Author Archives: Amy Howse

Gore Vidal Trust Dispute Heats Up

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Gore Vidal, the venerated American writer and intellectual, will long be remembered for both his acerbic wit and his long-running legal dispute with William F. Buckley.  Now, his legacy is playing out in another legal battle, this one fought by his half-sister and nephew against the trustee of Mr. Vidal’s trust.

Gore Vidal created and executed his estate plan in 1995, leaving his substantial estate to his longtime partner, Howard Auster.  If Howard Auster were to pass away before Mr. Vidal, then Mr. Vidal’s property would instead benefit charities of the trustee’s choosing.  In or about 2002, Mr. Vidal amended his trust to provide that if Howard Auster predeceased him, Mr. Vidal’s house would pass to his nephew, Burr Steers.  In 2003, Howard Auster passed away.

By all accounts, the next decade of Gore Vidal’s life was filled with booze and depression.  Mr. Vidal frequently lashed out at friends and family members, and grew more negative and angry as time passed.  According to his nephew, he also suffered from dementia and Wernicke-Korsakoff syndrome, which is sometimes referred to as “wet brain.”  Mr. Steers argues that these conditions made Mr. Vidal incapable of understanding what he was signing when he amended his trust again in 2011, approximately two years prior to his death.  The 2011 amendment left all of Mr. Vidal’s property to Harvard University, save for some artwork that was left to the Huntington Library.

Mr. Vidal’s half sister, Nina Straight, initially filed a lawsuit against the trust, challenging all of the trust documents going back to 1995, and claiming that her brother was unduly influenced to leave his fortune to charity.  Her challenge did not succeed, and she was required to dismiss her petition earlier this month.

Mr. Steers’s lawsuit against the trust is still pending.  A hearing on the trust’s motion for summary judgment is scheduled for June 15th.

Mr. Steers had also filed a separate lawsuit against White & Case LLP, Mr. Vidal’s former law firm who prepared the 2002 amendment, for negligence.  Mr. Steers alleged that White & Case were negligent in transferring the trust files to Gore Vidal’s new law firm before the 2011 amendment was prepared, because they neglected to include the 2002 amendment to Mr. Vidal’s trust which named Steers as a contingent beneficiary of his house.  Court records reflect that that lawsuit was dismissed by Mr. Steers in March 2015.

More reading on Gore Vidal’s life and the trust disputes are available here:
http://www.sheppardmullin.com/newsroom-pressreleases-414.html
http://www.nytimes.com/2013/11/10/fashion/In-a-final-plot-twist-Gore-Vidal-leaves-his-estate-to-Harvard-Universtity.html?_r=0
http://www.thedailybeast.com/articles/2013/11/08/gore-vidal-s-tragic-final-decade.html
http://theconcourse.deadspin.com/gore-vidal-has-been-dead-for-two-years-so-where-are-his-1587541154
http://www.dailymail.co.uk/news/article-2496631/Family-Gore-Vidal-allege-pedophile-challenge-writers-37-million-will.html
http://www.law360.com/articles/607224/gore-vidal-s-nephew-says-white-case-axed-his-inheritance

Multiple § 998 Offers: Which One Controls?

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The California Code of Civil Procedure § 998 is a powerful tool for settlement purposes.  (For the full text of the statute, click here.)  If a plaintiff makes a § 998 offer and the defendant rejects the offer or allows it to expire, and the defendant does not achieve a better result at trial, then the plaintiff may be entitled to expanded costs—such as its expert witness fees—incurred after the offer was made.  The same applies in reverse: if a defendant makes a § 998 offer which is not accepted, and the plaintiff does not achieve a better result at trial, then the defendant may be entitled to expanded costs.  (Note that in both cases, the rejecting party must obtain a better result than the offer to avoid the cost-shifting effect.  A tie goes to the offeror.)

When there are multiple § 998 offers, things get a bit more confusing.  In Distefano v. Hall, 263 Cal. App. 2d 380 (1968) (link here), the Court of Appeal applied basic contract law principles to reach its determination that a subsequent § 998 offer extinguishes an earlier offer.

In DiStefano, the defendants made an offer for $20,000, and the plaintiff obtained an award of $28,500, which was reversed on appeal.  The defendants then made a 10,000 offer, and on retrial, the plaintiff recovered $12,559.96.  Defendants attempted to recover their post-offer costs dating back to the first $20,000 offer.  The court held that the latter offer extinguished the first one, and awarded the defendants none of their costs.

In T.M. Cobb Co. v. Superior Court, 36 Cal. 3d 273 (1984) (link here), the California Supreme Court approved of the DiStefano court’s reasoning, and said that general contract law principles may properly govern the statutory offer and acceptance process so long as they “neither conflict with the statute nor defeat its purpose.”  Id. at 280.

In Martinez v. Brownco Construction Co., Inc. (link here), the state Supreme Court was confronted with a slightly different situation, and rejected the “last offer” rule in that instance.  In Martinez, the plaintiff Mrs. Martinez made two settlement offers, one for $250,000 early in the case, and another for $100,000 shortly before trial.  At trial, she obtained a $250,000 award.  The issue is whether she could recover her costs from the date of the first offer, or only from the date of the second offer.

The Court reasoned that applying the DiStefano rule to these facts would actually frustrate the intent behind § 998.  The policy behind § 998 is to encourage the parties to settle, and applying the rule in this case limiting Mrs. Martinez to the costs incurred after only the second offer would discourage her (and others) from making more reasonable settlement offers as trial approached.

Instead, the Court held that allowing Mrs. Martinez to recover costs from the date of the first offer better fulfilled the purposes of § 998, stating “[w]here, as here, a plaintiff serves two statutory offers to compromise, and the defendant fails to obtain a judgment more favorable than either offer, recoverability of expert fees incurred from the date of the first offer is consistent with section 998’s language and best promotes the statutory purpose to encourage the settlement of lawsuits before trial.

Author: Amy Howse

Spendthrift Clauses and Choice of Law: How to Shield a Beneficiary’s Trust Assets in Bankruptcy

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In an earlier blog post, we discussed choice of law provisions (commonly referred to as forum selection clauses) which control both the place where a contract dispute would be litigated and which jurisdiction’s laws would apply to the dispute.  A similar concept applies to trusts.

A trust is essentially a contract between the settlor (the person establishing the trust) and the trustee (the person holding title to the property).  It also governs the rights of third parties to the contract.  For example, if a beneficiary of a trust is sued, certain provisions in the trust could protect that beneficiary from having his or her trust property taken away in that lawsuit.

One of those protective provisions is a spendthrift clause, which can operate to prevent a creditor from seizing the beneficiary’s property.  Many trusts provide that the trust assets cannot be seized by a creditor, and courts routinely uphold those provisions.  However, in certain limited circumstances, the spendthrift clause will not protect all of the beneficiary’s trust interest.

Another way to protect the beneficiary’s interest is by including a choice of law provision.  In In re Zukerkorn, Sally Zukerkorn established a trust for the benefit of her children.  Her trust specifically selected Hawaii as the applicable law.

Thirty years later, Sally’s son, Herbert, filed for bankruptcy in his home state of California.  Herbert attempted to shield his trust income from the bankruptcy estate.  Under California’s bankruptcy laws, Herbert would have to turn over 25% of his trust income to pay his creditors in the bankruptcy.  Under Hawaii law, he wouldn’t have to turn over any of his trust income.

Ultimately, the court decided that Hawaii law applied.  Sally’s choice of law in her trust was upheld because Hawaii had a “substantial relation” to the trust.  At the time the trust was created, Sally lived in Hawaii, the trust property was located in Hawaii, and at least one of the beneficiaries lived in Hawaii.  Also, the court noted that the trust was currently being administered by a Hawaii corporate trustee.

The Court’s decision in Zukerkorn does not mean that every trust containing a choice of law provision will be governed by that state’s law.  A “substantial relation” must exist between the trust and the chosen state, and even still, a court might disregard the provision under certain circumstances, e.g., if the trust was a self-settled trust created for the sole purpose of shielding assets, or if certain public policy exceptions apply.

However, in cases like Zukerkorn, choosing the state law which will apply to your trust and ensuring that you establish a substantial relation between that state and the trust property could provide an additional protection for your beneficiaries.

If you’d like to create a trust for your own beneficiaries, or if you’d like us to take a second look at your estate plan to evaluate whether it achieves your goals, please feel free to give us a call.

In Re Zukerkorn, BAP No. NC-11-1506-JuKiJo (2012).

Author: Amy Howse

Mobilehome Park Owners Forbidden from Renting Their Own Mobiles?

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Das Williams, a member of the California State Assembly, asked Attorney General Kamala D. Harris for an opinion on the following question: “If the management of a mobilehome park has enacted rules and regulations generally prohibiting mobilehome owners from renting their mobilehomes, is park management bound by these same rules and regulations?”  Opinion No. 11-703, available here.

The attorney general’s answer, somewhat surprisingly, is YES.

Why does this matter?  Because mobilehome park owners often have difficulty filling their parks with mobilehome owners.  On occasion, they have resorted to buying mobiles themselves and placing them in vacant park spaces, and then selling or renting them to potential residents.

In recent years, selling mobiles to residents has gotten much more complicated, as the state legislature is deliberating whether to adopt laws prohibiting park owners from financing the sale of park-owned mobiles to residents unless the mobile home park owner/manager is a licensed mortgage loan originator.   (See SB 376 from the 2011-12 legislative session.  It is still showing as “active,” although no hearings are scheduled as of the time of this writing.  The current status of the bill can be seen here.)  Federal laws may already require this, so the state of the law is a bit unclear.

Many mobilehome park owners have gone the easier route of purchasing mobiles to fill the vacant spaces and renting out those spaces to residents.  But now, based on the Attorney General’s opinion, park owners are prohibited from doing that if they have a park rule that prohibits tenants from renting their homes to third parties.

Many mobilehome parks have rules in place that prohibit mobilehome owners within the park from renting out or subletting their mobiles to others.  The policy behind the rule is that it is generally very difficult for mobilehome park management to enforce the park rules against those subtenants/sublessees, because there is no privity of contract between the park management and the resident.

However, Civil Code Section 798.23(a) states that the owners of the park and all employees of the park are subject to all of the same rules and regulations.  If the rules state that a mobile home owner cannot lease his or her mobilehome to a third party, then the rules also require that the mobilehome park owners are bound by the same restriction, even though the policy behind the no-subletting rule doesn’t apply when the mobilehome park owner is renting out a park-owned mobilehome.

So far, we have been unable to find any litigation that supports the attorney general’s new opinion, and that opinion is not binding law.  However, mobilehome park owners may want to play it safe by amending their park rules (giving the appropriate notice to the tenants, of course) to allow subleases only if the sublessee signs a contract with park management agreeing to abide by the community rules.

Author: Amy Howse

Where Do I Have to File My Lawsuit? Venue Selection Clauses May Now Be Enforceable

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One issue that frequently arises in contract disputes is where to litigate the dispute.  This particularly becomes an issue when the parties to the contract are located in different states or countries, but can also arise when the parties are situated in different counties within the same state.

Forum selection clauses generally determine which state or country is the permissible location for litigating disputes.  Because the laws of states and countries vary, forum selection clauses are typically more about which choice of law will apply than about the physical location where the lawsuit will be brought.  The courts have long held that forum selection clauses are generally enforceable.  See The Bremen v. Zapata Off-Shore Company, 407 U.S. 1 (1972); Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991).

Venue selection clauses are a slightly different animal.  Venue selection clauses attempt to prescribe which location within a state will hear the dispute.  Thus, venue selection clauses aren’t about choice of law, they are about the convenience to one or more of the parties of litigating in a certain county.  If you have parties located in neighboring counties, the burden of litigating in one county versus the other is relatively small.  However, if one party is located in Shasta County, for example, and the other is in Orange County, the travel costs for one of the party’s attorneys, clients, and witnesses can add significant expense to the cost of litigating.

Back in 1929, the California Supreme Court decided that venue selection clauses were unenforceable.  General Acceptance Corp v. Robinson, 207 Cal. 285 (1929).  The court reasoned that the legislature was tasked with determining the appropriate venue for lawsuits, and the parties to a contract couldn’t change that.

However, in Battaglia Enterprises v. Superior Court, 215 Cal. App. 4th 309 (2013), the Court of Appeal determined that if multiple venues would be appropriate under the Code of Civil Procedure, and one of those venues is the one designated by the contract’s venue selection clause as the exclusive venue for disputes, that Court would enforce the clause and require the parties to litigate in that venue.

In light of this recent development, companies and individuals should take a fresh look at their contracts and determine whether a venue selection clause would be helpful.  The cost of having to litigate a dispute in a distant county could vastly outweigh the price of having an attorney review your key contracts in advance.  Give us a call if you’d like some assistance in reviewing your key contracts.

Battaglia Enterprises v. Superior Court, 215 Cal. App. 4th 309 (2013).

Author: Amy Howse

Domestic Partnership Agreement Is Enforceable Despite Subsequent Marriage

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Two same-sex partners, Wilson and Konou, began a relationship in 2005.  In 2006, they became domestic partners.  Immediately prior to registering as domestic partners, the couple executed a domestic partnership agreement, in which each of them expressly waived any rights to the property of the other in the event of death, dissolution, or legal separation.

In June 2008, when same-sex couples were permitted to marry in California, Wilson and Konou married.  Less than five months later, Wilson committed suicide.

After Wilson’s death, Konou filed a petition with the probate court, seeking to inherit a portion of Wilson’s property as a pretermitted spouse.  (See Probate Code § 21610.  Note that the statute uses the term “omitted spouse” instead.)  Konou argued that the marriage license provided him different rights than what he was entitled to under the domestic partnership.

The court decided that a domestic partnership agreement was essentially the same as a prenuptial agreement.  Couples frequently execute prenuptial agreements prior to a marriage.  The fact that the couple later married does not invalidate the prenup, or change the parties’ rights to property under the prenup.  Likewise, the court held that the domestic partnership agreement was still in force despite the couple’s later marriage.

This case highlights the importance of re-examining your estate plan on a regular basis.  It is possible that Wilson and Konou intended to provide for each other later in life, and that they believed that by getting married in 2008, they would be entitled to inherit from each other as if the domestic partnership agreement had never existed.  It is also possible that they intended for the original domestic partnership agreement to remain in effect.  Either way, a re-examination of their priorities and a discussion about it could have prevented unintended consequences.

If you haven’t re-examined your estate plan lately, it’s a good idea to take another look at it to see if it still reflects your wishes.  If you haven’t executed an estate plan at all, particularly if you have a same-sex partner or if you wish to leave your property to those not in your immediate family (nieces/nephews, cousins, friends, charities), you should strongly consider talking to an attorney about setting up an estate plan that will help you achieve your goals.  If you like, give us a call and William L. Cates or Amy Howse can assist you with your estate plan.

Estate of Wilson, 211 Cal. App. 4th 1284 (2012).

Author: Amy Howse