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M.S. Domingo Law Spring 2018 Newsletter

M.S. Domingo Law Spring 2018 Newsletter

March 21, 2018

Table of Contents:
Firm News
Jessica Melton
10 Tips to Taking or Defending a Successful Deposition
Julio Mateo, Esq. Bio
New Changes in the California Probate Code

Hello friends! Did you know that at M.S. Domingo Law we not only handle your unique estate planning needs, trust and probate matters, and business law formation, dissolution and development, we also represent clients in estate and probate litigation? With that in mind, 2018 is already proving to be a busy year for us. With only a couple of months into the first quarter of the new year, our associate attorney, Julio Mateo, and I have successfully participated in, and completed fifteen depositions. We have also been hard at work propounding and responding to discovery requests for our many litigation matters.

Luckily for us, Julio has devoted his days to working tirelessly so we can assure that each and every client receives the top notch representation, along with the care and compassion they deserve. Look for Julio’s biography here.

Also, look for our "10 Tips to Taking or Defending a Successful Deposition" in this issue.

In this newsletter, you’ll also read about recent changes in the California Probate Code.

We are pleased to announce that our practice is expanding! In January, we hired Jessica Melton, our newest paralegal and graduate of John F. Kennedy University. To find out more about Jessica, click here.


Firm News

M.S. Domingo Law received the Diversity Award, Gold Level from the Contra Costa County Bar Association for the firm’s commitment to diversity and inclusion in the legal profession. In addition, Mika Domingo is honored to serve as Chair of the Diversity Committee for CCCBA. Click or tap here for more information on CCCBA’s Diversity Committee.

On top of all the other pieces of good news so far this year, Mika Domingo received special recognition from SuperLawyers.com, earning her the prestigious award of Rising Stars! We at M.S. Domingo Law are so incredibly proud of her. Her commitment and enthusiasm for her clients is second to none, and her passion for women’s rights in the workplace, as well as creating a diverse culture within the field of law, and her practice, is being undoubtedly, and unequivocally, celebrated.

Finally, it’s not all work and no play for us. We have been happily hosting and co-hosting several events through the Contra Costa Bar Association, the California Women Lawyers and the CCCBA Women’s Section. These events include:

  • On February 22, 2018, M.S. Domingo Law co-sponsored the inaugural annual Lunar New Year and D.I.N.E. (Diversity in the New Era) at Uncle Yu’s in Lafayette. The Honorable Benjamin Reyes II, along with the Honorable Joni T. Hiramoto, CCCBA Executive Directive Theresa Hurley, CCCBA President James Wu, and Diversity Chair Mika Domingo helped make this event a huge success. It was a great turn out and we enjoyed connecting with our CCCBA friends over a multi-course dinner.
  • On March 9, 2018, Mika Domingo assisted with the California Women Lawyers and the Litigation Section of the California Lawyers Association’s “So You Want to Be a Judge? Part 2: Pathways to the Bench” at the State Capitol in Sacramento, a program designed to offer insight and advice about the judicial process in California. This innovative program received the Outstanding Member Program from the National Conference of Women’s Bar association.  M.S. Domingo Law was honored to sponsor this event.  Mika Domingo also serves as Co-chair of the Judicial Nominations Committee for the California Women Lawyers and conducts judicial evaluations with Co-chairs Naomi Dewey and Demetria Graves on behalf of California Women Lawyers.
  • On April 19, 2018, M.S. Domingo Law provides several auction items in support of CCCBA Women Section’s Annual Wine Tasting and Fundraiser to raise funds for the Honorable Patricia Herron and the Honorable Ellen James Scholarship. This scholarship is awarded to law students who have demonstrated excellence in academics, commitment to women’s issues and the legal community. Having been a recipient of this award during law school, Mika Domingo continues to serve on the Women’s Section Board for the sixth year and support its efforts in furthering the advancement of women in the legal profession and judiciary.

Jessica Melton, ParalegalHi! I’m Jessica Melton and I’m proud to be a member of the M.S. Domingo Law team! I obtained my Associates degree in Special Education from Diablo Valley College in 2015. In 2017, I graduated Magna Cum Laude from John F. Kennedy University’s Paralegal Certificate program. Additionally, I was inducted into Lambda Epsilon Chi – the paralegal honor society. My background is in disability law, where I earned the prestigious “Youth in Action” award for my work as a disability advocate. I also have experience handling complex litigation cases. Among other things for those cases, I propounded and responded to numerous types of discovery from the opposing party, drafted judicial council forms, and organized and assembled evidence binders for trial preparation.

I am a Notary Public and a member of the CCCBA. I look forward to be personally working with our clients and meeting all of you at CCCBA mixers and events!

10 Tips to Taking or Defending a Successful Deposition:

  1. Explain The Process to Your Client: When defending a deposition, your client is most likely going to be very nervous. Make sure your client is aware of the protocol. Explaining the process to them will put both of you at ease.
  2. Do A Dry Run: Helping your client anticipate what will happen and when it will happen will produce better and more on-point answers. Remind your client that he or she is going to be under oath and that it is important to tell the truth and stay consistent with the answers.
  3. Make Small Talk Beforehand: Asking your client how he or she is doing, or commenting about their favorite team or some news event, will not only strengthen your rapport with your client, it will calm them down.
  4. Identify What You Want to Accomplish: If you’re taking a deposition, it’s good to make a list of the five most important things you need to get the witness to admit or concede during the deposition. If you’re defending, keep five of the most important things you need to emphasize for the record as support for your position.
  5. Ask Pointed Questions: When taking a deposition, be strategic with your questions. If you want to know what the policies are, then ask a simple, direct question like, “What are the policies?” On the other hand, if you really want to know whether the witness knows what the policies are, then ask, “Do you know what the policies are?”
  6. Avoid “Do You Know” Questions: Asking questions like, “So you don’t have any information regarding the negotiation of the agreement, correct?” can put you in the position of an easy “no” answer. Rephrase your question instead to say, "What information do you have regarding the negotiation of the agreement?"
  7. Be Professional: Be respectful of opposing counsel and witnesses by staying on course with the deposition. Avoid taking things personally. Be pleasant but firm. Know your evidentiary rules and respond accordingly.
  8. Avoid Persistent “Legalese”: “Legalese” is another language of which the non-legal professionals are not familiar with. When taking a deposition, your job is to gain information, not outwit the opposition.
  9. Use a Checklist: Having all of the points that you want to make and all the key information that you want to gather written down will help keep you on track, especially as your allotted time comes to a close.
  10. Finally, when Defending a deposition, remind your client to follow These 4 Simple Rules:
    • Rule 1: Listen to the question;
    • Rule 2: Be sure you understand the question;
    • Rule 3: Think about the answer;
    • Rule 4: Express the answer in the shortest and clearest manner possible.

Before the deposition, know your case, the law, prepare your witness, and define your goal.  At the deposition, listen, be smart, flexible, civil, but firm - protect your client.” ~ Julio Mateo, Associate Attorney

Biography of Julio Mateo, Esq.

Julio Mateo has over three decades of solid and litigation experience, having served as a Trial Deputy for San Mateo County’s District Attorney’s office, trying forty-five jury trials to verdict with a conviction rate of 86% in a six-year time frame.  He was also a Litigation Associate for Baker & McKenzie, LLP and served as Senior Counsel for the State of California’s Department of Health Care Services.  He received his B.A. in History from the University of Chicago and J.D. from the University of Minnesota Law School.  Julio has served on many leadership roles including as a member of the State of California's Committee of Bar Examiners.


New Changes in the California Probate Code

California has made some changes to the Probate Code. Here are a few of the recent code changes1:

  • Probate Code § 850: This supplemental notice provision dovetails nicely with the second clarification regarding commencement of discovery and the lack of summonses in most trust and estate litigation proceedings. Civil summonses not only provide recipients with adequate notice of the gravity of the proceedings, they also trigger the commencement of discovery under the Code of Civil Procedure.

    Why is this amendment important?

    These new clarifications are especially relevant for those who regularly commence litigation in Department 14 of the Contra Costa County Superior Court, where current practice dictates that a civil summons be issued and served in those matters brought under Probate Code § 850 containing civil causes of action such as conversion or elder abuse.

  • Code Civ. Proc. § 851(c) which requires that a notice of hearing contain the following information:
    1. A description of the subject property sufficient to provide adequate notice to any party who may have an interest in the property. For real property, the notice shall state the street address or, if none, a description of the property’s location and assessor’s parcel number.
    2. If the petition seeks relief pursuant to § 859, a description of the relief sought sufficient to provide adequate notice to the party against whom that relief is requested.
    3. A statement advising any person interested in the property that he or she may file a response to the petition.

    Why is this amendment important?

    Nothing in these new divisions shall either alter when a respondent in such a proceeding may commence discovery or increase the extent to which nonparties may be subject to discovery.

  • Probate Code § 1000: Except to the extent that this code provides applicable rules, the rules of practice applicable to civil actions, including discovery proceedings and proceedings under Title 3a (commencing with Section 391) of Part 2 of the Code of Civil Procedure, apply to, and constitute the rules of practice in, proceedings under this code. All issues of fact joined in probate proceedings shall be tried in conformity with the rules of practice in civil actions.

    Why is this amendment important?

    For purposes of determining when a petitioner in a proceeding under this code may commence discovery as to nonparties, the time periods set forth in the Civil Discovery Act (Title 4 (commencing with Section 2016.010) of Part 4 of the Code of Civil Procedure) shall apply, except that the time periods shall commence to run upon service of the petition and notice of hearing upon all parties entitled to notice. Nothing in this subdivision shall either alter when a respondent in such a proceeding may commence discovery or increase the extent to which nonparties may be subject to discovery.

  • Probate Code § 15403, 15404 makes it easier to modify or terminate a trust.

    Why is this amendment important?

    Revised § 15403 creates a modest expansion in the ability of consenting beneficiaries to modify or terminate an irrevocable trust with court approval. Under the prior rule, even if all beneficiaries consented, the court was precluded from terminating a trust if the trust was subject to a valid spendthrift provision limiting what a beneficiary could receive and when.

    The section also adds subsection (c), which authorizes the court to limit the class of beneficiaries whose consent is necessary under the rule, thereby harmonizing the section with mirrored language in § 15404.

  • Probate Code § 6300: [w]hich authorizes pour-over wills, previously required that the written trust instrument be executed concurrently with or before the pour-over will. The amendments to § 6300 now allow the decedent’s pour-over will to reference terms in a written trust instrument that is executed within 60 days after the will’s execution.

    Why is this amendment important?

    This amendment may not change the practice of executing a whole estate plan, but it does provide wiggle room in case a notary is not around the day the will is witnessed and executed. Prior to the change, technical difficulties in arranging for a notary would result in defeating testamentary intent. Now that is not the case. Moreover, the amendments bring California law in line with other states.

  • Uniform Principal and Income Act (“UPAIA”) has been amended to give trustees more discretion in how they characterize certain receipts from entities held in trust. (Prob. Code, § 16329 et seq.)

    Why is this amendment important?

    This change is believed to better effectuate settlor intent while also holding the trustee accountable for the decision.

1 (2018) California Legislative Information, Probate Codes.  Retrieved from https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=2.&title=&part=19.&chapter=&article=

Thank you to all our clients, colleagues and friends who have worked with us and supported our business!

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