Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

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Tag: Trust and Probate

Does the Probate System “Care A Lot”?

The 2020 film I Care A Lot is premised on the possibility of predator conservators using the conservatorship system to loot the estates of the elderly. Could it actually happen?

Probate attorney David Greco says that, while the film makes some leaps, conservatorship abuse does happen. Improper uses of conservatorship include children seeking conservatorships over parents for writing them out of their estates, or even for refusing to take their children’s phone calls.

David also relates a story of a conservator who locked her ward in the house and isolated him from examiners. Thwarting her efforts cost multiple millions in attorney fees.

David explains why the #FreeBritney movement is a long-time coming, and has produced at least one favorable change that allows conservatees to hire their own counsel. (Query why that basic right had been denied until 2021.)

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Lawsuit Against Judge in Disney Estate Case, Dismissed by District Court, Held Moot by 9th Circuit Because Judge Reassigned Himself

In the ongoing probate litigation over the Disney estate in Lund v. Cowan, No. 20-55764 (9th Cir. 2021), the 9th Circuit recently called probate court "the Unhappiest Place on Earth" in response to Los Angeles Superior Court Judge David Cowan's actions against Walt Disney's grandson, Bradford Lund. Lund had already waited 15 years for his inheritance and won a court declaration of his mental competence. He entered into a settlement agreement to pay his trustees $14.5 million to step down.

But Judge Cowan refused to approve the settlement. Judge Cowan stated: "Do I want to give 200 million dollars, effectively, to someone who may suffer, on some level, from Down syndrome? The answer is no.”

The court did state it found Judge Cowan's comment "troubling." "But judicial immunity shields even incorrect or inappropriate statements if they were made during the performance of a judge's official duties." This includes even actions made with “malice or corruption of motive.” Forrester, 484 U.S. at 227.

In the article, I offer some of my thoughts on the strange American impulse to expand the privileges of the sovereign, and the sad state of our probate court system.

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Rare Reversal of Probate Judgment for Lack of Substantial Evidence

A "substantial evidence" appeal is among the toughest to reverse. That is when the challenge to the judgment is based on one of the trial court's factual findings. An appellate court will almost never disturb a trial court's finding on a factual question. To get a reversal, you have to show there is literally no evidence, or the functional equivalent.

But the appellant managed it in Mulberg v. Amster (D1 Jul. 14, 2021) no. A158954 (nonpub. opn.).

The attorney-appellant, serving as trustee, took money from the estate to pay fees owed individually by his beneficiary client. When the court (correctly) surcharged him for that, the appellant went back to his client demanding she pay up. She refused, so the appellant sued. But the court denied his fees, reasoning his prior invoices showed the fees had been paid in full.

Reversing, the Court of Appeal reasoned the fee obligation was obviously unpaid. The invoices showing payment barely merited a "come on, man."

The upshot: If you can frame your appeal of factual findings as arising from undisputed facts, this may improve your chances of success. (Of course, if there are disputed facts that support the judgment, you still must deal with those.)

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Probate Court May Order Mediation, Deem Non-Participating Beneficiary Rights Forfeit, Split Appellate Court Holds

In a surprising split-decision, the Second District held trust beneficiaries who voluntarily decline to participate in mediation forfeit all rights to object to the mediated settlement. Breslin v. Breslin (D2d6 Apr. 5, 2021) no. B301382.
The opinion was first issued on January 26, 2021. Following rehearing, however, Justice Tangeman withdrew from the unanimous opinion and lodged a dissent.

For my part, I agree with Justice Tangeman. And I have two additional concerns about the majority's opinion, concerns not addressed either by the majority or by the dissent.
One is that civil authorities rather emphatically reject the Breslin majority's approach to involuntary mediation here. And another is that there is reason to suspect the majority opinion could be deployed in civil actions.

Watch this space.

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