Author Archives: David Tate, Esq.

Interesting from the Lively/Baldoni litigation: defamation and civil extortion allegations

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I am finding the defamation and civil extortion allegations some of the more interesting from a legal perspective, of course while seeing the allegations and the arguments and supposed evidence presented to the public is very interesting and something that we almost never see. Broadly speaking, defamation is: an untrue statement of fact or purported fact (e.g., not opinion) that is published (i.e., said or in print or in writing) to a third party (i.e. not simply to the person about whom the statement or writing is about, but to a third person) that hurts the reputation of the person about whom the statement or writing is about.

In Lively/Baldoni there are allegations that defamatory statements were made by Lively and by Baldoni themselves, and by agents such as PR or crisis firms representing Lively and Baldoni, and by the regular press (NYT). The allegations against the press include allegations that what they wrote was defamatory because of the alleged selective or incomplete nature of the statements and information that were included in the writing – thus allegedly not presenting an accurate writing or statement and alleged defamatory. If you are wondering, yes, a claim of defamation can be alleged on the basis of an alleged selective or incomplete statement or writing. As defamation is not an uncommon possibility, you might also be wondering whether someone possibly has defamed someone else in your circles or activities – slander (i.e., spoken) or libel (i.e., written).

There is a lot of discovery to be done – requests and subpoenas for documents, taking depositions, interrogatories, requests for admissions, experts, and more.

Keep in mind however, that none of what you are seeing is actual evidence that has been rebutted or cross-examined or questioned or even presented and admitted into evidence in Court at trial. I will be providing additional posts pertaining to defamation, and we also have not touched on the claim of civil extortion, or on the allegations of hostile or harassing workplace environment (including in the context of the script, the filming, and Hollywood), or on the efforts to resolve issues during the filming, or on workplace and filming oversight, diligence and compliance by HR, executive and management officers, boards/committees, and others.

Also keep in mind that the allegations, documents and arguments that you are seeing are or will be questions and issues of fact to be applied to the applicable laws and to be determined by the trier of fact (i.e., the jury). No one knows how the claims would be viewed by the selected jury at trial. And I should add that of course the above is just a summary discussion – for example, some statements are privileged or protected, there can be First Amendment freedom of speech issues, there are differing standards of culpability or wrongdoing depending on whether the person to whom the alleged statement applies is a public person or figure, and in California you can have anti-SLAPP issues, in addition to other issues, criteria and elements.

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, will, fiduciary and elder abuse disputes, litigation, trials and law – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, challenging and contentious administrations, and personalities, people and relationships, mental and physical health, limitations and capacity, undue influence and fraud; and and mediator services.

Business litigation and internal business and co-ownership disputes, litigation, trials and law, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, legal risk management, and personalities, people and relationships; and mediator services.

Governance, law, legal risk management processes, compliance and success, audits and auditing, internal controls, executive officers, boards, directors, audit and governance committees, investigations, publicity rights, AI, defamation and First Amendment, legislation, statutes and laws, regulations, and headline news, and issue, people and relationship effective meetings, discussions and deliberations, debates and debating, communications, and wording and use of words.

Real property disputes, litigation, trials and law – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong, and mediator services.

Mediator and mediator and dispute resolution services (evaluative and facilitative).

  • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
  • Business, breach of contract/commercial, owner, shareholder, investor, etc.
  • D&O, board, audit and governance committee, accountant and CPA related.
  • Other: workplace and employment, environmental, trade secret.
  • Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, evidence, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

I have consolidated blogs – future posts on this topic will be made at http://tateattorney.com – thank you. David Tate, Esq.

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I have consolidated blogs – future posts on this topic will be made to http://tateattorney.com. Please click on http://tateattorney.com

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, will, fiduciary and elder abuse disputes, litigation, trials and law – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, challenging and contentious administrations, and personalities, people and relationships, mental and physical health, limitations and capacity, undue influence and fraud; and and mediator services.

Business litigation and internal business and co-ownership disputes, litigation, trials and law, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, legal risk management, and personalities, people and relationships; and mediator services.

Governance, law, legal risk management processes, compliance and success, audits and auditing, internal controls, executive officers, boards, directors, audit and governance committees, investigations, publicity rights, AI, defamation and First Amendment, legislation, statutes and laws, regulations, and headline news, and issue, people and relationship effective meetings, discussions and deliberations, debates and debating, communications, and wording and use of words.

Real property disputes, litigation, trials and law – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong, and mediator services.

Mediator and mediator and dispute resolution services (evaluative and facilitative).

  • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
  • Business, breach of contract/commercial, owner, shareholder, investor, etc.
  • D&O, board, audit and governance committee, accountant and CPA related.
  • Other: workplace and employment, environmental, trade secret.
  • Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, evidence, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

A lot has been going on – preparing for and in trial, business law class (law for businesses), and more in the works

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Just a quick update as I have not posted for a while. First, in a very contentious family LLC and real property dispute case about two weeks ago we had phase 1 of trial – we still have written closing arguments, upcoming pleading amendments, and phase 2 to be scheduled. Second, I have been working on class outlines for the Business Law class that I am teaching (which I also refer to as law for businesses) – the first class is tomorrow August 26. Third, I am back to evaluating and tweaking my media posts and promotion – I am working to have more on that shortly.

For those of you who would be interested, the first business law class outline of course includes introductions, and then is essentially an overview of U.S. and California laws and court systems, critical legal thinking, and relevant provisions in the U.S. Constitution and Amendments. If time is permitting we will also look at a sample complaint, and we might get into brief comments about the second class in which we start more of the core course materials (in the second class we will discuss legal forms of doing business such as corporations, LLCs, partnerships, LLPs, limited partnerships, nonprofits, etc.).

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.

Business litigation and internal business and co-ownership disputes, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, and risk Management.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong; and mediator services.

Mediator services and dispute resolution (evaluative and facilitative).

Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

Business, breach of contract/commercial, owner, shareholder, investor, etc.

D&O, board, audit and governance committee, accountant and CPA related.

Other: workplace and employment, environmental, trade secret.

Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Can a defense of a contested trust amendment trigger a no contest clause?

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Can a defense of a contested trust amendment trigger a no contest clause? In Key v. Tyler the Court recently answered “yes” it may, depending on the facts and circumstances of the case (California Court of Appeal, 2nd District, Case No. B322246 (Filed 5/28/24)).

In Key v. Tyler the Trustors (Thomas and Elizabeth) executed their original Trust in 1999. The trust contained a no-contest clause which in part stated as follows:

“. . . if any devisee, legatee or beneficiary under this Trust, or any legal heir of the Trustors or person claiming under any of them directly or indirectly (a) contests either Trustor’s Will, this Trust, or any other trust created by a Trustor, or in any manner attacks or seeks to impair or invalidate any of their provisions,. . . then in that event Trustors specifically disinherit each such person, and all such legacies, bequests, devises, and interest given under this Trust to that person shall be forfeited as though he or she had predeceased the Trustors without issue, and shall augment proportionately the shares of the Trust Estate passing under this Trust to, or in trust for, such of the Trustors’ devisees, legatees and beneficiaries who have not participated in such acts or proceedings.”

The Trustors had three children: Tyler, Key, and a third sister who was not involved in the litigation.

In 2003 the Trustors subsequently executed an Amendment to the Trust – the 2003 Amendment was a one-page document that made some dispositive changes but did not restate or entirely change the provisions in the 1999 Trust – thus, the 1999 Trust remained relevant and applicable except as changed by the provisions in the one-page 2003 Amendment. The 2003 Amendment did not contain a no contest clause.

Husband Thomas subsequently died in 2003, and surviving spouse Elizabeth purportedly executed another Amendment in 2007. Pursuant to the Court “Tyler used her influence over Elizabeth to obtain the 2007 Amendment.” Beneficiary Key filed an action and successfully invalidated the 2007 Amendment on the ground that Tyler unduly influenced their mother into executing the 2007 Amendment. Against Key’s action Tyler defended the 2007 Amendments which differed from some of the provisions in the original 1999 Trust. Tyler also was a beneficiary under the 1999 Trust but would have inherited differently under the 2007 Amendment if that Amendment had not been invalidated.

Key v. Tyler is a long 20+ page Opinion which contains many relevant discussions on legal issues. However, I am writing about the Opinion here because of the discussion relating to the no contest clause in the 1999 Trust and the consequences of the litigation pertaining to the 2007 Amendment.

The Court held that Tyler’s defense of the 2007 Amendment was a contest of the 1999 Trust, and that Tyler not only did not recover under the 2007 Amendment which the Court invalidated, but also disinherited herself from what she would have recovered under the original 1999 Trust or under the 2003 Amendment pursuant to the broadly worded no contest clause that was contained in the earlier original 1999 Trust. In other words, as a result of losing on the 2007 Amendment, and there being a broadly worded no contest clause in the original 1999 Trust, Tyler lost everything and recovered nothing.

Takeaway: careful consideration needs to be given to the existence of no contest clauses contained in any and all possibly relevant trust and estate disposition instruments and documents, and to the specific wording of each possibly applicable no contest clause, as even defending a later in time subsequent instrument also may in appropriate circumstances trigger a no contest clause in an earlier instrument.

The following is a case caption scan from the Opinion in Key v. Tyler: 

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.

Business litigation and internal business and co-ownership disputes, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, and risk Management.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong; and mediator services.

Mediator services and dispute resolution (evaluative and facilitative).

Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

Business, breach of contract/commercial, owner, shareholder, investor, etc.

D&O, board, audit and governance committee, accountant and CPA related.

Other: workplace and employment, environmental, trade secret.

Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

WHAT ARE BRACKETS – USING BRACKETS IN MEDIATIONS AND SETTLEMENT EFFORTS, AND POSSIBLY IN OTHER NEGOTIATIONS

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Brackets can be used in mediation and settlement efforts, and might be used in other negotiations. What are brackets? Say the parties in a mediation are going back and forth, inch by inch, counteroffer followed by counteroffer, getting closer to a mutual dollar settlement amount, but are still far apart and are unlikely to reach settlement under that traditional approach.  

Using brackets the parties propose ranges within which they agree to negotiate further. For example, plaintiff says plaintiff will move to $___ if defendant will move to $___; and defendant says that defendant will move to $___ if plaintiff will move to $___. Thus, each party provides a range within which that party says that it will continue to negotiate. But plaintiff does not represent where within plaintiff’s range plaintiff is willing to settle, and defendant also does not represent where within defendant’s range defendant is willing to settle. Brackets can be used to at least reduce the settlement gap. Sometimes, or eventually after multiple back and forth bracket counteroffers, the bracket ranges may in part cross each other; however, again, a bracket communicated by a party is not a representation of the specific amount within the range that that party is willing to settle. Also, of course, in the context of litigation, no settlement is binding unless it is in writing, signed by the parties, or put on the record in Court.

One caveat: attorneys and parties can have differing views or beliefs about how brackets work. If brackets are going to be used, there needs to be a mutual understanding about how the brackets are going to be used and what the bracketed amounts will represent. For example, based on experience, or based on what they have been told, some people might have the belief or understanding that it is implied that a party will be willing to settle at the halfway, mid-point number or amount within the bracket range that they have communicated. Before agreeing to proceed with brackets, the parties need to discuss and agree upon how the brackets will be used. In my view or practice, such a halfway or mid-point belief or understanding is not implied and should not be implied, unless, of course, the parties have previously agreed.

Keep brackets in mind as one technique to help parties reach resolution and settlement.

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.

Business litigation and internal business and co-ownership disputes, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, and risk Management.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong; and mediator services.

Mediator services and dispute resolution (evaluative and facilitative).

Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

Business, breach of contract/commercial, owner, shareholder, investor, etc.

D&O, board, audit and governance committee, accountant and CPA related.

Other: workplace and employment, environmental, trade secret.

Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

What are the 3 primary personalities and relationship ranges that I see in litigation and mediation?

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What are the 3 primary personalities and relationship ranges that I see in litigation and mediation? (1) a strong advocate for their position or view, although they might be incorrect, but more often a reasonable thought-out position, generally good minded, generally trustworthy but verify; (2) the contra of (1), self-absorbed, only their viewpoint, gaslighting, secretive, deceitful, controlling and possessive, but not necessarily absolutely entrenched in their position and not necessarily hopeless for resolution and working together; and (3) to the dark side of (2) including evil, possessive, controlling, lying, mean, and possibly physical or emotionally hurtful and damaging.

Three (1, 2, 3) primary personalities and relationship ranges that I see in litigation and mediation:

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Probate Court and administration related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations, and personalities and relationships; and mediator services.

Business litigation and internal business and co-ownership disputes, and contentious officer, director, board and audit and governance committee, D&O, conflict of interest, workplace, and governance disputes, conflicts and litigation; and mediator services. Legal authority, duties, rights, conflicts of interest, governance, diligence, compliance, and risk Management.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong; and mediator services.

Mediator services and dispute resolution (evaluative and facilitative).

Trust, estate, probate, conservatorship, elder and dependent abuse, etc.

Business, breach of contract/commercial, owner, shareholder, investor, etc.

D&O, board, audit and governance committee, accountant and CPA related.

Other: workplace and employment, environmental, trade secret.

Law and legal issues relating to authority, duties, rights, conflicts of interest, governance, diligence, compliance, risk management, disputes, liability, litigation, and mediation and resolution services.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

David W. Tate, Esq. – blog posts re the new California directed trust provisions

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David W. Tate, Esq. – blog posts re the new California directed trust provisions.
From October 30, 2023 through February 27, 2024, I made several blog posts in which I
discussed the new California directed trust provisions. Below I have provided those posts in one
document for ease of reading, beginning with the first post on October 30, 2023, and ending with
the last two posts on February 27, 2024. There are a total of seven posts.
David Tate, Esq. (and inactive CPA) Email: dave@tateattorney.com
Note: I have joined the McDowall Cotter law firm (San Mateo, California) https://www.mcdlawyers.net/

My practice primarily includes the following:

Probate Court related disputes and litigation – probate, trust, estate, will, power of attorney, elder abuse, real property and conservatorship disputes, conflicts and litigation, and challenging and contentious administrations.

Business disputes and litigation – primarily breach of contract litigation, internal co-ownership disputes, and contentious officer, director, board committee, conflict of interest, workplace, and governance disputes, conflicts, and litigation.

Real property disputes and litigation – primarily co-ownership and joint-ownership disputes, conflicts and litigation, and sales and purchases that go wrong.

Mediator services.

The following are my seven, recent California directed trust posts:

david-w.-tate-esq.-e28093-blog-posts-re-the-new-california-directed-trust-provisions-05012024Download

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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California probate case holds that free room and board are “remuneration” for the presumption of fraud or undue influence against a care custodian

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By way of background, in relevant part California Probate Code sections 21380(a)(3) and (4) provide as follows (a full copy of section 21380 is provided at the end of this post):

“21380. Presumption of fraud or undue influence for certain enumerated transfers; burden of proof; costs and attorney’s fees

(a) A provision of an instrument making a donative transfer [e.g., such as a will, trust, transfer on death deed, etc.] to any of the following persons is presumed to be the product of fraud or undue influence:

* * * * *

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.”

California Probate Code section 21362 defines the terms “Care custodian” and “health and social services” as follows:

“21362. “Care custodian” and “health and social services” defined

(a) “Care custodian” means a person who provides health or social services to a dependent adult, except that “care custodian” does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult’s death, and (3) before the dependant adult was admitted to hospice care, if the dependent adult was admitted to hospice care. As used in this subdivision, “remuneration” does not include the donative transfer at issue under this chapter or the reimbursement of expenses.

(b) For the purposes of this section, “health and social services” means services provided to a dependent adult because of the person’s dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances.”

The recent case Robinson v. Gutierrez (December 26, 2023) 98 Cal. App. 5th 278 involved a situation in which the person who is alleged to have been a care custodian allegedly received free room and board for those services but received no direct payment or other other benefit. The Court was called upon in a case of first impression to determine whether free room and board in exchange for care services are “remuneration” for the purpose of Cal. Probate Code sections 21380 and 21362. The court held that “yes” they are.

The Court’s holding includes a many-page discussion about the legislative intent and also about the use of the word remuneration in other circumstances and in general. Thus, for example, as part of those discussions the Court stated:

“These definitions show that the terms “remuneration,” “pay,” and “compensation” can be interchangeable. As used in section 21362 “remuneration” refers to a form of compensation given in exchange for the provision of care services. The dictionary sources indicate that “remuneration” refers to compensation in the form of money or some other thing of equivalent value. Thus, on its face, the term includes compensation in the form of room and board or other noncash benefits in exchange for the provision of care services.”

Similarly, the Court also stated:

“But because “remuneration” as used in section 21362 can reasonably be read to encompass money, other types of benefits, or both, we turn to the statute’s legislative history and purposes to discern legislative intent. This review further convinces us that the Legislature in this instance intended that remuneration would include room and board given in exchange for care and social services.”

Why is Robinson v. Gutierrez important? The use of fraud and undue influence to obtain a person’s assets upon the person’s death are rampant. And these are challenging cases to bring because a primary witness, the decedent whose assets are at issue, is deceased. Burdens of proof and presumptions are very important in these cases. Further, although the Court in Robinson v. Gutierrez was presented with a free room and board situation, the Court discussed the meaning of the term “remuneration” more broadly in the context of Cal. Probate Code sections 21380 and 21362. Thus, depending on the specific facts and circumstances that are at issue, it might be arguable that any number and manner of other of circumstances other than free room and board might also constitute “remuneration.”

For your additional information, the following is the full copy of Cal. Probate Code section 21380 (and see also the entirety of Cal. Probate Code sections 21380-21392):

“21380. Presumption of fraud or undue influence for certain enumerated transfers; burden of proof; costs and attorney’s fees

(a) A provision of an instrument making a donative transfer to any of the following persons is presumed to be the product of fraud or undue influence:

(1) The person who drafted the instrument.

(2) A person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed.

(3) A care custodian of a transferor who is a dependent adult, but only if the instrument was executed during the period in which the care custodian provided services to the transferor, or within 90 days before or after that period.

(4) A care custodian who commenced a marriage, cohabitation, or domestic partnership with a transferor who is a dependent adult while providing services to that dependent adult, or within 90 days after those services were last provided to the dependent adult, if the donative transfer occurred, or the instrument was executed, less than six months after the marriage, cohabitation, or domestic partnership commenced.

(5) A person who is related by blood or affinity, within the third degree, to any person described in paragraphs (1) to (3), inclusive.

(6) A cohabitant or employee of any person described in paragraphs (1) to (3), inclusive.

(7) A partner, shareholder, or employee of a law firm in which a person described in paragraph (1) or (2) has an ownership interest.

(b) The presumption created by this section is a presumption affecting the burden of proof. The presumption may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence.

(c) Notwithstanding subdivision (b), with respect to a donative transfer to the person who drafted the donative instrument, or to a person who is related to, or associated with, the drafter as described in paragraph (5), (6), or (7) of subdivision (a), the presumption created by this section is conclusive.

(d) If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney’s fees.”

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Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution (evaluative and facilitative):
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn, Facebook and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Two additional director trustee powers listed in the national Uniform Directed Trust Act: the power to determine the capacity of various people, and the power to release a trustee or director trustee from liability

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In this last post in my series of posts about the new California Directed Trust Act I highlight two very interesting possible additional director trustee powers that are listed in Section 6 of the national Uniform Directed Trust Act. If you will recall (yes, please read my prior posts in this series), the California Directed Trust Act does not contain an item by item list of possible director trustee powers – instead and for the most part the California Act states that the powers of the director trustee are those powers that are stated in the authority, terms and provisions that are provided in the specific directed trust. Additionally, however, the California Directed Trust Act at Cal. Probate Code §16630 states that in applying the California Directed Trust Act, “consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.” Thus, reference to the national Uniform Directed Trust Act (UDTA) can be appropriate and relevant although I would not necessarily conclude that the UDTA provisions are automatically applicable or are the law in California.

Unlike the California Directed Trust Act, the UDTA does contain a non-exhaustive list of possible director trustee powers in Section 6 (Powers of Trust Director). Remember, however, that the wording of the specific directed trust itself must provide for and contain the specific terms and provisions for the director trustee’s authority and power. Most director trustee authority and power provisions will pertain to the administration and management of the trust and of the assets that are in the trust. However, the following are two additional and interesting possible director trustee powers that are listed in Section 6 of the UDTA:

  • The power to determine the capacity of a trustee, settlor, director, or beneficiary.
  • The power to release a trustee or another trust director (director trustee) from liability for an action proposed or previously taken by the trustee or other director (director trustee).

As you might imagine the two above-described powers, if they are included in the terms and provisions of the specific directed trust certainly will cause and require considerable discussion and evaluation, and perhaps likely consideration by a Court. This post is the last in my initial series of posts about the new California Uniform Directed Trust Act. Please do read my several prior posts. I will continue to write directed trust posts as this new area of California law develops and as there are situations involving directed trusts or in which a directed trust might have been useful or relevant.

* * * *

Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution (evaluative and facilitative):
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

CAN THE DIRECTOR TRUSTEE PAY HER/HIS ATTORNEYS’ FEES OUT OF THE DIRECTED TRUST UNDER THE CALIFORNIA DIRECTED TRUST ACT?

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Can the director trustee pay her/his attorneys’ fees out of the directed trust under the California Directed Trust Act? In certain circumstances a related question might be whether the director Trustee can do so without Court approval. And yet another related question might be, with respect to the specific trust in question, does the director trustee have authority and access to the trust’s money accounts?

First look at the terms and provisions of the specific directed trust that is at issue. What do those terms and provisions say, and does the director trustee have authority and access to the directed trust’s money accounts?

More broadly, however, and even if the trust does contain appropriate terms and provisions and even if the director trustee does have authority and access to the directed trust’s money accounts, also consider the provisions in the California Directed Trust Act, any relevant provisions in the National Uniform Directed Trust Act, and whether it is or might be the directed trustee who independently or separately will pay or be paying the director trustee’s attorneys’ fees.

In addition to the discussion above, under the California Directed Trust Act consider Probate Code sections 16608, 16612, 16614, 16628, and 16630. In general, Probate Code section 16608 broadly states the powers, terms and provisions that pertain to the director trustee, and that the director trustee is required to take reasonable action to comply with the powers, terms and provisions specified in the trust except for willful misconduct (if that is what the trust provisions so provide). In relevant part, section 16612 provides that the terms of the trust may vary the director trustee’s duty or liability, but that the director trustee has a fiduciary duty and liabilities. Section 16614 is one of the sections that provides for director trustee duties and liabilities. Section 16628 states that unless the terms of the trust provide otherwise, the rules applicable to a trustee apply to a director trustee regarding the matters and Probate Code sections that are specified in section 16620 including sections 15600 and 15601; section 15602; section 15681; resignation or removal under Article 3; and the vacancy and appointment of a successor under section 15660. Section 16630 further states that in applying the California Directed Trust Act, “consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.”  

Turning to the National Uniform Directed Trust Act, in addition to the discussion above, under the UDTA consider Section 14 (Defenses in Action Against Trust Director) which contains the following Comment:

Attorney’s fees and indemnification. Attorney’s fees and indemnification for a trust director are governed by Section 6(b)(1), which establishes a default rule that allows a trust director to exercise “any further power appropriate to the exercise or nonexercise of a power of direction granted to the director.” By default, therefore, a trust director has a power to incur attorney’s fees and other expenses and to direct indemnification for them if doing so would be “appropriate” to the exercise of the director’s express powers.

In relevant part the UDTA at Section 6 (Powers of Trust Director) states:

(a) Subject to Section 7, the terms of a trust may grant a power of direction to a trust director.

(b) Unless the terms of a trust provide otherwise:

(1) a trust director may exercise any further power appropriate to the exercise or nonexercised of a power of direction granted to the director under subsection (a); and

(2) trust directors with joint powers must act by majority decision (unless the terms of the trust provide otherwise).

In relevant part the Comment for Section 6 further states that the drafting committee specifically contemplated that subsection (a) would validate terms of a trust that granted a power to a trust director to:

            “[P]rosecute, defend, or join an action, claim, or judicial proceeding relating to the trust;”

See also the Comment pertaining to Section 6(b) which (if so provided in the terms and provisions of the specific trust) provides the director trustee with authority and further appropriate powers to carryout her or his other powers including (1) to incur such reasonable costs; * * * * (4) to prosecute, defend, or join an action, claim or judicial proceeding relating to a trust; and (5) to employ a professional to assist or advise the director in the exercise or nonexercised of the director’s powers.

However, also be aware that the Comment to Section 6 in pertinent part states the following which might or might not be relevant to your specific circumstance: “This subsection does not, however, override the background law that regulates the formation of a trust, such as the requirement that a trust be lawful, not contrary to public policy, and possible to achieve.”  

This will be a developing area of law. However, my view is that if the specific trust in question states that the director trustee’s attorneys’ fees will be or shall be paid then there is authority and power to do so. However, even in that circumstance if the director trustee’s attorneys’ fees are going to be significant or if they are going to be incurred on or for a subject matter about which a Court  might have questions, consider whether or not to petition the Court for prior approval of the payment of those fees, and in other circumstances where the payment of the director trustee’s attorneys’ fees is less certain under the powers, terms and provisions of the specific trust at issue, again consider whether or not to petition the Court for prior approval of payment.

* * * *

Thank you for viewing this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

  • Business litigation and disputes – business, breach of contract/commercial, co-owners, shareholders, investors, founders, workplace and employment, environmental, D&O, governance, boards and committees.
  • Trust, estate and probate court litigation and disputes – trust, estate, probate, elder and dependent abuse, conservatorship, POA, real property, mental health and care, mental capacity, undue influence, conflicts of interest, and contentious administrations.
  • Governance, boards, audit and governance committees, investigations, auditing, ESG, etc.
  • Mediator and facilitating dispute resolution (evaluative and facilitative):
    • Trust, estate, probate, conservatorship, elder and dependent abuse, etc.
    • Business, breach of contract/commercial, owner, shareholder, investor, etc.
    • D&O, board, audit and governance committee, accountant and CPA related.
    • Other: workplace and employment, environmental, trade secret.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My two blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.