San Jose Attorney - Almaden Times Articles

You Want To Avoid "Intestacy" In Your Estate Plan

This week's question: I have been thinking this through for months, but I cannot decide who will inherit my estate. Maybe I should do nothing and let my heirs fight over it. What if I die without a will or a trust?

/s/Anne A., Almaden Valley

Dear Anne: You haven't told us much about your family situation, Anne, so it is a little hard to say how things will go. But it is safe to say, I think, that passing on without a will or a trust is probably the worst thing to do.

Let me explain. If you die without a will or a trust, in our jargon we say that you died "intestate", i.e., without a will. If that is the case, the State of California will decide exactly how your estate will be distributed. No exceptions.

My Black's Law Dictionary, Seventh Edition, defines "intestate" as follows: "Of or relating to a person who has died without a valid will." Also, "Of or relating to the property owned by a person who died without a valid will." So, if you die without a will, someone needs to dispose of your property, and that "someone" is the Superior Court of the State of California if you die while a resident of this state.

You would not be the first person to die without a will in this state, and you won't be the last, so the state has set up rules to follow as to how to distribute your property. These rules are found in the California Probate Code.

The rules of intestate succession were discussed in a California case recently. The case is entitled, Estate of Doralee Verna Bekel, and it was decided on May 20, 2009. It involved an estate that was pending in Kern County and the appeal was heard in the Fifth Appellate District Court. In that case, Doralee died without a will. Evidently, Doralee did not have a surviving husband, children, parents, or siblings.

Maureen, the Estate Administrator, limited distribution to the children of the predeceased first cousins, i.e., first cousins once removed. Kathleen represented other remote heirs, i.e., the late Doralee's first cousins twice removed and thrice removed. She filed an appeal to the trial court's ruling, since she was unhappy with the Administrator's decision that was supported by the Kern County Superior Court. It turned out that Kathleen was right.

The Court of Appeal held that surviving issue include all lineal descendents of all generations. Therefore, the estate had to be divided into as many shares as there were first cousins who survived the decedent, Doralee, and first cousins who predeceased Doralee but left surviving issue of any generation. Exciting stuff? Not really. Rather boring when you stop and think about it. And I'm sure most of those distant relatives never even met Doralee or even heard about her. (But they undoubtedly welcomed a check in the mail.)

How could that unfortunate but true story have been avoided? By Doralee having a simple will or trust drawn up. Had she done so, the whole mess would have been avoided, Doralee's assets would have been distributed exactly as she wanted and directed, and expense and stress would have been minimized. You can read the case for yourself by entering the name of the case in your favorite search engine, Estate of Doralee Verna Beckel.

If you do so, remember to consult with your own attorney as to how this or any other case or statutory provision may apply or may not apply to your particular situation. Only your own attorney can guide you properly in these matters. I hope that this answers your question, Anne. If I were you, I would have a will or living trust drawn up today. Perhaps your attorney can help you do just that. Best wishes in that endeavor.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

You Will Want To Make Changes To Your Trust With Care

This week's question: My wife and I signed our living trust a couple of years ago and we want to make a slight change. Can we just write on the trust with dark ink and both sign or initial the change? Our lawyer might charge an arm and a leg for a simple change.

/s/Rex R., Almaden Valley

Dear Rex- I hear what you are saying, Rex. You want to make a change to your trust and would rather avoid any legal expense in doing so. That very question was involved in a recent court case that you might find interesting. The case was entitled Cory v. Toscano, and it was decided June 8, 2009. It originated in Fresno County Superior Court.

In that case, Louie signed his revocable living trust on September 30, 2005. Later, he signed two amendments that were presumably satisfactory and not in issue in the case. However, on October 11, 2005, Louie wrote in his own handwriting two interlineations on the trust agreement, "25% of" and "10.11.05", evidently the date of the handwritten change. He also evidently initialed the change by adding his initials "LF" over the number "25".

Louie died on May 11, 2006, after giving one of the parties a copy of the trust agreement with his handwritten change. The effect of Louie's change apparently was that Cory would receive only 25% of the balance remaining from the sale of 28.5 acres of real estate, instead of 100% of the entire parcel of property. Since a sizeable sum of money was evidently involved, one of the beneficiaries of the trust became quite unhappy and filed court proceedings concerning Louie's handwritten change. (If a beneficiary stands to lose a sizeable sum of money from a questionable change, it has a tendency to increase the possibility of a law suit.)

The case went to court in Fresno, where the issue presented was whether Cory's Petition for Declaratory Relief would constitute a contest and thus violate the no-contest clause in the trust. Under certain circumstances, filing such a Petition for Declaratory Relief can be done. The legal result was that the Superior Court ruled that the proposed petition did not violate the Trust's no-contest clause on the ground that a challenge to an instrument other than the instrument containing the no-contest clause is not a contest under the Probate Code. And the Court of Appeal for the Fifth Appellate District affirmed the trial court.

The practical result was that both sides presumably spent substantial sums of money fighting over a simple change to a trust instrument that more than likely could have been avoided. Probably Louie was thinking that he didn't want to spend any more money on legal fees and he could save time and money by just making some simple notations on his trust. Of course, the case was probably far from over, since the ruling by the court was the first step in the process-to determine whether bringing such a petition would constitute a violation of the no contest clause.

Since the court held that the challenge to the handwritten notations on the trust did not violate the no-contest clause stated in the trust, the parties after phase one of the case would need to go back to court for further court decisions and thus incur even more stress and legal expense.

It seems to me that the moral of the story is to think twice about making handwritten changes on important legal documents, like trusts and wills. A better decision might well be to contact your own attorney for good drafting for all changes or amendments you have in mind. Chances are it will be money well spent. And hopefully it will not cost you "an arm and a leg."

You can read the case for yourself by going online and entering Cory v. Toscano in the box of your favorite search engine. I did it with Google and it was on my monitor in 2/10 of a second-and from the Court of Appeal web site without any distracting ads or other popups.

As always, you need to consult with your own attorney to see how the case may apply or may not apply in your specific situation. Good luck with your trust change, Rex. I hope it all works out for you.

/s/ Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Some Information About The State Bar That You May Not Know

This week's question: In your column in the Almaden Times, you mention the State Bar of California from time to time. Is this kind of a social club that some attorneys belong to? What does it do? Is it optional to be a member? How can I get some more information about it?

/s/Lucy L., Almaden Valley

Dear Lucy- You have emailed in some great questions, Lucy. Let me try to address them one by one. No, it is not kind of a social club that some attorneys belong to. It is a very important organization that helps protect consumers in a number of ways.

The State Bar was created by the California state legislature in 1927, 82 years ago. It is a public corporation within the judicial branch of our state government. All State Bar members are officers of the court. State bar organizations vary from state to state. In California, membership is mandatory. If I want to practice law in the state of California, I must be a member. That means I must pay my dues annually and comply with many rules and regulations.

Being a member of the State Bar of California affords attorneys the right and privilege of practicing law in this state. It is an integrated or unified network of functions and services-many of which are mandated by state law. In this way, the public is afforded some protection and attorneys are assisted in meeting their professional obligations.

More than one-half of the states in the United States have unified bars. As of June, 2009, there were 222,000 members of the State Bar of California. Of that number, nearly 165,000 members actively practice law in California. The other members are inactive. In my particular case, I am very pleased to have been an active member since 1970. In California, you must have a license to practice law. This license is issued only after certain educational requirements are met and the applicant has passed a rigorous three-day examination.

On occasion, we read about strange cases where someone might try to practice law without a license. This is indeed a serious offense and the law violator may face severe consequences. The State Bar is governed by a 23-member Board of Governors, six of whom are "public" or non-lawyer members. The bar's programs are financed primarily by fees paid by attorneys and applicants to practice law.

In 2009, the bar's general fund budget was more than $62 million. Of that budget, approximately 80 percent was designated for attorney disciplinary activities. If consumers have a complaint against an attorney, the consumer can call a toll free number for help: 1-800-843-9053. All charges of attorney misconduct are processed by a trained complaint analyst who takes appropriate action on the complaint.

The State Bar of California is the only state bar in the nation with independent professional judges dedicated to ruling on attorney discipline cases. In serious cases, the license to practice law can be temporarily suspended immediately.

The client security fund is another important part of the State Bar. Part of my annual state bar dues is designated for this fund. If your lawyer is found guilty of theft of client funds, the client security fund may cover the loss, up to $50,000. (This limit may be increased to $100,000 in the future.)

The State Bar also does a lot of other good work. For example, evaluating judicial candidates is important, as well as publishing consumer pamphlets, maintaining standards of the legal profession, and ensuring the competent delivery of legal services. Also, as attorneys, we are required to meet continuing legal education requirements every three years. The State Bar administers that program.

Consumers can acquire a great deal of information about the State Bar of California by visiting the bar's web site at: www.calbar.ca.gov. It is an excellent source of information.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Filing Too Many Suits May Make You A "Vexatious" Litigant

This week's question: I have a neighbor who is always bragging about the number of lawsuits he has filed and prosecuted against others. My problem is that I am sure he will be suing me next-over absolutely nothing. Is there anything I can do about this? What if he files suit against me and I am totally innocent of any wrongdoing? Do I have any recourse?

/s/ Billy B., Almaden Valley

Dear Billy- What you can do may depend on whether your neighbor can be classified as a "vexatious litigant" under the California Code of Civil Procedure. There are certain restrictions that apply to a person who abuses the courts of this state. These restrictions are contained in the Section 391 area of the Code of Civil Procedure.

A "vexatious litigant" means a person who does any of the following:

1. Within the preceding seven-year period has commenced at least five litigations other than a small claims court claim that have been finally determined adversely to the person or unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing;

2. After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona (by himself or herself, without an attorney), either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

3. In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.

4. Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.

If a person is classified as a "vexatious litigant," the other party to the suit has a right to file a motion for the posting of security, such as a bond to protect the innocent party from incurring damages. At the hearing on such a motion for the posting of security, if the court determines that the plaintiff is a "vexatious litigant" and that there is no reasonable probability that the plaintiff will prevail in the litigation against the moving defendant, the court shall order the plaintiff to furnish, for the benefit of the moving defendant, security in such amount and within such time as the court shall fix. When security that has been ordered furnished is not furnished as ordered, the litigation shall be dismissed as to the defendant for whose benefit it was ordered.

Also, the court may enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court. The clerk of the court shall provide the State of California Judicial Council a copy of any prefiling orders and the Judicial Council shall maintain a record of vexatious litigants subject to those prefiling orders and shall annually disseminate a list of those persons to the clerks of the courts of the state of California.

Many of the above provisions were discussed in a recent case entitled "Yuki Kobayashi v. The Superior Court of Orange County, Douglas Han, Real party in Interest. The case was decided June 30, 2009. You can read the case by entering the case name in your favorite search engine. As always, you will want to consult with your own attorney to see how the case may or may not apply to your own particular situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Some Do's And Don'ts For Your Lawyer To Keep In Mind

This week's question:

I think I have a pretty good lawyer, but she's always doing little favors for the other side-without any real reason. Like agreeing to postpone a deposition because the other attorney said he had a "scheduling conflict" that day. Why do you attorneys do things this way? After all, we pay you a lot of money to fight for us!!

/s/Tracy T., Almaden Valley

Dear Tracy- You emailed in a great question, Tracy. Thanks for that. I will try to answer it properly. It has been my experience that most attorneys try to get along and do our job professionally and efficiently, keeping in mind the client's best interests. Oh I know, some attorneys have adopted a "scorched earth policy" where they "fight" for everything, only to end up costing everyone more money-on both sides.

There are many guidelines that are available to us in the practice of law. These guidelines include the American Bar Association, State Bar of California, and our local Santa Clara County Bar Association. Our local Santa Clara County Bar Association, of which I have been a member since 1970, has published a "Code of Professionalism."

Although it is a bit longer than this column allows, some of the key provisions are as follows:

1. A lawyer should always be mindful that the law is a learned profession and that among its goals are devotion to public service, improvement of the administration of justice, and the contribution of uncompensated time and civic influence on behalf of persons who cannot afford adequate legal assistance.

2. A lawyer should work to achieve his or her client's lawful and meritorious objectives expeditiously and as economically as possible in a civil and professional manner.

3. A lawyer should understand and advise his or her client that civility and courtesy in scheduling meetings, hearings, and discovery are expected as professional conduct.

4. Consistent with existing law and court orders, a lawyer should agree to reasonable requests for extensions of time when the legitimate interests of his or her client will not be adversely affected.

5. The timing and manner of service of papers should not be calculated to disadvantage or embarrass the party receiving the papers.

6. Written materials submitted to the court should always be factual, concise, and accurately state current law and fairly represent the parties' position without unfairly attacking the opposing party or opposing counsel.

7. A lawyer should at all times be civil, courteous, and accurate in communicating with adversaries, whether in writing or orally.

8. A lawyer should conduct discovery in a manner designed to ensure the timely, efficient, cost effective and just resolution of a dispute.

9. Motions should be filed or opposed only in good faith and when the issue cannot be otherwise resolved.

10. A lawyer should raise and explore the issue of settlement and alternative dispute resolution in every case as soon as the case can be evaluated.

11. All matters should be handled with due respect for the rights of privacy of parties and non-parties.

12. Lawyers should conduct themselves with clients, opposing counsel, parties and the public in a manner consistent with the high respect and esteem which lawyers should have for the courts, the civil and criminal justice systems, the legal profession and other lawyers.

13. A lawyer should ensure that all business transactions and agreements are negotiated, documented and consummated in an atmosphere of cooperation and with informed authority of the client.

14. In family law proceedings, a lawyer should seek to reduce emotional tension and trauma and encourage the parties and lawyers to interact in a cooperative atmosphere, and keep the best interests of the children in mind.

15. A lawyer representing a parent should consider the welfare of a minor child and seek to minimize the adverse impact of the family proceeding on the child.

16. A lawyer should not participate in a child custody or visitation dispute motivated by financial or tactical objectives of the client.

17. A lawyer for one of the parents should not meet with, confer with, either in person or by telephone, or discuss the litigation with the minor child or children of the parent/client.

More "do's and don'ts" could be listed, Tracy, but space limitations to do not allow for this. I hope the above information is helpful. Just so you know that your attorney can be very assertive, pro-active, and effective and still stay within our professional guidelines.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

New "Seniors & The Law" Published By The State Bar Of California

This week's question: A few years ago you wrote a column in the Almaden Times about a good pamphlet that pertains to rights and obligations of senior citizens. I did not save a copy of that pamphlet and even if I did, it's probably out of date by now. Do you know whether there is a new one available?

 /s/Vickie V., Almaden Valley

Dear Vickie- As a matter of fact, yes, Vickie, I do know a little about that pamphlet. A brand new one was just published in April, 2009, by the Office of Media and Information Services of the State Bar of California. It is entitled "Seniors & the Law-A guide for Maturing Californians" and it was made possible by a grant from the California Bar Foundation.

In one word, this new pamphlet is great!! It is 16 pages of excellent information especially for our senior citizens. A wide range of topics include Social Security highlights, reverse mortgages, and whether there is any special tax relief for seniors.

Other topics include whether a landlord can turn down a senior citizen on the basis that the person is a senior citizen. (The answer is "no".) You may have read in this column from time to time a little about living trusts. That topic is covered as well in an area of the pamphlet entitled "How will my property be distributed after my death?" The area also includes "What is a revocable living trust?"

A particularly helpful article is included that deals with "Losing a Spouse or Parent".

For example:

* Make funeral and burial arrangements;

* Obtain several copies of the death certificate;

* Gather relevant documents, such as the will, insurance policies, trusts, and stock, bank account and annuity statements;

* Contact the Social Security Administration (if the deceased was an eligible recipient);

* Send a notification and death certificate to the director of public health (if the deceased was a Medi-Cal recipient) within 90 days after the death;

* Notify any life insurance companies of the death;

* Contact the trustee of any trust and executor of any will and/or the attorney who prepared it;

* Call the administrator of the decedent's pension plan;

* Notify the decedent's banks and financial institutions;

* Contact credit card companies; and

* Be sure that insurance or Medicare claims have been processed before paying any medical bills.

As I mentioned above, I believe this pamphlet is just excellent, so good that I ordered and received 50 for my Almaden Times readers. If you would like to stop by my office for a free copy while they last, just stop in between 9:00 A.M. to 5:00 P.M. (No, this is not a sales gimmick; your contact information will not even be asked about.) Our office is located at the corner of Camden Avenue and Trinidad, off Almaden Expressway. No questions asked.

If you would prefer, you can go online and see and order this or 18 other very useful pamphlets published by the State Bar of California. Other topics include "How Can I Find and Hire the Right Lawyer", "How Do I Use the Small Claims Court", "What Should I Know About Serving on a Jury", and many other topics.

Each free, 16-page consumer guide has its own email address for ordering: seniors@calbar.ca.gov is the email address for the Seniors and the Law pamphlet. The other pamphlets are listed in the State Bar web site. Just go to your favorite search engine and enter: State Bar of California. From there select Public Services and then Consumer Information. You can contact them for as many of the free pamphlets as you need.

Good question, Vickie. I hope the above information is helpful.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Substance Abuse Provisions May Work For Your Living Trust

This week's question: My husband and I are thinking about drawing up a living trust and leaving some money to our grandchildren. This money will be managed by our son, our Successor Trustee, after we are gone, while the children are under 25. With so many children getting into illegal drugs these days, is there any way we can deal with that unfortunate possibility?

/s/Victoria V., Almaden Valley

Dear Victoria: You and your husband are smart to think about your living trust and some of its provisions. And you are wise to consider possible substance abuse as it may affect your grandchildren in the future. It is very workable to have some paragraphs in your living trust that deal with substance abuse. The Successor Trustee, after you and your husband are gone, will manage the money set aside for your grandchildren, including the enforcement of the substance abuse provisions.

Here are some ideas that may be helpful, not necessarily in any order of priority. If the Successor Trustee, also called "the Trustee", reasonably believes that a beneficiary of the trust routinely or frequently uses or consumes any illegal substance so as to be physically or psychologically dependent upon that substance, or is clinically dependent upon the use or consumption of alcohol or any other legal drug or chemical substance that is not prescribed by a board certified medical doctor or psychiatrist in a current program of treatment supervised by such doctor or psychiatrist, then certain provisions apply.

Those provisions would also apply if the Trustee reasonably believes that as a result the beneficiary is unable to care for himself or herself, or is unable to manage his or her financial affairs. In those events, all mandatory distributions (including distributions upon termination of the trust) to the beneficiary, all of the beneficiary's withdrawal rights, and all of the beneficiary's rights to participate in decisions concerning the removal and appointment of Trustees will be suspended.

In those events, the following provisions will apply: (1) The Trustee may request the beneficiary to submit to one or more examinations (including laboratory tests of bodily fluids) determined to be appropriate by a board certified medical doctor and to consent to full disclosure to the Trustee of the results of all such examinations. The Trustee shall maintain strict confidentiality of those results and shall not disclose those results to any person other than the beneficiary without the prior written permission of the beneficiary. The Trustee may suspend all distributions otherwise required or permitted to be made to that beneficiary until the beneficiary consents to the examination and disclosure to the Trustee.

(2) Treatment and cost thereof. If, in the opinion of the examining doctor, the examination indicates current or recent use of a drug or substance as described above, the examining doctor will determine an appropriate method of treatment for the beneficiary. For example, counseling or treatment on an in-patient basis in a rehabilitation facility may be arranged that is acceptable to the Trustee. If the beneficiary consents to the treatment, the Trustee shall pay the costs of treatment directly to the provider of those services from the suspended distributions.

(3) Resumption of Distributions. The Trustee may resume other distributions to the beneficiary (and the beneficiary's other suspended rights will be restored) when, in the case of use or consumption of an illegal substance, examinations indicate no such use for 12 months. Distributions may also resume when the Trustee in his or her discretion determines that the beneficiary is able to care for himself or herself and is able to manage his or her financial affairs.

(4) Disposition of Suspended Amounts. Your living trust may also go on to state that when other distributions to the beneficiary are resumed, the remaining balance, if any, of distributions that were suspended may be distributed to the beneficiary at that time. Also, if the beneficiary dies before distribution of those suspended amounts, the Trustee shall distribute the balance of the suspended amounts to the persons who would be the alternate beneficiaries of that beneficiary's share (or beneficiaries through the exercise of a power of appointment) as otherwise provided in the testator's Will or the Trust Agreement.

(5) Exoneration. Your living trust may also have provisions that protect the Trustee for any actions of the beneficiary and that protect any doctor employed by the Trustee.

(6) Tax Savings Provision. Special technical provisions would also be included that pertain to mandatory distributions and/or withdrawal rights that may be required for tax purposes.

So there you have some ideas, Victoria. Although some of the wording is a bit formal and perhaps too much jargon is used, this is the kind of material you might be thinking about for your new living trust. Of course, you will want to discuss this with your own attorney in some detail. Only he or she can guide you in the right direction.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

You May Ask For A Different Judge, But Do You Want To?

This week's question: I have a case that I am handling myself, so I can't ask my attorney this question. There is one judge at the courthouse that I know about and I do not want him to hear my case. Under any circumstances. Is there any way that my case can be assigned to a different judge?

/s/ Brian B.

Almaden Valley Dear Brian- I will assume that your legal case is pending in state court at some level and not in Federal Court, since my experience is primarily in state court. Each system has different rules that must be followed. First of all, if you can show (i.e., prove) that the judge is biased or prejudiced against you, it is possible to have the case assigned to a different judge. This must be done quite early in the process, however. And it is probably easier said than done to prove that the judge is biased or prejudiced against you. This would be called a "challenge for cause."

Secondly, there is another way to have your case assigned to a different judge. This is called a "peremptory challenge" under California Code of Civil Procedure Section 170.6. According to a recent case: "Section 170.6 permits a party in civil and criminal actions to move to disqualify an assigned trial judge on the basis of a simple allegation by the party or his or her attorney that the judge is prejudiced against the party. Various restrictions on the time of the motion are imposed by this statue, and a party may exercise such a challenge only once during the trial of an action or a special proceeding. A motion that conforms to all the requirements of section 170.6 must be granted."

In other words, "[b]y enacting section 170.6, the Legislature guaranteed litigants the right to automatically disqualify a judge based solely on a good faith belief in prejudice; proof of actual prejudice is not required." In practice, a party or an attorney for a party is first sworn to tell the truth and then states under oath or in a written declaration that he or she believes that he or she cannot get a fair trial before Judge [name]. If this is done timely, a different judge is then assigned to hear the case. This may cause some delay in the proceedings, but that's the way it is.

There are a few important things to keep in mind. The peremptory challenge must be done quite early in the case and within a very few days after the case is first assigned to that judge. You cannot wait until the case is half over during a trial in front of that judge and then try to exercise the peremptory challenge under CCP §170.6. It doesn't work that way.

Another important thing to keep in mind is that you have only one such peremptory challenge in any one case. So, you may succeed in your §170.6 challenge before that particular judge only to be assigned to a judge whom you perceive as worse. That's just tough. You made your decision. So I think it's safe to say that you exercise your CCP §170.6 with great caution.

You can read about this topic online by going to your favorite search engine and entering California Code of Civil Procedure Section 170.6. It should be up on your screen in less than a half a second. As always, you will want to discuss this topic with your own attorney to see how peremptory challenges may apply or may not apply to your situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

The Latest On Patdown Searches At Professional Football Games

This week's question: I remember your column several months back about patdown searches at professional football games in California. Evidently, a suit was filed against the 49ers to stop that practice but the suit was thrown out of court. But then an appeal was filed. You said that you would try to follow up on that suit. I was wondering if there have been any developments.

/s/Hank H., Almaden Valley

Dear Hank: It looks like you are going to hold me to that promise to follow up on that case. Not a problem, since I have an interest in that issue too. In case some of our Almaden Times readers missed this story, after 9/11 the National Football League instituted a policy of requiring all people attending their football games to undergo a patdown search of their body on the way into the game. All teams are required to do this. Daniel and Kathleen Sheehan from Danville were season ticket holders to 49er games for many years and took offense to these patdown searches. (And personally, I don't blame them, being a Raiders fan and also searched at each home game.)

The Sheehans filed suit in San Francisco County Superior Court to stop the patdown searches by the "private security screeners". However, the trial court threw the suit out of court on a "demurrer", saying that the Sheehans didn't have a case. This order was affirmed in the intermediate Court of Appeal. The case then went to the California Supreme Court where it was fully briefed and argued.

The Court stated that the issues were as follows: (1) Did ticket holders of the San Francisco 49ers football team impliedly consent to the team's policy of conditioning admission to its stadium on submission to a patdown search when they purchased season tickets with knowledge of that policy? (2) If so, did that consent extinguish any reasonable expectation of privacy with respect to the searches as a matter of law, such that the trial court was not required to consider the justifications in support of the policy or balance plaintiffs' privacy interests against the team's countervailing interests?

It is important for our readers to understand the procedure that was involved in the trial court. After the suit was filed, the 49ers filed a "demurrer." This is in essence a motion in the trial court that says in effect that even if we assume everything in your suit is true, it does not state a "cause of action" or grounds for a suit. In other words, the defendant is saying that the suit must be thrown out of court before it goes any further, based on various reasons.

In this case, the trial court agreed with the 49ers and said the Sheehans had no grounds for a suit and the intermediate Court of Appeal agreed. However, after the case was argued and submitted in the California Supreme Court, the Court on March 2, 2009, announced its decision. It ruled that the Sheehans, plaintiffs in the suit, maybe-just maybe-had grounds for a suit but it was too early to tell. The Court ruled that: "...In this case, assuming the alleged facts to be true, we hold the record does not contain enough information to establish as a mater of law that the complaint fails to state a cause of action. Accordingly, this action is not susceptible to disposition on demurrer, ... and we remand the matter for further proceedings consistent with this opinion."

In short, the inadequacy of the record of the trial court because of the demurrer precluded a determination of whether patdown searches of football game attendees were reasonable. So, Hank, what this means is that the case now goes back to the trial court and the parties will typically engage in "discovery." I say "typically" because I am not part of that litigation and I do not have personal knowledge of what is going on, but I do have some idea as to what usually occurs.

"Discovery" usually involves several devices to learn and establish the key facts involved in the controversy. Written interrogatories are often sent from one side to the other, documents are produced that may be relevant, and depositions are taken of key witnesses. This often takes several months for "discovery" to be completed, and its purpose is to reduce the number of surprises and establish important facts later on at trial. After discovery is completed the matter may be set for trial.

Along the way, there is always (well, almost always) the chance that the case may settle. When might we hear further? It's impossible to say, but I for one will not be holding my breath until a decision is announced by the trial court. It could take quite a while, and in the meantime, presumably the patdown searches will continue.

Our Almaden Times readers can read the entire California Supreme Court case for themselves by going online and entering "California Supreme Court" in their favorite search engine. Then enter the case name Sheehan v. The San Francisco 49ers, Ltd. and the number of the case, S155742. By going to the Supreme Court website directly, you will bypass a flood of advertising. Also, a very nice feature of the Supreme Court web site is that you can sign up for automatic email notification of future developments in the case. I did just that and it has come in very handy. Of course, the website is supported by us taxpayers, so there is no fee and we might as well make use of it.

So, that's about it, Hank. And once again, I will try to keep you updated on this case as developments occur.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Cranky Judges May Be Held To Account

This week's question: I was in a court trial a few months ago and the judge was just terrible. I mean he was rude, arrogant, and downright nasty to my attorney. I complained to my attorney repeatedly at the time but she said there was nothing she could do. She didn't want to make the judge more upset since the judge was judging our case at the time. Is there any recourse in this situation?

/s/Justin J., Almaden Valley

Dear Justin: There is something you can do, but first, a few introductory comments. It seems to me that your trial lawyer did the right thing by not complaining to the judge during your trial. She obviously thought that this could inflame the judge and you don't want the judge upset who is hearing your case. Most of us try to bend over backwards to be courteous and respectful to the judge at all times, even when it is difficult.

Having said that, there is something that you can do and maybe should do in view of that behavior by the trial judge. And that is to file a complaint with the State of California Commission on Judicial Performance. Perhaps that particular judge did not exhibit the proper "temperament."

I can honestly say that in all my years of practice that I have been favorably impressed by our judges and have very rarely seen instances of improper temperament. Almost all of our judges are courteous, respectful, and fair in their conduct of all proceedings that come before them. I am sure being a judge is not an easy job, but sometimes things happen that shouldn't happen.

Back to the Commission on Judicial Performance, or "CJP" for short in legal jargon. The CJP was established by legislative constitutional amendment in the November, 1960 election. The provisions establishing the Commission were part of a package of judicial administration reforms, at the time heralded as "real protection against incompetency, misconduct or non-performance of duty on the Bench." California was the first state to set up a permanent body to address judicial misconduct. The Commission is responsible for the investigation of complaints of judicial misconduct and incapacity and for the discipline of judges, former judges, court commissioners and referees.

The Commission's mandate is to protect the public, enforce rigorous standards of judicial conduct and maintain public confidence in the integrity and independence of the judicial system. An effective method of disciplining judges who engage in misconduct is essential to the functioning of our judicial system. Commission proceedings provide a fair and appropriate mechanism to preserve the integrity of the judicial process. Anyone may submit a complaint to the Commission.

Of course, if your only complaint is that you lost your case, it is doubtful that you would have grounds for a complaint of this nature. If your only complaint is that you lost at trial, you may want to look into an appeal if there are grounds for an appeal and it is not too late.

Let us assume that you have proper grounds for a complaint. You would first file a complaint with the Commission on Judicial Performance at 455 Golden Gate Avenue, Suite 14400, San Francisco, CA 94102. You will want to include the following information:

    * The court in which the judge sits

    * The names and telephone numbers of any witnesses to the events described

    * The date or dates on which the conduct occurred

    * The type of court case involved and your relationship to the case.

After an investigation, the Commission will make a decision. Judicial misconduct usually involves conduct in conflict with the standards set forth in the Code of Judicial Ethics. Some examples of judicial misconduct are rude or abusive demeanor, conflict of interest, abuse of the contempt power, communicating improperly with only one side to a proceeding, delay in decision-making, and commenting on a pending case. If the Commission finds that an offense has been committed, various levels of discipline may be imposed. Discipline includes private admonishment, public admonishment, public reproval, public censure, and even removal from the bench as a judge. From time to time we hear or see in the media about judges who have gone astray.

You can obtain a great deal of additional information by visiting the web site of the Commission on Judicial Performance. Just enter: www.cjp.ca.gov/. Topics include how to file a complaint, pending cases, case statistics, and FAQ's. Of course, this web site is publicly supported and part of our State of California government.

Consumers do have rights, Justin. And one of those rights is to register a complaint for that kind of behavior. Maybe your complaint will make it better for others in that courtroom in the future.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.