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Hi, my name is John T. Anderson. Welcome to my blog! I have been practicing law in California since 1975 and have been the Chairman of the Estate Planning and Probate Section of the Long Beach Bar Association since the mid-1980s. I'm also certified by the State Bar of California Board of Legal Specialization as a specialist in Estate Planning, Trust and Probate Law. On this blog, you will find articles written by me regarding estate planning and probate in California. Many of these articles address recent changes in the law and summaries of the Long Beach Bar Association’s Estate Planning and Probate Section meetings. I hope that you find these articles helpful. If you would like more information about me or my law office, please visit my website at www.trustlaw.ws or contact my office at 562.424.8619.

Monday, June 12, 2017

EFILING PROBATE MATTERS IN LOS ANGELES

Below are a number of comments, responses, and helpful hints regarding the required efiling in Los Angeles Probate Courts from the Los Angeles County Bar Association Trust and Estates list serve. Please note that these are not my comments, but comments I have complied from others regarding efiling in Los Angeles Probate Courts. 

From Others:
 

This is the link to sign up for the efiling webinar I watched, and the source of the information on that list I posted.


 It's free and you get 1 MCLE unit!


Here are a few things I found interesting from the Green E-Filing webinar I watched over my lunch hour…

-Before beginning, everyone should familiarize themselves with Chapter 2 of the California Rules of Court.

-The court requires our documents to be in PDF form, text-searchable if feasible.  The court understands that not all docs can reasonably be made text-searchable.  If you upload your docs in Word or WordPerfect, Green will do the conversion to PDF for you. 

-There is a size limit for the PDFs.  One document may not exceed 25 MB.  All the documents in one envelope may not exceed 35 MB.  If you convert your PDFs at a resolution of 300 dpi or less, this should never be a problem. 

-If you check the status of a filing, and there is an envelope number, you know the court has received the filing because the court system assigns the envelope number, not your electronic filer. 

-The service charge for payment by credit card is 2.75% for LA County.  However, LA just made payment by eCheck available for $0.25.  (It’s $1.00 in other counties.) 

-There is a space on Green’s “dashboard” where you can add the names/email addresses of those you want Green to serve electronically.  Even if you don’t want Green to serve anyone the thing you have just filed, you should add your own name where it says Add/Attach Service Contact so if anyone else files anything in that matter, you will get notice of it. 

-Green provides limited search capability by using the button for “File an Existing Case”.  For example, you could use this to see if someone has opened a probate by searching using the decedent’s name.  Or searching by any possible party’s name.  This isn’t what it’s designed to do but it can be used this way. 

-Green has a feature that allows you to electronically “serve” documents that are not being filed with the court.  Look for “Create Serve-Only”.  This might be useful for circulating a proposed order or joint trial statement or anything else where multiple parties get to review and sign off on a doc before filing.  Maybe a Notice of Proposed Action…?  Also for discovery. 

-For all things electronically served, Green maintains a record of exactly when it was sent.  They also track when it was opened.

-For those matters, like some petitions for limited conservatorship, where we also send a FW-001 Request to Waive Court Fees and a proposed FW-003 Order on Court Fee Waiver, we can still bundle those with the original petition but we still have to indicate our method of payment – credit card or eCheck.  If the waiver is granted, no charge will be made.  If you send the whole package and indicate the fees should be waived, and the court disagrees, the whole package will get rejected and you’ll have to file again. 

-Last, and most interesting, was the fact that the presenter came right out and said that all other counties take into consideration attorneys’ requests for setting on certain days or avoiding certain days.  LA appears to be the only one that doesn’t.  I suspect that this will change in time, perhaps once the system is up and running smoothly and they feel ready to throw another wrench into the works.



The June T&E Newsletter listed some useful (but still optional) Judicial Council forms to be aware of, now that efiling is mandatory.  Here are a couple that I think we’ll be using a lot.

 We know that attorneys are now required to file electronically, and by extension, automatically consent to being served electronically at the same email address.  However, parties or non-parties who are entitled to notice must consent to being served electronically.  If they do consent, this form should be filed in the matter so that everyone has the “official” email address at which the person has consented to be electronically served:

Consent to Electronic Service and Notice of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-005)

If someone’s email address for electronic service changes, this form should be filed:
Notice of Change of Electronic Notification Address (Electronic Filing and Service) (Judicial Council Form EFS-010) 
 
Once you serve someone electronically (or have your EFSP do so on your behalf), you should file:
Proof of Electronic Service (Proof of Service/Electronic Filing and Service) (Judicial Council Form POS-050/EFS-050)


There are definitely issues to be addressed, but I was impressed earlier this week when I submitted an Ex Parte Petition for Final Discharge and got back a conformed copy, with the judge’s electronic signature and everything, in less than 15 minutes.

I have read, with great interest the various comments on efiling and the questions that have been noted.  However, it seems that there is one question that was not posed and which needs to be answered.  I believe others have noted that matters are automatically set for 10 weeks out (in apparent violation of provisions of the Probate Code) however, what about the setting for a petition to confirm sale of real property.  That has always had a "quick" hearing date for obvious reasons.  Now, try explaining to the anxious buyer that it will be 10 weeks before the matter is heard.  It is apparent that whomever designed the system didn't take that into account either.

 (By the way, I am still one of those who uses faxes and doesn't scan and email documents --- and, I am afraid that I am a bit too old to pick up those "new fangled" ideas --- my Bar number is 27___)

As our conversations regarding e-filing unfold here on the list-serve, it is very apparent that some sort of participation by practitioners would have been useful, from our perspective, in the planning and design stages of this project.  On the other hand, I don't think it was the court's hubris that determined they didn't need our input – I think it was probably knowing that taking into account our widely varying opinions, needs and ideas would have slowed the process waaaaaaaaaay down, sort of like the way it sometimes makes sense to take action and ask for forgiveness later, rather than ask for permission first.  And in the end, they wouldn't have been able to make everyone happy anyway.
 Regarding my comment on faxing, I was referring to my older clients being the only ones who ever ask if they can fax me things anymore.  Everyone else just emails things.  I assume every attorney still maintains fax capability but I'll bet a lot of you are like us; we don't have a fax "machine" anymore, we get our faxes through a service that emails them to us as attached PDFs.  The same service that emails our voice messages to us as attached .wav files.  (As an aside, how many of you have asked a client who has a scanner at home, to scan and email you a document, only to receive 20 separate .jpg pages, each with a postage stamp sized image of the page, that can't be read when blown up to full size because the resolution is so low?)

 By the way, I didn't know you were an octogenarian!  Congratulations!  That's impressive!  What the heck are you doing here?  Why aren't you out doing something fun and frivolous?  :-)

 I totally agree that the ability to manipulate digital images is greater today than ever before and that original documents are better for analysis.  That said, I don't think e-filing adds to the burden of maintaining original documentary evidence for later analysis or production at trial.  We needed to do that anyway.  Nothing has changed in that regard.  If attorneys are claiming that they've "lost" or "accidentally shredded" documentary evidence, that's an issue for the court to weigh.  Judges and juries are well aware of the potential for document manipulation as well as the fact that there are some shady attorneys who might "lose" a document rather than produce it.  Like gauging a witness' veracity during examination, they get to decide how to treat that information.

 You make a good point about the burden of storing original filings shifting from the court to us.  Storage space IS an issue for small firms and we do try to be as paperless as possible because real estate is expensive.  We practitioners will have to develop more efficient systems for determining what truly needs to be kept in paper form.  For example, if we are now responsible for keeping the wet signatures of the documents we file, but everyone from the court, to our ESFPs, to us will have full electronic copies that could be printed on demand, then maybe we don't need to keep all 20 pages of a pleading in the file, but rather, just the first page and the wet signature page of each filed document.

 As I asked before, when it comes to ordinary filings – petitions and objections, declarations and reports, etc. – how often are their signatures challenged?  When was the last time you had to request an original wet signature pleading from the court file in order to have the signature analyzed?  I don't think this is going to be a big issue unless we believe that attorneys are now going to exploit the e-filing system by filing unsigned things they otherwise wouldn't have filed.
Do we really think that's going to happen?  There are a lot of pain-in-the-butt problems brought on by e-filing but I'm not sure this is one of them.  But maybe I'm being na├»ve...

If there is a question about whether a pleading or declaration was in fact signed by the party or witness under penalty of perjury, I would hope that the failure to produce a signed document upon demand would be given the evidentiary weight it should be entitled to... i.e. very little.  Maybe even a shifting of the burden of proof where appropriate...?
My assistant and I were just discussing how often this might become an issue, where a party actually demands the production of an original pleading as proof of its existence.  What does everyone think?  Are we attorneys trustworthy?  LOL!  IMHO, if your client emails (or faxes, if they're old!) back their signature to you and claims they put the original in the mail to you, and you go ahead and file based on that, the risk is on you.  Only you can make that judgment call.  I'm not saying I've never done that...
 Filing a document for which you can't actually produce the party's signature would seem to be a sanctionable offense under 2.257(a)(2), wouldn't you think?

The rule is interesting but as it relates to signatures appears to conflict with the statutes - and, conflicts with reality. 
Certainly the rule "deems" items filed, but there is the reality of production.  As my office primarily handles litigation, often relating to documents, including wills and trusts, I have run into numerous instances where parties, attorneys and others have a duty and are even ordered to produce documents - and the excuses are numerous (just take notary records, which seem to evaporate and disappear with alarming regularity - I have had three cases where just one excuse "my briefcase was stolen from my car," was used, and others include plumbing leaks and overflows, an office fire - everything but "my dog ate the records").  With most offices going "paperless," when a document is potentially damaging, I would bet that the new most popular excuse will become "it was accidentally shredded."  For use as "evidence," the statutes still seem to require something more than an "/s/."

It certainly pays to check the E-Filing FAQ frequently. I have seen at least three versions of it. In addition to the listing of when new petitions will be set pointed out by Maria, the current version of the FAQ has much new information on the filing process. For instance, FAQ 32 says that if you have another petition on calendar and you want to avoid a conflict then you should put a note to that effect in the comment section of your submission. Unclear if that will really do you any good, or if you can use that method to avoid other conflicts, such as vacations, meetings, etc.

The court’s probate e-filing web page (http://www.lacourt.org/division/efiling/efiling2.aspx#probate) now also has a downloadable list of all the document types you can choose when e-filing. The list is accessed by clicking a link on that page that is rather misleadingly labeled “View Document Options.” This list gives you a chance to figure out which document description to select before you start the e-filing process, and it also shows the corresponding filing fee. Scanning the seemingly endless dropdown menu of document choices (there must be about 250) online during the e-filing process is a real chore. Using this list you can figure out the correct document type ahead of time and go directly to it in the dropdown. It also makes it easier to make a list of frequently-used document types.

 There is a schedule on the Los Angeles Superior Court website under Probate/E-filing, that has a schedule listing when new petitions will be set.  I found it at the end of E-Filing FAQ.  Petitions for Letters of Administration and  Petitions for Confirmation of Sale of Real Property reflect the hearing will be set 30 days out, not 10 weeks (70 days). 

Well that, at least, is helpful, but there's still a related problem – sometimes there's a need for the hearing on a petition for probate to be set up to 45 days out instead of 30, and under 8003(a) if the petitioner asks for it to be set up to 45 days out the court "shall" set the hearing at more than 30 days out.
 
We filed a 2nd and Final Account of Conservator (and a PRO-003 – I guess they don’t have to be YELLOW anymore!) and a new fee came up in addition to the $465 and the usual eFiling fee.  This time there was something called a “Court Convenience Fee” and it was $16.45.

Again, please note that these are not my comments, but comments I have complied from others regarding efiling in Los Angeles Probate Courts. 

Monday, June 5, 2017

LAW OFFICE OF JOHN T. ANDERSON NAMED A 2017 PRESS TELEGRAM READERS' CHOICE FAVORITE ATTORNEY

THANK YOU LONG BEACH


We are honored and humbled to be named a 2017 Press Telegram Readers' Choice Favorite Attorney. 


It has been a pleasure for the Law Office of John T. Anderson to serve the residents of Long Beach, and surrounding areas, since 1975. 



Congratulations to Criminal Law Attorney Richard Poland for being named the Readers' Choice "BEST ATTORNEY."

AND 

Congratulations to the other 2017 Press Telegram Readers' Choice Favorite Attorneys:

The Datta Law Group (Multiple Practice Areas)
Keesal Young and Logan (Multiple Practice Areas)
Attorney James E. Swick