Friday, August 11, 2017
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Son in Disrepute Loses in Claim to Share of Parents’ Fortune
Court of Appeal Rejects Arguments of Errors in Pretrial Rulings in Case Where a Father Disinherited an Estranged Offspring Who Disrupted Mother’s Memorial Service
By a MetNews Staff Writer
A man who, at his mother’s memorial service, refused to scatter his share of her ashes, shouted at his father that he was the “world’s worst father,” and later left at the father’s house a canister with the unspread ashes, scribbled notes bewailing affronts to him, and a typed tirade in which he described his $6,000-a-month allowance as scanty, has failed in his appeal of an order giving effect to his father’s disinheritance of him.
At the time his parents, Gerald E. Buck and Bente Buck, created their family trust in 1997, its assets amounted to $81 million. Originally, the rest was to go in equal shares, after both trustors died, to son Alan M. Buck, born in 1964, and daughter Christina Buck, born three years later.
There had been an estrangement of Alan Buck from the family since 2006, with two meetings with his father prior to the memorial service ending in discord, and no contact between the two after that event.
Subsequent to the death of Bente Buck on Jan. 19, 2013, and shortly before his own death on Aug. 24, 2013, Gerald Buck—a partner at Hon Development and famed as an art collector—removed his son as a beneficiary of the trust.
The son still received half of a $1.7 million insurance policy.
Alan Buck filed a petition in Orange Superior Court to invalidate the trust amendment, asserting that it was the product of his sister’s exercise of undue influence over their father.
Gerald Buck’s lawyer, Ernie M. Ellsworth, testified as to the conversation in which his client directed him to make the change in the trust instrument, reciting:
“He said that he didn’t think Alan—well, he was very upset. And he...explained that he had gotten Alan a job at Hon Development and that he had been fired from that job. He seemed like he didn’t want to work. And he said, ‘I don’t think Alan would be a very good steward of the money I worked so hard for....’ ”
The lawyer quoted Gerald Buck as declaring:
“I love my son, but I think I would be doing him a disservice to give him more money. I would like him to learn to be responsible and get a job, basically.”
Superior Court Judge Kim R. Hubbard rejected Alan Buck’s petition.
Lawyer ‘Wrongfully Hobbled’
On appeal, Alan Buck asserted that Hubbard “wrongfully hobbled” him in presenting his case, complaining that the judge should not have allowed his first lawyer to withdraw two months before the trial and erred in barring him from designating expert witnesses. He also insisted that a court commissioner, without warrant, cancelled six depositions he had set.
Div. One of the Fourth District Court of Appeal, in an opinion by Presiding Justice Kathleen E. O’Leary, affirmed on Tuesday in an opinion that was not certified for publication.
She noted that Alan Buck was initially represented by Neil Erickson of the law firm Jeffer, Mangels, Butler & Mitchell, and that on March 30, 2015—42 days before trial was scheduled to start—the law firm filed an ex parte application to withdraw, explaining it could no longer represent its client “in a manner that fulfills JMBM’s obligations under the Rules of Professional Conduct.”
It emerged that the client had accused Erickson of having committed malpractice and being “sick.”
Hubbard granted Alan Buck two continuances, totaling 130 days. O’Leary wrote:
“[H]ere the court granted Alan a 70-day continuance and allowed him to finish uncompleted discovery. Alan failed to establish prejudice from the withdrawal, especially since the court later granted Alan a second lengthy continuance of the trial date (a fact Alan fails to mention as being relevant to this issue). We conclude the trial court did not abuse its discretion in allowing counsel to withdraw….”
Designating Defense Witnesses
Following the second continuance, Alan Buck found a lawyer who was willing to represent him: William E. Baker Jr. of the Santa Ana law firm of Baker & Baker, APC. Baker sought to designate expert witnesses.
There was a problem with respect to that effort. When the parties earlier exchanged expert witness lists, Erickson indicated that his client intended to call no experts to testify, as did Christina Buck’s lawyer.
O’Leary recited that when a party seeks to amend an expert witness list, the court must, by statute, consider reliance of the opposing party on that list, prejudice to the opposing party, and timeliness of the motion to amend. She observed:
“The first factor the court must consider is reliance….[W]e find no reason to doubt Christina’s claim she depended on Alan’s list that confirmed he would not use expert witnesses when she prepared her own list. Christina prepared for trial based on the mutual decision both sides would forgo the use of experts. As for the second factor, Christina asserted she would be prejudiced because there was insufficient time to prepare for the new experts’ technical testimony and/or locate rebuttal experts if necessary to defend herself. This is true. The trial date was less than one month away and Alan did not request a continuance to give Christina adequate time to prepare.
“In its minute order, the trial court mentioned the final requirement for a witness list amendment. It stated there was an ‘insufficient explanation’ for Alan’s failure to designate two expert witnesses in his timely exchange five months prior. We agree.”
Baker produced evidence that an expert had received a $6,000 retainer, and it was argued on appeal that Erickson merely slipped up in failing to designate him. O’Leary responded:
“We conclude there is simply no evidence to support this theory. It was just as likely the exclusion was an informed decision based on trial tactics.”
O’Leary noted that one of the two experts Baker wanted to call is a lawyer specializing in estate planning matters. She pointed to authority saying that “experts” may not be called to testify as to legal conclusions.
Error Did Occur
The appellant did make one valid point, she acknowledged. O’Leary faulted the action of a court commissioner, acting on Christina Buck’s ex parte motion, cancelling six depositions set a week before trial.
In granting the first continuance, Hubbard specified that Alan Buck could complete discovery in progress. O’Leary pointed out that “the ruling plainly and clearly permitted Alan to complete 12 items of discovery anytime after April 10, 2015,” the initial discovery cut-off date, “without a set deadline.”
She drew the conclusion that “there was no legal basis for the court to prohibit Alan’s counsel from completing the discovery the week before trial.”
The presiding justice continued:
“However, this conclusion is a hollow victory for Alan.”
The error, she said, was harmless, explaining:
“We found very telling that of the six uncompleted depositions, Alan’s opening brief refers only to the prejudice caused by his inability to take Christina’s deposition….
“We have carefully reviewed Christina’s trial testimony, and it is plainly apparent Baker did not ‘tip-toe’ around Christina with general questions, but rather he pointedly asked for details about her relationship with all interested parties. He obtained specific information about her contacts with Gerald and Ellsworth, both before and after Bente’s death. Baker’s inability to establish the required elements of undue influence from Christina was not due to lack of preparedness, but because Christina was steadfast in her denials of wrongdoing.
“We found nothing inherently suspicious about Christina’s testimony or anything suggesting she was withholding information. Moreover, the bulk of her testimony was confirmed by other witnesses close to Gerald.”
Caused Own Disinheritance
O’Leary added:
“We will not reexamine or reweigh the evidence presented at trial. Alan overlooks many facts supporting Christina’s argument Alan was the cause of his own disinheritance. And in any event, our review is limited to the issue of whether Alan satisfied his burden of showing the error was prejudicial…. Alan never explains why there was a reasonable chance he would have prevailed if he had taken six depositions before trial….It is not sufficient to point out the mistake and rely on generalities, speculation, suspicion, and conjecture.”
The case is Buck v. Buck, G053279.
Richard A. Derevan and Todd E. Lundell of Snell & Wilmer represented Alan Buck and Theodore I. Wallace, Lisa N. Neal, and Gerard M. Mooney of Rutan & Tucker acted for Christina Buck.
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