Sapp v. Rogers

Generally, an employee’s “ordinary commute”  to and from work is not compensable under California labor law. This is true even when the employee commutes in a vehicle that is owned, leased, or subsidized by the employer. Likewise, employees who are part of a home dispatch program and who may transport tools and equipment without expending extra effort or requiring extra time for transport during their commute time are not performing compensable work.

Further, a commute may be an “ordinary commute,” and thus non-compensable, even if the employee travels to different worksites on different days, located within reasonable distances.

However, the DLSE has taken the position that travel involving a substantial distance from the assigned work place to a dist ant work site to report to work on a short-term basis is compensable travel.

There are many factors that must be taken into consideration when deciding whether or not you are required to pay for time which your employees spend traveling to job sites : whether the employees had an expectation of routinely working in different workplaces; whether the distance is reasonab le ; whether the employee is carrying the employer’s equipment ; whether the employer is exercising control over the employee will all have an effect on the final determination .

For assistance on this and other wage and hour questions, please contact the Labor & Employment Department at SBEMP.

Employment & Labor Law Attorneys of SBEMP

• Vee B. Sotelo
• Lena D. Wade
• Katelyn K. Empey

SBEMP’S Labor and Employment Department is comprised of attorneys with decades of experience in a broad range of labor and employment matters from day-to-day counseling to labor negotiations and litigation. Our team is prepared to guide our clients through the complex myriad of employment laws affecting California employers. We assist our clients with day-to-day personnel management issues, such as drafting employment policies, managing leaves of absence, identifying potential problems in hiring and firing practices, and ensuring wage and hour compliance. Our attorneys are also experienced litigators who regularly represent clients in all types of employment litigation, including defending wage and hour class actions as well as lawsuits alleging discrimination, harassment, and retaliation. Additionally, we regularly represent clients in administrative proceedings, such as Labor Commissioner claims, CalOSHA citations, DFEH and EEOC investigations, and DLSE complaints. Our labor and employment practice is also prepared to assist clients with labor negotiations and disputes. Our labor attorneys are experienced in negotiating labor agreements as well as representing clients before the NLRB.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Many employers cover their staffing needs by having on-call shifts in which employees who are scheduled to be “on call” for particular shifts do not have to physically report to work unless they are told to do so, usually through some type of telephonic procedure wherein the employees are required to contact the employer before the scheduled start of the shift to find out whether they are needed to work. A recent Court of Appeal decision has concluded that, under certain circumstances, an employer’s call-in requirement can trigger reporting time obligations.

In California, Industrial Welfare Commission Orders 1 through 16, Section 5, require employers to pay employees “reporting time pay” for “each workday an employee is required to report for work and does report, but is not put to work or is furnished less than half said employee’s usual or scheduled day’s work…”

On February 4, 2019, the California Court of Appeal for the Second District issued a decision that will cause California employers to review their on-call practices to determine whether their procedures trigger an obligation to provide employees with reporting time pay. In Ward v. Tilly’s, Inc. , an employee of the retail chain, Tilly’s, complained that Tilly’s on-call practice triggered reporting time pay because Tilly’s on-call policy requires all employees to treat an on-call shift as a confirmed work shift unless they call in at least two hours before the scheduled shift and are told they did not have to work. Employees who fail to call in or who refuse to work a shift for which they were scheduled to be on-call are disciplined.

The Court of Appeal determined that Tilly’s call-in procedures require employees to “report to work.” The Court of Appeal found that Tilly’s instruction to employees that an “on-call” shift must be treated as a “confirmed” work shift means that employees cannot use the on-call time to engage in their personal business such as scheduling shifts at another job, taking classes or scheduling other personal pursuits. Moreover, the Court of Appeal held that “reporting to work” is not limited to only instances where the employees physically report to work. Citing advances in communication technology since the IWC Orders were initially drafted in the 1940s, the Court concluded that “reporting to work” in today’s context is not limited to only those situations in which the employee is required to physically appear at a designated place but could also mean those instances in which the employee reports in a manner directed by the employer, such as calling in via telephone to “report to work.”

Therefore, Tilly’s requirement that all on-call shifts must be treated by employees as confirmed work shifts for which they are required to call in two hours prior to the start of the shift to find out if they must physically show up constitutes a situation in which employees are scheduled to work, report to work, then are not provided with the full amount of work for which they were scheduled. Under this scenario, Tilly’s was required to pay reporting time pay to those employees who call in for their on-call shifts and are told they did not have to work.

This article is authored by the Labor & Employment Department of SBEMP LLP, lead by Vee Sotelo. Mrs. Sotelo represents employers in a wide array of labor and employment related matters. She regularly advises and represents clients in connection with day to day human resource issues, employment policies, regulatory compliance, class action defense, wage and hour law, wrongful termination and sexual harassment matters.  Mrs. Sotelo is a frequent speaker and presenter at employment law training seminars and sexual harassment seminars.  Although Mrs. Sotelo is based in the Palm Springs office of SBEMP, she regularly represents clients throughout California. To read more about Vee Sotelo and the other attorneys in the Labor & Employment Department, please click one of the links below.

Employment & Labor Law Attorneys of SBEMP

• Vee B. Sotelo
• Lena D. Wade
• Katelyn K. Empey

SBEMP’S Labor and Employment Department is comprised of attorneys with decades of experience in a broad range of labor and employment matters from day-to-day counseling to labor negotiations and litigation. Our team is prepared to guide our clients through the complex myriad of employment laws affecting California employers. We assist our clients with day-to-day personnel management issues, such as drafting employment policies, managing leaves of absence, identifying potential problems in hiring and firing practices, and ensuring wage and hour compliance. Our attorneys are also experienced litigators who regularly represent clients in all types of employment litigation, including defending wage and hour class actions as well as lawsuits alleging discrimination, harassment, and retaliation. Additionally, we regularly represent clients in administrative proceedings, such as Labor Commissioner claims, CalOSHA citations, DFEH and EEOC investigations, and DLSE complaints. Our labor and employment practice is also prepared to assist clients with labor negotiations and disputes. Our labor attorneys are experienced in negotiating labor agreements as well as representing clients before the NLRB.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

Under the Create a Respectful and Open Workplace for Natural Hair (or CROWN) Act, California law now prohibits employers and educators from discriminating against individuals based on their hairstyles. The bill, which was sponsored by State Senator Holly Mitchell, states: “The history of our nation is riddled with laws and societal norms that equated “blackness,” and the associated physical traits, for example, dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.”

In other words, prejudice against certain physical characteristics and hairstyles have been lingering in the workplace and educational systems across the nation. The new law aims to eliminate such societal norms that prevented African Americans from equal consideration or treatment by educators and employers, based on their hairstyle or other aspects of their appearance. The legislature wrote, “ Workplace dress code and grooming policies that prohibit natural hair, including afros, braids, twists, and locks, have a disparate impact on Black individuals as these policies are more likely to deter Black applicants and burden or punish Black employees than any other group.”

“Acting in accordance with the constitutional values of fairness, equity, and opportunity for all, the Legislature recognizes that continuing to enforce a Eurocentric image of professionalism through purportedly race-neutral grooming policies that disparately impact Black individuals and exclude them from some workplaces is in direct opposition to equity and opportunity for all.”

The Crown Act was officially signed into law by California’s Governor on July 3, 2019.  Accordingly, starting on January 1, 2020, California law will officially protect hairstyles with afros, braids, twists, and locks.

This article is authored by the Labor & Employment Department of SBEMP LLP, lead by Vee Sotelo. Mrs. Sotelo represents employers in a wide array of labor and employment related matters. She regularly advises and represents clients in connection with day to day human resource issues, employment policies, regulatory compliance, class action defense, wage and hour law, wrongful termination and sexual harassment matters.  Mrs. Sotelo is a frequent speaker and presenter at employment law training seminars and sexual harassment seminars.  Although Mrs. Sotelo is based in the Palm Springs office of SBEMP, she regularly represents clients throughout California. To read more about Vee Sotelo and the other attorneys in the Labor & Employment Department, please click one of the links below.

Employment & Labor Law Attorneys of SBEMP

• Vee B. Sotelo
• Lena D. Wade
• Katelyn K. Empey

SBEMP’S Labor and Employment Department is comprised of attorneys with decades of experience in a broad range of labor and employment matters from day-to-day counseling to labor negotiations and litigation. Our team is prepared to guide our clients through the complex myriad of employment laws affecting California employers. We assist our clients with day-to-day personnel management issues, such as drafting employment policies, managing leaves of absence, identifying potential problems in hiring and firing practices, and ensuring wage and hour compliance. Our attorneys are also experienced litigators who regularly represent clients in all types of employment litigation, including defending wage and hour class actions as well as lawsuits alleging discrimination, harassment, and retaliation. Additionally, we regularly represent clients in administrative proceedings, such as Labor Commissioner claims, CalOSHA citations, DFEH and EEOC investigations, and DLSE complaints. Our labor and employment practice is also prepared to assist clients with labor negotiations and disputes. Our labor attorneys are experienced in negotiating labor agreements as well as representing clients before the NLRB.

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

The Art of Persuasion

Ethos, Pathos, and Logos

In every litigation case there comes a point where an attorney’s ability to persuade on the validity of their party’s position becomes paramount. Regardless of the nature or scope of the case, or the arena of persuasion, lawyers must be able to stand and deliver.

The traditional means of persuasion find their historical roots with Aristotle, who’s “Three artistic proofs” were first introduced as the three types of appeal one could make during debates. In classical Greek, the three proofs are known as ethos, pathos and logos, or in our modern nomenclature, credibility, emotion, and logic/reason. Any good advocate knows they must make use of all three to be successful.

Ethos (Greek for ‘character’) refers to how trustworthy or credible the speaker is and how knowledgeable he or she is concerning the subject matter. With respect to ethos, lawyers need to establish two things: 1) They are a credible source of information; and 2) They are worth listening to. By establishing both of these, lawyers make those they seek to persuade more inclined to hear their arguments and trust their analysis and conclusions. Ethos is often developed through the language, tone and style of the argument, as well as, through the way the lawyer refers to differing views.

Pathos (Greek for ‘suffering’ or ‘experience’), refers to emotions, or more broadly an attempt to persuade an audience by appealing to their emotions, sympathies, interests, and/or imagination. With an appeal to pathos, the listener is encouraged to identify with the speaker (and their message) – to feel or experience what the speaker feels. Lawyers seek to connect by invoking sympathy, stirring up anger or leading the listener through a walk in their client’s shoes. Pathos is developed by meaningful language, emotional tone, use of emotion evoking examples, timing and pace.

Logos (Greek for ‘word’) refers to the clarity of the message’s claim, its logic, and the effectiveness of its supporting evidence. Logos is an appeal to logic and describes an effort to convince by use of reason. Arguments founded on logic make use of facts, statistics, analogies, and authorities, in short, the evidence of the case. The advocate should be able to provide a clear understanding of the issues of the case, backed up with appropriate detail through the evidence and leading to a reasonable conclusion.

Whether arguing a case to a judge, jury or opposing counsel, the ability to persuade could mean the difference between success or failure. To be truly effective advocates, lawyers should find better results when they are skilled and experienced in the above key elements of persuasion.

Peter Nolan

Peter J. Nolan is Of Counsel with Slovak Baron Empey Murphy & Pinkney LLP, practicing in the area of civil litigation, public agency and municipal law. Prior to joining the firm, Mr. Nolan was a prosecutor with the Riverside County District Attorney’s Office for 19 years, where he served as supervisor of the Homicide and Gang Unit.

Mr. Nolan has extensive litigation experience, having tried over a hundred cases to verdict. His success in trial led to Mr. Nolan receiving many professional accolades for his service. Most notably, being recognized by the California District Attorneys Association as the “Statewide Outstanding Prosecutor of the Year” for 2013. He was also named Riverside County District Attorney “Prosecutor of the Year” in 2008, 2009, and 2013.

Mr. Nolan also serves as Professor of Law at the California Desert Trial Academy, where he teaches Evidence and Trial Advocacy. Mr. Nolan served as the Keynote Speaker at the 2018 CDTA Commencement Ceremony.

Mr. Nolan has always been involved with our community, striving to make a difference in the lives of others. He has volunteered his time with the Family YMCA of the Desert Youth & Government Program, coached high school mock trial teams, managed/coached youth sport teams, and participated in various community improvement projects ranging from food and clothing drives to child abuse prevention, graffiti removal and gang awareness programs.

EDUCATION

• Loyola Law School, J.D. (1999)
• California State University, Fresno, B.A. (1992)

ADMITTED TO PRACTICE

• California
• Nevada
• U.S. District Courts, California

PROFESSIONAL AFFILIATIONS

• The State Bar of California
• The State Bar of Nevada
• Desert Bar Association

New Case Alerts

Meleski v. Estate of Hotlen

Cite as C080023
Filed November 29, 2018
Third District

Summary: A decedent’s insurer can be liable for costs beyond policy limits where the insurer obtains an outcome at trial that is less favorable than the Plaintiff’s C.C.P. 998 offer.

Amanda Meleski was injured when Albert Hotlen ran a red light and collided with her vehicle. At the time of the accident, Hotlen had a $100,000 policy limit through Allstate Insurance. Hotlen then died and, as authorized by the Probate Code, Meleski filed a probate action against Holten’s estate for the policy limits of $100,000, serving her complaint on Allstate. Allstate rejected Meleski’s C.C.P. 998 offer to compromise of $99,999. At trial, Meleski recovered $180,613.86, and sought costs, including expert fees, of $66,017.08 under C.C.P. 998. The Court denied Meleski’s requests for costs, holding that Plaintiff’s recovery was limited to the $100,000 policy limit. Plaintiff appealed.

The appellate court reversed. Allstate, although technically not a named party, was nevertheless a party for purposes of C.C.P. 998. The notion that the “estate” is the defendant is a legal fiction. In the context of this claim against the decedent’s insurer, Allstate alone controlled the litigation, was exposed to any liability, and rejected Plaintiff’s C.C.P. 998 offer. Allstate had made its own C.C.P. 998 offer, and the legislature did not intend for asymmetrical application of the statute. Lastly, the appellate court held that the insurer is liable for such costs even in excess of the policy limits. Click here to read more.

Estate of Stockird

Cite as A152538
Filed December 19, 2018
First District, Div. One

Summary: A lapsed gift to a residuary beneficiary passes to the other residuary beneficiaries instead of intestacy, regardless of whether the beneficiary whose gift lapsed was kindred.

Cheryl executed a holographic will leaving her entire estate to her life partner, John, and her aunt related by marriage, Patricia. Patricia predeceased Cheryl and the will contained no provision directing the disposition of Patricia’s share in that event. After Cheryl died, her will was admitted to probate and John petitioned the court for a determination he was entitled to Cheryl’s entire estate under Probate Code section 21111(b) because he was the sole surviving residuary beneficiary. Cheryl’s half-brother, Bruce, filed a competing petition arguing the lapsed gift to Patricia must instead be distributed to Cheryl’s estate under Section 21111(a)(3) and ultimately to him as Cheryl’s sole surviving heir under the laws of intestacy. Both parties agreed Patricia’s share did not pass to her heirs under the antilapse statue because she was not Cheryl’s kindred. The court applied the definition of “transferee” from Probate Code section 21110 to Section 21111 and ruled that because Patricia was not Cheryl’s kindred she was not a “transferee.” Section 21111’s requirement that lapsed residuary gifts to “transferees” pass to the other residuary beneficiaries therefore did not apply to Patricia’s gift, so the lapsed gift instead passed to Cheryl’s estate. John appealed.

The appellate court reversed. The gifts under Cheryl’s will of 65% and 35% to John and Patricia, respectively, were residuary gifts, but the trial court misconstrued the statute governing disposition of lapsed residuary gifts. The definition of “transferee” found in Section 21110 does not apply to Section 21111 as that definition is expressly limited to Section 21110. Instead, the Probate Code’s more general definition of “transferee” found in Section 81.5 applies, and Patricia was a transferee under that statute as it does not hinge on status as kindred. Since Patricia was a transferee, Section 21111(b) applied to her gift, resulting in her lapsed gift passing to the other residuary beneficiary, John. The legislative history makes clear that California abandoned the no-residue-of-a-residue rule in favor of modern trust law aimed at avoiding intestacy. Click here to read more.

Probate v. Privacy
THE TECHNOLOGY BATTLE AFTER DEATH

By Jill Choate Beier

Most of us have some type of “digital presence” on the internet and, most likely, each of us will continue to use the internet more and more. In recent years, the media has reported various stories involving the administration of a deceased individual’s digital assets. For example, family members of a soldier, killed by a bomb while stationed in Fallujah, were unable to get access to email correspondence from the soldier’s Yahoo! account;1 family members of a 15-year-old who committed suicide were unable to access their son’s Facebook account to search for answers;2 or, the full Flickr photo account of a blogger who died suddenly of a heart attack during the night was closed and unavailable to the family after his death.3

In all of these cases, the current federal privacy laws that were created, in part to protect our privacy, ultimately prevented surviving family members from accessing the digitally stored memories that were left behind. Whether you have just one email account or you have several email accounts plus Twitter, Instagram, Shutterfly and Pinterest accounts plus documents stored in the cloud, the question is the same: What happens to our digital presence when we are unable to access our digital accounts? This article will review the issues involved with administering digital assets, discuss New York’s Estates, Powers and Trusts Law (EPTL) Article 13-A and provide some guidance for planning for digital assets. Click here to read the full article from NYSBA Journal.

When is the Right Time to Get Your Estate Planning Affairs in Order?

The answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child. Click to continue reading.

Estate Planning and Special Needs Speaking Engagements and On-Site Training.

SBEMP offers free speaking engagements and on-site check-ups on the topics of estate planning, special needs trusts, guardianships/ conservatorships, and special education. Contact SBEMP to schedule a special engagement or on-site check-up for your group. Visit our Website

With locations in Palm Springs, CA, New Jersey, NJ, and Manhattan, NY, SBEMP’S Trusts, Estates & Probate Department is comprised of attorneys with decades of experience in a broad range of issues from planning to administration to when incapacity or death occurs – all while using a mindful approach to identify a client’s special, business or litigation needs. SBEMP’S Special Needs & Elder Law Department has over twenty years of experience including the following highly specialized practice areas: health care insurance, short-term and long-term disability insurance, Medicaid, Medicare, special needs trusts, trust administration, estate planning & administration, guardianships and conservatorships, and accessing disability-based benefits.

TRUSTS, ESTATES & PROBATE and SPECIAL NEEDS & ELDER ATTORNEYS OF SBEMP

Valerie A. Powers Smith

Chelsea Healey

DISCLAIMER: This newsletter does not constitute legal advice, and no attorney-client relationship is formed by reading it. This newsletter may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this newsletter. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.

The Use of Special Needs Trusts in Estate Planning

Most parents want to leave assets to their children when they die. If an individual with a significant cognitive disability receives assets, they may not have the capacity to make good decisions about how those assets are used and they may become ineligible for important federal and state resources and services. The individual can lose Social Security Income (SSI) and Medicaid and the assets may also be subject to recoupment by Medicaid (a.k.a., Medi-Cal) or by the State if the individual is receiving residential services.

Upon realizing this, parents decide to disinherit the child with disabilities, leaving everything to the non-disabled children with verbal instructions to use part of the inheritance for the benefit of the sibling with disabilities. While this may appear to be a good idea, it can have equally negative results.

For example, the non-disabled child may not use the inheritance on their sibling’s behalf, and is under no legal obligation to do so. Even if the non-disabled sibling uses the assets exactly as the parents intended, they can be claimed by creditors, can have negative tax consequences on the non-disabled sibling, and can be subject to equitable distribution in the event of divorce.

To avoid these negative consequences, it is recommended that parents establish a special needs trust. A special needs trust can protect the assets while; at the same time, making the assets available to protect and enrich the life of the person with a disability without jeopardizing benefits available from the government. A special needs trust is a unique legal document that contains a set of instructions describing how assets placed into trust will be administered on behalf of a person with a disability. It must be carefully worded and is best written by professionals familiar with disability services and programs.

Parents and other family members can use a special needs trust to hold assets for a disabled person. Even families with modest assets should establish a trust; typically, such trusts are not funded until one or both parents die. A special needs trust can be funded through life insurance or estate assets distributed through one’s Will. So long as the assets have never vested in the person with a disability, the special needs trust need not contain a provision reimbursing Medicaid and other providers.

Trust funds can be used to purchase independent professional opinions as necessary, fill in gaps in services, provide additional recreation and other amenities, pay for a private residential placement or buy a vehicle used to transport the beneficiary of the trust.

At the death of the beneficiary, any remaining trust property is disposed according to the instructions written in the trust document by the donor. For example, property might go to other family members or to a charity. SBEMP, LLP frequently works with families to establish special needs trusts as part of their estate plan.

The governing regulations for special needs trusts can be found at 42 U.S.C. § 1396p.

Recent Trust Litigation Victory For SBEMP: Co-Trustee Removed For Violations of Fiduciary Duties

Case Summary:
As a result of the intervention of SBEMP, a recent court decision ordered a co-trustee in violation of fiduciary duties be removed from his position as Co-Trustee of the Trust.

Case Background:
BN’s brother died, leaving a trust naming her and his roommate (with whom he did not have a legal relationship) as Co-Trustees; and granting the roommate, WM, a life estate to remain in the house.

After several violations of fiduciary duties, BN petitioned to remove WM as a co-trustee.

The fiduciary violations included; but were not limited to: falsifying the decedent’s death certificate, with the intention of divesting the Trust beneficiaries from their inheritances; preventing BN from administering the Trust and performing her trustee duties (e.g., accessing the Trust-owned real property and documentation relating to the other trust assets and its obligations); and engaging in a campaign of hostility toward BN and the other Trust beneficiaries.

WM admitted he falsified his relationship on the death certificate and interfered with administration by not giving BN access to the information.

Decision:
The court ordered that WM provide BM with all information in his control necessary to determine the assets of the Trust, income of the Trust, expenditures of the Trust, and expenses of the Trust for proper accounting.

The court ordered WM to allow access to the property sufficient to allow BN, or her designated agent, to photograph or video record the property and all of its contents for the purpose of identifying and marshaling the assets of the Trust and to allow for a proper appraisal and accounting.

The court also removed WM as Co-Trustee of the Trust and BN is appointed sole Trustee.

When is the Right Time to Get Your Estate Planning Affairs in Order?

The answer is, now. Whether it is because you have yet to do your estate plan or that your plan is needing updating due to the passage of time, change in laws, or life events such as marriage, divorce, incapacity, death, or the birth or adoption of a child.

Click to continue reading

Estate Planning and Special Needs Speaking Engagements and On-Site Training.

SBEMP offers free speaking engagements and on-site check-ups on the topics of estate planning, special needs trusts, guardianships/ conservatorships, and special education. Contact SBEMP to schedule a special engagement or on-site check-up for your group.

With locations in Palm Springs, CA, New Jersey, NJ, and Manhattan, NY, SBEMP’S Trusts, Estates & Probate Department is comprised of attorneys with decades of experience in a broad range of issues from planning to administration to when incapacity or death occurs – all while using a mindful approach to identify a client’s special, business or litigation needs. SBEMP’S Special Needs & Elder Law Department has over twenty years of experience including the following highly specialized practice areas: health care insurance, short-term and long-term disability insurance, Medicaid, Medicare, special needs trusts, trust administration, estate planning & administration, guardianships and conservatorships, and accessing disability-based benefits.

Trust Case Summary:

As a result of the intervention of SBEMP, a recent court decision ordered a co-trustee in violation of fiduciary duties be removed from his position as Co-Trustee of the Trust.

Case Background:

BN’s brother died, leaving a trust naming her and his roommate (with whom he did not have a legal relationship) as Co-Trustees; and granting the roommate, WM, a life estate to remain in the house.

After several violations of fiduciary duties, BN petitioned to remove WM as a co-trustee.

The fiduciary violations included; but were not limited to:  falsifying the decedent’s death certificate, with the intention of divesting the Trust beneficiaries from their inheritances; preventing BN from administering the Trust and performing her trustee duties (e.g., accessing the Trust-owned real property and documentation relating to the other trust assets and its obligations); and engaging in a campaign of hostility toward BN and the other Trust beneficiaries.

WM admitted he falsified his relationship on the death certificate and interfered with administration by not giving BN access to the information.

Decision:

The court ordered that WM provide BM with all information in his control necessary to determine the assets of the Trust, income of the Trust, expenditures of the Trust, and expenses of the Trust for proper accounting.

The court ordered WM to allow access to the property sufficient to allow BN, or her designated agent, to photograph or video record the property and all of its contents for the purpose of identifying and marshaling the assets of the Trust and to allow for a proper appraisal and accounting.

The court also removed WM as Co-Trustee of the Trust and BN is appointed sole Trustee.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; New Jersey, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this article, seek the advice of an attorney.

The San Bernardino County Superior Court granted a motion, made on behalf of the City of Needles (Plaintiff) for a temporary restraining order against an occupant of a home in Needles (Defendant) who had been operating an illegal marijuana cultivation facility. Slovak Baron Empey Murphy and Pinkney LLP (SBEMP) represented Plaintiff.

After executing an administrative warrant at the property, the City found the illegal operation and counted 1,600 marijuana plants on the property. The City and the State both have comprehensive rules regarding marijuana cultivation, continually violated by the Defendant.

Despite the City’s issuance of a Notice of Violation, the Defendant continued the operation of the unlawful marijuana cultivation.

SBEMP argued the City is entitled to temporary injunctive relief under Civil Code sections 3491 and 3494, which authorize the abatement of a public nuisance through injunctive relief, and Health and Safety Code section 11573.

The Court found that the property constituted a nuisance pursuant to Health and Safety Code section 11570 and issued a temporary restraining order.

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney

The fundamental right of due process is essential to a free society. When Frank J. Burgess was unfairly accused and penalized without warning by the Fair Political Practice Commission (FPPC) while sitting on a non-profit board, he took it upon himself to challenge the FPPC Decision to protect the sacred right of due process for the greater good of the public at large. After three years of litigating this matter both at the administrative level and in superior court, Mr. Burgess’ efforts have finally been validated, with the help of SBEMP.

Click to read the full story: https://www.pe.com/2018/09/07/banning-man-wins-220000-from-state-political-watchdog-panel/

For more information or to request a consultation please contact the law offices of SBEMP (Slovak, Baron, Empey, Murphy & Pinkney) by clicking here. 

SBEMP LLP is a full service law firm with attorney offices in Palm Springs (Palm Desert, Inland Empire, Rancho Mirage), CA; Costa Mesa (Orange County), CA; San Diego, CA; Princeston, NJ; and New York, NY.

DISCLAIMER: This blog post does not constitute legal advice, and no attorney-client relationship is formed by reading it. This blog post may be considered ATTORNEY ADVERTISING in some states. Prior results do not guarantee a similar outcome. Additional facts or future developments may affect subjects contained within this blog post. Before acting or relying upon any information within this newsletter, seek the advice of an attorney.