On episode 29 of the California Appellate Law Podcast, probate appellate attorney David Greco joins Tim Kowal and Jeff Lewis to discuss some of the unique features and challenges in probate appeals:
👉 Fact challenges in probate appeals are uniquely difficult to win. Probate trials are typically bench trials, and appellate courts very rarely overturn a judge’s factual findings.
👉 The “stay killer” in Probate Code § 1310(b) can render many probate appeals moot. David explains why section 1310(b) is his “favorite provision of the Probate Code.” And should there be a similar “stay killer” in the CCP or Family Code?
👉 Fraught family relationships and charged emotions can make representation in probate appeals difficult.
👉 The large role played by professional fiduciaries—trustees, conservators, and guardians—raises unique ethical and due-process considerations. David explains how abuse of these institutional relationships can and does sometimes happen.
David Greco 0:02
If I didn't have to have a rule of thumb that would be well, if I audibly scoff when I'm reading the appellate brief then I would probably file a motion for sanctions.”
Welcome to the California appellate podcast, a discussion of timely trial tips and the latest cases and news cutting from the California Court of Appeal, and the California Supreme Court. And now your host, Tim Cole and Jeff Lewis.
Jeff Lewis 0:34
Welcome, everyone. I am Jeff Lewis.
Tim Kowal 0:36
And I'm Tim Kowal California Department of podcasting license number 254709 are in each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of both Jeff and I are appellate specialists who split our practices evenly between trial and appellate courts. We work directly with trial attorneys to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal.
Jeff Lewis 1:07
Alright, welcome, everyone to Episode 29 of the podcast.
Tim Kowal 1:12
Today we welcome David Greco to the show. David's in my rolodex under probate appellate attorneys. David is a partner with RMO LLP. He's a managing attorney in the San Diego office, which he helped launch. David also chairs the firm's appellate practice. He represents beneficiaries as well as professional and corporate fiduciaries like administrators executors, trustees, conservators and guardians in contested trust, estate and probate litigation matters as well as real related estate administration issues. David previously worked for the California Court of Appeal, the California Attorney General's Office and the US District Court for the Southern District of California. He graduated magna cum laude from the University of San Diego Law School where he was a member of the San Diego Law Review. So welcome to the podcast, David.
David Greco 2:03
Thanks for having me. I'm really looking forward to it. Now,
Tim Kowal 2:06
I wonder if you would tell us a little bit more about your practice that I didn't cover in that intro.
David Greco 2:10
I mean, I think you've covered it right. We are a trusted foundation firm. That's really all we do. If it's contested and it's in probate court, then it's right up our alley. Most of our work lately focuses on trust contests or claims against fiduciaries for breach of fiduciary duty. And then we do have institutional clients, financial institutions and professional trustees who we represent when they're getting sued for those types of plans.
Tim Kowal 2:34
So is your practice 100% devoted to these probate issues?
David Greco 2:39
Yeah, well, the firm's practice is 100%. probate litigation, I have probably about 3%, education, appellate issues, I used to practice quite a bit of education law. And I've really went up that down basically, to the cases that I want to take, which are the Ida and related issues on appeal at the Ninth Circuit, but that practice area gets thinner and thinner day by day.
Tim Kowal 3:07
Now, your firm has an Appellate Practice Group, which you you helped found. Tell us a little bit about that. I don't know that I have heard them another another firm that has that has a probate litigation and Appellate Practice Group, why don't you tell us a little bit about starting one at your firm?
David Greco 3:22
Yeah, you know, because we're only a probate litigation firm. I think you're right. I don't think other probate litigation firm, separate probate appellate department. But the reality was that we were already doing these appeals. And we know this stuff inside and out. And so because I love appellate work, I've often would often volunteer to take on the appeals. Other folks in my firm don't love it as much as I do. And when I realized that there are a lot of probate litigators who don't want to do their own appeals, I felt it was a good niche within a niche, you know, so all we really did was formalize the arrangement that we had, which was I would handle most of the appeals on the berm, particularly the California appeals. And it's been a great sort of pivot because now people realize they could send their probate appeals to us a probate firm rather than just some appellate attorney. No offense to generalist appellate attorneys, of course,
Tim Kowal 4:16
I certainly wouldn't have would not have inferred that. What else has been involved in developing your practice group other than, you know, putting out an APB, send all your appeals to David.
David Greco 4:27
You know, we did formalize some internal appellate procedures that we were just sort of ad hoc. And, you know, we would do an appeal when we look up all of the local rules or court rules and we put together some internal procedures and templates to make sure that we're expediting that kind of processing. And we've identified folks in the firm who want to do the appellate work and whose work I'll supervise another attorney in my office in San Diego. He is really into appeals as well and so he likes to do him. He just finished briefing one that I Are we confident about? So other than that other than formalizing it sort of streamlining the procedures? We haven't done much?
Tim Kowal 5:07
So if you had your druthers, would you be doing 100% appellate work? Would you be doing some hybrid? What's the ideal mix for you?
David Greco 5:16
I've got the perfect arrangement. Now, you know, I love the hybrid, because I love to be at the trial court level. Because I manage the San Diego office, I'm also overseeing all of the cases in that office. So I've got my management hat on, I've got my appellant hat on, and I've got my trial lawyer hat on. And I apparently have giant head because they all fit.
Jeff Lewis 5:37
David, tell me, you know, probate cases are usually emotionally charged family disputes, and most appellate lawyers like me, like briefs, and they hate people, they hate dealing with people. How do you deal with emotionally charged clients and probate cases people are fighting over family money? How do you make sure that clients are making objective decisions as to whether to pursue an appeal? And how do you deal with some of the emotions that are in a probate case?
David Greco 6:03
Yeah, you know, one of our we have four core values at our firm, and one of them is lead with empathy. And so we really value the sort of support we can provide the client on an emotional level without becoming a therapist. And so we let our clients get those emotions out. We validate their feelings, right? I know, I know, it's difficult to lose a loved one. I know it's difficult to then fight over their money with your sister or your stepmother. Those things are hard. And we really take it to heart that we are going to be there for our clients to let them know we understand because this is what we do every day. And then to make sure they're making the right decisions, we beat them over the head with the costs. You know, it is not cheap to do an appeal. For example, it's, it's going to be $50,000. And for reasons I'm sure we'll talk about during this podcast, you might lose your appeal, and you might lose it badly. And what I tell clients, often when they call and say, Should I do an appeal as well? Do you want to spend $50,000, wait two years and be exactly where you are now? And when they hear it that way? The answer is often no. But you really do have to let those people deflate, you kind of have to let them feel their feelings. And that, you know, that's a skill that a lot of really effective probate mediators have to because they want to tell their story. And then once they tell it, they're more receptive to the feedback that you have for them.
Tim Kowal 7:35
So that's a great perspective. And there's, there's something like someone's getting some attorneys got to come up with like a, you know, like a seven stages of grief. It's there's like a, like a certain number of stages of litigation, you know, that at the beginning of limited litigation, everyone's you know, raring to go, you know, spare no, no expense, you know, this is about vindicating a principle. And then a few months down the line, after getting a few attorney bills, you start saying, Whoa, whoa, what's going on here? What are we fighting over again, and then by the end of the of the thing, it's like, hey, the only only the attorneys are getting rich here, Where's, where's my piece doesn't make any sense. So you got to find a way to kind of cover all those stages, prep the client that you're gonna have to deal with, with all of these, all of these things, and you got to do in short order before we sign you up, because we don't want to we don't want to be the bad guys, as the attorneys by the end of this, we want to, we want to be part of the part of the good guys.
David Greco 8:26
Yeah. And you know, one of the things that I found really effective with clients is to tell them, who do you want to inherit your mom's money, me or you? Because at the end of the day, it's gonna be one of us. You know, and I use that line, of course, when I'm trying to convince a client that it's not worth doing what they want me to do.
Tim Kowal 8:45
Yeah. All right. So on in your appellate practice. Tell us your favorite part of the appellate practice, other than this gonna be the tough one for appellate attorneys. Every appellate attorney has the same answer. It's writing the briefs. What's your favorite part? Other than writing the briefs? Doing the research count?
David Greco 9:03
That's kind of part of writing the brief. Yeah. Good. Yeah. I you know, because research and writing really is the meat of appellate practice. oral argument is great. But I think that everybody on this podcast knows that oral argument changes the opinion point, oh, 1% of the time. You know, I have seen in my entire career, one opinion get changed after oral argument. And it was on an issue of first impression, many, many years ago. So, you know, it's fun to get up there and be a big boy at the podium. But really the intellectual stimulation of doing the research thinking about your case, and putting it before the court in writing is the best part. So sorry, I answered your question by violating the premise of the question.
Tim Kowal 9:46
Well, you know, it happens it's hard to control attorneys. When you have an opinion about oral argument you mentioned you know, there's grim odds and in trying to actually persuade by the time it comes to oral argue Do you ever counsel your clients? Look, you you have the option to just have me submit on the papers, we don't need to go to oral argument and and pay my fees for it. Has that ever attacked that your your clients take?
David Greco 10:12
You know, I do tell clients about the realities of oral argument. But one of the things that I really like to provide to the client is my potential insight from what I gleaned from oral argument. I think it's a valuable tool while we're waiting for the opinion to come out. So, you know, last year in October, I did an oral argument in a case where the panel was very clearly going to affirm in our favor. I mean, the the Presiding Justice said, I think the trial court would have abused its discretion hadn't ruled it any other way. You know, and so that was a really valuable tool that I could bring back to my client and say, maybe it's time to make a settlement. Right. And so there's value in oral argument because you get the impression, and you have the sort of the opinion hanging over the head of the opposing attorney, who maybe doesn't want to get the opinion before they have a settlement agreement. So there's value in that, but I do disclose to the clients that the judges are unlikely to change their mind.
Tim Kowal 11:12
Well, let's talk about some specifics on probate appeals. David, tell us how are probate appeals different from ordinary civil appeals? Are there any special considerations that you have to be aware of in probate appeals?
David Greco 11:25
Yeah, well, you know, probate judges have such leeway. And they're also the fact finder, you don't get a jury and probate court. So there goes all your jury selection appeals, right, there goes your jury nullification appeal. There it goes for jury misconduct appeal. And the factual findings made by the judge are presumed correct, as you know, and any inferences that would support those factual findings are presumed to be part of the decision. So if you're looking at a fact based appeal from a probate decision, it's a huge uphill battle. And I think that's even more true in probate court. You know, probate judges correctly understand their role is more than just to adjudicate a dispute between the parties, they are the protector of the estate, the courts job is not only to make sure the estate is distributed correctly, but that it's not stolen or wasted. So they, you know, the legislature has implemented these broad powers that probate judges have probate code 17 206, gives the probate court the discretion to make any order it deems appropriate. Now, there are some limits to that provision, which have been come up in recent case law. So some of the Courts of Appeal are starting to draw boundaries around that broad power, but not boundaries that are really going to limit the discretion with which they review a probate court's decision. So if it's not an issue of law, or arguably an issue of law, it's virtually not it is virtually impossible and not worth it to do an appeal.
Tim Kowal 13:02
Are you suggesting that, that when it comes to factual findings, civil appellate attorneys know that the substantial evidence standard of review applies there, and it's always tough to overcome? Is that Is it even tougher to overcome in in probate? Is there another gloss that even on top of substantial evidence standard, there's kind of this probate judges can make any order that's appropriate in the interest of justice? Is that all just lurking in the background? So you have to overcome even if you can, you can tick all the other boxes, you have to also persuade the court of appeal that this was in the interest of justice, this was an appropriate outcome.
David Greco 13:38
Yeah, I think that it's in the back of every appellate justices head, that what they're reviewing is the finding of a judge and what they're reviewing is the finding of a probate judge. So you know, there's no case law saying that a probate judge has factual findings are any more powerful than a jury? But in my experience, I don't think I've ever seen the factual findings of a probate judge get overturned unless they there really was no evidence, you know, really could not meet the substantial evidence standard, which almost never happens.
Tim Kowal 14:07
Okay, so the next thing I want to ask you about was appealable orders in probate court. Now under in civil appeals under CCP nine oh, 4.1, you have, you know, your list of appealable orders under probate code 1300. And some of the other probate code appealability provisions, you can practically take an appeal after the court says good morning. And and I was wondering, I mean, I've in my limited forays in probate matters. I've come up against this problem where I have to keep advising my client every time there's an order that comes down. Well, technically, this is appealable Do you want to appeal it? And you know, if you have a client who just who's happy to appeal everything you can wind up with with a large basket of appeals. I wonder if it makes you nervous that so many orders in probate court can be appealable and if it can be appealed, it must be appealed or else it's, you know, that right is forever waived?
David Greco 15:00
Yeah, you know, at first glance, section 1300 does seem pretty broad. And in some ways it is. But in other ways, it kind of just catches orders and judgments that, for all intents and purposes are just like final judgments that are nine oh 4.1, you know. So, for example, in order setting settling an account, it's basically a final adjudication on a petition to compel accounting. But because it's called the settlement of an account, it doesn't fall within, you know, the civil codes language of an appealable order. I think also that the denial of an accounting, of course, is not appealable. And so the legislature saw fit to include an order settling and account as a separate appealable order just to make clear that you could appeal that. So that's more of a final judgment, just using different language. And the same is true for ruling under Probate Code section 850. Section 50 is basically replevin codified, right, the law school thing we learned in first year replevin, the return of property. And so a final judgment or a final order from an 850 petition is really just an order after trial or summary judgment on a replevin action. But because the probate code uses different language than final judgment, I think they saw fit to create section 1300 to make clear that those orders were appealable. Yeah, and then there are things that are truly interlocutory, that 1300 makes appealable like the sale of real property. But I never see the sale of real property get appealed. Because it doesn't get stayed unless you post an undertaking. Nobody ever wants to post an undertaking. And it's reviewed for abuse of discretion. And so every sensible attorney is going to advise their client unless the property was sold for less than 50% of what it was worth. But it's not going to be worth appealing this kind of work, particularly because you have to post the undertake. So I don't view 1300 is particularly powerful or expansive, beyond, you know, the Civil Code.
Tim Kowal 17:02
You're not seeing too many too many cases where you have multiple appeals being taken up. No, definitely not. No. Okay. All right. Well, the next the next thing I want to ask you about was appellate stays in the probate context. Now, in your back, you know, starting with the comparison, in civil appeals, the general rule, under CCP 916 Is that an appeal stays the trial court proceedings. You know, that's the general rule. Of course, the general rule is swallowed by all the exceptions. But that's different in probate court, it seems under probate code, section 1310. A, you know, you're you're supposed to have a stay pending. You know, once you take the appeal, you tell us a little bit about the operation of the automatic of the automatic stay in light of well, just, I'll just go on and share my experience with the automatic stay. The difficulty there is that automatic is in the eye of the eye of the beholder, right, if your opposing counsel disagrees, that there's a stay, there's no automatic way to enforce it. You have to go and file a motion to get the trial court to say yes, there's a stay, or no, there's not a stay, and then then you're left with the petition for supersedeas. In the Court of Appeal. I wonder what your experiences and in the in the probate court do? Is there is there? Is there agreement among probate attorneys about what you know, what types of orders are stayed pending appeal, or is there a lot of motion practice on that?
David Greco 18:24
You know, I haven't seen a lot of motion practice on it. At my last firm, I did some civil appellate work. And I did have to, as you said, go through the rigmarole of filing a motion getting the court to confirm that there was a stay, it was an order to compel arbitration. But usually what I do when I file a notice of appeal is I send out a cover letter that explains the litigation has stayed to the opposing attorney. And sometimes that works. And sometimes pre educating my adversary is helpful because it saves the law of motion practice. Other times I get a phone call saying What are you talking about? There's no stay, you know, and then we have a conversation. But so far, I don't think in the last three years, I've had to fight over what state and what's not in probate court.
Tim Kowal 19:08
That's fortunate. I find those I find those fights, very taxing. Now let's move on to on the same subject of appellate stays under 1313 10. A has the provision for the automatic appellate stay and in appeals of probate orders, but under 1310 B, there's a provision that allows judges to make any order that would otherwise be stayed on appeal to be enforceable pending the appeal. I refer to this as the probate stay killer. How common is this? In my research, I haven't seen it come up too much. But I wonder if you see it in your practice, the 1310 B stay killer.
David Greco 19:47
It's my favorite provision of the probate code 1310 B for us comes up most often when we've had a trustee removed from that office. You and replaced. And you know, our standard practice is to ask the court to appoint a private professional fiduciary as somebody who is going to protect the assets of the trust and manage it competently. And 1310 B, you know, really basically, in my mind comes back to the courts role in protecting the trust and acting as a sort of shield against trustee malfeasance. Because if you have a trustee who has access to all these bank accounts, has access to all this real property, all this personal property, and they don't want to get removed, and they're removed, and they file an appeal, and it stayed. They see the writing on the wall. The judge already knows that the you know, that this trustee has acted in a way that concerns the judge, the trustee gets that. So is it really a good idea to stay there removal pending the appeal, which, depending on how many extensions they get, could be two or three years? Right. We know the Court of Appeal doesn't care how many extensions you get, I think you had a whole blog post about it. So it really that provision in my mind comes from the legislature's intent that the court protect the trust. And like I said, it's my favorite provision, because we get trustees removed all the time. And then they appeal. And then we file an ex parte to have them removed pending the appeal. And it's usually granted, we just had one done in Los Angeles. And thank goodness, we did because the new fiduciary who got in, got control of the assets turned out there were all these mystery signatories on the bank accounts and all sorts of chicanery that, you know, we suspected, we have proof of some chicanery, and then she gets behind the scenes the fiduciary, and discovers that it was much worse than than we had ever imagined. And so it is a state killer, but I think it's necessary in this type of litigation.
Tim Kowal 21:54
Now, is there a tension there between you know, the there's ordinarily you have a right to take an appeal. And under 1310 B, I mean, the idea there is it's it's going to moot the appeal, if you can enforce the order before the appeal is shaken out. By the time the panel gets to reading the briefs and working up its tentative opinion, you know, all the damage is going to have been done. And so the appeal is going to be moot. Do you see that happening? often to the point where it seems like Gosh, as litigants right to appeal is being obviated, and in many cases by 1310 B.
David Greco 22:28
I think that that is true in trusts that are meant to be administered over a short period of time. So if it's a testamentary trust, and somebody died, and you've got some real property to divvy up some cash to get rid of, yeah, I do. Because by the time you get to briefing or argument, most of that work is already going to be done. You know, and that's not always the case, sometimes there's a concurrent challenge to the validity of the trust, that will continue to progress while the appeal is going. But on the flip side, is these trusts that are meant to go on forever, or for 30 years, or, you know, the trust exists for the purposes of living beneficiaries, you know, up to the age of 30, and that they get a payout. And in those instances, you're not losing your right to appeal, you're just losing your right to be the trustee for two years. And then if you win on appeal, which you probably won't, because it's abuse of discretion, substantial evidence standard, but you know, shoot your shot. You get to be the trustee again, when the opinion comes out.
Tim Kowal 23:34
And the famous example, everyone will remember, the famous application of 1310. B was in Donald Sterling's case, the former owner of the clippers, when he appealed the the probate court had entered an order under 1310 B that allowed the the team to be sold out from under him. So by the time the appeal went up, damage had been done. And so the appeal, I think, if I recall correctly, it was dismissed as mood. So that was that's the famous example of an application of their teen 10 B stay killer. All right. Well, that's an interesting, interesting perspective. So that's so you would you think that the 1310 B is useful? It probably probably it sounds like you would agree with it ought to be limited to the probate context, or do you think there ought to be an equivalent to 1310 B and in a civil appeals or family law appeals?
David Greco 24:22
I think that needs to be limited to the probate context. And that again, goes back to the courts more expanded role in managing and protecting the trust assets. You know, the court has no interest the civil court has no real interest in a contract dispute between two parties. It's not its job to protect those assets, but it is the courts job to protect somebody's testamentary statement.
Tim Kowal 24:46
Let's move on to a two bit of pop culture. There is a there's a movie it was a 2020 movie. Someone turned me on to it a few months ago called I care a lot. And I think I found it you can watch it on Netflix. It's about conservatorship of views and I wanted to ask you a bit about it. I think you told me you haven't had a chance to see it. But you've read a little bit about it. For our audience who hasn't seen it, the premise of I care a lot, is it's about a corrupt professional fiduciary, a conservator, who has a back scratching relationship with with some doctors, of wealthy elderly people and the fiduciary will go to go into court with a declaration drafted up by one of one of her doctor cronies. And the declaration would state that, you know, poor, wealthy, Miss Jones is desperately in need of the assistance of a professional conservator. And the judge would would sign off on and say, Well, of course, Miss Miss conservatory is a very well respected Conservatory in our court. And this doctor is a very well respected member of our medical community, and go ahead and appoint the conservatorship and then the the greedy, corrupt conservator would go in and loot the estate. And so I was watching this and thinking, Now, this could never happen in our system, because, because I thought, I'm going to ask David Greco that question. So David, why could the premise of why Kerala never happened in our system?
David Greco 26:09
Well, the answer is that it does not I think, to the extent that the movie sensationalizes it and dramatize it, and I haven't seen any back scratching relationships with physicians. And I really haven't seen any professional fiduciaries behave in this way. But, you know, I have seen conservatorship abuse. I have seen children that attempt to have their parents conserved because they were written out of the estate plan, and they want to get the conservatorship and change the estate plan. And I've seen children tried to have their parents conserved because the parents stopped taking their phone calls, because they don't want to talk to their child, which is, you know, probably difficult for the child, but a conservatorship is not the answer. And, you know, we have seen in our practice, conservators take advantage of wealthy disabled people. We had a case must have been many years ago, by now where the stepdaughter of this very wealthy, taxable estate type gentleman, took it upon herself to take him to a new estate planner, deed a bunch of his properties to her using the conservatorship. And then when her conservatorship status was contested, you know, she locked him in the house with her. She refused to let the court investigator interview and she was used to let any of the examiner see and it was a protracted, really contentious battle. There was a guardian ad litem appointed, you know, and there's so many other children involved. And I want to say probably that case, cost collectively the party's, you know, seven or eight figures to litigate over the course of our many years. So it does happen. But the good news is that the legislature has started to catch on with the free Brittany movement. I think that somebody thought this might be important. And so they did implement some new changes this year to the conservatorship laws. They broadened the types of people who can ask the court to investigate conservatorship abuse, they increase the penalties for conservatorship and abuse against both individuals and private professional fiduciaries. They brought into the investigators powers. And there's some other stuff in there that it's moving in the right direction. And of course, one of the most important things that came out of the free Brittany movement, so to speak, is that conservatives can now choose their own counsel. And the Business and Professions Code has been incorporated by reference into this new section, to make clear that the Conservatives chosen Council's job is to advocate for the Conservatives preferred position, not what the council may independently think it's best for the conservative tea. Right. And so you know, the changes are positive. But I don't think there are enough. And also many of them are funding dependent. They're subject to a separate legislature bill providing funding for these laws to go into effect. And who knows when or if that will happen?
Tim Kowal 29:12
Yeah, no, that's, that's interesting. So you're saying that a moment ago, you said that one of the recent changes is that proposed conservatives or conservatives now have the right to retain their own counsel to advocate for their own positions? I'm surprised that I was not aware that that's only a recent development, how recent is that?
David Greco 29:31
It was past I want to say at the end of 2021, and goes into effect this year. And you know,
Tim Kowal 29:37
before that you would have conservatories or guardians ad litem who would just go into court and say, Well, this is what I think Mrs. Jones needs, and then and no one would be would be hearing from Miss Jones as to what she actually wanted.
David Greco 29:51
That's right. Yeah, court appointed counsel. And it really depends on the court appointed counsel because some had always viewed their role as advocating for what the conservatory want
David Greco 30:00
It other court appointed counsel viewed their role more as a guardian ad litem somebody to act for the conservatee and so the change in the law really makes it clear that you act on behalf of the conservatee
Tim Kowal 30:12
yeah yeah you mentioned the the free Brittany movement and I just one comparison that has stuck out to me once that became a thing a meme was that I recall well I know of how the the the asylums the mental asylums in California were done away with back in the 70s I believe and so you know, there's there's pros and cons to that obviously but we see a lot of homeless who are in need of mental probably need someone to go and ship them off up there but they're not going to do it voluntarily. But we made that decision that okay, personal liberty prevails over that yet we're still we're shipping off you know, poor wealthy Miss Jones to to our new kinds of asylums Are you know, posh nursing homes? If if you have a doctor declaration saying that now she's kind of lost her marbles, she needs some help caring for herself, even if Miss Jones says no, I'm fine. So that's it's an interesting juxtaposition, in my mind anyway, that we let that we respect the rights of homeless people sleep on the street, and we won't ship them off to get mental care. But if someone has a lot of money, and there's a professional fiduciary and a doctor who will sign off on putting them in, in a home against their will, that is an option in under our policy. Jeff, you had a you want to talk about the 2020 case conservatorship of OB.
Jeff Lewis 31:35
Yeah, you know, David, I don't do a lot of probate work titled maybe a handful of probate appeals my career back in 2020, there was a decision called conservatorship of OB that wrestled with the question of what to do with the clear and convincing standard required for evidence when you have an appeal. And the California Supreme Court ultimately ruled that when you're up on appeal, and dealing with that burden of proof that the Court of Appeals should consider that higher requirement that higher quantum of evidence required for clear and convincing. I was just wondering, I know in the probate context, there are certain instances where clear and convincing as an issue, for example, I think when looking at a testator is intent or capacity. And I'm just wondering if the the case from 2020, this conservatorship of OB case has had any impact in terms of how you argue cases in the court of appeal or how you see appellate justices or resolving cases, or is it too new to say it's had any impact at all?
David Greco 32:36
You know, I haven't argued a conservatorship appeals since OB came out. But every time that we approach to conservatorship appeal, we assumed that clear and convincing affected the way the court of appeal would review the evidence. And it sort of facially makes sense, right? You can't review a decision for clear and convincing evidence based just on substantial evidence, right? Particularly when the rights of somebody somebody's personal liberty is involved, there has to be some sort of higher bar to meet, even at the appellate level. So sort of in contrast to what we talked about earlier, how probate judges have all this leeway and discretion to make factual findings. I think that that standard and the way we've always approached it in our firm is that that standard applies at every level.
Jeff Lewis 33:30
Okay, interesting. All right. And another question I had is I just recently obtained a sanctions award against opposing counsel on a probate appeal. And I don't do probate appeals often and thinks maybe the second or third time I've ever asked for sanctions and 25 years of doing this. I wonder, do you have a rule of thumb for when you might seek sanctions in a probate probate appeal?
David Greco 33:54
You know, our default rule is that we don't ask for sanctions. Most of the time, it escalates the dispute. It gets in front of our efforts to get something resolved. And it cost the client money that they might not get back. You know, you can file for sanctions, it doesn't mean you're going to get them. And so I don't really have a rule of thumb, but I thought about it as sort of as you were asking that question. And I think that if I didn't have to have a rule of thumb, it would be well, if I audibly scoff when I'm reading the appellate brief, and I can tell from argument that the judges probably audibly scoffed, when they read the appellate brief, and the client wants to pursue sanctions, then I would probably file a motion for sanctions. But it you know, by default, and by strong default, it's not not our go to our focus is always where do we get a resolution for this client? You know, as soon as we can, in the best way that we can, and I rarely see sanctions as Just moving the settlement ball or resolution ball forward.
Tim Kowal 35:04
So you'd have a literal last test for whether to pursue sanctions.
David Greco 35:07
Yeah, I did have a Ninth Circuit case, it was actually an education case, but where we won at the district court, and then we wanted the Ninth Circuit. And their appeal was, you know, I did scoff at their opening brief. And then again at their reply brief. And after we got the opinion, the opposing attorney filed sanctions against us, despite that, we won. And so I did think about filing a sanctions motion because of their sanctions. But ultimately, my client had been in this litigation for I think, four or five years, and it was time to wrap it up. And I didn't want to drag it out anymore. So that's a situation where if it comes up again, yeah, I'll probably file.
Tim Kowal 35:50
Yeah. So you had to leave unresolved whether they filed a sanctionable sanctions motion. All right, so So before we leave the top topic of probate and conservatorship appeals, there any any other war stories, or words of wisdom, or tips, or traps that you want to import impart to our audience?
David Greco 36:11
Oh, geez, I love a good war story. We 2020 had a $40 million trust that was managed in California for 60 years, two daughters come to California and pick up their mom from a medical facility and move her to Idaho against doctor's orders. And suddenly, the trust assets are being sold to LLCs in Idaho. And so my my client was California resident and a beneficiary of the trust filed suit, to get the property back and to remove the mother who's incompetent at this point that his trustee and they filed a motion to quash for lack of personal jurisdiction. And the trial court granted the motion, which I thought was ludicrous. So we appeal and we got a published opinion reversing. And the the published opinion was clear that jurisdiction was so appropriate in California, that it was almost indisputable. And so that was a great win. Published opinions are always fun. And I got a bunch of outreach from probate litigator, saying thank you so much for this case, because finally, there's a personal jurisdiction case about trusts in California. Because before that, there was really the only one trust related personal jurisdiction case from SCOTUS, which was Hanson V den Club, which we all learn about in you know, one L. And so this was kind of the second case in that series. And so that was a really fun appeal. They did try to get cert at the California Supreme Court, but it was denied. Yeah, correct. Yeah, that
Tim Kowal 37:48
was the Buskirk case. I saw that one that came up. And I saw that was. Yeah, that was one of David's cases. Well, good. Yeah. Good. Yeah. Interesting to have the inside, inside scoop on on that case. All right, Jeff, time to move on to the real hard questions.
Jeff Lewis 38:07
So yeah, if you've listened to our podcast before, David, you know, we
typically conclude our interview with the lightning round, which are the most pressing important and critical questions that backs appellate nerds around the globe. And we're looking for short, quick responses to these vexing questions. Are you ready, sir? short and quick. Let's do it. All right. First, the Fran Campbell question. Do you include table of contents as the first line in your table of contents and your briefs?
David Greco 38:40
Depends on the legal system?
Jeff Lewis 38:44
That is probably the best answer for every question. You're going to hear today.
David Greco 38:48
If I had my way, the answer would be no.
Jeff Lewis 38:53
Font preference century schoolbook Garamond or something else?
David Greco 38:57
Tim Kowal 38:58
What do you what don't leave us hanging? What's this something else?
David Greco 39:01
It's called the century expanded. And it's a limited font. I think that the Supreme Court of the United States uses it.
Jeff Lewis 39:10
We're going to put a link to that in the show notes. Tab.
Tim Kowal 39:13
We're going to expand it I thought they were on century school book, but we'll have to.
Jeff Lewis 39:19
Okay, expand our font knowledge. All right. After a space excuse me after a period two spaces or one space, one space, correct, sir. Oxford comma for it or against it for it. Good. And we'll do one more when you're doing major argument headings in your briefs. Do you use all caps initial caps or sentence case? sentence case? Very nice. The
Tim Kowal 39:51
right answer also.
Jeff Lewis 39:52
All right. You survived the dreaded lightning round unscathed. And most your answers were correct. I think at this part of our interview, we're going discuss some recent cases, and you're welcome to stick around and offer your two cents or log off if you if you have pressing probate matters to attend to. Oh, I'd
David Greco 40:08
love to hear it.
Jeff Lewis 40:09
All right, Tim.
Tim Kowal 40:11
Yeah, I just had one case it's it's on point for today. It's a probate opinion get raised a question that I did not realize that not been answered before. It's about probate stays and attorney fee awards. So the question is, when the losing party appeals in order that gives rise to a motion for fees, does the appellate stay deprive the court of the probate court of jurisdiction to go forward and award the fees? So in civil cases, the answer would be no, I think, but in probate courses, cases, we don't have an answer one way or the other. And after in in conservatorship of Bauer, we still don't have an answer because the Court of Appeal punted. That was a conservatorship case, the probate court found that the conservator had incurred expenses in bad faith. And so the Conservatives widow was entitled to attorneys fees, and the amount of fees was to be determined by a later motion. But the conservator rushed ahead and filed an appeal of the finding of bad faith that gave rise to the entitlement to fees. And then the conservative turn turned around and argued that based on his appeal, and the resulting appellate stay, the trial court, probate court could not go ahead with the fee motion to determine the amount of fees. So the answer to the question of whether the probate court can actually award the fees pending the appeal was not answered ultimately, because by the time the court got to it, the appeal of the underlying accounting award and finding a bad faith had been affirmed. So the court ducked the question under 13, probate code 1310. So we don't know whether a finding a bad faith and the resulting appeal stays the jurisdiction of the probate court to go forward and award the fees. I wondered if either of you thought that the appellate state should apply there, should the probate court have been able to go forward and award the fees set the amount of fees or was it stayed from doing that pending the outcome of the appeal?
David Greco 42:06
So we just had this issue in another case, and our trial court awarded the fees and ordered the trustee to pay our fees out of the opposing party's portion of the trust. And we briefed this issue top to bottom, and we found some pretty good case law. I'll send it to you after this, basically saying that it's no different than civil and the probate court because it has a jurisdiction to direct the internal affairs of the trust. If it's ordering the payment of attorneys fees out of the trust, that it can do that, regardless of whether an appeal has been filed.
Jeff Lewis 42:45
I think David's 100% Right. We I think he suspected I was gonna say that.
Tim Kowal 42:51
Yeah. All right. Well, that's that's the only case I wanted to share this time around. We have some some new Well, let's move on to some legal news and appellate news and tidbits as of March 28 2022. The California Supreme Court has a new Justice Patricia Guerrero. I just thought our audience should be aware that we we now have another new justice.
Jeff Lewis 43:15
Yep. Good stuff. Good stuff there. I'm really interested in this next Ted tidbit. You Oh,
Tim Kowal 43:20
yeah. I got another one here. A question is should courts allow witnesses at trial to wear transparent masks? This is an issue that came up in People vs. Edwards. And I found this case on San Diego law professor Sean Martin's blog, and Professor Martin NASS. Why not? Why not just allow the witness to wear transparent masks. He says that there's very little if any argument as to why those kinds of face masks shouldn't be transparent. As such mass undoubtedly exist. They've existed for some time, using those masks would solve the problem concerning this case brought up the issue of the Confrontation Clause because it was a criminal case, it would solve the problem presented under the Confrontation Clause, and that way the constitutional requirements will be satisfied. And Professor Martin then takes justice Wiley to task for relying on a Thomas Jefferson, quote, us to excuse compliance with Professor Martin believes is the constitutional mandate there. The Jefferson quote was, quote, a strict observance of the written law is doubtless one of high duties of a good citizen, but it is not the highest, the laws of necessity of self preservation of saving our country, when in danger are of higher obligation to lose our country by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty and property, and all those who are enjoying them with us. Thus, absurdly sacrificing the ends to the means. And quote, and Professor Martin's response to that was, quote, with respect that sentiment sentiment doesn't belong in a judicial opinion, not this one, and not anyone. We're talking about the confrontation claws, a constitutional requirement. Part of the Constitution, it's part of the Constitution. It's not optional. It doesn't just apply in peacetime, it doesn't get dispensed with in a pandemic. It's written in the constitution precisely because we think it's a critical liberty. And precisely because we're worried that in a crisis, policymakers might be inclined to dispense with it. It's not just written law, it's the foundation of American democracy. It's what and who we are period. I thought that was a very strident summary or summation of that, that point of view. And based on some of Professor Martin's other writings, I would have I, I'll just say I didn't expect it from him. And I thought it was interesting. We're sharing wonder if you if you have any thoughts on it, Jeff, or David.
Jeff Lewis 45:43
I think we've all kind of developed over the last two years, the ability to gauge when someone has half their face covered, you know, what they look like, whether they're smiling or not gauge someone's credibility. Judges have had to do this during trials. And I gotta tell you, I don't see the confrontations clause issue here. But I do see one interesting thing, though, and that is, you know, the deaf and hard of hearing community rely on facial expressions when reading sign language, or understanding sign language. And I wonder how the use of masks might impact on the rights of members of the deaf and hard of hearing communities serve as jurors, and to see that component of someone's face in terms of either someone who's testifying by through an interpreter or just the face at all. So it's a super interesting issue. But at the end of the day, I don't agree with Professor Martin, that mass impact computations clause and the way he suggests
Tim Kowal 46:40
Jeff Lewis 46:43
Hey, one other tidbit I wanted to add, I noticed last night that the Supreme Court has just proposed a new rule, I think it's going to pass that briefs submitted to the Supreme Court no longer are to use, pass them in the tables of authorities. Instead, you're supposed to put each and every time and authority appears on every page. And that's long been the policy of my firm, because I know the research attorneys in the second district in Los Angeles do not like the CPUs have passed some. And I just thought it's interesting to note that the Supreme Court's proposing that rule.
Tim Kowal 47:12
Yeah. What about the other thing? Does your firm have a practice on pass him?
David Greco 47:17
Right? Yeah, we don't use it, I think pass them is the lazy man's TOC. And, you know, you can tell when somebody's been rushing through their briefs, because every site has passed. It's like, you must not have a legal system. For all your sites. But yeah, I agree. I think it should be eliminated from practice of law.
Tim Kowal 47:39
I agree. We have unanimity.
Jeff Lewis 47:43
And the final tidbit, I wanted to point out Howard Ashman, who's an outstanding appellate lawyer, and he had the longest one of the longest running appellate blogs I'm aware of, it's one of the first ones I ever remember reading the blog called how appealing he recently authored a list of top legal podcasts and was kind enough to include our podcasts on his list. And so yeah, we'll include a link to that article in our show notes. And Mr. bashment. If you're listening to this podcast, we would love to have you on the show.
Tim Kowal 48:11
Yeah, we'll have to make it happen. All right. Well, that wraps up this episode.
Jeff Lewis 48:16
If you have suggestions for future episodes, please email us at info at cow pod podcast.com. And in our upcoming episodes, look for tips on how to lay the groundwork for an appeal when preparing for trial.
You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode, our hosts and other episodes, visit the California appellate law podcast website at ca l podcast.com. That's c a l podcast.com. Thanks to Jonathan Caro for our intro music. Thank you for listening and please join us again
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at firstname.lastname@example.org or (714) 641-1232.
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