Monthly Archives: February 2016

New Case – Double Damages Under Probate Code Section 859 Are Not Punitive – Why This Is Important

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A new California case has held that the ability to recover 2x damages under California Probate Code section 859 does not constitute punitive damages. The case is Hill v. Superior Court (Staggers), California Court of Appeal, First Appellate District, No.A145893, decided February 18, 2016.

Without getting into a long legal discussion, why is Hill v. Superior Court (Staggers) important? Claims under California Probate Code sections 850, et seq., have become common and important. In summary, sections 850, et seq., allow certain legal claims in trust, estate (probate), conservatorship and guardian proceedings when money, personal property or real property is claimed to be due to or from an estate or trust. Sections 850, et seq., also may allow the prevailing party who wins on a claim that he or she is entitled to recover the property to recover twice the amount of the value of the property that is recovered.

In Hill v. Superior Court (Staggers) the losing party, against whom double damages were awarded, argued that double damages under Probate Code section 859 are in the nature of punitive damages, which would require the prevailing party to prove entitlement to recovery of the double damages under a higher standard (i.e., for example, by having to establish malice, oppression, fraud, etc., before being entitled to the recovery of double damages.

The Court of Appeal held that the double damages allowable under section 859 are in the nature of a penalty (upon a showing of bad faith), but are not punitive damages. The result, which is very important in these cases, is that it is easier to recover the section 859 double damages. These provisions need to be carefully considered in all Probate Code section 850, et seq., actions, including for the purpose of settlement and trial as the possibility of an award of double damages can significantly change the dynamics of a case. A claim of recovery under sections 850, et seq., might be possible in a wide variety of trust, estate (probate), conservatorship, guardianship and elder and dependent adult abuse cases.

The following is the wording of California Probate Code section 859 (which also contains a provision for the possible recovery of attorneys’ fees):

859.  If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.

And the following is a snapshot of a relevant part of the opinion of the court in Hill v. Superior Court (Staggers):

Hill v Superior Court section 859 double damages are not punitive

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Ombudsman Services San Mateo County – A Snapshot Of Great Accomplishments

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The following are two snapshots of the accomplishments of Ombudsman Services of San Mateo County. As you might be aware, Ombudsman services are mandated by law to advocate on behalf of better and proper care of residents at care facilities, to work to improve the care provided by the facility, to investigate situations and improper care, and report improper care and abuse. The following are two snapshots of activities from Ombudsman Services of San Mateo County, which is an active advocate on behalf of care facility residents – and you can view their website at the following link CLICK HERE

2016-02-18_9-37-57

2016-02-18_9-38-43

Fraudsters’ Latest Target: The Already Defrauded – NY Times

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2016-02-16_11-43-30

The below is a link to a good article in the NY Times, fraudsters target the already defrauded by promising to recover their originally lost money for a fee and then doing little or nothing to recover the originally lost money – clearly preying on the already victims. Strong people who are good need to take action – stay regularly in touch with the elder, in person if possible, really talk about and share things that are happening in the elder’s life, and consider helping or taking control over finances [you might legally be required to], but while leaving the elder with freedoms and self-respect. These are difficult situations. Call me if you have a situation where legal help is needed – (415) 917-4030 – San Francisco Bay Area and throughout California. For the article CLICK HERE.
Best,
Dave Tate, Esq., Trust/Estate Blog: http://californiaestatetrust.com, Website: http://tateattorney.com.

My recent blog posts to the trust, estate and elder abuse litigation blog and the audit committee and D&O blog

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Greetings all. The below are recent posts to both of my blogs, the trust, estate and elder abuse litigation blog http://californiaestatetrust.com and the audit committee, D&O, etc. blog http://auditcommitteeupdate.com. Take a look at both blogs, and register to receive updates by email. My website is http://tateattorney.com. Thanks. Dave Tate, Esq., San Francisco and California.

RSS California Estate Trust Conservatorship & Elder Abuse Litigation

The Year of the Fiduciary Rule

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Here is a link to a discussion about anticipated new investment/investment advisor legislation, CLICK HERE.

I don’t usually publish a blog post about proposed legislation because the legislation might happen, or not, and what the legislation actually says, if enacted, is uncertain. And that’s definitely the situation with possible fiduciary legislation. Nevertheless, I have posted this link and discussion about possible fiduciary legislation because this legislation has been in the works, it is important legislation, and it might actually have some importance, although I’ll believe it when I see it. In particular, I am interested in this legislation if it addresses or begins to address elder and dependent adult abuse, mental capacity and cognitive or understanding issues, and reporting and other protective actions. We’ll see . . . more to follow.

Enjoy, Dave Tate, Esq. (San Francisco and California), http://tateattorney.com

California Trustee Discretionary Powers – Video

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California Trustee Discretionary Powers – see the video immediately below, and the primary text for the video at the bottom of this post. Thank you. Please pass this information to other people who would be interested. Dave Tate

Text: California Trustee Discretionary Powers

Hello, I’m Dave Tate. I am a San Francisco litigation attorney and I handle cases throughout California in trust, estate, conservatorship, elder abuse and civil litigation, and I also represent fiduciaries and beneficiaries in administrations.

This discussion is about trustee discretionary powers. You can find additional information on my blog at http://californiaestatetrust.com.

A trust will typically contain provisions that give the trustee discretionary powers, that is, the power to use his or her own judgment in specific circumstances. The courts will strictly construe the amount of the discretion from the language in the trust document and the intent of the trustor.

Be cautious, however—and this is important, even if the trust provides sole, absolute or uncontrolled discretion, courts still require the trustee to act within the fiduciary standards, to not self-deal, and to not act in bad faith or in disregard of the purposes and interests of the trust and of the beneficiaries. You can refer to Probate Code §§16080-81.

In other words, if the issue of a trustee’s discretion is presented to the court, the judge will make a determination based on his or her own evaluation of the trust, the trustor’s intent, and the circumstances at issue.

Unless limited by the terms of the trust, the trustee will also have other statutory powers. You should review the powers and limitations specified in the trust document, and also the powers listed at Probate Code §§16200-16249. These sections are important – however, they are too detailed to include in this discussion.

That’s it for now. There are of course other cases and statutes that can apply, and the facts of each situation are different. This discussion doesn’t constitute legal advice. You need to consult a lawyer or professional for your situation. You can find more information on my blog at http://californiaestatetrust.com. Thanks for listening.

Dave Tate, Esq. (San Francisco / California)