Articles Posted in Trial

By California Trust Litigation Attorney – Ted Hankin

Over the years I have watched many attorney-themed television programs.  I understand, given the time allotted, one must take the case and try it to conclusion within the obligatory one hour format.  Unfortunately, this perception of a sprint to the finish line is not reality; litigation is more in the nature of an endurance contest in California.

Much of the time involved in a litigated case (let’s take a business case as an example) involves discussion with the attorney to insure that he/she has a complete understanding of the facts, analysis by the attorney to determine what rights have been violated by the actions of the other side, and drafting a complaint.

Once the complaint has been drafted and approved by the client, it then is filed, with an accompanying summons, with the court.  After filing, it is sent out for service on the defendant.  Once the defendant has been served, the defendant, in California, has thirty days in which to respond.  A response can be an answer (the case is then “at issue”) or a demurrer.  If a demurrer (everything in the complaint may be assumed to be true, but still doesn’t give the plaintiff a right to the relief sought), the court might set it out three or more months before scheduling a hearing (for oral argument).

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Listen to Ted Hankin as he appears on Lisa Caprelli’s Business Experience Radio Show via KLAA AM380 home of the Anaheim Angels, as a featured guest. During the show I will be interviewed concerning my business experiences and advice that I give to business owners.

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Previously I told how the court determined that the single family residence owned by my client and her brother would be sold, as it could not be divided, all in accordance with California Code of Civil Procedure §872.820. How the property was sold is what I will describe in this post.

The court determined that the single family residence would be sold by a public sale (California Code of Civil Procedure §873.520). Notice of the sale was provided in accordance with California Code of Civil Procedure §873.640. The court decided that it would conduct the sale as an auction in court on a date and time specified in the notice.

The big day arrived; I was in court with no less than eight bidders who wanted to purchase the single family residence. The court ran the auction just like you would think; starting with a minimum, taking overbids, until there was only one bidder left, to whom the judge sold the property.

So here was the situation; my client and her brother owned their mother’s residence as tenants in common (California Civil Code §686). My client’s brother did not agree with the appraisal that was made of the residence and refused to buy-out my client. Since it is impractical to divide a single family residence in two, my only alternative was to bring an action for partition (California Code of Civil Procedure §872.230) against my client’s brother, requesting that the court order the sale of the real property (California Code of Civil Procedure §872.820).

I filed the lawsuit in Superior Court of Los Angeles County North East District (in Pasadena), because the residence was within that district’s boundaries. I served the summons and complaint (California Code of Civil Procedure §413.10) on my client’s brother. He responded within the thirty day time period allowed for responses to service of a summons and complaint. His responses (technically referred to as an “answer”) basically said that he did not want the residence sold, although it was my client’s right to do so.

The matter was set for hearing. I intended to call my client and the appraiser as witnesses. My client’s brother, who was representing himself, intended to call my client and provide his own testimony.

As I stated in my last post, my client’s half-sister disputed whether my client and the half-sister were even related; DNA tissue was found at a hospital where my client’s natural father had been treated for cancer. The results from the DNA laboratory came back and, as expected, the half-sisters had the same natural father. Now that the DNA issue had been done away with, I could concentrate on the trial.

Trial was scheduled for Superior Court of Los Angeles County Northeast District (Pasadena) in a few weeks. The issue to be resolved at trial was whether my client qualified as an heir under California Probate Code §6451. The other side argued that my client had never lived with her natural father as parent and child; I argued that the “at any time” language in the statute meant just that (i.e. a literal interpretation), at any time (meaning overnight visits with the natural mother while my client was an infant should count).

The other side blinked … counsel for my client’s half-sister called to make a deal.

In my last post, the person who I had accused of Undue Influence (California Civil Code §1575 ), had taken the witness stand during the trial of the case. Recall that I had alleged that my client’s elderly cousin once removed, had been unduly influenced by this person, his hired caregiver, to the extent that he revoked my client’s Power of Attorney (California Probate Code §4022), which gave her the authority and the responsibility to take care of his financial affairs, and gave that power to this caregiver. It was time for my cross-examination.

Just before I began questioning the caregiver, my client had the presence of mind to tell me that after the Power of Attorney had been taken from her, her cousin had transferred ownership of his home to his caregiver. I asked the caregiver is she owned the residence in which my client’s elderly cousin resided; she said yes … I then asked her how it came to be that she became the owner of this senior’s residence. Her response amounted to an admission on her part that she was guilty of Undue Influence. This is what she said to me and to the court:

Of course I had him deed me the house. You can’t let old people keep their houses, the state will get them when they die

I have been describing in my prior two posts how it was that my client’s complaint, alleging Undue Influence California Civil Code §1575 (and, if brought today, Elder Abuse), came to trial in the Orange County Superior Court Orange County Superior Court. Now I will describe the trial itself.

In general, trials, whether they be concerning trusts, probate or just civil litigation, all follow the same pattern. The counsel for the person who made the allegations of misconduct (usually referred to as the “Plaintiff” or “Petitioner”) begins with opening statement. This is when he or she tells the court what he expects the evidence brought before the court to prove. Counsel for the other side (usually referred to as the “Defendant” or “Respondent”) then makes his or her opening statement. At the conclusion of opening statement, counsel for the Plaintiff/Petitioner begins the case by calling his first witness. Generally, the witness testifies about facts within his or her knowledge and written evidence that he or she is competent to testify about (terms like competency to testify about written evidence are addressed in the California Evidence Code, e.g. Evidence Code §701) Counsel for the Defendant/Respondent then is allowed to cross-examine the witness, challenge the testimony or admissibility of the evidence, and when done, the next witness is called to testify. Once the Plaintiff/Petitioner has presented all of the evidence and testimony for his or her client, counsel for the Defendant/Respondent has the opportunity to call witnesses and introduce evidence that he or she believes is favorable for his client.

In this particular case, I called my client and her husband as witnesses to testify to the close relationship that my client had with her cousin and how that relationship changed once the caregiver came on to the scene. I introduced as evidence the Power of Attorney that my client had been given by her cousin, along with other documents that showed that she had been doing a good job handling his financial affairs. The other side called the elderly gentleman as a witness and then, around 4PM, called the caregiver to the stand.

As I described in my prior post, my client’s cousin, an elderly gentleman, appeared to have been taken in by his caregiver and was demanding that my client give up the checkbook and account that she maintained for him to pay his bills. I filed a complaint in the Orange County Superior Court. I served the summons on the complaint on the caregiver, which gave her thirty days in which to respond to the complaint ((California Code of Civil Procedure §412.20). She, of course, denied all of the allegations and alleged that the elderly gentleman in her care was being abused by my client. This was in the early ’80’s. The current statutes concerning Elder Abuse ( California Probate Code §21350) did not exist at that time .

The day of trial came. My client and her husband came to the courtroom with me. My client sat at counsel’s table by my side. The elderly gentleman, my client’s cousin once removed, was brought to the court by the caregiver. He and the caregiver sat at counsel’s table with the caregiver’s attorney.

The burden of proving that it was more likely than not that the caregiver had been poisoning the relationship between my client and her elderly cousin was on me, as I had brought the complaint alleging Undue Influence (California Civil Code §1575 ) on behalf of my client.The case was called, I made my opening statement and the trial began. As this was a court or bench trial, there was no jury. In this type of trial, the judge is the trier of fact and makes all findings of law and evidence. It was he who I had to convince that my client’s allegations were true.