Metropolitan News-Enterprise


Thursday, August 23, 2012


Page 1


S.C. Will Not Review Ruling in Battle Over Banking Fortune




The California Supreme Court yesterday declined to review a Court of Appeal ruling that the eldest son of a wealthy San Diego banker is entitled to part of his grandfather’s estate, contrary to the wishes of his father.

The justices, at their weekly conference in San Francisco, voted 6-0 to leave standing the Fourth District Court of Appeal decision in Sefton v. Sefton, D059211. Justice Marvin Baxter was recused.

Div. One ruled May 31 that Thomas W. Sefton Jr. is entitled to a “substantial” share of the estate left by his grandfather, Joseph W. Sefton Jr. The Sefton family controlled San Diego Savings Bank, later San Diego Trust & Savings Bank, from its founding by Joseph W. Sefton Sr. and one employee in 1899 until its sale to First Interstate Bank in 1993.

Thomas Sefton Jr. told the court the family’s interests should now be worth at least hundreds of millions of dollars.

The appeals court reversed a ruling by San Diego Superior Court Judge Julia C. Kelety, who said that Thomas W. Sefton Sr. had an exclusive power of appointment under his father’s will, and thus could disinherit any of his children. The appellate panel held that the statute Kelety relied on, Probate Code Sec. 652, should not apply because it was not in effect when the will was written or when the testator died.

‘Then Living Issue’

Joseph W. Sefton Jr. became vice president of the bank following his father’s death in 1908, and became president in 1935. He executed a will in 1955, providing for a trust that would provide lifetime income to his son Thomas Sefton Sr., with three-fourths of the remainder going to his son’s “then living issue as my said son shall by his Last Will and Testament appoint” following the beneficiary’s death.

The will recited that the testator had three grandchildren—Thomas Sefton Jr., Laurie M. Sefton and Harley K. Sefton.

Laurie and Harley Sefton were Thomas Sefton Jr.’s children from his marriage to Donna Knox, whose father was mayor of San Diego when the couple wed in 1951. Thomas Sefton Jr. was the child of an earlier marriage.

Joseph Sefton died in 1966, by which time his son, who died in  2006, had taken the helm of the bank.

Thomas Sefton Sr.’s will provided that two-thirds of the remainder of his father’s trust be distributed to Harley Sefton, one-third to Laurie Sefton, and none to Thomas Sefton Jr.

The omitted Sefton petitioned the San Diego Superior Court to award him a share of the trust estate and impose a constructive trust. He contended that he was entitled to an interest under Estate of Sloan (1935) 7 Cal.App.2d 319, recognizing a common-law presumption that the use of “then living issue” language reflected intent to grant a non-exclusive power of appointment, meaning that each child was entitled to a “substantial” share of the estate in the absence of further specificity.

His brother and sister responded that Sec. 652, enacted in 1970 as part of the California Powers of Appointment Act, had reversed the presumption and that their father was, in the absence of language to the contrary, free to determine which of his children would inherit the three-fourths share referred to in their grandfather’s will.

No Retroactivity

Justice Gilbert Nares, writing for the Court of Appeal, sided with the petitioner, saying that retroactive application of Sec. 652 in this case would be contrary to statute and possibly unconstitutional.

Legislative history, the justice said, said reflected intent to reverse the Sloan presumption prospectively, while recognizing that the rule had been relied on by individuals and their attorneys in planning their estates before the California Powers of Appointment Act became law.

The appellate panel, however, rejected the petitioner’s claim that he is entitled to an equal division with his siblings. Instead, the trial judge must determine what constitutes a “substantial” share on remand, the court said.

All parties unsuccessfully petitioned the high court to review the Court of Appeal’s decision.

In other conference action, the justices:

Left standing a Third District Court of Appeal ruling that a former Sacramento Superior Court juror must submit his Facebook postings from a case involving a gang beating for in camera inspection.

The Court of Appeal ruled May 31 that Judge Michael Kenny was within his authority in ordering the juror to execute a consent form allowing Facebook to turn over the postings.

The juror was identified in the order only as “Juror Number One,” but the Sacramento Bee has reported that his name is Arturo Ramirez.

Kenny, who at one point sought to compel Facebook to submit the postings to the court, issued a new order compelling Ramirez to execute a release.

Ramirez, the newspaper said, had posted during the “Killa Mob” trial that he was on the jury and that on at least on one occasion he found the proceedings “boring.” Defense lawyers in the case are asking for a new trial on the ground of juror misconduct, and want to see if the postings support their claim of bias.

Five reputed members of the gang were convicted in the beating of a man in a gas station on Halloween 2008.

Facebook had said that federal computer privacy law precluded it from turning over the postings on its own and that the company needed a search warrant, a court order or the consent of the user before it would make them available to the court. The judge said the postings violated the routine judicial admonition that jurors not discuss ongoing cases.

The Legislature subsequently enacted AB 141, which revised the admonition to state explicitly that electronic communications while the trial is in progress are prohibited.

The Court of Appeal rejected the juror’s contentions that the order violates the federal Stored Communications Act, as well as the Constitution.

The case is Juror Number One v. Superior Court (Royster), C067309.

Denied a request by the NCAA that the court order publication of the June 4 opinion of this district’s Div. Two in Guillory v. National Collegiate Athletic Association, B234302.

Guillory, a sports promoter, claimed the NCAA defamed him in a report linking him to the payment of illegal benefits to O.J. Mayo, who played a year of basketball at USC before turning professional. Mayo recently signed a two-year contract with the Dallas Mavericks after playing four seasons in Memphis.  

The NCAA imposed substantial sanctions on the school after Louis Johnson, a former confidant of the player, said Guillory received more than $200,000 from a Northern California sports agent, and that Guillory funneled at least part of that money to Mayo in the form of cash, clothes and a flat-screen television.

Guillory did not deny that he gave Mayo money, but claimed that he did so only out of affection for the player and that the NCAA had caused him to be ridiculed as a “professional leech,” a term actually used by writer Seth Davis in Sports Illustrated.

Los Angeles Superior Court Judge Mary Strobel threw Guillory’s suit out under the anti-SLAPP statute. Presiding Justice Roger Boren, writing for the Court of Appeal, agreed, saying that the report dealt with a matter of public interest and that Guillory was unlikely to prevail on the merits because the report was substantially true.


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