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Beverly Hills Bar Association ~ Trusts & Estates Section
Recent Decisions
and Updates
After October 23, 2001
• Alcott Rehabilitation Hospital v. Superior Court (Smith), (Oct. 24, 2001)
2001 D.A.R. 11415: in an action alleging negligence against a health care
provider (accompanied by claims of elder abuse under Welfare and
Institutions Code §15600, et seq.), the one year statute of limitations
under C.C.P. § 340.5 is subject to the insanity tolling provisions of C.C.P.
§ 352. However, the three year limitations period under C.C.P. § 340.5 is
subject only to the specifically referenced tolling exceptions specified in
Section 340.5.
• Conservatorship of Levitt (Oct. 31, 2001): the probate court did not abuse
its discretion by considering the value of the estates in award of
attorney’s fees in amount 15% less than requested in elder abuse actions.
• Estate of Sigourney (Oct. 31, 2001): 1989 orders modifying trustee
appointment clause in charitable trust reversed because probate court lacked
jurisdiction without notice to interested parties.
• In re the Marriage of Monge (Nov. 14, 2001): Court of Appeal voided an
order entered by commissioner because a pro per family law litigant was not
provided with the required express notice and advisement of the right to
object to the hearing of the case by the commissioner. The circumstances are
to be distinguished from an implied stipulation under the “tantamount
stipulation” doctrine. As discussed in In re Horton (1991) 54 Cal.3d 82, the
stipulation necessary to vest the commissioner with authority to try the
case can be inferred from the conduct of counsel; counsel is deemed to have
the authority to enter a stipulation to a temporary judge even though the
court has not secured an express waiver from the litigant.
• Ritzenthaler v. Fireside Thrift Co. (Nov. 15, 2001): In an action on
contract which provides for the recovery of attorney’s fees by the
prevailing party, acceptance of a C.C.P. § 998 offer does not preclude
recovery of attorney’s fees after judgment where the 998 offer is silent as
to attorney's fees. Language in 998 offer of “in final settlement of all
damages and injunctive claims” did not include claims for attorney's fees.
*****Unpublished Opinions
• McQuone v. Brown (Ct. of Appeal No. F037349) (Nov. 14, 2001) (surviving
trustor's Prob. Code § 21320 petition not a contest as to proposed
interpretation, but is a contest as to proposed amendment to conform to
settlors' intent)
• Estrada v. Estrada (Ct. of Appeal No. G026546) (Nov. 19, 2001) court of
appeal affirmed trial court's ruling in favor of mother-trustee who sought
to cancel, on grounds of alleged mental weakness, abuse of a confidential
relationship, undue influence, mistake, fraud, and lack of consideration,
four installment notes and trust deeds of approx. $100,000 held by son for
contracting services because the Contractors’ State License Law under Bus. &
Prof. Code, § 7000 et seq. barred recovery for the work performed by the
son. The appellate court also rejected the mother-trustee's claimed
entitlement to attorney's fees under the cancelled notes pursuant to Civil
Code § 1717 because a party cannot recover attorney fees where a contract is
held unenforceable because of illegality.
***** Pursuant to California Rules of Court, Rule 977 (a), parties are
prohibited from citing or relying on any unpublished opinion in any action
or proceeding, except in limited circumstances specified by rule 977 (b).
Unpublished opinions can be found at www.courtinfo.ca.gov/opinions/nonpub.
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