[00:00:01] Speaker 03:
Good morning.

[00:00:03] Speaker 03:
It's a pleasure and a privilege to appear before your honor.

[00:00:08] Speaker 03:
Probably the last time I was before a panel was about 30 years ago.

[00:00:17] Speaker 03:
There were a few issues that I noted in the opening brief, which I didn't address adequately in responding brief.

[00:00:30] Speaker 03:
Not to make excuses, but I was gravely ill in November and December, and I have recovered.

[00:00:38] Speaker 02:
Mr. George Deutsch, do you want to reserve some time for rebuttal?

[00:00:45] Speaker 02:
Sure.

[00:00:47] Speaker 02:
Do you want to reserve two minutes?

[00:00:49] Speaker 02:
Five minutes.

[00:00:49] Speaker 02:
Five minutes?

[00:00:50] Speaker 02:
Okay.

[00:00:51] Speaker 02:
We'll reserve five.

[00:00:52] Speaker 02:
Go ahead.

[00:00:53] Speaker 02:
All right.

[00:00:56] Speaker 03:
The issue upon which the dismissal turned per Judge Anderson was

[00:01:06] Speaker 03:
that trusts are will substitutes, which is language we see in some of the unpublished cases that were cited, both by the court and in the answering brief.

[00:01:25] Speaker 00:
Well, Marshall versus Marshall involved a trust, right?

[00:01:28] Speaker 00:
I didn't hear you, Your Honor.

[00:01:28] Speaker 00:
Marshall versus Marshall involved a trust.

[00:01:31] Speaker 00:
That wasn't the reason they said it wasn't covered, right?

[00:01:34] Speaker 00:
Right.

[00:01:35] Speaker 00:
gun calls I think involved a trust.

[00:01:37] Speaker 00:
Most of the modern cases involve trust, do they not?

[00:01:41] Speaker 03:
I have trouble hearing you, I'm sorry.

[00:01:42] Speaker 00:
I'm sorry, don't most of the modern cases involve trusts?

[00:01:46] Speaker 03:
I have to ask someone else what the judge said.

[00:01:52] Speaker 03:
I have trouble hearing certain things.

[00:01:53] Speaker 00:
Don't most of the modern cases involve trusts?

[00:01:59] Speaker 00:
All right.

[00:02:02] Speaker 03:
Yes, what I was trying to say is

[00:02:05] Speaker 03:
In Kibbe cited by the appellee, or rather in Wyskowski, part of the reason why they said that it was a will substitute was based on Oregon law.

[00:02:25] Speaker 03:
The reason that I don't think that trusts are will substitutes, for one thing, I never heard of an intervivo's will.

[00:02:35] Speaker 03:
Trusts can be made irrevocable.

[00:02:38] Speaker 03:
And in fact, at the time that the complaint and the First Amendment complaint were filed, we were not aware that one of the trust amendments, we only had the last of the amendments.

[00:02:49] Speaker 03:
And the 2013 amendment was made irrevocable by its terms.

[00:02:53] Speaker 01:
Mr. Deutsch, let me ask you a question.

[00:02:56] Speaker 03:
Yes.

[00:02:58] Speaker 01:
There's a case now proceeding in state court, the probate court.

[00:03:03] Speaker 03:
Yes.

[00:03:05] Speaker 01:
Is that the same case that you wish to prosecute here?

[00:03:09] Speaker 03:
I say it is.

[00:03:11] Speaker 03:
The answering brief said there are differences, but yes.

[00:03:15] Speaker 03:
I drafted the complaint and the First Amendment complaint, and I saw that

[00:03:21] Speaker 03:
My able counsel, Vikram Brar, virtually copied the allegations.

[00:03:31] Speaker 03:
Maybe some of the prayers were different, but it was the same claim.

[00:03:39] Speaker 01:
So do you wish to pursue this case here?

[00:03:44] Speaker 03:
No.

[00:03:45] Speaker 03:
But I asked counsel to agree to dismiss.

[00:03:50] Speaker 03:
And the rules say that it can be done by agreement or by the court.

[00:03:55] Speaker 03:
And we didn't reach agreement.

[00:03:57] Speaker 03:
One of the reasons was he cited that he could still bring a writ from the judge's overruling of the demur.

[00:04:06] Speaker 03:
And I was going to suggest to the court, we have a case of mootness or potential mootness.

[00:04:13] Speaker 03:
Once the time expires to file the writ, which is 60 days, although I don't know that that's from the order, from the minute order because the order hasn't been filed.

[00:04:23] Speaker 03:
It's supposed to be drafted by Mr. Zhao.

[00:04:26] Speaker 03:
And then the court could wait until then and find mootness.

[00:04:30] Speaker 00:
I don't understand why it would be moot.

[00:04:32] Speaker 00:
You can withdraw this case, obviously.

[00:04:35] Speaker 00:
But I don't know why the case that exists now is moot, as long as the state law case remains unresolved.

[00:04:44] Speaker 00:
I mean, all that's happened is that the demur has been overruled, so it's going forward.

[00:04:49] Speaker 00:
But the fact that there are parallel cases doesn't make this one moot.

[00:04:54] Speaker 03:
Well, I agree with the underlying rule that if the state court has jurisdiction over the race,

[00:05:02] Speaker 03:
then the probate exception applies.

[00:05:04] Speaker 03:
That's one of the three bases in martial law.

[00:05:06] Speaker 00:
But is that what was decided or what was decided was simply that it was a limitations period problem or something, wasn't it?

[00:05:16] Speaker 03:
I'm sorry.

[00:05:17] Speaker 00:
Was it a limitations problem?

[00:05:20] Speaker 00:
What was the problem?

[00:05:21] Speaker 00:
Yes.

[00:05:22] Speaker 03:
The demur was based on the 122.

[00:05:23] Speaker 00:
Right.

[00:05:24] Speaker 00:
So all the district court decided is that you weren't out of time.

[00:05:27] Speaker 03:
The court decided that we were entitled to toll the statutes.

[00:05:35] Speaker 00:
Right.

[00:05:35] Speaker 00:
So the case is going forward.

[00:05:37] Speaker 00:
He didn't even say that he's going to adjudicate your issue or that you're not going to be dismissed on the merits or anything.

[00:05:46] Speaker 02:
It hold on mr. Mr. Deutsch.

[00:05:48] Speaker 03:
Why don't we help you out with I believe there's a no, it's not in certain frequencies It's not I hear you perfectly clearly.

[00:05:54] Speaker 02:
It's just You don't want to try it out or you know if it helps no, I do here.

[00:06:00] Speaker 00:
Okay, go ahead Well, I would like you to try it out because I'm very frustrated by it.

[00:06:05] Speaker 00:
So please try it out.

[00:06:06] Speaker 03:
Okay, I think that I've never worn one before

[00:06:16] Speaker 02:
And hopefully it'll help.

[00:06:18] Speaker 03:
Never know.

[00:06:23] Speaker 00:
I've been sitting here for 24 years and no one has ever had this problem before.

[00:06:28] Speaker 03:
Sometimes I don't speak up, but I am speaking up.

[00:06:37] Speaker 03:
Thank you.

[00:06:38] Speaker 03:
All right, let's see what happens.

[00:06:40] Speaker 02:
Well, let us know if that helps a little bit more.

[00:06:43] Speaker 03:
It does help a little bit.

[00:06:44] Speaker 03:
OK, very well.

[00:06:46] Speaker 03:
All right.

[00:06:51] Speaker 03:
It's not moot in the sense that the court, well, it is moot in my opinion.

[00:06:57] Speaker 00:
So you are essentially telling us that in your view, we do not now have jurisdiction.

[00:07:03] Speaker 03:
No.

[00:07:03] Speaker 03:
Because I think that despite the mootness, the court has the power to resolve the case.

[00:07:11] Speaker 00:
Well, we don't have the power to resolve a moot case.

[00:07:14] Speaker 00:
And we also don't have it.

[00:07:15] Speaker 00:
And if you're telling us that the third exception applies because the state, the race is now under the control of the district court, of the trial court, within the third category of gonkales, as I was saying.

[00:07:32] Speaker 00:
then we don't have jurisdiction.

[00:07:35] Speaker 03:
If that's how you see it that's fine but I thought there were exceptions.

[00:07:40] Speaker 00:
That's what you've told us.

[00:07:41] Speaker 03:
And I thought there were exceptions to mootness in cases where there's an important issue that's likely to recur and

[00:07:48] Speaker 03:
and the court needs to rule on it.

[00:07:52] Speaker 03:
Well, in that case, if the third prong of that case applies, then the case is moot, and I would urge you to dismiss, but opposing counsel says not until the time for writ passes, and I think

[00:08:11] Speaker 03:
That 60 days will either be May 12, or if it runs from the time of the order, then 60 days from the order.

[00:08:17] Speaker 00:
So, leaving aside what's happened later, your complaint specifically asks for, to invalidate the trust.

[00:08:30] Speaker 03:
No, only the last two amendments.

[00:08:32] Speaker 03:
Well, yes, the amendments to the trust.

[00:08:34] Speaker 00:
All right, so I know that the judges view this as probating or nulling a will.

[00:08:45] Speaker 00:
But if we don't say that, why isn't this at least the administration of an estate?

[00:08:52] Speaker 00:
Because you're asking us to determine the validity of the trust.

[00:08:58] Speaker 03:
No.

[00:08:58] Speaker 00:
As it now stands.

[00:08:59] Speaker 00:
Yes, you are.

[00:09:00] Speaker 00:
No.

[00:09:00] Speaker 03:
I'm not asking to determine the validity of trust.

[00:09:03] Speaker 00:
I'm asking... Well, the trust as it now exists, i.e.

[00:09:06] Speaker 00:
with the amendments.

[00:09:08] Speaker 03:
Right.

[00:09:08] Speaker 03:
I'm challenging the capacity of the trust or undue influence of fraud and so on.

[00:09:15] Speaker 02:
But if you invalidate the last version of it, aren't we administering the estate?

[00:09:25] Speaker 03:
Arguably, yes, but it's a trusted state.

[00:09:30] Speaker 03:
Yes, but if that's how you look at it, then the court could almost never take a case involving a trust.

[00:09:37] Speaker 00:
Well, no.

[00:09:38] Speaker 00:
I mean, Marshall versus Marshall is an example of how very narrow the probate exception is.

[00:09:45] Speaker 00:
But in that case, no one was asking for a direct order about the trust.

[00:09:53] Speaker 00:
They were asking for damage.

[00:09:55] Speaker 00:
As I understood it, it's very narrow.

[00:09:58] Speaker 00:
And they were asking for damages against the people who supposedly made the trust.

[00:10:07] Speaker 00:
adverse to the plaintiff for what they did, but they weren't asking directly to invalidate the trust.

[00:10:17] Speaker 03:
I see the distinction, but I thought I'm not a probate specialist, and you know, Mr. Janol is, and when he first brought up the issue that, as to which the probate exception did apply, we amended in order to remove that.

[00:10:34] Speaker 03:
He didn't move

[00:10:35] Speaker 03:
to dismiss on probate exception, but then he joined the court's OSC, which I call a sous-fonte motion.

[00:10:45] Speaker 02:
Counsel, you wanted to save your last five minutes?

[00:10:47] Speaker 02:
Thank you.

[00:10:48] Speaker 02:
All right.

[00:10:57] Speaker 04:
Good morning, your honor, as may please the court.

[00:10:58] Speaker 04:
Neil Janal appearing on behalf of Appellee's Robert Klein, trustee of the Anna Deutsch Trust, Alexander Leichter, Robert Leichter, and David Winkler.

[00:11:09] Speaker 04:
In this case, the court is asked to apply the probate exception.

[00:11:12] Speaker 04:
But as the panel has pointed out, the word probate exception is not the issue.

[00:11:18] Speaker 04:
It's really the concept.

[00:11:20] Speaker 04:
And the concept is that settlors or testators create estate plans.

[00:11:25] Speaker 04:
They may use a will.

[00:11:26] Speaker 04:
They may use an inter vivos trust.

[00:11:28] Speaker 04:
And in my view, they create a sort of box, which are the internal affairs of either a probate estate or a trust estate.

[00:11:37] Speaker 04:
And that relationship between the settlor, the beneficiary, and the trustees among each other is reserved for the state court under the probate exception because

[00:11:48] Speaker 04:
the court going into that area is administration of an estate.

[00:11:53] Speaker 02:
You're doing- Counsel, you want a district court, right?

[00:11:56] Speaker 02:
Right.

[00:11:57] Speaker 02:
Okay.

[00:11:58] Speaker 02:
They're essentially conceding.

[00:12:00] Speaker 02:
Why not agree to send this back?

[00:12:02] Speaker 04:
They, or Mr. Deutsch, filed a late petition that I still believe is late in Los Angeles Superior Court with different causes of action and different operative facts and different legal theories.

[00:12:17] Speaker 00:
If Your Honor's... That's not the question.

[00:12:18] Speaker 00:
The question is whether, as a result of what he did, and I don't know if this is true, but he's willing to concede it, the race, R-E-S, is now before

[00:12:29] Speaker 00:
the Superior Court, and he takes the view, I don't know if it's right or not, that that means that the probate exception applies now if it didn't earlier.

[00:12:44] Speaker 00:
And he's willing to dismiss the case on that basis, but you apparently are not willing to agree to that.

[00:12:51] Speaker 04:
action in state court is a different action.

[00:12:53] Speaker 04:
He's alleged that certain instruments are actually irrevocable and I still have remedies.

[00:13:00] Speaker 00:
But that's not the question, right?

[00:13:01] Speaker 00:
I mean, if the race is before, because this is the third category, right, which is a variety of primary exclusive jurisdiction as to

[00:13:13] Speaker 00:
whether there is in-rem jurisdiction now in the state court.

[00:13:16] Speaker 00:
I don't understand particularly why what's happened affects that, but he says it does and he's willing to dismiss this case on that basis because there is in-rem jurisdiction in the state court.

[00:13:28] Speaker 00:
I don't know

[00:13:29] Speaker 00:
whether that's a correct jurisdictional ruling and that one that we would adopt, but that's what his position is.

[00:13:37] Speaker 00:
And the fact that it's a different, that what he's asking for is different doesn't affect whether the REM, the race, is actually before the state court.

[00:13:48] Speaker 04:
I just think on a temporal basis, that exception is where the state court has come in first in time and taken control of the reaction.

[00:13:56] Speaker 00:
Well, actually, my understanding of the Marshall case is that they say it doesn't really matter what the state court's doing, because the state court doesn't govern federal jurisdiction.

[00:14:04] Speaker 00:
All that matters is whether the race is before the state court, not who's first and who's second.

[00:14:13] Speaker 04:
I just don't think that those, they're sort of a little bit antiquated concepts of jurisdiction over a race.

[00:14:20] Speaker 00:
Well, but that's what Marshall said.

[00:14:22] Speaker 00:
Marshall said that this is a variety of primary exclusive jurisdiction, which does depend on jurisdiction over the race.

[00:14:29] Speaker 04:
But I don't think, given that the Demer overruling is not yet final, I don't think that that determination has been made.

[00:14:36] Speaker 04:
We're not there yet where the judge has heard any real responsive fact-based pleadings from my side.

[00:14:43] Speaker 04:
and hasn't made any issues or findings a fact.

[00:14:45] Speaker 00:
But he's willing to withdraw this case.

[00:14:47] Speaker 00:
If he loses that case, that's his problem.

[00:14:50] Speaker 00:
But he's now willing to withdraw this case.

[00:14:53] Speaker 04:
And I've said nothing's to stop you from having dismissed the case, but I'm not agreeing to dismiss it.

[00:14:58] Speaker 04:
I have costs.

[00:15:00] Speaker 04:
Mr. Deutsch started this in federal court.

[00:15:02] Speaker 04:
I had to make a motion.

[00:15:03] Speaker 00:
Rather than two courts than one court because of the costs here, which are probably minimal.

[00:15:10] Speaker 00:
We're not talking about fees.

[00:15:11] Speaker 00:
We're talking about costs.

[00:15:12] Speaker 04:
Correct.

[00:15:12] Speaker 04:
But he started it here.

[00:15:13] Speaker 04:
I had to do an appeal.

[00:15:15] Speaker 04:
I had to pay for copies.

[00:15:15] Speaker 04:
If he wants to dismiss it, my client has rights to recover costs.

[00:15:19] Speaker 00:
So for, I don't know, $200, you're not willing to agree to this.

[00:15:23] Speaker 04:
And I don't think that, I don't want to mislead the panel or the court.

[00:15:27] Speaker 04:
He may, if he wants to, he may be risking his entire remedy.

[00:15:31] Speaker 00:
Why don't you, yes, he may be.

[00:15:33] Speaker 00:
That's correct.

[00:15:36] Speaker 04:
I don't want to, you know, I'm not his attorney on my side.

[00:15:39] Speaker 04:
I don't want to engage in some kind of jurisdictional game.

[00:15:42] Speaker 00:
All right.

[00:15:43] Speaker 00:
So why don't you talk about why isn't this, as Judge Mendoza suggested, whether it is probating or unknowing a will, at least the administration of an estate?

[00:15:59] Speaker 04:
I think it is administration of an estate, Your Honor.

[00:16:02] Speaker 04:
Again, there's a lot of Law Review articles that view this as a labyrinthine exception.

[00:16:07] Speaker 04:
I think the concept is, again, there are certain core competencies of the state court, and that is dealing with the relationships of the settlor, the beneficiaries, and the trustees.

[00:16:19] Speaker 04:
An outside party wants to sue a trustee.

[00:16:22] Speaker 04:
Of course, the federal court has jurisdiction.

[00:16:25] Speaker 04:
everybody subject to federal court jurisdiction if the trustee makes a contract and breaches that contract.

[00:16:30] Speaker 04:
But vis-a-vis the relationship of the parties, a trustee, a beneficiary, and an heir who says I should get more from the trust or there was undue influence, now you are inside the administration of the state.

[00:16:45] Speaker 04:
And that is something that is within

[00:16:47] Speaker 04:
It's not just in the probate code.

[00:16:49] Speaker 04:
You know, Gonsalves made the point that just because these provisions are in a probate code, that doesn't mean the probate exception applies.

[00:16:56] Speaker 04:
These provisions are not only in the probate code, they are within the state law's core competency.

[00:17:03] Speaker 04:
And they've created the California courts and the California legislature detailed provisions in the probate code that says these are the standards for undue influence.

[00:17:13] Speaker 04:
These are the way that the cases and these are the key factors to consider within undue influence, within capacity.

[00:17:21] Speaker 01:
So is the only difference between your position and Mr. Deutsch's position, you believe the probate exception applies for one reason and he believes it applies now for another reason.

[00:17:38] Speaker 01:
Is that your only difference?

[00:17:39] Speaker 01:
I could apply for both reasons, but as a matter- So you want us to affirm the dismissal of this case for lack of jurisdiction, which will then allow you to file a bill of costs rather than agreeing to the dismissal.

[00:17:57] Speaker 04:
And if I'm successful in overturning the overrolling of demur, ends this matter once and for all.

[00:18:04] Speaker 01:
But that doesn't have anything to do with whether we have jurisdiction or not.

[00:18:07] Speaker 04:
I think it does.

[00:18:08] Speaker 04:
If Your Honor say you shouldn't have brought this case here, that affects Mr. Deutsch's decision to bring the case in federal court and allow his statute to lapse.

[00:18:17] Speaker 04:
The judge in the Los Angeles County Superior Court employed equitable tolling.

[00:18:21] Speaker 00:
Is your concern that if he voluntarily dismisses the case, now presumably without prejudice, he could then file another case in federal court?

[00:18:30] Speaker 04:
I would assume that he has to dismiss it with prejudice.

[00:18:33] Speaker 04:
If he dismisses it without prejudice, I assume he can come back.

[00:18:36] Speaker 00:
So I'm looking for a ruling from your honor saying this case— What would it be useful for us to have you guys talk to one of our mediators and see if we can just get from here to there, which is not very far, to get the case dismissed?

[00:18:50] Speaker 04:
They were very helpful in the past.

[00:18:52] Speaker 04:
So that offer is definitely taken and accepted.

[00:18:56] Speaker 00:
What exactly do you see is the difference between this case and Marshall versus Marshall?

[00:19:01] Speaker 04:
Well, again, Marshall versus Marshall was a person who essentially did not have standing.

[00:19:06] Speaker 04:
She wasn't an heir because she wasn't married.

[00:19:09] Speaker 04:
She wasn't a relative.

[00:19:11] Speaker 04:
She was this companion of the decedent, and she alleged that

[00:19:17] Speaker 04:
the children of the decedent interfered with her right to inherit.

[00:19:20] Speaker 04:
And that's a known tort in California, intentional interference with expected inheritance.

[00:19:25] Speaker 00:
But isn't that essentially what Mr. George is saying?

[00:19:29] Speaker 04:
Mr. Deutch is different.

[00:19:30] Speaker 04:
He is the son of the decedent.

[00:19:33] Speaker 04:
So California law accords him, he has remedies at probate.

[00:19:36] Speaker 04:
If he were to, as Judge Mendoza said, if he wins and invalidates the 2015 and 2014 amendment, he's in the 2013 version.

[00:19:47] Speaker 04:
So he has what they call a remedy of probate.

[00:19:49] Speaker 04:
He does not need the interference claim.

[00:19:51] Speaker 04:
All he needs to do is invalidate certain instruments and get back to what he states is the settlor's intent in 2013.

[00:19:58] Speaker 04:
and Nicole Smith was not, she was never provided for the reason she alleges she was not provided for is others interfered.

[00:20:05] Speaker 02:
But he does claim interference.

[00:20:09] Speaker 04:
In the state court action, that was actually affirmed

[00:20:14] Speaker 04:
on Demura that he does not have that intentional interference with expected inheritance claim because he has remedy at probate.

[00:20:20] Speaker 04:
That's a California court issue.

[00:20:23] Speaker 04:
You can't go both.

[00:20:24] Speaker 04:
If you have a document that you can get to at probate, you're not outside that sphere.

[00:20:30] Speaker 04:
You're within the settler beneficiary and perhaps upset air at what happened.

[00:20:36] Speaker 04:
And you need to go and invalidate documents.

[00:20:39] Speaker 04:
You cannot allege interference.

[00:20:41] Speaker 04:
If you're a friend or some kind of non-relative who has made a promise and others interfere, then you have that interference claim.

[00:20:50] Speaker 04:
That's why I think Marshall said, well, and Marshall was very careful and said, this is a tort action.

[00:20:55] Speaker 04:
This is not an administration of the state.

[00:20:57] Speaker 04:
This is a third party, essentially, saying, I was wronged.

[00:21:02] Speaker 04:
I suffered a tort, like an accident or an assault, and I want a remedy.

[00:21:08] Speaker 04:
And the federal court said, OK, in that case,

[00:21:10] Speaker 04:
You're entitled to it.

[00:21:11] Speaker 04:
But other than that, as Your Honor pointed out and as Wisnowski pointed out, we start with the fact that Marshall dealt with the trust, and the court did not say right off the bat, well, we have a trust here.

[00:21:22] Speaker 04:
So that's not the probate exception.

[00:21:24] Speaker 04:
You're dealing with an inter vivos trust.

[00:21:26] Speaker 04:
You're always going to have jurisdiction in the federal courts because we only apply it to the annulling of a will or the actual probate

[00:21:34] Speaker 04:
of an estate.

[00:21:35] Speaker 04:
It's a broader exception, although narrow, which says we're not going to get involved as a federal court in the administration of an estate, what the California law calls the internal affairs of a trust in probate code section 17200.

[00:21:48] Speaker 04:
That is, I believe and contend, outside the view of the probate court.

[00:21:56] Speaker 04:
of the federal court sitting in diversity jurisdiction.

[00:22:00] Speaker 04:
It can't go into and say, well, we want to reshuffle the benefits of this trust estate because of undue influence or lack of capacity.

[00:22:09] Speaker 04:
That is left to the state court, who's established a core competency in that area.

[00:22:17] Speaker 04:
And that's why the cases, I think the majority of them, although there's no binding authority, has said, listen, the trust is just a will substitute.

[00:22:24] Speaker 00:
Is there any case that says otherwise?

[00:22:27] Speaker 04:
I believe in other circuits.

[00:22:28] Speaker 00:
Yes.

[00:22:29] Speaker 04:
There has been an issue that trusts, they say, because the analysis, by creating a trust somehow, the settler has removed the property.

[00:22:37] Speaker 00:
And do you think that there are circuit-level cases saying that?

[00:22:42] Speaker 04:
I believe so, yes.

[00:22:43] Speaker 04:
Really?

[00:22:44] Speaker 04:
I think in the third and seventh that said that analysis

[00:22:50] Speaker 04:
When in one case it involved a gift inter vivos and so they said well Therefore the settler has removed the property from any possible jurisdiction of the state court Where we're welcome to come back in and then another case said well inter vivos trusts said and there is district court authority that says inter vivos trusts are different blue that's an accurate settler sit down and

[00:23:14] Speaker 04:
And they plan their estates and they create this set of relationships.

[00:23:18] Speaker 04:
And state courts have become completely expert in that level of analysis in determining those rights and remedies.

[00:23:28] Speaker 00:
And the federal court... And there's also a will, right?

[00:23:30] Speaker 00:
A spillover will?

[00:23:31] Speaker 04:
Correct, Your Honor.

[00:23:33] Speaker 04:
Yes.

[00:23:34] Speaker 04:
But that's really, you know, reading the will is kind of not the story.

[00:23:38] Speaker 00:
But the will says everything else to the trust.

[00:23:39] Speaker 00:
Correct.

[00:23:40] Speaker 04:
So everything, the administration of the estate, that's the trust instrument.

[00:23:43] Speaker 04:
That's the instrument that has to be voided and validated, called into question.

[00:23:47] Speaker 04:
The will often never sees the light of day because it's not disposing of any assets.

[00:23:52] Speaker 04:
People use the trust to avoid probate because of the costs and the fees and the delay.

[00:24:03] Speaker 04:
I would go back to the sort of more modern authority that trusts our estates essentially.

[00:24:12] Speaker 04:
It's the way modern people plan their estates and the probate exception says to the courts

[00:24:17] Speaker 04:
you're not to administer estates, broadly defined to include what settlers create to leave their assets among the beneficiaries.

[00:24:25] Speaker 00:
The appropriate exception is in great disrepute altogether, as Marshall demonstrates.

[00:24:31] Speaker 00:
So to the degree reaching trusts is an extension, maybe we shouldn't do it.

[00:24:38] Speaker 00:
I mean, there's apparently not terribly

[00:24:44] Speaker 04:
I just think then you're creating a distinction without a real substantive difference.

[00:24:47] Speaker 00:
Well, I agree with that.

[00:24:48] Speaker 00:
I mean, from what I know about estate planning.

[00:24:52] Speaker 00:
But this is all extremely technical stuff.

[00:24:55] Speaker 04:
And I joked with colleagues, if that's the case, we're going to have to advise people who create trusts, hey, we may be in federal court.

[00:25:02] Speaker 04:
Because if you do a regular probate with letters of testamentary in an inventory and all those

[00:25:07] Speaker 04:
accoutrements, then you can't, don't have to worry about it.

[00:25:10] Speaker 04:
You won't end up in federal court in Arizona or whatever.

[00:25:13] Speaker 04:
But if you do a living trust, which 90% of people in California go to attorneys and do, then you're open to the jurisdiction of the federal court.

[00:25:22] Speaker 04:
And that doesn't seem to make a substantive sense.

[00:25:25] Speaker 04:
It's just a technical difference that's based in sort of the lack of modernity and bringing precedent forward to meet what the practical way of operation is.

[00:25:39] Speaker 02:
Anything else, Hansel?

[00:25:40] Speaker 04:
No, thank you very much, Your Honors.

[00:25:41] Speaker 02:
Thank you.

[00:25:41] Speaker 02:
Thank you.

[00:25:50] Speaker 03:
It seems that wills are actually trust substitutes if 90% of the people favor trust.

[00:26:07] Speaker 03:
Yes, the intentional interference cause of action.

[00:26:11] Speaker 03:
The probate court has jurisdiction over the matter and can handle it.

[00:26:19] Speaker 03:
Therefore, the intentional interference cause of action.

[00:26:21] Speaker 02:
Can I ask you a question?

[00:26:22] Speaker 02:
Yes.

[00:26:23] Speaker 02:
And the question was one that was asked to your friend on the other side, which was, do you think this case would benefit from mediation?

[00:26:32] Speaker 02:
Oh, by all means.

[00:26:33] Speaker 02:
OK.

[00:26:33] Speaker 02:
You would not be opposed to that.

[00:26:35] Speaker 03:
Oh, of course not.

[00:26:35] Speaker 03:
And one thing I was unclear on, you know, I asked, you know, how much do you want?

[00:26:41] Speaker 03:
And, you know, he said, I'm entitled to my costs.

[00:26:43] Speaker 03:
I wasn't clear whether the costs included fees or not.

[00:26:46] Speaker 03:
My attorney said, no, it's just costs, but I'm still not sure.

[00:26:50] Speaker 03:
You know, it's just costs.

[00:26:51] Speaker 03:
And if it's just costs, then I don't know what we're arguing about, really.

[00:27:02] Speaker 02:
You know I think it's funny you said that word because I have here I don't know why we are here.

[00:27:08] Speaker 02:
I don't know what we're arguing about.

[00:27:11] Speaker 03:
Right well as I said Mr. Jannell is quite capable of he was quite capable of raising the probate exception initially and instead he chose to

[00:27:27] Speaker 03:
move for change of venue, maybe he wanted the clock to keep running.

[00:27:30] Speaker 03:
He thought that would cause the 120-day rule to be more convincing.

[00:27:36] Speaker 03:
But here we are.

[00:27:38] Speaker 03:
We're happy to be before our Judge Juarez and

[00:27:46] Speaker 03:
I think you mean Mendoza, or who?

[00:27:48] Speaker 03:
Oh, Judge Juarez at the state court.

[00:27:50] Speaker 03:
No, Judge Juarez, Los Angeles.

[00:27:51] Speaker 03:
Yes.

[00:27:51] Speaker 03:
And if you ruled in our favor, we would still dismiss, because we'd rather be in front of Judge Juarez than Judge Anderson.

[00:27:59] Speaker 03:
Oh, I see.

[00:28:00] Speaker 03:
At this stage.

[00:28:01] Speaker 03:
The main reason for filing in federal court, not only I lived in Arizona, is one of the parties is my cousin,

[00:28:11] Speaker 03:
she's an attorney of long standing, happens to be a judge pro tem who knows all the judges in superior court, and I thought that would work against me.

[00:28:18] Speaker 03:
And so I thought I was entitled to file under diversity.

[00:28:23] Speaker 03:
I didn't hear about the probate exception until after we filed the initial complaint.

[00:28:26] Speaker 03:
I didn't hear anything about the whole case, about it applying to the whole case.

[00:28:32] Speaker 03:
And then I felt that the dismissal was wrong for a number of reasons, which

[00:28:38] Speaker 03:
We really didn't get to, but I don't think we need to.

[00:28:41] Speaker 02:
All right.

[00:28:41] Speaker 02:
Anything else?

[00:28:42] Speaker 02:
No, Your Honor.

[00:28:43] Speaker 02:
All right.

[00:28:43] Speaker 02:
Any other questions?

[00:28:44] Speaker 01:
No.

[00:28:44] Speaker 01:
Thank you.

[00:28:45] Speaker 02:
All right.

[00:28:45] Speaker 02:
Thank you.

[00:28:46] Speaker 02:
All right.

[00:28:46] Speaker 02:
Thank you, Your Honor.

[00:28:47] Speaker 02:
And again, this matter will, a matter of Deutsch versus Deutsch Trust, will be submitted.

[00:28:56] Speaker 02:
Thank you for your arguments today.

[00:28:59] Speaker 02:
And I think we will stand and recess.

[00:29:20] Speaker 00:
This court for this session stands adjourned.