Latest 4 Cases: Marriage of Deal (Civil Procedure), Atwell Island Water District v. Atwell Island Water District (Civil Procedure), Roth v. Jelley ...

How to Spot a Nation in Freefall

JOSEPH MARGULIES

Cornell law professor Joseph Margulies points out that when a nation doesn’t have the money to fix its roads but does give money away to help the rich get richer, that is a sign of a nation in collapse. Margulies describes the shift to neoliberal thinking under Nixon that has produced record levels of economic inequality and explains why the Trump administration’s proposed economic policies would benefit only the rich.

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Marriage of Deal

Docket: A154425(First Appellate District)

Opinion Date: February 24, 2020

Judge: Frank Y. Jackson

Areas of Law: Civil Procedure, Family Law, Legal Ethics

Patricia petitioned for the dissolution of her marriage to Thomas in 2001. A dissolution judgment entered in 2002; a judgment on reserved issues entered in 2008. In 2005, trial court Commissioner Oleon determined, based Thomas’s conduct in the dissolution proceedings and two separate civil actions, that Thomas was a vexatious litigant, and issued an order, prohibiting him from filing any new litigation or motion in propria persona without obtaining leave of the presiding judge. Thomas was also ordered to cover Patricia's attorney fees. In 2006, Thomas unsuccessfully moved (Code of Civil Procedure 170.1) to have Oleon disqualified. Weeks later, Thomas filed another section 170.1 challenge; the court failed to timely respond. Months later, notwithstanding his disqualification, Oleon reentered his previous vexatious litigant orders, effective from 7/29/05 because, when entering his original orders, he neglected to file a mandatory form. In 2018, Thomas complained to the presiding judge regarding Oleon’s post-disqualification involvement. The court issued an order to show cause, then reaffirmed that Thomas qualifies as a vexatious litigant and reimposed the pre-filing order. The court of appeal affirmed, noting that “Thomas appears to have used the opportunity ... to make implicit threats against various members of the California judiciary and State Bar.” The court upheld the 2018 orders as supported by substantial evidence and rejected an argument that a nonplaintiff litigant cannot be designated a vexatious litigant.

Atwell Island Water District v. Atwell Island Water District

Docket: F076043(Fifth Appellate District)

Opinion Date: February 24, 2020

Judge: Snauffer

Areas of Law: Civil Procedure

This case stemmed from a dispute concerning which persons are the true members of the Atwell Island Water District. The Court of Appeal held that the trial court relied on improper extraneous documents when ruling on the motion to strike and thereby abused its discretion, but the court nevertheless affirmed the granting of the motion without leave to amend. In this case, the election that appellant alleged took place on January 17, 2017 was void, because it was held the day after a state holiday, Martin Luther King, Jr. Day, and Milton Pace and Nathan Cameron were therefore not duly elected to the District board. Therefore, the court concluded that Leonard Herr's firm was not retained by a board majority as John Mitchell could not constitute a majority by himself, and Herr consequently was not authorized to prepare, sign, or file pleadings on the District's behalf. The court held that the pleadings were rightfully stricken, and leave to amend should not have been allowed because the pleadings were incurably defective.

Roth v. Jelley

Docket: A155742(First Appellate District)

Opinion Date: February 24, 2020

Judge: Miller

Areas of Law: Constitutional Law, Trusts & Estates

Mark’s grandfather, McKie, created a trust in his will for the benefit of his wife, Yvonne. during her life and granted her a testamentary power of appointment over the remainder. If Yvonne did not exercise her appointment power, McKie’s children from a prior marriage and Yvonne’s son from a prior marriage would each take a one-quarter share of the remainder; if a child did not survive Yvonne, that child’s surviving issue would take that child’s share. The issue of each of the children had a contingent remainder interest in the trust, subject to divestment by Yvonne’s exercise of her appointment power. McKie died in 1988. His adult children settled claims against the estate unrelated to the trust, disclaiming any interest in the trust. In 1991, the probate court issued a distribution decree, specifying that the trust's remainder was to be distributed solely to Yvonne’s son or his issue. McKie’s grandchildren were not given notice; the Decree eliminated their contingent interests. Yvonne died without having exercised her power of appointment. Mark’s father predeceased Yvonne. Mark unsuccessfully petitioned to be recognized as a trust beneficiary under the will's default distribution provision. The court of appeal reversed. Mark had a property interest in the trust in 1991 and the Decree adversely affected his interest. Mark’s existence and address were reasonably ascertainable; due process required that Mark be given notice of the proceeding that resulted in the Decree and an opportunity to object.

Madani v. Rabinowitz

Docket: B292395(Second Appellate District)

Opinion Date: February 24, 2020

Judge: Currey

Areas of Law: Real Estate & Property Law

Plaintiff filed suit against his next door neighbor, alleging trespass and nuisance claims, and seeking to remove a portion of defendant's fence, which encroached on plaintiff's property. Plaintiff also sought to enjoin defendant from continuing to park old, inoperable cars on a driveway plaintiff owned, and to collect damages for defendant's past use of the driveway. Defendant raised a statute of limitations defense. The Court of Appeal affirmed the trial court's conclusion that the fence and parked cars were continuing encroachments and affirmed the trial court's order of their removal. Therefore, the trial court correctly found that plaintiff's trespass and nuisance claims were not time-barred. The court also affirmed the trial court's conclusion that plaintiff failed to prove his damages claim. Although the court agreed with plaintiff that he was entitled to damages, the court found the real estate appraisal expert's estimate was not an accurate measure of the benefit received. Furthermore, plaintiff did not present any other evidence upon which the trial court could value the benefits defendant received.