Law Religion Culture Review

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

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.


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.


'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."


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 doses 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 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.