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Beverly
Hills Bar Association -- Trusts & Estates Section
Litigation Update (since April 15, 2003)
California Court of Appeal
Trusts and Estates
Hermanson v. Hermanson (April 30, 2003)(G030281, Fourth District)
Where settlor died prior to Jan. 1, 2001, trust became irrevocable and
Probate Code Section 21305(b)(6) and (7) provisions operable as of that
date, declaring that petition challenging the exercise of fiduciary power
and requesting the removal of a fiduciary does not violate a no contest
clause in a will as a matter of public policy, do not apply. Judicial
determination that such petition would violate no contest clause was not in
error where petitioners failed to show that proposed action would not
constitute a will contest under prior law.
Cite as 2003 SOS 2316
(full text
http://www.metnews.com/sos.cgi?0503%2FG030281
Civil Procedure
Zapanta v. Universal Care, Inc. (April 16, 2003)(B159465, Second
District) Trial court had no authority to grant defendant's motion
for summary judgment where plaintiff filed request for voluntary dismissal
without prejudice prior to due date of response to the motion. Guardian ad
litem need not obtain court's consent to file voluntary dismissal without
prejudice of minor's claim.
Cite as 2003 SOS 1910
(full text
http://www.metnews.com/sos.cgi?0403%2FB159465
Torts
Jacobs v. Grossmont Hospital (April 24, 2003)(D039663, Fourth
District) Welfare and Institutions Code Sec. 5278 confers immunity
on individuals who initiate and maintain a detention under Sec. 5150 of a
person suspected to be dangerous due to mental illness. Sec. 5278 does not
confer immunity for negligent or other wrongful conduct that may occur in
the evaluation or treatment of involuntarily detained patients.
Cite as 2003 SOS 2133
(full text
http://www.metnews.com/sos.cgi?0403%2FD039663
Elder Abuse
Norman v. Life Care Centers of America, Inc. (filed March 26, 2003,
publication ordered April 17, 2003)(D039240, Fourth District)
Violation of state regulations applicable to licensed skilled nursing
facilities constitutes a proper basis for a negligence per se instruction in
an action for elder abuse, and denial of such instruction was prejudicial in
case where there was conflicting evidence on the issue of neglect as defined
in elder abuse statute, no other instruction informed jury that a regulatory
violation constituted negligence, plaintiff's counsel was precluded from
arguing that regulatory violation established negligence, and jury split 9
to 3 in rejecting negligence claim.
Cite as 2003 SOS 1930
(full text
http://www.metnews.com/sos.cgi?0403%2FD039240
Muccianti v. Willow Creek Care Center (April 23, 2003)(F038524, Fifth
District) Public interest involved in case of alleged abuse of
elderly patient of long term care facility precludes stipulated reversal of
judgment as condition of settlement. Where settlement agreement provided for
dismissal of appeal and stipulated reversal of judgment, but did not specify
that settlement would be void if stipulated reversal were vacated, appeal
was subject to dismissal.
Cite as 2003 SOS 2096
(full text
http://www.metnews.com/sos.cgi?0403%2FF038524
Ninth Circuit Court of Appeals
Taxation
Brown v. United States (May 1, 2003)(No. 02-55254) Where a
husband established marital trust with his wife as an income beneficiary,
and made a taxable gift to wife with the understanding that wife would use
it to fund a life insurance trust and thereby provide beneficiaries with
funds to pay estate taxes on wife's death, along with nontaxable gift made
with understanding that wife would use it to pay taxes on first gift, the
IRS properly applied the step transaction doctrine to treat the two acts as
a single transaction benefiting the life insurance trust and subjecting
husband's estate to liability for estate taxes on gift taxes, based on
statute imposing such taxes when person dies within three years of making
gift. Decedent's estate may increase administration expense deduction to
account for higher than expected administration expenses, but any increase
in that deduction must by offset by a corresponding decrease in the marital
deduction to the extent that expenses were paid out of funds otherwise
earmarked for marital trust.
(full text
http://www.metnews.com/sos.cgi?0503%2F0255254
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