New case – alleged undue influence by family members; anti-SLAPP motion should not delay elder abuse restraining order; the attorney representing the elder must be a zealous advocate free from conflict of interest; more

White v. Davis is a new California case with a long, detailed discussion of the background and of the various multiple applicable laws. White v. Davis (January 5, 2023) California Court of Appeal, Fourth District case no. E077320. A pdf copy of White v. Davis is provided at the bottom of this discussion.

In White v. Davis it was alleged that family members unduly influenced nonagenarian Thomas to change his estate planning. The facts include multiple marriages and adult children from each marriage. The case also involves conservatorship proceedings, and alleged continuing efforts to influence Thomas even after the legal case was filed and during the pendency of the case.

White v. Davis is a reminder that good people need to be vigilant and aware of what is going on in the elder’s life and relationships, and take action by seeking help, including legal help.

The majority of my cases involve multiple marriages with adult children, or a single marriage with multiple adult children who have not gotten along for years, or one spouse abusing or mistreating or being influenced or used or controlled into abusing or mistreating the other spouse, or a multiple of these situations. White v. Davis is no exception – but the decision in White is more noteworthy for several legal procedural issues, and as a reminder that good people need to be vigilant and take action.  

To digress briefly on a different issue: could or can this case be resolved and settled? Yes, absolutely. Every dispute and case can be resolved if all or each of the necessary parties are or can become sufficiently motivated. Trust, will, estate, elder, conservatorship and probate court cases are legally complicated and are also highly and personally involved. In White you have issues of law, evidence and proof (such as, for example, alleged undue influence, possible susceptibility to undue influence, the change from prior estate planning, age (optics), and family and possible confidential or fiduciary relationships and duties, burdens of proof, and presumptions. And, of course, you have the various different personalities, emotions, personal involvement, and the money – in many cases I am seeing these issues as being equally or even more important than the legal and evidentiary issues for resolution and settlement purposes.    

In White an application for elder abuse restraining order (EARO) was filed. An anti-SLAPP motion was also filed – an anti-SLAPP motion is a special motion in which a defendant party can argue to the court at an initial pleading stage that the defendant’s allege wrongful conduct is protected conduct and, thus, that the case or some of the case against the defendant should be dismissed or disallowed.

The trial court in White ultimately delayed and did not proceed with the hearing and matter on the application for EARO. Instead, the trial court first proceeded with the anti-SLAPP motion, and then further delayed addressing the EARO because the court’s decision on the anti-SLAPP motion was subsequently appealed and an appeal stays most other actions in a case from proceeding until the resolution of the appeal. Typically an underlying case is or can be delayed pending the outcome of the anti-SLAPP motion.

I cannot get into EARO and anti-SLAPP intricacies in this post – as this post already is getting long and detailed – suffice it to say that EARO and anti-SLAPP motions, and appeals, are complicated and very time intensive proceedings. With respect to the decision in White, an important holding by the appellate court is that the trial court should have gone forward with the proceeding and the hearing on the application for EARO, and, for example, at least could have considered whether to grant a temporary restraining order, instead of delaying the EARO proceeding until after the anti-SLAPP motion. The appellate court held that the EARO and the anti-SLAPP motion are two separate proceedings and that the proceeding on the possible restraining order to stop the alleged elder abuse should not have been delayed for the anti-SLAPP motion – it is important to be allowed to separately and independently proceed on the application for EARO to protect the elder from the alleged abuse and from possible additional, continuing and ongoing abuse.  

The decision in White also includes an important discussion about how the court should identify and evaluate which alleged wrongful conduct is at issue on the anti-SLAPP motion. There are a lot of appellate decisions relating to anti-SLAPP motions; however, these motions are complicated and still are a developing area of law – I appreciate that the appellate court included discussions about the procedural aspects of anti-SLAPP motions in the context of a litigation case involving alleged wrongdoing relating to trust, conservatorship, estate planning, and alleged elder abuse and undue influence issues and matters.

Finally, the decision in White also includes an important discussion about the requirement that an attorney who represents an alleged abused elder, or who represents a prospective or actual conservatee, must be an independent, zealous, qualified advocate for the elder or conservatee, and must be free from any conflicts of interest (or perhaps even an appearance of possible conflicts). This is an issue that every court should be looking at and evaluating in every case that involves allegations of possible elder abuse, and also in conservatorship cases, to make sure that the elder and/or conservatee is appropriately, independently and zealously represented. The court’s evaluation must include not only the attorney’s experience and qualifications, but also who asked the attorney to become involved, who retained the attorney, who is communicating with the attorney, what relationships does the attorney have with the other people who are involved in the case, and what actions has the attorney taken or been involved in on behalf of or with respect to the elder or prospective or actual conservatee?

The following is a pdf copy of the decision in White v. Davis:

Thank you for reading. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved.

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Best to you,

David Tate, Esq. (and inactive CPA)

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Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

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David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.