Herren v. George S. - Case Brief

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Herren v. George S.

Case Number: A171257

Court: Cal. Ct. App.

Date Filed: 2025-03-03

Case Brief – Herren v. George S.

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA
Date: 2025‑09‑02
Case Number: A171257
Disposition: Appeal denied; the trial court’s elder‑abuse restraining order against attorney Jaime B. Herren was affirmed.

Holding

The court held that a trustee or an attorney‑in‑fact may seek and obtain an elder‑abuse restraining order under Welfare & Institutions Code § 15657.03 without a prior adjudication of the protected person’s capacity, and that the record contained substantial evidence that Herren obtained a property right from George S. through undue influence, satisfying the statutory elements of elder financial abuse under § 15610.30.

Narrative

Lead

In a decision that sharpens the boundary between vigorous advocacy for incapacitated elders and the prohibition on exploiting their vulnerability, the California Court of Appeal affirmed a trial‑court restraining order against a trust‑and‑estate attorney who secured a $100,000 retainer from an 86‑year‑old client suffering severe dementia. The ruling clarifies that a trustee or attorney‑in‑fact may invoke the Elder Abuse Act to protect an elder even when the elder’s capacity has not been formally determined, and it underscores the heavy evidentiary burden placed on attorneys who seek to profit from clients whose mental faculties are compromised.

Procedural History

George S., an octogenarian diagnosed in 2023 with severe neurocognitive disorder, was represented by his daughter Susannah S., who served simultaneously as trustee of his 2022 restated trust and as his durable power‑of‑attorney (DPOA). In May 2024, George’s sister Gabriella, without Susannah’s knowledge, arranged for attorney Jaime B. Herren to meet George alone. During the hour‑long encounter George signed a retainer agreement for a $100,000 fee. Within days Susannah, acting as George’s attorney‑in‑fact, filed a petition for an elder‑abuse restraining order under Welfare & Institutions Code (WIC) § 15657.03. The Marin County Superior Court issued a temporary restraining order, held a evidentiary hearing, and then entered a permanent order prohibiting Herren from contacting or abusing George and ordering her to stay 100 yards away.

Herren appealed, contending (1) that Susannah lacked standing because the petition was filed before a formal competence determination, (2) that the trial court erred in finding undue influence absent a capacity adjudication, and (3) that the order violated her due‑process rights. The appellate panel addressed the standing and substantive abuse issues in the published portion of its opinion; the remainder of the discussion, including the due‑process arguments, was sealed.

Facts

George’s medical record established a progressive decline: a geropsychologist diagnosed “major neurocognitive disorder, multifactorial, Alzheimer’s and Lewy body” in early 2023; a neurologist concurred that George lacked the capacity to make financial decisions. By May 2024 George exhibited severe short‑term memory loss, disorientation to time and place, visual impairment, and emotional volatility. He required 24‑hour caregiving and was dependent on a home‑health aide, Karen Moore, for basic activities.

The trust, restated in 2022, named Susannah as successor co‑trustee upon George’s incapacity and defined incapacity in terms of a physician’s declaration under penalty of perjury. The DPOA similarly granted Susannah broad authority to litigate on George’s behalf. No court had yet entered a formal finding of incapacity, although the treating physicians’ letters were on file.

On May 3, 2024, Gabriella invited Herren, a trust‑and‑estate lawyer, to George’s home. Herren arrived while Susannah was out of town, asked the caregiver to leave, and told Moore that the meeting was “attorney‑client privileged.” Herren read only the first two pages of the retainer agreement, summarized the remainder, and pointed to the signature line for George, who, despite macular degeneration, signed. After the meeting George appeared “drained, hungry, and tired,” and later told Susannah he had never met Herren and was “appalled” at the $100,000 bill.

Susannah, relying on the physicians’ assessments, filed the restraining‑order petition. The petition alleged that Herren’s conduct constituted financial elder abuse: (i) George’s vulnerability; (ii) Herren’s status as a legal professional; (iii) her use of secrecy, intimidation, and a one‑on‑one meeting to obtain a fee agreement; and (iv) the inequitable result—George’s consent to a $100,000 obligation contrary to his expressed wishes and to the trust’s succession scheme.

Issues

  1. Standing/Authority: Whether a trustee or attorney‑in‑fact may seek an elder‑abuse restraining order under § 15657.03 without first obtaining a judicial determination of the protected person’s capacity.

  2. Substantial Evidence: Whether the record contains sufficient proof that Herren obtained a property right from George by undue influence, thereby satisfying the elements of elder financial abuse under § 15610.30.

  3. Due‑Process/Procedural Defects: (Addressed in the unpublished portion; not essential to the published holding.)

Holding and Reasoning

1. Standing Under the Elder Abuse Act

The appellate court turned first to the statutory language of the Elder Abuse Act. WIC § 15657.03 expressly authorizes a petition “by a conservator or a trustee …, an attorney‑in‑fact … who acts within the authority of a power of attorney … or other person legally authorized to seek the relief.” The statute does not condition standing on a prior competence determination. The court noted that the Act’s legislative purpose—“to enable interested persons to engage attorneys to take up the cause of abused elderly persons” (WIC § 15600(j))—demands a broad, protective definition of standing. Moreover, the Act’s definition of “undue influence” (§ 15610.70) expressly allows evidence of the victim’s incapacity to be considered as a factor of vulnerability, indicating that the legislature anticipated that capacity may be relevant to the abuse analysis without being a prerequisite to filing.

The court rejected Herren’s reliance on Probate Code §§ 810‑811, which create a rebuttable presumption of capacity for general transactions. Those provisions govern ordinary contractual disputes, not the specialized protective‑order regime of the Elder Abuse Act. The appellate panel also observed that Herren’s counsel had, at trial, agreed that the restraining‑order proceeding would not decide George’s capacity, thereby waiving any argument that the trial court was required to make such a determination.

Accordingly, the court concluded that Susannah, as both trustee and attorney‑in‑fact, possessed clear statutory authority to seek the restraining order without a prior adjudication of George’s competence.

2. Substantial Evidence of Undue Influence

The court applied the statutory four‑factor test in § 15610.70:

  • Vulnerability – The record established George’s advanced age, severe dementia, visual impairment, emotional instability, and dependence on caregivers. Both treating physicians had declared him incompetent to make financial decisions.

  • Apparent Authority – Herren’s status as a licensed attorney, her presentation as George’s counsel, and her insistence on a private “privileged” conversation demonstrated the requisite authority.

  • Actions/Tactics – Herren arranged an unscheduled, secret meeting while Susannah was absent, threatened the caregiver with an elder‑abuse charge, isolated George, and used a hurried, one‑sided signing process. She did not provide the full fee agreement, required George to point to the signature line, and obtained the retainer despite his evident confusion.

  • Equity of Result – The $100,000 retainer represented a substantial property right inconsistent with George’s expressed wishes, the trust’s succession plan, and the DPOA’s delegation of authority to Susannah. The agreement diverged sharply from George’s prior intent to avoid financial discussions with Gabriella and, by extension, with any attorney.

The appellate panel emphasized that “property” under § 15610.30 includes contractual rights and that the acquisition of such a right through undue influence satisfies the definition of elder financial abuse. The court found that the trial court’s factual findings were supported by substantial evidence—the standard that “the testimony of even one witness may support a finding” (Newman v. Casey (2024) 99 Cal.App.5th 359, 375). Accordingly, the restraining order was upheld.

3. Unpublished Arguments

The opinion’s sealed sections addressed Herren’s due‑process and conflict‑of‑interest contentions, ultimately finding no reversible error. Those arguments do not affect the published holdings.

Analysis and Impact

The decision delivers a clear message to probate practitioners: the Elder Abuse Act furnishes a stand‑alone pathway to protective relief that bypasses the often‑lengthy competence‑determination process. Attorneys who suspect that an elder client’s capacity is compromised may be compelled to seek a restraining order before filing a formal petition for conservatorship or guardianship. This accelerates protection for vulnerable elders but also raises the stakes for attorneys who engage in “soft‑sell” fee negotiations with cognitively impaired clients.

The ruling also reinforces the substantial‑evidence standard in elder‑abuse protective‑order cases. Courts will closely scrutinize the four statutory factors, and the presence of a medical diagnosis of incapacity is a powerful, though not dispositive, piece of evidence. The opinion cites Estate of Lowrie and In re Dezi for the principle that standing under the Elder Abuse Act is to be interpreted liberally, and it reaffirms the longstanding view that “undue influence is a separate issue from capacity” (In re Estate of Olson (1912) 19 Cal.App. 379). By refusing to require a formal capacity adjudication, the court aligns statutory interpretation with the legislative intent to “induce interested persons to report elder abuse” (WIC § 15600(a)).

Unresolved Questions

  1. Scope of Attorney‑Client Privilege – While the court allowed the trial court to consider the substance of the fee agreement despite the privilege claim, it left open how future courts will balance privilege against the need to uncover undue influence in similar contexts.

  2. Threshold for “Undue Influence” – The decision applied the four‑factor test, but the precise weighting of each factor remains fact‑specific. Practitioners will need to anticipate heightened scrutiny of any private meeting with an incapacitated client, especially when a substantial fee is at stake.

  3. Interaction with Probate Code – The opinion sidestepped a direct conflict analysis between the Elder Abuse Act and Probate Code §§ 810‑811. Future disputes may arise where a party argues that the probate presumption of capacity should control in a parallel civil action, potentially creating a split in procedural posture.

Overall, Herren v. George S. solidifies the appellate court’s view that the Elder Abuse Act is a stand‑alone remedial scheme designed to intervene swiftly when an elder’s vulnerability is exploited, irrespective of any pending or absent competence determination. Attorneys must now be vigilant that any engagement with an elder who exhibits signs of diminished capacity is documented, transparent, and free from the coercive tactics the court deemed unlawful in this case.

Referenced Statutes and Doctrines

  • Welfare & Institutions Code (WIC) §§ 15600‑15657.03 – Elder Abuse Act, definitions of elder, abuse, undue influence, and restraining‑order procedure.
  • WIC §§ 15610.07, 15610.30, 15610.70 – Elements of financial elder abuse and undue influence.
  • Probate Code §§ 810, 811, 1003 – Presumption of capacity and standards for adjudicating unsound mind.
  • Due Process in Competence Determinations Act (Stats. 1995, ch. 842; 1997, ch. 581).
  • Estate of Lowrie, 118 Cal.App.4th 220 (2004) – Broad standing under the Elder Abuse Act.
  • In re Dezi, 16 Cal.5th 1112 (2024) – De novo review of statutory interpretation.
  • In re Estate of Olson, 19 Cal.App.3d 379 (1912) – Undue influence distinct from capacity.
  • Bookout v. Nielsen, 155 Cal.App.4th 1131 (2007) – Substantial‑evidence standard for protective orders.
  • Newman v. Casey, 99 Cal.App.5th 359 (2024) – “Even one witness may support a finding” under substantial evidence.
  • Bounds v. Superior Court, 229 Cal.App.4th 468 (2014) – Property right includes contractual rights.
  • Gdowski v. Gdowski, 175 Cal.App.4th 128 (2009) – Protective orders may be issued on past abuse alone.
  • Badie v. Bank of America, 67 Cal.App.4th 779 (1998) – Waiver of issues by acquiescence at trial.