Ensuring Another Bite at the Apple

This post is NOT about Steve Jobs.

Instead, it is about the court's propensity to allow parties to fix problems with their pleadings, rather than using their powers to dismiss an action for good.

Frank Dito was 94 when he married 28-year-old Elenice, who was from Brazil.  Elenice worked as a housekeeper for Frank and his then wife Roseana.  Frank and Elenice married two years after Roseana died.  The two signed a prenuptial agreement.  Frank and his former wife Roseana had an estate plan that Frank never updated after Roseana died.  When Frank died in 2007 (when he was over 100 years old), Frank and Roseana's daughter filed a petition for probate of Frank's pourover will, which identified Roseana as his wife.  Elenice filed petitions to set aside the prenuptial agreement as unenforceable, and to take a share of her husband Frank's estate as an omitted spouse.  The court ruled that Elenice was the surviving spouse of Frank, that she was entitled to a share of his estate as an omitted spouse, and that the prenuptial agreement was unenforceable.

After the court's ruling, Frank's daughter filed a petition alleging that Elenice committed financial elder abuse against Frank, and that under the Probate Code, she should be deemed to have predeceased Frank, taking nothing under his estate.  Elenice demurred on the grounds that Frank's daughter's petition was barred by the doctrine of Res Judicata because the court had already concluded that Elenice was an omitted spouse and was entitled to a share of Frank's estate.  The trial court agreed, and sustained the demurrer without leave to amend.  Frank's daughter appealed.

The appellate court reversed the lower court's ruling.  Res Judicata only works where the same "primary right" is at stake.  Here, the appellate court found that the primary right in the first action was whether Elenice was entitled to a share of her husband Frank's estate as an omitted spouse.  The primary right in the second petition was that of Frank not to be abused or defrauded.  Since the two actions arose from different primary rights, the doctrine of Res Judicata did not apply.

The appellate court did find other reasons for the trial court to sustain Elenice's demurrer, but those reasons could be cured by amendment to the petition, and so the appellate court held that the demurrer should be sustained with leave to amend.

In my 10-plus years as a litigator, I cannot remember a single instance of a court sustaining a demurrer without leave to amend. Not that it hasn't happened to me.  I just can't think of any right now, which suggests to me how rare it is.  Courts are very averse to taking away someone's day in court, and will usually only throw something out entirely in extreme situations, such as where a statute of limitations has expired.  Courts are much more willing to pull the trigger once a case has been argued on its merits.

Estate of Dito, 2011 Cal.App. LEXIS 1104.

Reminder: Trusts 101 Seminar September 19

On Mondy, September 19, 2011 I will be speaking on drafting revocable trusts and ethical issues for estate planning attorneys at the Oakland Marriot. In addition, Veronica Cerruti will be giving an overview of trusts, and will talk about irrevocable life insurance trusts. Daniel Newbold will speak on using trusts for tax reduction, and grantor trusts. Wrapping it all up, Christing Beraldo will speak on trusts for the disabled. It is part of the all-day seminar "Trusts 101" put on by National Business Institute. For more information, click here.


Hope to see you there!

ABA Journal Blawg 100 Nominations

The ABA Journal is putting together its Blawg 100 list of the best legal blogs.  As you know, I've worked tirelessly to promote the proper use of the California Probate Code through this blog.  Don't be shy, go the site and submit a "friend of the blog" brief for California Trust & Estate Lawyer!

More Speaking Engagements in October

On Friday, October 28, 2011 I will be moderating Trusts 101, an all day panel discussion put on by Continuing Education of the Bar. It will be held at the Bar Association of San Francisco, 301 Battery Street. Topics will include:

• The basic elements of a revocable living trust
• Tailoring the trust to your client’s needs
• Trustee selection and duties
• The correlation of will and trust
• Trust accounting and taxes

For more information, go to CEB CLE Programs.