Metropolitan News-Enterprise


Tuesday, April 28, 2015


Page 7



C.A. Justice Terms Previous Utterance ‘Ambiguous’—Won’t Admit It Was Error




There’s much to be said for the integrity of a judge who will admit : “I got it wrong earlier—I’m going to set things straight.”

And there’s plenty wrong with a judge who recognizes his or her error, but hedges, saying, “I guess I didn’t make it clear before—you misunderstood me,” where the earlier utterance was perfectly clear and was fully understood.

In the first instance, Judge Forthright is entitled to respect; in the second, Judge Wobbly is not—but the latter still must be credited with an ability to come to grips with having erred. This is in contrast to a retired Los Angeles Superior Court judge who used to sit in the Writs and Receivers Department and suffered from delusions of infallibility (as well as other fantasies).

Today we deal with Judge Wobbly—by actual name and title, Court of Appeal Justice Gilbert Nares of the San Diego-based Fourth District’s Div. One.

On Friday, an opinion by him was filed in the case of Sefton v. Sefton, 2015 S.O.S. 2013. In it, he contradicts the rule set down in his earlier opinion in Sefton v. Sefton (2012) 206 Cal.App.4th 875.

Good for him for repudiating his previous pronouncement, if he’s concluded it was faulty. However, pathetically, he musters only so much courage as to confess that the earlier opinion was “ambiguous”—which it was not—and can’t bring himself to own up to having made a mistake.

The 2012 case and the present one stem from these facts:

A grandfather left a life estate to his son, with three-quarters of the remainder going to the son’s “then living issue”; the son’s three children were enumerated in the will; the son died; each of his three children was still alive; the son’s will excluded any inheritance by one of his offspring of assets of the grandfather’s estate.


Nares’ opinion in Sefton I declares that common law precepts, in effect at the time the grandfather made his will and at the time he died, apply, and that a subsequently enacted statute that would have permitted exclusion doesn’t.

The jurist explains the effect, under common law, of a holder of a life estate being given the power to distribute the remainder to a class of persons, with no specification as to the amount going to each and no express power to exclude any member of the class. He says that no member “may be entirely excluded by the donee of the power from at least a substantial participation in the distribution.” The emphasis is Nares’s.

The jurist relies, for that proposition, on the 1935 Court of Appeal decision in Estate of Sloan (1935) 7 Cal.App.2d 319.

Repeatedly, Nares refers to the right of each member of the class to a “substantial” portion of the estate, and reaches this conclusion:

“At the time of Grandfather’s death, Father was given a life estate and, because the power of appointment under the law then in place was ‘nonexclusive,’ all of Father’s heirs were entitled, upon his death, to at least a ‘substantial’ share of the estate.”

But how is a judge to determine what specific “substantial” sum the snubbed heir is to receive? Nares provides an assurance in a footnote that “while defendants assert that use of the term ‘substantial’ invites litigation, there are no reported decisions in California in which a person questioned whether a particular appointment was sufficient to be considered ‘substantial.’ ”

He relates that the omitted heir “asserts that he should be entitled to a division of the appointive property equally with his siblings,” but says that because his appeal is founded on the common law rule articulated in Sloan, “we shall remand this case for a determination of what constitutes a ‘substantial’ share of the estate.”

I fail to spot any “ambiguity.”

Now comes the opinion in Sefton II.

On remand, the trial judge, Julia Craig Kelety of the San Diego Superior Court, proceeded to award the grandchild who was omitted from his father’s will, Thomas W. Sefton Jr., a “substantial” share of the grandfather’s estate: $565,350, plus interest.

That did not, however, amount to anywhere near one-third of the portion of the remainder of the grandfather’s estate earmarked for the grandchildren, and Sefton appealed.

In his opinion on Friday, Nares proclaims that—contrary to the holding of his 2012 opinion—the appellant is entitled to a full one-third of the relevant portion of the remainder of the grandfather’s estate.

Rather than forthrightly saying that argument in connection with the second appeal convinced him that the court took the wrong tack in Sefton I, Nares declares that Kelety had applied the wrong standard…that standard being precisely the one ordained by him in his 2012 opinion.

Figuratively, he patted Kelety on the head, saying she was not entirely to blame for her blunder, granting that the 2012 opinion was susceptible of a misinterpretation.

Friday’s opinion says:

We conclude the probate court’s interpretation of Sefton I, while reasonable, was in error.  The “ ‘substantial’ share” determined by the probate court is not the correct measure of Thomas Jr.’s award from Grandfather’s estate under the facts of this case.  We do not fault the probate court for this error.  As we will explain, portions of Sefton I, and in particular the sentence directing the probate court on remand, are ambiguous in their meaning. In this opinion, we resolve the ambiguity and clarify the award to which Thomas Jr. is entitled.

I assume that Kelety has read that opinion. I would also assume that she was not consoled by Nares’ concession that she wasn’t being held at “fault” for “this error.” What her thoughts are can only be imagined.

No error on her part was shown; she acted in accordance with the direction in Nares’ 2012 opinion.

The closest Nares comes to admitting that Sefton I was incorrectly decided is where he says:

“As we will explain, the remedy that follows from the application of the common law and Sloan is incompatible with our direction to the probate court to determine a ‘substantial’ share.  Our direction to the probate court on remand in Sefton I was therefore ambiguous.”

If the direction to the probate court was incompatible with the law, then it was erroneous. Given that the meaning was clear, it was not ambiguous.

Nares goes on to say that at common law, the “ ‘substantial’ share” concept was relevant only to the issue of whether an appointee had received something more than an illusory share, adding:

“Therefore, our direction to the probate court in Sefton I, which combined the concept of common law remedies and Sloan with the direction to the probate court to determine Thomas Jr.’s ‘substantial’ share was ambiguous.”

No matter how many times Nares labels the direction to the trial court as “ambiguous,” it wasn’t.

In a footnote, he says of the doctrine of law of the case:

“We decline to apply the doctrine here…because Sefton I did not ‘stat[e] a rule of law necessary to the decision of the case.’…As we have explained, the meaning of our direction to the probate court on remand was ambiguous; there is no rule of law for us to apply in this subsequent appeal.”

That’s simply untrue. Nares says in Sefton I:

“The issue raised by this appeal is whether the law in effect at the time Grandfather executed his will, and at the time he passed away, controls, requiring that Father give each of his living issue, including Thomas Jr., at least a ‘substantial’ share of his estate….” He concludes that common law applies, and under common law, each of the grandchildren is entitled to “at least a ‘substantial’ share of the estate.” Nares announces that “we shall remand this case for a determination of what constitutes a ‘substantial’ share of the estate.”

Unambiguously, Sefton I states a rule of law which, if applied in Sefton II, would preclude the result that is reached.

In the footnote, Nares goes on to say that “assuming” the court in Sefton I had actually intended to limit the appellant to a “substantial share” the doctrine would still not be applied. He explains that application would result “in the extinguishment of Thomas Jr.’s vested rights as a taker in default in Grandfather’s will and his loss of some $18 million from the Trust estate” and “would offend principles of substantial justice.”

Nares’ present view is that the father, in appointing two children as recipients of the remainder and excluding a third, made an invalid appointment.

“At common law,” he says, “the remedy for such an invalid exercise of the power of appointment was to disregard the donee’s attempted appointment and distribute the property according to the donor’s testamentary scheme, if any.”

The grandfather’s will says that three-quarters of the remainder “shall be distributed to his then living issue as my said son shall by his Last Will and Testament appoint, and in default of appointment, to his then living issue on the principle of representation.”

Nares declares:

“Here, under common law, Father’s attempted appointment, which excluded Thomas Jr., was invalid and void. The appointive property therefore passes according to Grandfather’s testamentary scheme, which provided that in default of appointment the appointive property should pass to Father’s then living issue, on the principle of representation. Under common law, therefore, Thomas Jr. is entitled to one-third of the Trust estate as a taker in default of appointment.”

What Nares fails to explain is why the appellant is entitled to more than a one-seventh share.

—University of San Diego

Thomas Sefton Sr. is seen with his father, J.W. Sefton Jr., in 1950s photo.

The grandfather, Joseph W. Sefton Jr., created a trust which included stock representing the controlling interest in San Diego Trust & Savings Bank (founded by his father in 1889). The bank was sold to First Interstate Bank in 1993.

The testator provided that his adopted son, Thomas Sefton Sr., would be lifetime beneficiary of the trust, with the remainder to go to the son’s “then living issue.”

At the time the will was executed in 1955, Thomas Sefton Sr. had three living issue—Thomas Sefton Jr., by his first wife, and a daughter and son by his second wife—who were mentioned by name in the will.

However, by the time Thomas Sefton Sr. died in 2006, he also had four grandchildren.

Probate Code §50 provides:

“ ‘Issue’ of a person means all his or her lineal descendants of all generations, with the relationship of parent and child at each generation being determined by the definitions of child and parent.”

So, grandchildren are “issue.”

Kelety grasped that. The amount she awarded the appellant, in order to give him a “substantial” share, was based on seven percent of a one-seventh interest.

Nares does not explain why he treats Thomas Sefton Sr.’s children as “issue” but not his grandchildren.

A nagging question is whether the grandfather did expressly give his son the power to exclude any of his descendants from sharing in the remainder. Saying that a three-fourths portion of Buying Cialis Online “shall be distributed to his then living issue as my said son shall by his Last Will and Testament appoint” sounds much like a grant of authority to distribute to such of his progeny as he chooses.

Signing Nares’ opinion were Presiding Justice Judith McConnell and Justice James A. McIntyre. They also joined with Nares in Sefton I.

STEIN’S BITTERNESS: Criminal defense lawyer Andy Stein—who last year lost a race for a Superior Court judgeship to then-Los Angeles Deputy City Attorney Tom Griego—recently told MetNews staff writer Ken Ofgang that he is planning to run again next year, but won’t run against anyone with a creative title.

Griego had the ballot designation of “Gang Homicide Prosecutor.” In the primary, he ran as a “Gang Homicide Attorney,” but Los Angeles Superior Court Judge Joanne O’Donnell stripped him of that designation in the general election; was listed on the ballot as a “Trial Attorney.”

Ofgang quoted Stein as assailing O’Donnell’s ruling and denigrating Griego’s abilities.

Duarte attorney Stuart O’Melveny sends this comment:

“Someone should tell Andrew Stein that he scores no points by being bitter.

“Life, as they say, is unfair. No use crying over spilt milk. Deal with the loss. Learn from it. Brush off the knee pads and try again.”

Sage advice.


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