Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Tuesday, December 31, 2013

Year in Review, 2013.

Books Read (in order read)
1. Arguably: Essays by Christopher Hitchens (2011)
2. Imperfect Justice: Prosecuting Casey Anthony by Jeff Ashton with Lisa Pulitzer (2011)
3. Free Will by Sam Harris (2012)
4. Full Service by Scotty Bowers with Lionel Friedberg (2012) [cd,unabridged]
5. Presumed Guilty by Jose Baez and Peter Golenbock (2012)
6. G-d, No!: Signs You May Already Be an Atheist and Other Magical Tales by Penn Jillette (2011)
7. Following Atticus: Forty-Eight High Peaks, One Little Dog, And An Extraordinary Friendship by Tom Ryan (2011)
8. Life After Death by Damien Echols (2012)
9. Predator Nation by Charles H. Ferguson (2012)
10. Going Clear: Scientology, Hollywood and the Prison of Belief by Lawrence Wright (2013) [cd, unabridged]
11. Sex, Mom, and God: How the Bible's Strange Take on Sex Led to Crazy Politics--and How I Learned to Love Women (and Jesus) Anyway by Frank Schaeffer (2011)
12. What We Talk About When We Talk About God by Rob Bell (2013)
13. Bet The House: How I Gambled Over a Grand a Day for 30 days on Sports, Poker and Games of Chance by Richard Roeper (2010)
14. Mismatch: How Affirmative Action Hurts Students It's Intended to Help, and Why Universities Won't Admit It by Richard H. Sander and Stuart Taylor, Jr. (2012)
15. The High Adventure of Eric Ryback: Canada to Mexico on Foot by Eric Ryback (1971)
16. Red by Sammy Hagar with Joel Selvin (2011)
17. Eat and Run: My Unlikely Journey to Ultramarathon Greatness by Scott Jurek with Steve Friedman (2012)
18. Dogs, Camping, and Other Candid Tales -- Life Lessons From the Out-of-Doors by G. Roger Schoenhals (2012)
19. How God Became King: The Forgotten Story of the Gospels by N.T. Wright (2012)
20. The Price of Politics by Bob Woodward (2012) [cd,unabridged]
21. The Ultimate Journey: Canada to Mexico Down the Continental Divide by Eric and Tim Ryback (1973)
22. A Short History of Nearly Everything by Bill Bryson (2003)[cd,unabridged]
23. By Men or By Earth by Tyler Coulson (2013, 2d ed.)
24. I Promise Not to Suffer: A Fool for Love Hikes the Pacific Crest Trail by Gail D. Storey (2013)
25. The Operators: The Wild and Terrifying Inside Story of America's War in Afghanistan by Michael Hastings (2012)
26. Between the Bylines: The, Love and Loss of Los Angeles's Most Colorful Sports Journalist by Doug Krikorian (2013)
27. Is College Worth It?: A Former United States Secretary of Education and a Liberal Arts Graduate Expose the Broken Promise of Higher Education by William J. Bennett and David Wilezol (2013)
28. Inferno: A Novel by Dan Brown (2013) [cd, unabridged]
29. Skywalker: Highs & Lows on the Pacific Crest Trail by Bill Walker (2010)
30. Journal of the Dead: A Story of Friendship and Murder in the New Mexico Desert by Jason Kersten (2003)
31. Neither Here Nor There: Travels in Europe by Bill Bryson (1991) [cd, unabridged]
32. Zealot: The Life and Times of Jesus of Nazareth by Reza Aslan (2013)
33. The Man Who Walked Through Time by Colin Fletcher (1967)
34. This Town: Two Parties and a Funeral--Plus, Plenty of Valet Parking!--in America's Gilded Capital by Mark Leibovich (2013 [cd, unabridged]
35. Darwin's Doubt: The Explosive Origin of Animal Life and the Case for Intelligent Design by Stephen C. Meyer (2013)
36. Shaping Our Nation: How Surges of Migration Transformed America and Its Politics by Michael Barone (2013)
37. David and Goliath: Underdogs, Misfits, and the Art of Battling Giants by Malcolm Gladwell (2013)[cd, unabridged]
38. Eleven Rings: The Soul of Success by Phil Jackson and Hugh Delehanty 2013) [cd, unabridged]
39. Kings of Tort by Alan Lange and Tom Dawson (2010)
40. League of Denial: The NFL, Concussions, and the Battle for Truth by Mark Fainaru-Wada and Steve Fainaru (2013)

Film of the Year
The Place Beyond the Pines
Honorable Mention: American Hustle

Book of the Year

By Men or By Earth by Tyler Coulson (2013, 2d ed.)
Honorable Mentions: Zealot: Life and Times of Jesus of Nazareth by Reza Aslan (2013) and Following Atticus: Forty-Eight High Peaks, One Little Dog, And An Extraordinary Friendship by Tom Ryan (2011)

Athletic Achievement of the Year
Summitted Mt. Baldy (aka Mt. San Antonio, 10,064 feet)



Trial of Year
My client, a beneficiary, sought an order compelling a distribution of a real property pursuant to a trust provision. The trustees opposed the distribution and sought an order keeping the property in the trust. Both the trust's drafting attorney and the trustee (who was given a life estate over the property in question) testified that it was the trustor's intent (stated to them) that the property be held in trust until the end of the life estate. We countered that the trust's text provided that the property was to be distributed upon the trustor's death, subject to the life estate. The trial court granted our petition and denied the trustee's petition and ordered an immediate distribution in favor of my client. In so doing, the court found that I had impeached the drafting attorney's testimony. The judge stated that in light of the drafting attorney's testimony two options remained: (1)the attorney received instructions from the trustor that the property remain in trust but she did not include language in the trust to effectuate this intent which was tantamount to "malpractice"; or (2)the attorney was lying to the court. The trial judge said he did not need to resolve the question of which option adhered to rule in my client's favor, but he went on to state that he thought it was option number two given the impeaching testimony I had highlighted at trial from the drafting attorney's deposition I took months earlier and the attorney's apparent motivation to avoid malpractice. I didn't want to embarrass a fellow member of the bar, but it was beyond dispute that the attorney would not answer my questions and would not refrain from shading her testimony for her perceived benefit. In the end, she embarrassed herself and my client prevailed.

Appeal of the Year
My opponents appealed a judgment refusing to grant them title to property to a shopping center in Southern California. They also appealed an order denying them attorneys' fees. Applying the heightened "abuse of discretion" standard I argued applied, the appellate court rejected their appeal and affirmed. In so doing, one of the lines from the opinion rejecting my opponents' contention was a sharp, "That is not true."

Concert of The Year
Depeche Mode

Losses Sustained
Dr. Jerry Buss
Dr. Robert J. Radcliffe (my dad)

“His lord said to him, ‘Well done, good and faithful servant; you have been faithful over a few things, I will make you ruler over many things. Enter into the joy of your lord.’” (Matthew 25:23 NKJV.)
The words “good and faithful servant” have never applied to a human more than Robert James Radcliffe.
He never wavered to the very end. He was always faithful. His faithfulness was perhaps best exhibited in the three most important areas of his life: his mission, his ministry and his marriage.

Mission
By mission, I mean his focus to achieve personal goals. In other words, his personal mission statement. At least five (5) come readily to mind: education, technology, music, books, and nature.

A. Education.
First, he believed in education. He persevered until he obtained his Ph.D in Education. I had the pleasure to accompany dad to classes at Claremont Graduate School. They would sit around a conference room table discussing big ideas. I remember how much dad like to talk about philosophy while he was studying in this program. It seemed like he is familiar with all the “isms” there were in the world. It is not coincidence that his dissertation for this Ph.D. was called The Compromise of Mission of Church-Related Colleges. His book studies how schools that were originally Christian had lost their way, i.e. did not remain faithful to their mission. At the end of his program, one of his advisors who has not a Christian, asked him did we change your mind? He said no, this education made me more convinced of my beliefs.

B. Technology.
He was an early adopter of technology. He was ahead of the curve, especially with respect to computers. We had computer in the house by 1981. He counseled us to take typing, but he foresaw that computers would revolutionize life.

C. Music.
Dad was accomplished in music. He was a gifted singer who sang powerful solos, duets and even in choirs. He learned to play the guitar, and had success playing brass instruments in marching bands, which he continued later in life at nursing homes.

D. Books.
I was always impressed with how many books Dad had at his office. An entire wall was filled with books. Plus he knew how to read them. Once I thought I figured out a way to shortcut reading them. I said one could skip over the preface or the introduction and get right to the “meat” . Dad corrected me. He rightly said that sometimes the most important material is found in the preface or introduction. How true this turned out to be. Also, he didn’t just show his enjoyment by reading books, he wrote them too. His book about being a pastor is still used in seminary courses to this day.

E. Nature.
Dad loved nature. He took us on trips to Yosemite, Yellowstone, Zion, Bryce Canyon and other national parks. I remember camping with him, just the two of us, not far from here in Lake Arrowhead area. He took us as a family right here—to Big Bear Lake every summer while growing up. Dad was comfortable in the outdoors. He knew how to fish, make fires, cook in the outdoors, and make a camp. Camping in Yosemite Valley one summer I got afraid that bears were waiting to devour me and retreated to sleep in the car. Fearless, dad remained in the tent snugly in his sleeping bag. He reported it was one of his most comfortable slumbers ever. He was a pretty good around horses too, a story I will get to.

Ministry
He started his ministry in the church. In fact, he got his bachelor’s and master’s degrees with the sole focus to get into ministry. He turned down an opportunity to study at the University of Illinois so that he could go to the premier Christian college in the country, Wheaton. Good call, because that’s where he met mom, and most of us would not be here without that choice. As a pastor, he was one who poured him life into other people. He and mom said that the most important and long-lasting investment one can make is in other people. He lived that maxim. One story illustrating that principle occurred right here in Big Bear. Every summer he would take a group from the church to horseback ride. One summer we were on such a horseback ride when a woman’s horse was spooked reared up, bucked the woman off, and then drove his hoof into the woman’s arm. This caused her arm to open and bleed profusely. Dad didn’t run away, defer to someone else, or stand paralyzed with fear. He took his shirt off and sued it to apply a compress to the wound. It stopped the bleeding enough for the woman, who ironically was named Mrs. Payne, for the woman’s arm to be saved (after going the hospital).
He transitioned his ministry into education. He explained me why he did this. Multiplication principle. Book called The Master Plan of Evangelism by Robert E. Coleman. Jesus and disciples. Jesus poured his life into his disciples, who in turn could spread is message after he left the earth bodily. By the same token, Dad enjoyed mentoring and ministering to people in his church, but he realized that if he could train other pastors, not only would he minister to them, but they in turn would multiply dad when they pastored their own churches. Having the opportunity to go to the same university while he taught there I got to see firsthand what effect he had on his students. They called him Daddy Rad. It was ok to share him with others who called him dad too. He was very respected and made my very proud.


Marriage
Dad exemplified faithfulness in his marriage. Married in 1964 he remained faithful to mom until his death. He and mom were married 49 years. As an extension of his marriage, he was a good father. In addition to imparting these life lessons—some of which he covered already--through words and his deeds, he spent quality time with us. I remember times throwing the baseball around (I found out form his brother, John, that he was an excellent pitcher growing up), shooting baskets out front of the house (a backboard and hoop he and I installed together), and having him root for me during my games.

Reflecting back on all of this and other wonderful things about dad, I’m confident he has received the greeting in heaven, “well done good and faithful servant.” I can only echo that by saying “Well done.” And thank you; we love you; we shall never forget you.

Wednesday, January 02, 2013

Year in Review, 2012.

Books Read (in no particular order)
1. Losing It: In Which an Aging Professor Laments... (2011) by William Ian Miller
2. Inside Scientology (2011) by Janet Reitman
3. The New New Rules (2011) by Bill Maher
4. Here Comes Trouble (2011) by Michael Moore
5. I Lost My Love in Baghdad: A Modern War Story by Michael Hastings
6. Hilarity Ensues (2012) by Tucker Max
7. I Hope They Serve Beer In &%#$ (2009) by Tucker Max
8. Born to Run: A Hidden Tribe, Superathletes, and the Greatest Race the World Has Never Seen (2009) by Christopher McDougall
9. A Supposedly Fun Thing I'll Never Do Again: Essays and Arguments by David Foster Wallace
10. Quiet (2012) by Susan Cain
11. Godforsaken (2012) by Dinesh D'Souza
12. Game Change: Obama and the Clintons, McCain and Palin, and the Race of a Lifetime by John Heilemann and Mark Halperin [cd, unabridged]
13. Boomerang: Travels in the New Third (2011) by Michael Lewis
14. Heaven and Mel (2012) by Joe Esterzhas
15. Running on Empty: An Ultramarathoner's Story of Love, Loss, and a Record-Setting Run Across America (2011) by Marshall Ulrich
16. Steve Jobs (2011) by Walter Isaacson
17. Coming Apart: The State of White America, 1960-2010 (2012) by Charles Murray
18. Run!: 26.2 Stories of Blisters and Bliss (2011) by Dean Karnazes
19. Bossypants (2011) by Tina Fey [cd, unabridged]
20. The Letter: My Journey Through Love, Loss & Life (2012) by Marie Tillman
21. Wild: From Lost to Found on the Pacific Crest Trail (2012) by Cheryl Strayed
22. Failing Law Schools (2012) by Brian Tamanaha
23. AWOL On the Appalachian Trail (2010) by David Miller
24. Einstein: His Life and Universe by Walter Isaacson [cd, unabridged]
25. A Blistered Kind of Love: A Couple's Trial by Trail by Angela & Duffy Ballard
26. A Walk in the Woods: Rediscovering America on the Appalachian Trail by Bill Bryson [cd, unabridged]
27. Quitter (2011) by Jon Acuff
28. Notes from a Small Island by Bill Bryson [cd, unabridged]
29. The Day the Earth Caved In: An American Mining Tragedy by Joan Quigley
30. Tangled Webs: How False Statements Are Undermining America: From Martha Stewart to Bernie Madoff (2011) by James B. Stewart
31. The Cactus Eaters: How I Lost My Mind--And Almost Found Myself--On The Pacific Crest Trail by Dan White
32. The Brief Against Obama (2012) by Hugh Hewitt
33. In a Sunburned Country (about Australia) by Bill Bryson [cd, unabridged]
34. Private Empire: ExxonMobil and American Power (2012) by Steve Coll [cd, unabridged]
35. Don't Go To Law School (Unless) by Paul Campos (2012)
36. Bad Religion: How We Became a Nation of Heretics (2012) by Ross Douthat
37. The Life and Times of the Thunderbolt Kid: A Memoir by Bill Bryson [cd, unabridged]
38. Too Fat To Fish by Artie Lange with Anthony Bozza [cd, unabridged]
39. Not Taco Bell Material (2012) by Adam Corolla
40. No Easy Day: The Firsthand Account of the Mission That Killed Osama Bin Laden (2012) by Mark Owen (pseudonym) and Kevin Maurer
41. Consider the Lobster And Other Essays by David Foster Wallace
42. Eat, Pray, Love: One Woman's Search for Everything Across Italy, India and Indonesia by Elizabeth Gilbert [cd, unabridged]
43. In Fifty Years We'll All Be Chicks: . . . And Other Complaints from an Angry Middle-Aged White Guy (2010) by Adam Carolla
44. Why I Left Goldman Sachs: A Wall Street Story (2012) by Greg Smith
45. The Oath: The Obama White House and the Supreme Court (2012) by Jeffrey Toobin [cd, unabridged]
46. The Big Miss: My Years Coaching Tiger Woods (2012) by Hank Haney [cd, unabridged]
47. Mortality (2012) by Christopher Hitchens
48. Confidence Men: Wall Street, Washington, and The Education of a President (2011) by Ron Suskind

Book of the Year
Bad Religion: How We Became a Nation of Heretics (2012) by Ross Douthat
Honorable Mentions: Coming Apart: The State of White America, 1960-2010 (2012) by Charles Murray and Quiet (2012) by Susan Cain

Concert of the Year
Tool

Losses Sustained
Charles Colson
Frank Pastore
Junior Seau

Film of the Year
Arbitrage and Flight (tie)
Honorable Mention: Argo

Athletic Accomplishment of the Year
Summited Saddleback Mountain (Santiago Peak)


Trial of the Year (arbitration)
Corporate client executed consulting agreement with hospital to obtain provider contract that had long eluded hospital (after its cancellation many years ago). Client was successful in securing lucrative provider contract. Once hospital had provider contract in hand, it refused to honor consulting agreement, which included a substantial success fee to Client. Client and hospital mediated. The parties fashioned a settlement agreement (with mutual and general releases). Hospital failed to honor settlement agreement (even while enjoying the benefits of provider contract). Client sued. Hospital moved to arbitrate pursuant to arbitration clause in consulting agreement. In arbitration, which I conducted, hospital argued the contract was "illegal" and demanded return of the money it had paid Client (prior to and in addition to success fee). The arbitration involved complex testimony of experts as well as percipient witnesses. Arbitrator granted every penny requested to my Client and denied the cross-complaint in its entirety. I moved to confirm the arbitration award as a judgment. Hospital argued the award should be vacated and asked the court to take up its "illegality" argument. The trial court rejected the hospital's argument in its entirety and confirmed the award. The court issued judgment for my client. Hospital appealed. However, the hospital did not post a bond or otherwise seek a stay of enforcement. My colleague initiated judgment collection efforts and reached full payment, which the Sheriff's office (who did the levying) reported was the largest recovery they had ever seen. The hospital dismissed the appeal.

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Saturday, December 31, 2011

Year in Review, 2011.

Books Read (in no particular order)

1. Fate, Time and Language: An Essay on Free Will (2011) by David Foster Wallace.
2. Forged: Writing in the Name of God--Why the Bible's Authors Are Not Who We Think They Are (2011) by Bart D. Ehrman.
3. Malled: My Unintentional Career in Retail (2011) by Caitlin Kelly.
4. The Reason for God: Belief in an Age of Skepticism (2008) by Tim Keller.
5. Easter Everywhere: A Memoir (2008) by Darcey Steinke.
6. The Moral Landscape: How Science Can Determine Human Values (2011) by Sam Harris.
7. Laker Girl (2010) by Jeannie Buss & Steve Springer.
8. Conservative Assault on the Constitution (2010) by Erwin Chemerinsky.
9. Kitchen Confidential by Anthony Bourdain.
10. Waiter Rant: Thanks for the Tip--Confessions of a Cynical Waiter (2009) by Steve Dublanica.
11. Crazy for the Storm: A Memoir of Survival (2010) by Norman Ollestad.
12. The Fall of the House of Zeus: The Rise and Ruin of America's Most Powerful Trial Lawyer (2010) by Curtis Wilkie.
13. Deadly Spin: An Insurance Company Insider Speaks Out on How Corporate PR Is Killing Health Care & Deceiving Americans (2010) by Wendell Potter.
14. The Grand Design (2010) by Stephen Hawking (& Mlodinow).
15. Griftopia (2010) by Matt Taibbi.
16. Those Guys Have All the Fun: Inside the World of ESPN (2011) by James Andrew Miller and Tom Shales.
17. On B___S___ (2005) by Harry G. Frankfurt.
18. Love Wins: A Book About Heaven, Hell and the Fate of Every Person Who Ever Lived (2011) by Rob Bell.
19. Although of Course You End Up Becoming Yourself: A Roadtrip With David Foster Wallace (2010) by David Lipsky.
20. The Pale King (2011) (CD, unabridged) by David Foster Wallace.
21. Divinity of Doubt: The God Question (2011) by Vincent Bugliosi.
22. Truth and Consequences: Life Inside the Madoff Family (2011) by Laurie Sandell.
23. The Rogue: Searching for the Real Sarah Palin (2011) by Joe McGinniss.
24. Of Thee I Zing (2011) by Laura Ingraham with Raymond Arroyo.


Losses Sustained

Christopher Hitchens

Concerts Experienced

1. 311/Sublime
2. Chicago
3. Sade/John Legend
4. blink182/My Chemical Romance

Appeal of the Year

Appealed ruling of trial court refusing to compel arbitration. The trial court determined that the arbitration clause in a franchise agreement was purportedly "unconscionable." Court of appeal reversed on 3-0 vote, holding it was not "unconscionable" and published the opinion, making it precedent throughout the State of California.

Trial of the Year

Client hired law firm to represent him in a securities fraud case, claiming millions in damages. That law firm obtained an award of approximately $30,000. Thereafter, the law firm sued my client for its attorneys' fees approximating half a million dollars. We asserted that the law firm was retained pursuant to a contingency fee agreement, so their fee was about $10,000. While the law firm claimed that it "rescinded" the attorney-client fee agreement due to purported breaches of contract and thus was entitled to it hourly rates of over $550, we argued that rescission was unable under the circumstances and asserted the contingency fee controlled. The trial court agreed with us.

Book of the Year

Crazy for the Storm: A Memoir of Survival
(2010) by Norman Ollestad. Beautiful tribute to his father, also named Norman, a California attorney, whose life lessons ended up saving the son's life in a tragic airplane crash that took his father's life.

Film of the Year


Drive with Ryan Gosling. Film noir, the movie does so much with so little words. A testament to fine acting and directing. With his other two movies this year: Ides of March and Crazy, Stupid, Love, no actor had a stronger triad this year.

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Friday, December 31, 2010

Year in Review, 2010.

Books Read (in no particular order)

1. The Case for God (2009) by Karen Armstrong (reviewed 1/10/10);

2. In-N-Out Burger: A Behind the Counter Look at the Fast-Food Chain that Breaks All the Rules by Stacy Perman (reviewed 1/17/10);

3. Patience with God: Faith for Those Who Don't Like Religion (or Atheism) (2009) by Frank Schaeffer (reviewed 1/24/10);

4. Comeback America: Turning the Country Around and Restoring Fiscal Responsibility by David M. Walker (reviewed 1/28/10);

5. Hitch-22: A Memoir (2010) by Christopher Hitchens (reviewed 12/23/10);

6. The Big Short: Inside the Doomsday Machine (2010) by Michael Lewis (reviewed 10/13/10);

7. No One Would Listen (2010) by Harry Markopolos (reviewed 8/18/10);

8. War (2010) by Sebastian Junger (reviewed 7/22/10);

9. Courage and Consequence: My Life as a Conservative in the Fight (2010) by Karl Rove (reviewed 7/6/10);

10. The Big Sort: Why the Clustering of Like-Minded America is Tearing Us Apart (2008) by Bill Bishop (reviewed 6/13/10);

11. The Politician: An Insider's Account of John Edward's Pursuit of the Presidency and the Scandal That Brought Him Down (2010) by Andrew Young (reviewed 6/12/10);

12. Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to Its Knees (2010) by Patrick Dillon and Carl M. Cannon (reviewed 5/22/10);

13. Last Words (2009) by George Carlin with Tony Hendra (reviewed 5/19/10);

14. The Happiness Project (2009) by Gretchen Rubin (reviewed 4/21/10);

15. Jesus Wants to Save Christians: A Manifesto for the Church in Exile (2008) by Rob Bell and Don Golden (reviewed 4/10/10);

16. Nickel and Dimed: On (Not) Getting By in America by Barbara Ehrenreich (reviewed 4/9/10);

17. What the Dog Saw (2009) by Malcolm Gladwell (reviewed 4/4/10);

18. Velvet Elvis by Rob Bell (reviewed 3/15/10);

19. Working in the Shadows: A Year of Doing Jobs [Most] Americans Won't Do (2010) by Gabriel Thompson (reviewed 3/8/10);

20. Too Big To Fail (2009) by Andrew Ross Sorkin (reviewed February 25, 2010);

21. The Devil's Delusion: Atheism and Its Scientific Pretensions (2008) by David Berlinski (reviewed 2/24/10);

22. What's So Great About Christianity by Dinesh D'Souza (via CD) (reviewed 2/9/10);

23. $%&#@ Finish First (2010) by Tucker Max;

24. The Blind Side by Michael Lewis;

25. Liar's Poker by Michael Lewis;

26. Can I Be Sure I'm Saved by R.C. Sproul;

27. Better by John O'Brien

Losses Sustained

Dr. Lawrence Schoenhals (grandfather)

Film of the Year

Because screenwriter Aaron Sorkin improved book (The Accidental Billionaires, reviewed here on November 1, 2009), and Jesse Eisenberg and Justin Timberlake were revelations in their roles expect The Social Network to get "friended" by various award shows.

Book of the Year

Circle of Greed: The Spectacular Rise and Fall of the Lawyer Who Brought Corporate America to Its Knees by Patrick Dillon and Carl M. Cannon (reviewed 5/22/10).

Appeal of the Year

Any Question? Parts I-III (see posts on November 21, December 16 and 27, 2010).

Trial of the Year

My client sought to invalidate a grant deed purporting to remove his mother's house from her trust and granting it to his sister. The effect of this deed would have been to disinherit my client, since his mother had passed away and his sister sought to evict him from that house. I was able to show that the mother did not intend to give the property to her daughter outright. In invalidating the grant deed to the sister/daughter, the court relied upon testimony and documents of the daughter's prior attorney to the effect that the daughter knew (and acted like) the property was owned by the trust, notwithstanding the new grant deed to her. I was able to overcome the attorney-client privilege, in part, because the daughter sued her attorney and attached various documents to her court-filed documents in that prior action, which I obtained and used in my case.

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Monday, December 27, 2010

Any Question, Part III.

Here are excerpts from my appellate reply brief. One can see from "Any Question, Part II" (see December 16, 2010 post below), the court of appeal drew from the reasonable intepretation theme and relied on the two major cases which I cited: Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162, and McIndoe v. Olivos (2005) 132 Cal.App.4th 483. Both opinions were handed down by the same appellate court which decided my client's appeal here.

"I. INTRODUCTION

'Interpretation must be reasonable.' (Cal. Civ. Code §3542.)

The Respondent’s Brief ... represents an extended exercise in unreasonable interpretations. It unreasonably interprets (a) the subject trust instrument; (b) the proposed Petition; and (c) California decisional authority, including this District’s own opinions.

First, Respondent’s proffered view that the no contest clause applies only to the original trust (RB, p. 3) as constituted at the time of its creation would render the no contest clause as superfluous and defeat its purpose. That purpose, of course, is to discourage the beneficiaries from challenging the trustors’ plan for administration and distribution of the trust assets in accordance with provisions set forth in the trust instrument. It would be unnecessary to apply the no contest clause only to the original trust when the trustors and trustees are both still alive. They obviously would not be applying it to themselves. Their inclusion of the no contest clause only makes sense when it is applied to the subtrusts, which take effect only after a death of a trustor/trustee, as here. (AA00077-79; AA000161-163.)

Second, Respondent’s Brief misinterprets the Petition, erroneously claiming that it only seeks to remove trustees for cause. (RB, p. 5.) To the contrary, the Petition seeks to invalidate one of the trustors’ most important decisions and provisions—an article designating who will serve as successor trustee—even before the successor trustee has ever so served. (AA000114-16.)

Third, Respondent’s Brief misinterprets several cases undermining its assertions, including those of this Court, to a similarly tortured result.

Because the Respondent’s Brief’s interpretive errors infect its analysis, it leads to the wrong result. Moreover, it does nothing to controvert the arguments of the Opening Brief, namely:

· The no contest clause of the trust explicitly applies to “any of the provisions” of the trust instrument, which necessarily includes the subtrusts established by the very same trust instrument;

· The trust clause designating the appointment of a successor trustee applies to the subtrusts; and

· The Petition constitutes a contest, because, among other things, it preemptively seeks to invalidate the successor trustee provision (Article 7.02 [AA00036, AA 000174]), which has not yet taken effect.

Accordingly, Appellant ... respectfully requests that this Court reasonably interpret the trust to uphold the trustor’s intent (the Appellant here) and binding California law, and rule that [Respondent's] Petition, seeking, among other things, to invalidate the successor trustee provision, violates the trust and subtrusts’ no contest clause."

* * *

"C. Respondent [ ] Misinterprets the Governing Authority

Try as he might, [Respondent] cannot get around this Court’s holding in Scharlin v. Superior Court of Orange County (1992) 9 Cal App.4th 162 [11 Cal.Rptr.2d 448]. The Scharlin Court was asked to determine if a no contest clause in an Amendment was able to modify an existing no contest clause in the general provisions of a trust as it related to an Irrevocable Decedent’s Trust (referred to as Trust B in the opinion). This Court held that because the Decedent’s Trust was irrevocable when the Amendment was executed, the Amendment’s no contest clause had no effect on the Decedent’s Trust [Trust B]. (Id. at 170-71 [11 Cal.Rptr.2d at 448].) In Scharlin, this Court evaluated the no contest clause of that trust which had strikingly similar language to the No Contest Clause in question in these proceedings. This Court held that “As to Trust B, the clause in the original trust agreement controls.” (Id. at 171 [11 Cal.Rptr.2d at 448]; emphasis supplied.)

"[Respondent's] continuing effort to point to a purported absence of language expressly incorporating the general provisions of the Trust into the subtrusts created within the Trust is unsupported by any authority. To the contrary, as was the holding in Scharlin, it is clearly implied by the provisions of the Trust that the subtrusts are to be administered pursuant to the terms of the Trust in which they were created. To say that the election option of Article 4.02 (AA000023-25) is conditional language and only in the event that the surviving Trustor opts to take the election as described in Article 4.02 will the subtrusts be subject to the provisions of the underlying Trust defies logic.

* * *

This Court in Scharlin notes [ ] citing California First Bank v. Townsend (1981) 124 Cal.App.3d 922, 930 [177 Cal.Rptr. 723]: “In construing a trust instrument, the intent of the Trustor prevails and it must be ascertained from the whole of the trust instrument, not just separate parts of it.” (Scharlin, 9 Cal.App.4th at 168 [11 Cal.Rptr.2d 448].) By dissecting the Trust instrument to give it his own meaning, [Respondent] is ignoring the intent of the Trustors, of which Appellant is one. (AA000018.) Respondent has always intended the general provisions of the Trust to control the subtrusts and is certain that Lloyd felt the same way. (AA000143.) [Respondent] cannot trump this [intent] by simply repeating his mantra that “no contest clauses” are to be strictly construed. (See, e.g., RB p. 7.) Even with strict construction, as noted in the Opening Brief, the no contest clause was intended to be, and was in fact, made applicable to the subtrusts. (OB, p. 12; AA000035.)

Finally, [Respondent's] breathless attempts to evade Scharlin fail especially when one considers another Fourth District case, McIndoe v. Olivos (2005) 132 Cal.App.4th 483 [33 Cal.Rptr. 689].

In McIndoe, the appellate court stated: “The no contest clause was located in the ‘general provisions’ section of the trust document, which specified that all general provisions “apply to each trust established hereunder[.]” Thus, the trust document specified that the no contest clause applied to the entire trust estate, including the exempt trust and the survivor's trust. Significantly, the amendments to the survivor's trust ratified all terms and conditions of the original trust or left the original trust unchanged. Because the no contest clause of the original trust applied to all subtrusts, there was no need to add a no contest clause to the exempt trust.” (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. 689, 692].)

Likewise, here, the no contest clause was contained in the general provisions section of the original trust. The original trust similarly stated that no contest clause of the Trust applies to “any provisions of the instrument” [emphasis added], which necessarily includes the subtrusts created by the same instrument. (AA000035.) Thus, as the McIndoe court observed, there was no need to add a no contest clauses in each of the subtrusts (McIndoe, 132 Cal.App.4th at 488 [33 Cal.Rptr. at 692]), as [Respondent] contrarily urges here."

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Thursday, December 23, 2010

Book Review: Hitch-22: A Memoir by Christopher Hitchens (2010).

Despite "produc[ing] a thousand words a printable copy every day and sometimes more" (p. 350), Christopher Hitchens appears a reluctant writer of memoir.

He admits his reluctance upfront: "When I first formed the idea of writing some memoirs, I had the customary reservations about the whole conception being perhaps 'too soon'. Nothing dissolves this fusion of false modesty and natural reticence more swiftly than the blind realization that the project could become, at any moment, ruled out of the question as having been undertaken too 'late.'" (3.)

Hitchens does not entirely overcome his reticence because after reading Hitch-22: A Memoir does comes away not really knowing the man. For example, Hitchens provides almost zero explanation for his journey to atheism, or as he prefers, anti-theism. This omission surprises inasmuch as Hitchens is one of leaders of the so-called "New Atheism", following the publication of his recent bestseller, God Is Not Great and frequent debates with leading apologists including William Lane Craig. He does include a photo (immediately preceding page 309) with fellow "New Atheists", Richard Dawkins, Daniel Dennett and Sam Harris, but his caption is about as much as he says about the collaboration. There's a brief interlude at pages 330-331 about his public debates "once or twice every month" "with those whose pressing need it is to woo and to win the approval of supernatural beings" (330), i.e. Hitchens' creative, yet patronizing, way of saying theists. He writes:

"How ... I am asked, do I find meaning and purpose in life? How does a mere and gross materialist, with no expectation of a life to come, decide what, if anything, is worth caring about?

"Depending on my mood, I sometimes but not always refrain from point out what a breathtakingly insulting and patronizing question this is. ... Just as the answer to the latter question is: self-respect and the desire for respect to others... A life that partakes even a little of friendship, love, irony, humor, parenthood, literature, and music, and the courageto take part in battles for the liberation of others cannot be called 'meaningless' except if the person living it is also an existentialist and elects to call it so. It could be that all existence is a pointless joke, but it is not in fact possible to live one's everyday life as if this were so. Whereas if one sought to define meaninglessness and futility, the idea that a human life should be expended in the guilty, fearful self-obsessed propitiation of supernatural nonentities..but there, there. Enough." (330-31.)

That is not to say that the book ignores the people and places that have influenced his life. There's a strong does of that, including chapters on his mother Yvonne who unfortunately committed suicide, and his somewhat distant father whom he called, "The Commander". However, Hitchens does not allow the book to indulge in extended self-introspection or self-analysis. This lack is especially odd when one considers Hitchens' closing sentiment: "After various past allegiances, I have come to believe that Marx was rightest of all when he recommended continual doubt and self-criticism." (422). Hitchens includes one chapter called, Something of Myself, which is exactly that--only "something".

Nevertheless, despite the reluctance to expose the world to his inner thoughts, the world is the richer to see a true man of letters whipping words into a delicacy of prose.

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Thursday, December 16, 2010

Any Question?, Part II.

As predicted in Part I, the court of appeal issued its published decision in my client's [the appellant] favor. The appellate opinion reversed the trial court by a 3-0 vote.

The case involved two primary questions: (1) whether there was a "no contest" clause incorporated into subtrusts; and if so, (2) whether a proposed petition constituted a "contest". The court of appeal ruled in our favor on both questions. Here are the "greatest hits":

"In granting [Respondent's] safe harbor application, the trial court found neither of the two [sub]trusts [B and C] contains a “no contest” clause and, moreover, even if the clause did apply, the proposed petition does not constitute a “contest” as defined in the Probate Code. Because the trial court erred in granting the application for safe harbor, we reverse.

***

"[Appellant] argues the trial court erred in granting [Respondent] safe harbor to file the proposed petition. She asserts the trial court erred in finding that the Trust’s “no contest” clause did not apply to the subtrusts and the proposed petition did not constitute a “contest” under the terms of that clause. [Appellant's] claims have merit.

1. Whether There Was a No Contest Clause Applicable to the Subtrusts?

"[Respondent's] argument for interpreting the “no contest” clause as inapplicable to Trusts B and C is beguilingly simple. He contends that because the Trust does not explicitly state the “no contest” clause applies to the subtrusts, it must be strictly construed as applying only to the original trust. But such a construction not only ignores the trustors’ intent as revealed in “the whole of the trust,” it is also patently unreasonable.

"The trustors’ intent that the “no contest” clause applies to the subtrusts is implicit in the terms of the Trust. This document, a revocable instrument, created and funded the three subtrusts upon the first trustor’s death. (Trust, ¶ 4.02(b).) At operation, Trusts B and C were irrevocable, and a host of provisions in the original trust immediately came into play, establishing rules for the administration of the subtrusts. For example, paragraph 4.02(b) directed that each of the subtrusts “shall constitute and be held, administered and distributed by the Trustee as a separate Trust.” Paragraphs 4.04 and 4.05 established distribution rules for the assets and principal of Trusts B and C. Most importantly, for our purposes, paragraph 6.05 prohibited any beneficiary entitled to “any distributions . . . or any benefits under this trust instrument” from “contest[ing] in any court any of the provisions of this instrument[.]” Taken together, these provisions reveal the trustors’ intent that the Trust should govern the trustee’s administration of the subtrusts upon their creation and funding.

"This conclusion the “no contest” clause applies to the subtrusts is the only reasonable construction of the clause. Because the original trust was revocable, a “contest” was never a possibility during the joint life of the trustors. Only upon [one of the trustor's] death, when the remainder beneficiaries gained their irrevocable interests in Trusts B and C, did the possibility of a “contest” pose a risk to the trustors’ plan for the assets they placed in trust. Ascertaining the intent of the trustors, as we must, from “the whole of the trust instrument,” we conclude the “no contest” clause applies to Trust B and C.

"McIndoe v. Olivos (2005) 132 Cal.App.4th 483 (McIndoe) bolsters our conclusion. In McIndoe, the husband and wife trustors of a revocable family trust created and funded two separate trusts, a “survivor’s trust” and an “exempt trust,” upon the death of the first spouse, a plan that differs from the [one here] only in the number of subtrusts created, two rather than three. The McIndoe family trust, also like the [original here], included a no contest clause that did not specifically state that it applied to the subtrusts. After the death of the first spouse in McIndoe, the surviving spouse repeatedly exercised her right to amend the revocable “survivor’s trust,” which held her separate property and share of the trustors’ community property. These amendments favored one sibling beneficiary over the other, and when the surviving trustor died, the disadvantaged beneficiary challenged the amendments on the ground of undue influence. The disadvantaged beneficiary sought a safe harbor determination that her proposed contest to the heavily amended survivor’s trust would not constitute a contest to the exempt trust. The court agreed, based on the terms of the original trust.

"Importantly for our purposes, the court in McIndoe affirmed that “the no contest clause in the original trust applies to challenges to the original trust, the exempt trust and the survivor’s trust,” even though the no contest clause there did not specifically state it applied to the subtrusts. (McIndoe, supra, 132 Cal.app.4th at p. 487.) The court stated, “The no contest clause was located in the ‘general provisions’ section of the trust document, which specified that all general provisions ‘apply to each trust established hereunder[.]’ . . . Because the no contest clause of the original trust applied to all subtrusts, there was no need to add a no contest clause to the exempt trust.” (Id. at p. 488.)

"Like the “no contest” clause in McIndoe, the “no contest” clause in the present case was also located in a “general provisions” section of the Trust –– Article 6, entitled “MISCELLANEOUS PROVISIONS.” (Trust, ¶¶ 6.01-6.06.) Though Article 6 did not specify that its provisions applied to each subtrust, that intent was implied in the provisions themselves, and from the instrument as a whole, as explained above. Consequently, McIndoe supports our finding that the “no contest” clause applied to Trusts B and C. (See also Scharlin, supra, 9 Cal.App.4th 162, 170-171 [where original trust created two subtrusts, revocable survivor’s trust, and irrevocable decedent’s trust, “no contest” clause in original trust controls decedent’s trust].)"

2. Whether the Proposed Petition Constituted a "Contest"?

"[Respondent] argues his proposed petition is not a “contest” because it “does not challenge, either directly or indirectly, the validity of the Original Trust[.]” He asserts his petition “does not seek to invalidate any provision of the Original Trust . . . and, instead, seeks to ensure that the testator’s intent as expressed in the Original Trust . . . is properly carried out.” Thus, [Respondent] contends that if he obtains all the relief requested in his petition, “the separate trusts will remain unaltered, and the various trust beneficiaries will receive only what they are due under the Original Trust . . . .” His argument does not ring true.

"The proposed petition directly contravenes an express directive in the Trust: that his brother [ ] serve as successor trustee in the event of [Appellant's] “death, inability or unwillingness . . . to act as Trustee[.]” (Trust, ¶ 7.02.) This provision clearly expresses the trustors’ intent regarding who will serve as their successor trustee, yet [Respondent] tries to thwart this intent with a two-fold attack.

First, [Respondent] asserts the Trust does not “provide for a Trustee to Trusts B/C or a successor,” and that paragraph 7.02 applies only to the original trust, not to the subtrusts. (Italics omitted.) He argues paragraph 7.02 “governs only the [ ] Family Trust [A] and that none of the terms of that Trust were referred to or incorporated into Trusts B/C which were Expressly created to be held separate and a part [sic] from the [ ] Family Trust.” (Italics omitted.) In other words, [Respondent] asserts the Trust designates neither a trustee nor a successor trustee to administer the subtrusts. But this argument flatly contradicts much of Article 4 of the Trust, which details how the trustee is to hold and administer the three subtrusts. (See, e.g., ¶ 4.02 (b) [upon first trustor’s death, trustee shall divide Trust estate into three subtrusts, each of which “shall . . . be held, administered and distributed by the Trustee”].)
"[Respondent's] second attack on the successor trustee provision directly contradicts the trustors’ intent. [Respondent] argues that if paragraph 7.02 does apply to the subtrusts, and [Brother] is found to be the successor trustee, then the court should find [Brother] “unfit” to serve because he lacks the necessary education and skill to perform his duties. [Respondent] also alleges [Brother] lacks “the requisite good faith and impartiality,” as evidenced by his “openly and outrageously hostile [attitude] toward [Respondent].”

"For many, the decision of who will serve as trustee or successor trustee is a significant one. Here, [the trustors] made clear their intention that their son, [Brother], would follow one of them as successor trustee. [Respondent's] assertion the court should ignore this intent and override paragraph 7.02 because he considers [Brother] prospectively unfit is indisputably a contest of one of the provisions of the Trust. It follows that the trial court erred in granting [Respondent] safe harbor to file his proposed petition."

In Part III, I will include excerpts from my brief for the reader to see how the court of appeal closely hewed to my arguments centering on my theme that one must reasonably interpret the trust instrument, the petition and governing authority.

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