “I have made wine! I…have made…wine!”

Antonio Verdiny is a state-certified court interpreter who teaches wine classes.

A CELEBRATION OF LAW LIBRARY DIRECTOR JANE MEYER, By Dolly Moehrle

The Ventura County Law Library announces that after nearly twenty years with the law library, Director Jane Meyer will retire on August 1.

After receiving her Master of Library Science degree from UCLA, Jane went on to work for the Ventura County Library system, eventually rising to the role of Acquisitions Librarian. In 1994, she accepted a position with the Ventura County Law Library to replace outgoing director Naydean Baker. Her father, the late  Hon. Francis J. Garvey, a superior court judge in Los Angeles County, was delighted to have her join the legal field – albeit in a
roundabout way.

Vincente E. Woodward, current President  of the Law Library Board of Trustees and longtime board member, called her retirement “A big loss.” Mr. Woodword continued, “It’s been an absolute pleasure working with Jane
over the years. Her fiscal acumen has kept the law library active and useful” in the face of declining revenues. Under her tenure the library added internet service, an online catalog, and other innovations.

Local attorney and library patron Mark  E. Hancock said Jane “went above and beyond. Not only did she keep the books updated and on the shelves and bring the law library into the computer age, but she knew how to research  and would help patrons find more obscure items, like articles from legal publications.”

Hancock recalled when Jane assisted him with a complicated Federal ERISA/ Disability Law question.

“Ms. Meyer not only heard and understood my query to her one day, but the next time I saw her she had found an article discussing the very question we had talked about, which cited a recent Ninth Circuit case
favorable to my client’s position. I cited it and won. That’s service and a good law librarian for you.”

Jane plans to spend her retirement traveling, including spending more time with her adult children, a son in Lake Tahoe and a daughter in San Diego County, and spoiling her two grandchildren. First on the agenda: a trip to
Australia and New Zealand. The Law Library Board is in the process of selecting a replacement Law Library Director.

A celebration of Jane’s career will be held at the law library on Friday, August 1, from 12pm-5pm. Please drop by to enjoy light refreshments and to wish her well in her retirement!

Dolly Moehrle is a librarian at the Ventura County Law Library.

LITIGATING BICYCLE CASES: HANDLING NONUSE OF A BICYCLE HELMET, By Marc D. Anderson

In California, a bicyclist eighteen and older is not required to wear a helmet (Vehicle Code §21212(a).) When an adult bicyclist is not wearing a helmet and suffers a head injury in a collision, is evidence of her nonuse of a helmet admissible at trial? This is a gray area – there is no California case law on point.

During Discovery
The admissibility of helmet nonuse is typically raised in motions in limine and decided shortly before trial. Therefore, you must assume evidence of helmet nonuse will be admitted and address the issue accordingly during discovery.

The focus during discovery is the reasonableness of the bicyclist’s conduct, the customs and practices in the community and whether a helmet would have made a difference (i.e., causation).

Reasonableness
If evidence of helmet nonuse is admitted on  he issue of comparative negligence, then the jury is instructed that it “must decide how a reasonably careful person would have acted in plaintiff ’s situation.” (See CACI 401.)

The bicyclist must be prepared to answer questions regarding helmet nonuse at her deposition. She should consider every reason why a helmet was not worn, including time of day, traffic conditions, length of the ride, location of the collision, type of ride (fitness, commuter or pleasure) and whether she was riding on a street, a bike path or a sidewalk.

The bicyclist’s depositions answer should be truthful and complete. In the following excerpt, the bicyclist’s response was good, but should have incorporated more factors about why he did not wear a helmet.

Defense Counsel: Why weren’t you wearing a helmet on the day of the accident?

Answer: Because it didn’t even occur to me, to be honest. Nobody [on campus] wears helmets. And my bike ride was a five-minute ride across the street to get to campus. And yeah, I mean, it just didn’t even occur to me. I don’t know anybody [on campus] that wears a helmet when they bike ride.

Customs and Practices
If evidence of helmet nonuse is admitted on the issue of comparative negligence, then the jury is instructed that it “may consider customs or practices in the community” in deciding whether the bicyclist acted reasonably. (See CACI 413.)

It is important to visit the scene of the collision. Videotaping the scene under similar conditions can provide good evidence of customs and practices to present directly to the jury and to use while deposing experts. You should interview witnesses to the collision and residents and business owners who live near the scene about the customs  and practices of bicyclists in the area. Ask deponents about the customs and practices of bicyclists in the area. Any expert who went to the scene should be questioned regarding her observations.

In the excerpt below, the defense took the deposition of a counselor who had seen the bicyclist before the collision, but she also had knowledge as to customs and practices.

Q: Is your office on campus?
A: Yes, it is.
Q: Are you familiar with students biking on
campus?
A: Yes.
Q: And in your experience do students bike on
campus without wearing their helmets?
A: Yes.
Q: In your time at [the university] are you able
to estimate for me the percentage of students you
see biking without helmets as opposed to those
biking with helmets?
A: I cannot give a percentage but I will say in
my observation the majority of students bike
without helmets on campus.

Causation
If evidence of helmet nonuse is admitted on the issue of comparative negligence, then the jury is instructed that the defense must prove the negligence was a substantial factor in causing her harm (See CACI 405). The
question to be answered is whether a helmet would have prevented the specific injury or lessened its severity. Each side will retain experts, usually in the fields of accident reconstruction, biomechanics, kinesiology,
and medicine.

Excluding Evidence of Helmet Nonuse
Evidence of an adult’s nonuse of a bicycle helmet should be inadmissible as to the issues of comparative negligence and mitigation of damages.

Comparative Negligence
Comparative negligence requires a breach of a legal duty to use due care and the breach must be the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) The nonuse of a helmet is not a violation of a legal duty to use due care. An adult bicyclist is under no legal duty to wear a helmet. An adult bicyclist is also under no legal duty to guard against the negligence of motorists. A bicyclist has the right to expect that motorists will use reasonable care and not violate the law: “Every person has a right to presume that every other person will perform his duty and obey the law and in the absence of reasonable grounds to think otherwise, it is not negligence to assume that he is not exposed to danger which could come to him only by violation of law or duty by such other person.” (Celli v. Sports Car Club of America, Inc. (1972) 29 Cal.App.3d 511, 523.)
The nonuse of a helmet is rarely, if ever, the proximate or legal cause of the collision  between the motorist and the bicyclist.

Mitigation of Damages
The rule on mitigation of damages is: “An injured person must use reasonable diligence in caring for his injuries.” (Christiansen v. Hollings (1941) 44 Cal.App.2d 332, 346.) There is no duty, however, to mitigate
damages before a collision. “The rule of [mitigation of damages] comes into play after a legal wrong has occurred, but while some damages may still be averted…” (Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1066
(internal citations omitted).) “[A] plaintiff ’s failure to mitigate [bars] recovery of only the portion of damages which could have been avoided by ordinary care after the injury.” (LeMons v. Regents of University of California
(1978) 21 Cal.3d 869, 874-875.)

Nonuse of a bicycle helmet is not a failure to mitigate damages. A bicyclist’s nonuse of a helmet occurs before the collision, not after it.

Addressing Helmet Nonuse Before Trial

Written discovery should be propounded regarding the defense’s factual bases for its contentions of comparative negligence and failure to mitigate damages. If the only fact to support these contentions is the nonuse of a helmet, then it may be worthwhile to bring a motion for summary adjudication on these defenses so there is more certainty as to what evidence will be admitted at trial. (CCP §437c(f)(1).)

Marc Anderson practices at Hiepler & Hiepler in Oxnard. He was on the Page Elementary School Unicycle Team and enjoys accordion music.

 

WHAT’S NEW IN PROBATE COURT? By Amber Rodriguez

Recently, Judge Glen M. Reiser, our sitting probate judge, honored the Estate Planning and Probate Section by attending our monthly lunch and giving us his annual update on probate court matters. Here is some of what he had to share:

LOCAL RULES:

Judge Reiser continues to “slowly tweak” our local rules. His goal is to bring them all up to date and, in particular, more in tune with the technological advances available in the probate court. He highly recommends that
you review the local rules annually to keep abreast of these sometimes subtle changes.

This year, some of the technological items include video conferencing, submitting orders via email, and testimony at trial. Teleconferencing rules now explicitly apply to video conferencing and parties may request that testimony at trial be allowed remotely when the witness is physically unable to attend the proceeding or lives more than 50 miles from the courthouse. Finally, Judge Reiser reminded us that the court’s email address (courtroomJ6@ventura.
courts.ca.gov) is only to be used to submit proposed orders or supplements requested by the court. The email address should not be used to submit any unsolicited materials. If in doubt about whether you have been authorized to use the court’s email address, you may want to verify the court’s instructions with the judge’s secretary.

In addition to the technological changes, the Local Rules have been significantly revised in regards to fee waivers. The change is to rule 10.02.D.2. In summary, it allows an order granting a request for a fee waiver to be valid for the duration of the conservatorship unless otherwise ordered by the court. In addition, there is a proactive duty imposed upon parties and their attorneys to report any material change in circumstance to the court. If no material change occurs, the orders remain valid for the entire length of the conservatorship.

PROBATE CODE CHANGES:

Judge Reiser discussed 2014 changes to Probate Code section 86, the statutory definition of undue influence. That definition has now been expanded to include the definition found in the Welfare and Institutions Code. Judge Reiser reviewed in detail items a court must now consider in determining issues of undue influence . This consideration is highly significant to both drafting and litigating attorneys.

His Honor also highlighted the new requirements in cases where a professional fiduciary is involved. If a professional fiduciary has been nominated to serve as conservator, a professional fiduciary fee schedule must now be included at the time a petition for conservatorship is filed as well as at the time of filing the inventory and appraisal. Practitioners should further note the requirements for a professional fiduciary to report any increase in their hourly fee to the court.

Finally, Judge Reiser discussed the changes to Probate Code section 859 (as well as the sister sections relating to durable powers of attorney.) The code now allows for attorney fees to be awarded in addition to double damages. This is a litigation tool many practitioners are sure to use as they advocate for their clients.

COMMON LAW:

A few cases caught Judge Reiser’s eye over the past year.

Conservatorship of Gregory D. (2013) 214 Cal.App.4th 62 is a limited conservatorship case. The mother of the conservatee formed her arguments from the perspective of the conservatee’s rights. The Court of Appeal narrowed in on the standing issue and found that the mother had no standing to assert the rights of the conservatee. As noted by Judge Reiser, the case could have significant implications in contested conservatorship matters.

Judge Reiser believes that Donkin v. Donkin (2013) 58 Cal.4th 412 provides a “road map” for trial judges and drafting attorneys to assist in unraveling the mysteries and confusion surrounding no-contest clauses. If Judge Reiser is looking to this case as a “road map” for these type of issues, certainly counsel will want to do the same.

Finally, his Honor reviewed Lintz v. Lintz (2014) 222 Cal.App.4th 1346. Lintz addresses the capacity necessary to draft a trust. Should it be testamentary capacity, such as with a will? Or should it be contractual, based upon the  idea that a trust is essentially a contract? In Lintz, the trial court applied a basic testamentary capacity standard. The Court of Appeal found this to be incorrect, and instead held that a sliding scale should be used. Thus, if a trust  (or an amendment) is primarily a testamentary document, the will standard should apply. However, if it has other purposes (tax issues, for example), a contractual standard may be more appropriate.

MISCELLANEOUS ISSUES RAISED:

Judge Reiser also reminded the audience of two statutory requirements that are not always followed by counsel. These involve the timely filing of an inventory and appraisal (Prob. Code, §800) and one-year status reports (§12200). To avoid an OSC, counsel should be certain to timely file both, where necessary. In response to audience questions, Judge Reiser said that actuarial values should be used when determining the value of an annuity. If statement values do not match the values assigned by the probate referee, an adjustment should be made in the First Account to explain the difference. The Estate Planning and Probate Section is fortunate to have Judge Reiser  provide these updates year after year. On behalf of our section, I would like to thank him for his time. We look forward to hearing from him again next year.

Amber Rodriguez is the Chair of the Executive Committee for the Estate Planning and Probate section of the VCBA. Her practice focuses on probate and trust litigation and administration, estate planning and conservatorships. She can be reached at arodriguez@estateattorneycalifornia.com or her website, estateattorneycalifornia.com.