Metropolitan News-Enterprise


Friday, September 30, 2022


Page 1


Court of Appeal:

Recipient of Trust Assets May Maintain Litigation Brought by the Settlor

Collins Says Rule Against Assignment of Malpractice Suit Is Not Violated


By a MetNews Staff Writer


A lawsuit brought by a concert promoter against a Malibu attorney, with the litigation rights assigned by the plaintiff to a trust, may be maintained after the plaintiff’s death by the recipient of the trust assets, Div. Four of this district’s Court of Appeal decided Friday, declaring that this does not violate the rule against the assignment of malpractice actions.

The opinion, which was not certified for publication, was authored by Justice Audrey B. Collins of Div. Four. It reverses a judgment by Los Angeles Superior Court Judge Jon R. Takasugi confirming an arbitration award in favor of lawyer Robert J. Allan and his law firm. The arbitrator had granted summary judgment in favor of the defendants, finding that Virginia Pope, described as the settlor’s “life partner,” had no standing.

The settlor was Ken Roberts, who died May 22 at age 73. According to Allan’s appellate brief:

“This suit is the latest branch of lengthy, Byzantine underlying litigation involving the right to receive public performance royalties from the commercial exploitation of musical compositions and sound recordings thereof written and performed by Mr. Sylvester Stewart, known professionally as Sly Stone, with his band Sly and the Family Stone.”

Allan had represented Roberts in litigation involving those rights. Roberts had been Stone’s manager.

Collins said that Roberts’s transfer of the malpractice claim to his revocable living trust “did not alter the ownership of the claim, commodify the claim, or undermine the attorney-client relationship,” declaring:

“We therefore find that in the narrow circumstances of this case, Roberts’s transfer of his cause of action for malpractice against respondents to his revocable living trust, with himself as sole trustee from the time of the transfer until his death, did not violate the nonassignability rule….”

The cause of action, she explained, was not part of an estate, precluding a finding that only a personal representative could carry on the action.

Pope, Collins noted, was the beneficiary of the trust and was successor trustee.

“Continuation of a malpractice claim after the plaintiffs death inevitably introduces a third party into lawsuit,” she wrote. “However, there is no practical difference between having the third party be the personal representative of the estate in general, versus a beneficiary or a successor in interest specifically….”

The case is Allan v. Pope, B311491.

Beverly Hills attorney Jay M. Spillane represented Pope and Stephen M. Caine and Frances M. O’Meara of the Westwood firm of Freeman Mathis & Gary acted for Allan and his firm.


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