Another disturbing nursing home story, in addition the Florida IRMA SNF deaths – need for ERM, leadership, transparency, reporting, and follow-up

I have also posted this discussion at

Below, at the bottom of this blog, I have pasted a video at a nursing home that I came across on Yahoo. First some disclaimers – by now we should all be aware that watching snippets or portions of a video does not tell the whole story, knowing the whole story could present a different situation, we don’t know all that was said or that occurred, and, of course, I have no personal knowledge of these events, but am simply passing this along.

That having been said, the video and information presented are disturbing.

At her deposition the supervising nurse testified that what occurred is different than what the video shows, and acknowledges or admits this, and she admits that the nurses or nursing assistants on scene acted wrongfully and should have been fired if the truth had been known.

If not for the video the truth would not have come to light.

An issue arose whether it was legal to install a secret video recording device in the resident’s room. It is my understanding that a nursing home resident is a resident, not a patient, and that the nursing home, and their particular room is their home.

The lawyer mentions that he cannot say anything about the settlement agreement with the nursing home. In California, except in limited circumstances, Code of Civil Procedure §2017.310 makes a confidential settlement agreement unlawful if the factual foundation presents a case of elder or dependent adult abuse.

California also has a criminal elder abuse statute at Penal Code §368. I’m not saying that the acts in the video were criminal – based on what is being shown, in a court of law more likely the acts would be considered medical malpractice in nature, but could still be civil elder abuse.

The nursing home would raise a whole host of defenses to liability, including, for example, possibly, that the plaintiffs or prosecution cannot show with evidence that the actions of the nursing home actually caused the resident’s death. But there also could be issues about burden of proof, and it is possible that the burden of showing no wrongful conduct could be shifted to the defendant nursing home.

We could go on and on with this. There is a lot more that I would like to know, including, for example, about the policies and procedures of the nursing home at the time of the incident, and about the investigation that the nursing home did at the time of the incident and whether that investigation, if any was done, was sufficient and performed appropriately and in good faith?

I would also like to know about the “new management” of the nursing home, and about current policies and procedures, and whether the events of this occurrence were presented to the public or kept secret by the state nursing home regulatory authorities.

These stories and what occurs later in time get buried by the now constant 24 hour news and social media cycle – do you remember the hurricane IRMA story about the 8 nursing home residents who died because the air conditioning went out, but then weren’t transferred by the nursing home to a safe facility (such as, for example, possibly the nearby hospital) – well . . . what has happened since that time in the investigation, and so that something like that will not occur again?

That’s all for now. I’m David Tate. I’m a California litigation attorney. I also handle governance and risk management. You need to consult with an attorney or appropriate professional about your situation. This blog post and/or video or audio is not an advertisement or solicitation for services inside or outside of California. Thanks for listening or reading.

Here is the link to the nursing home video,

David Tate, Esq., Royse Law Firm, Menlo Park, California office, with offices in northern and southern California.

See also my blogs at and at

Royse Law Firm – Practice Area Overview – San Francisco Bay Area and Los Angeles Basin

  • Corporate and Securities, Financing and Formation
  • Corporate Governance, D&O, Boards and Committees, Audit Committees, Etc.
  • Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  • International
  • Immigration
  • Mergers & Acquisitions
  • Labor and Employment
  • Litigation (I broke out the litigation because this is my primary area of practice)
  •             Business
  •             Intellectual Property – Patents, Trademarks, Copyrights, Trade Secrets
  •             Trade Secrets, NDA, Accounting Issues, Fraud, Lost Income, Royalties, Etc.
  •             Privacy, Internet, Hacking, Speech, Etc.
  •             Labor and Employment
  •             Mergers & Acquisitions
  •             Real Estate
  •             Owner, Founder, Investor, Board & Committee, Shareholder, D&O, Etc.
  •             Insurance Coverage and Bad Faith
  •             Lender/Debtor
  •             Investigations
  •             Trust, Estate, Conservatorship, Elder Abuse, and Contentious Administrations
  • Real Estate
  • Tax (US and International) and Tax Litigation
  • Technology Companies and Transactions Including AgTech, HealthTech, Etc.
  • Wealth and Estate Planning, Trust and Estate Administration, and Disputes and Litigation

Audit Committee 5 Lines of Defense 10222017 David W. Tate, Esq. jpg



A party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute

David Tate, Esq., Royse Law Firm, California (Silicon Valley/Menlo Park Office, with additional offices in San Francisco, Los Angeles and Orange County),

The following is a brief discussion about a new California case in which the court held that a party filing a petition in probate to enforce a no contest clause triggers the anti-SLAPP statute. If you have never been involved in the anti-SLAPP statute, it is a big deal. The case is Urick v. Urick, California Court of Appeal, Second Appellate District, Case No. B278257 (October 5, 2017).

Summary. Filing a petition for instructions in probate, claiming that a trustee or beneficiary had triggered a no contest clause by filing her prior petition to reform or modify a trust, is a claim that triggers prong one of the California anti-SLAPP statute Cal. Code Civ. Proc. §425.16, which means that the party seeking to claim and enforce that the no contest clause was triggered must be prepared to satisfy prong two of the anti-SLAPP statute which requires him to sufficiently establish a reasonable possibility of prevailing on the claim that the no contest clause was triggered and violated.

Takeaway. If you bring a claim to enforce a no contest clause based on an opposing party’s prior petition filed in probate, you must be prepared at the time of your filing to establish to the court, based on evidence and declarations, that you have a reasonable possibility of prevailing on your claim that the other party had triggered and violated the no contest clause.

Urick is also interesting for the court’s discussion whether the previously filed petition to reform or modify the trust triggered the no contest clause, including the discussion whether that previously filed petition was filed by the petitioner as a beneficiary of the trust or as the trustee of the trust and whether there was really a distinction that mattered under the facts of the case.

Other thoughts about the anti-SLAPP statute. I have been involved in Cal. Code Civ. Proc. §425.16 motions. It is my opinion that it is a deeply flawed statute except possibly in really obvious and clear situations and in those cases the party who has those defenses has other remedies such as a demurrer, motion to strike, or motion for summary judgment or summary adjudication. The anti-SLAPP statute should be revoked or very significantly amended and limited. To add further injury, the filing of an anti-SLAPP motion automatically stays all discovery unless a motion to allow and compel discovery is brought and the court grants that motion – thus, strategically a party might bring an anti-SLAPP motion simply to see if they can prevail even if their arguments and chances of prevailing are not good – and the statute further provides that if a party prevails on an anti-SLAPP motion they are entitled to attorneys’ fees whereas if a party defeats an anti-SLAPP motion the statute does not provide that they are entitled to recover attorneys’ fees. The anti-SLAPP statute is ripe for abuse or use in situations that might be counter to other public or judicial policies, which the court in Urick appeared to recognize, but as the court noted, nevertheless the statute is still on the books and is applicable unless and until the Legislature does something about the statute.

* * * * * * *

New California case expands shifting trust/trustee attorneys’ fees and costs to a beneficiary’s share of the trust

New California trust dispute decision expands shifting trust/trustee attorneys’ fees and costs to a beneficiary’s share of the trust – Pizarro v. Reynoso, California Court of Appeal, Third Appellate District, Case No. C077594, (March 28, 2017)

Summary. The decision in Pizarro v. Reynoso expands the shifting of trust/trustee attorneys’ fees and costs to a beneficiary’s trust share, and in relevant part reminds us that all trust and estate litigation cases vary and are determined in significant part by the facts and circumstances of that case, the relevant case law, and the discretion of the trial court judge. In Pizarro v. Reynoso, on appeal the Court of Appeal held as follows:

  1. The terms and intent of the trustor prevail in substance – refusing to elevate form over substance the court upheld a sale of the trust real property to a specific beneficiary which the trust authorized in the trustee’s discretion if the beneficiary could afford to purchase the house. The trustee in fact in part assisted the beneficiary in that purchase so that the beneficiary could purchase the property – never the less the court upheld the sale based on substance over form and the intent and terms of the trust.
  2. Under the court’s equitable powers, the attorneys’ fees and costs incurred by the trust/trustee are chargeable against the trust share of a beneficiary who brings an unfounded proceeding against the trust, but those attorneys’ fees and costs cannot be awarded against the beneficiaries other personal non-trust assets, citing Rudnick v. Rudnick (2009) 179 Cal. App. 4th 1328, 1332-1333, 1335, and Estate of Ivey (1994) 22 Cal. App. 4th 873, 877-878, 882-886.
  3. Important – in an expansion of #2 above and charging fees and costs to a beneficiary’s trust share, under those same equitable powers, the court also can award the trust/trustee attorneys’ fees and costs against the trust share of a beneficiary who has not filed or brought a proceed, but who takes an unfounded position and litigates in bad faith causing the trust to incur fees and costs (the beneficiary changed her position to being against the trustee, and in the trial court’s opinion then offered false testimony by declaration, deposition and at trial – offering false evidence in litigation is a bad faith litigation tactic).
  4. The court’s decision also cites or makes reference to California Probate Code §17211(a) and §15642(d), which state as follows (and I have also provided below §17211(b):


(a) If a beneficiary contests the trustee’s account and the court determines that the contest was without reasonable cause and in bad faith, the court may award against the contestant the compensation and costs of the trustee and other expenses and costs of litigation, including attorney’s fees, incurred to defend the account. The amount awarded shall be a charge against any interest of the beneficiary in the trust. The contestant shall be personally liable for any amount that remains unsatisfied.

(b) If a beneficiary contests the trustee’s account and the court determines that the trustee’s opposition to the contest was without reasonable cause and in bad faith, the court may award the contestant the costs of the contestant and other expenses and costs of litigation, including attorney’s fees, incurred to contest the account. The amount awarded shall be a charge against the compensation or other interest of the trustee in the trust. The trustee shall be personally liable and on the bond, if any, for any amount that remains unsatisfied.


(d) If the court finds that the petition for removal of the trustee was filed in bad faith and that removal would be contrary to the settlor’s intent, the court may order that the person or persons seeking the removal of the trustee bear all or any part of the costs of the proceeding, including reasonable attorney’s fees.

* * * * *

Can You Stop An Aging Parent From Self-Neglect At Home – by Carolyn Rosenblatt

The following is a good discussion by Carolyn Rosenblatt, on a topic that is ongoing for many, many families – can you stop an aging parent from self-neglect at home? The link to Carolyn’s article is provided below.

When is it self-neglect or self-abuse, and what can or do you do about it?

Unless you have the cooperation of the parent (and other family members), and the needed financial, insurance coverage, and time resources, and know who to contact, the issues are even more difficult to resolve. I see many family members who are dealing with these issues in trust, power of attorney, and conservatorship situations. What are the responsibilities/duties and rights, and what options are available and can be achieved? I am also aware of one California case involving a finding of elder abuse in a situation where family members did not take action to try to remedy the situation.

These issues are or can be difficult even with cooperation and resources. To see Carolyn’s article, CLICK HERE.

Dave Tate, Esq. San Francisco and California

I’m Getting Back To Using Video – A Video About My Practice Areas

Greetings all. I am getting back to using video more often, and another new initiative which I will be telling you about shortly. Moving forward I am trying to do one video a week, and then the other posts will be in writing.  I have done a quick video about my practice areas. Enjoy and tell others. Thanks. Dave Tate, Esq., San Francisco / California, (415) 917-4030.

New Case – How Far Can A Court Go To Interpret A Trust – Ammerman v. Callender

In Ammerman v. Callender (March 24, 2016, Case No. G049880) the California Court of Appeal for the Fourth Appellate District was called upon to determine the extent to which the lower trial court could interpret the intent of the trustor and to change the terms of the trust to be in accord with the intent that the trial court determined. Below I have pasted relevant wording from the Appellate Court discussing the principles of the court’s ability to interpret the trust.

You should note that this is an appellate level court decision, other California appellate courts have issued decisions that are not necessarily entirely in accord, California Supreme Court decisions may differ and overrule this decision, and in significant regard, even when reading the below posted language, how far to interpret the trustor’s intent and the extent to which the introduction of extrinsic evidence will be allowed to express the trustor’s intent remain at the discretion of the trial judge.

Two principles do appear certain, (1) it is the intent of the trustor that should prevail, and (2) the court cannot rewrite the terms of the trust unless there is sufficient evidence, based on the wording of the trust or based on extrinsic evidence, or based on both, that the wording of the language in the trust is in conflict, or is ambiguous, or fails to address the present situation, or in some manner fails to express the trustor’s intent, and even in those circumstances the court cannot simply go ahead and rewrite the terms unless the evidence taken as a whole indicates that the trustor so intended the new terms.

It would logically also seem that the more radical the new or different terms are from the current terms of the trust, the greater the evidence would need to be that the trustor really, truly did intend the application of the new or different terms. Further, I continue to disagree with these being judge-determined cases – a jury trial should be available for the interpretation of intent and extrinsic evidence.

Below, at the bottom of this blog post, I have pasted relevant wording from the decision discussing principles of trust interpretation.

Dave Tate, Esq., San Francisco and California, tel.: (415) 917-4030,,,, trust, estate, probate, real estate, conservatorship, power of attorney, elder and dependent adult, and business litigation; administrations guiding fiduciaries and beneficiaries; audit committees and D&O.


The following is relevant wording from the decision in Ammerman v. Callender.

Ammerman v. Callender Principles of Trust Interpretation

New Case – Hospital That Was Systematically Understaffed Supported Cause Of Action For Elder Abuse – Fenimore V. Regents Of The University Of California

This is an important new case, but you do need to read the facts and opinion carefully to determine whether your situation fits. Here is a pdf of the opinion Fenimore v. The Regents of the University of California.

It is arguable that this opinion expands the situations where an elder abuse claim can be stated.

For more than 20 years there has been a tug-of-war between ordinary negligence including medical or care malpractice on the one hand and elder abuse on the other hand. And that tension will continue; however, very slowly the courts are more often holding that elder abuse can be alleged in a medical or care situation where there are systemic deficiencies such as, for example, lack of staffing and inadequate training, particularly where those deficiencies violate a statutory duty, requirement or standard of care.

As the underlying opinion in Fenimore applies in the circumstance of systemic violation of a statutory duty, arguably this case, as it applies to elder abuse, could be cited in a whole host of care and other situations including but not limited to nursing homes, RCFE/assisted living, fiduciary care duties, fiduciary financial duties, and more.

Dave Tate, Esq. San Francisco and California – civil real property and business, trust, estate, conservatorship, power of attorney and elder abuse litigation, and helping fiduciaries and beneficiaries in administrations., and audit committees and D&O

Broad Process Conservatee and Fiduciary/Conservator Decision Making

The California Fiduciaries Code of Ethics and the National Guardianship Association Standards of Practice provide requirements for professional fiduciaries, which are also helpful to guide non-professional fiduciaries. The following is a summary of the broad process for conservatee and fiduciary/conservator decision making in the Code of Ethics and the Standards of Practice – of course the Code of Ethics and the Standards of Practice contain much greater coverage of these topics and each situation much stand and be evaluated separately and by itself – the below discussion about informed consent, substituted judgment and best interest covers the broad process approach. I also find it interesting that I have never heard a discussion by a Court about this or a different process for conservatee and fiduciary or conservator decision making. Comparing this to board of director deliberations, perhaps this might, at least in small part, be analogized to the business judgment rule?

1. Informed Consent – The decision should first be made by informed consent if possible.

A person’s (the conservatee’s) agreement or decision to allow or to have something happen that is based on a full disclosure of facts needed to make the decision intelligently, i.e., knowledge of the risks involved, alternatives, etc.

In other words, the individual choice or decision by the conservatee, that the conservatee is capable of making, unless doing or allowing so would violate the fiduciary’s duties to the conservatee or impose unreasonable expense to the estate.

2. Substituted Judgment – Second, if informed consent cannot be obtained, the decision is made by substituted judgment if possible.

The principle of decision making that requires implementation of the course of action that comports with the individual person’s (the conservatee’s) known wishes expressed before incapacity, provided the conservatee was once capable of developing views relevant to the matter at issue and reliable evidence of those views remains.

In other words, the decision is made or action taken or not taken, by the fiduciary, based on the ascertained desires and wishes, if any, of the conservatee, as expressed or demonstrated by the conservatee while the conservatee had capacity to so express or demonstrate, relevant to the current subject matter at issue, unless doing or allowing so would violate the fiduciary’s duties to the conservatee or impose unreasonable expense to the estate.

3. Best Interest – If informed consent, first, and substituted judgment, second, are not available or possible, the decision is made based on best interest.

The course of action that maximizes what is best for a person (the conservatee) and that includes consideration of the least intrusive, most normalizing, and least restrictive course of action possible given the needs of the conservatee.

New Story – Charity requests an accounting after all assets are distributed – nothing left to pay for it

Here’s a new story that I heard about recently – it’s not one of my cases.

The decedent died and the successor trustee began administering the trust. The trustee then made prior partial distributions to all of the beneficiaries including the charity, none of whom objected or requested additional information or an accounting. Over time the trustee finished the administration of the trust and then distributed the remaining assets to the same beneficiaries. No assets remain in trust.

The charity beneficiary has now requested an accounting – not that they believe anything is wrong – they just want an accounting to be sure.

The trustee had a couple of options for how to make the final distribution: (1) do it as the trustee did; (2) get a waiver of accounting and information (and consent) from each beneficiary (see Cal. Probate Code sections 16060 through 16069), (3) prepare and provide an accounting to each beneficiary and obtain a waiver and consent; or (4) prepare an accounting and submit a petition to the court for an order approving the accounting.

Unless in some situations the trust provides otherwise, the statute of limitations on an action against a fiduciary trustee for breach of duty is three years, but also could be longer in cases where wrongful actions were hidden and it could not be expected that the beneficiary knew or should have known about the wrongful actions.

Each case is different, there isn’t one correct or absolutely wrong way to handle the above situation, but only (4) will (in most cases) clear the trustee from future actions and liability.

In the above situation the trustee now has to provide the requested accounting and information, but without the funds being available in the trust to pay for it. There might also be a possible need or requirement for beneficiary return of assets that have already been distributed – but that possibility also raises the issue whether return of assets can be compelled.

These situations require risk management, due diligence and evaluation of the various options available.


Request for evidentiary hearing and trial in a probate department proceeding?

There are additional procedural requests or demands that I sometimes, perhaps often, make in probate department proceedings. Every case is different, of course, so you do need to evaluate procedural and strategic options for your particular situation. However, whereas in a civil action the court will eventually set the dispute for a trial, in probate the judge can in some circumstances rule from the bench without a hearing where witnesses are presented. So you do want to consider whether you want to protect or reserve your evidentiary hearing or trial entitlement. And there are also additional requests or demands that might be considered relating to the presentation or admissibility of evidence. Nevertheless, the following is possible wording requesting an evidentiary hearing, which you can add to your court-filed and served pleadings prior to the hearing:


__. __________ incorporates by reference herein paras. 1-__ stated above as if fully restated in this para. __.

__. __________ further requests an evidentiary hearing and trial for all disputed matters in this case, and a jury trial to the extent that a jury trial is allowable.