Slack v. Marx CA4/3

Filed 12/7/21 Slack v. Marx CA4/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

ELIZABETH ANNE SLACK, as Executor, etc. G059600 Plaintiff and Appellant, (Super. Ct. No. 30-2018-01007078) v. OPINION PAUL MARX et al.,

Defendants and Respondents.

Appeal from judgment of the Superior Court of Orange County, Richard Y. Lee, Judge. Affirmed. Makarem & Associates, Ronald W. Makarem and Jared V. Walder for Plaintiff and Appellant. Kaufman Dolowich & Voluck, Andrew J. Waxler and Courtney E. Curtis- Ives for Defendants and Respondents.

Plaintiff Elizabeth Anne Slack, as Executor of the Estate of Charles B. Slack, appeals from summary judgment entered against her based on the statute of limitations in a legal malpractice action against the former lawyers of her late husband Charles Slack. Plaintiff alleges defendants improperly drafted an amended and restated trust, depriving Charles of the ability to use certain property for his own benefit against his wishes. Plaintiff contends the statute of limitations was tolled because Charles did not suffer actual injury from the alleged malpractice until after his death, and defendants willfully concealed an earlier version of the trust. However, Charles suffered actual injury at least upon the funding of certain irrevocable subtrusts with his separate property, more than four years before the filing of plaintiff’s lawsuit. We affirm. FACTUAL AND PROCEDURAL HISTORY 1 In 2003, Charles Slack and his then-wife Barbara retained Paul Marx of Rutan & Tucker to assist them with estate planning. The Slacks had a preexisting trust that had been prepared by another attorney in 1990 (the 1990 trust), but Marx prepared a new trust with a different structure (the new trust). Upon the death of one of the spouses, the 1990 trust called for the Slacks’ property to be split into a decedent’s trust, containing property of the deceased spouse (either the deceased spouse’s separate property or his or her share of the community property) having a value equal to the available estate tax exclusion, and a survivor’s trust, containing all the rest of the Slacks’ property. The new trust took a different approach. On the death of the first spouse, the new trust called for a split into three trusts: a bypass trust (identical to the decedent’s trust in the 1990 trust), a survivor’s trust, and a new marital deduction trust. Unlike the 1990 trust, the new survivor’s trust would only receive the surviving spouse’s separate property and his or her share of the community; the remainder of the decedent’s property would go into the marital deduction trust, which would be irrevocable and which was for 1 We use first names for certain people in this opinion to avoid confusion. No disrespect is intended.