The opinion
Filed 3/3/25
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
JAIME B. HERREN,
Defendant and Appellant,
A171257
v.
GEORGE S. et al., (Marin County
Super. Ct. No. CV0002765)
Plaintiffs and Respondents.
Susannah S. is the daughter, trustee, and attorney-in-fact of plaintiff
George S., an octogenarian whose doctors determined in 2023 that he lacked
the capacity to make financial and medical decisions. 1 Pursuant to the Elder
Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600
et seq. 2) (Elder Abuse Act), Susannah filed a petition on behalf of George for a
* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts C and D of the
Discussion.
1 We refer to the protected person, George S., by his first name and last
initial. (Cal. Rules of Court, rule 8.90.) So as not to defeat the objective of
anonymity, we likewise refer to persons who share his last name by their first
name and last initial. For the sake of efficiency, and with no disrespect
intended, after these initial references, subsequent references to these
persons will be to their first names only.
2 All undesignated statutory references are to the Welfare and
Institutions Code.
1
protective order against defendant Jaime B. Herren, a lawyer who had met
with George alone in 2024 and secured his agreement to pay a $100,000
retainer. (§ 15657.03.) After a contested hearing, the trial court issued a
restraining order prohibiting Herren from abusing and contacting George.
In the published portion of this opinion, we reject Herren’s contentions
that a restraining order could not be sought or issued under the Elder Abuse
Act without the trial court first adjudicating George’s competence. We also
conclude that substantial evidence supports the finding that Herren
committed financial abuse of an elder. (See §§ 15610.07, 15610.30,
subd. (a)(3), 15610.70, subd. (a).) In the unpublished portion of the opinion,
we reject Herren’s other challenges to the elder abuse restraining order.
FACTUAL AND PROCEDURAL BACKGROUND
George and his former wife, Dalyla S., have two adult children,
Susannah and Gabriella S. George was wealthy and shared that wealth with
his daughters. In 1991, George created a trust which was restated in 2022.
He designated Susannah, not Gabriella, as a successor co-trustee in the event
of his incapacity. The trust defines incapacity to include when a “medical
doctor, . . . or (in the case of the Settlor) the Settlor’s treating physician,
examines such person and declares under penalty of perjury that such person
is either temporarily or permanently incapacitated . . . .” The trust also
provides: “If any trustee or any beneficiary whose capacity is in question
disputes the determination of incapacity . . . , such person may petition the
court for a finding regarding that person’s capacity.”
Beginning in April 2021, George was in poor health, and caregivers
were providing him 24/7 care. Karen Moore, a caregiver, described George at
this time as very sick, anxious, depressed, not sleeping, and scared “all the
time.” Dr. Elizabeth Sutherland, who has a doctorate in clinical psychology
2
and is practicing as a geropsychologist, began seeing George in June 2022.
Dr. Sutherland described George’s mood as erratic, sad, anxious, and
suicidal; he was also physically unstable, weak, and a fall risk. Dr.
Sutherland diagnosed George with a neurocognitive disorder, which she
referred to as dementia. Initially, his dementia was moderate.
In November 2022, George signed a durable power of attorney (DPOA)
appointing Susannah as a successor attorney-in-fact. The DPOA broadly
provides the attorney-in-fact with the power to prosecute legal actions
involving George. George also signed a health care directive naming
Susannah as his health care agent.
By early 2023, Susannah had begun managing the caregivers. Around
this time, and after George contracted pneumonia, Susannah moved him
from a home in San Francisco to a home in Marin County located near her.
Moore thought George had improved after the move; he was healthy, happy,
and less stressed and afraid. Dr. Sutherland likewise believed George’s mood
improved, but observed his memory had worsened. For example, he was
forgetting who Dr. Sutherland was and forgot a long-time caregiver returning
from vacation; he sometimes did not recall his current or prior home; and he
was not oriented to the day, month, or year. In February 2023, Dr.
Sutherland believed the dementia had become severe, and she wrote a letter
opining that George lacked capacity to make medical and financial decisions.
Contemporaneously, George’s neurologist, Dr. Armen Moughamian, wrote a
letter to the same effect.
On May 3, 2024, while Susannah was out of town and without her or
the caregivers’ prior knowledge, Gabriella allowed Herren—a trust and
estate attorney—into George’s home to meet with George. During that
meeting, George signed a fee agreement to pay Herren’s firm a $100,000
3
retainer. The same day, Herren sent a demand letter for payment to the co-
trustees of George’s trust, Susannah and Karie Dewan, and to Stimmel,
Stimmel & Roeser, PC (hereafter “the Stimmel firm”), the law firm which
prepared the 2022 restated trust.
A. The Application for a Restraining Order
On May 8, 2024, Susannah, acting in her capacity as George’s attorney-
in-fact, filed a form request for an elder or dependent adult abuse restraining
order pursuant to section 15657.03 (Judicial Council form EA-100), seeking
protection for George pursuant to the Elder Abuse Act. As relevant here, the
application sought an order prohibiting Herren from financially abusing
George and disturbing his peace. The superior court case number given to
the matter was CV0002765 (hereafter “case 2765”).
The petition described the alleged abuse as follows. George, a wealthy
86 year old, has major neurocognitive disorder and lacks capacity. Gabriella,
Gabriella’s husband, and George’s former wife Dalyla are unhappy with his
estate plan, so Gabriella had Herren meet in secret with George, and now
Herren is seeking payment of a $100,000 retainer. After the meeting, George
was agitated and upset, and he experienced high blood pressure, rumination,
poor sleep, diarrhea, and paranoia. His caregivers were afraid, and his chef
quit. Dr. Sutherland reported the Herren incident to the county Adult
Protective Services agency (APS).
Susannah filed a materially identical application for a restraining order
against Gabriella. The superior court case number given to this matter was
CV0002766 (hereafter “case 2766”). Pending the hearings on these matters,
the court granted temporary restraining orders against Herren and
Gabriella.
4
B. Herren’s Response
Herren filed a form response (Judicial Council form EA-120) in
case 2765 objecting to the requested restraining order. In case 2766, Herren
filed a declaration claiming Gabriella told her that George wanted to speak to
an attorney. Herren averred that when she went to see George and a
caregiver questioned why she was there, George said Herren was there at his
invitation. Because George disagreed with the diagnosis of incompetence and
his forced isolation from family, friends, and longtime counsel and medical
providers, he retained Herren to explore obtaining an evaluation of his
competency and explore filing a petition to determine his competency. After
speaking to George, Herren was satisfied he could retain her firm.
C. The Evidentiary Hearing
On May 24, 2024, Herren appeared as the respondent in case 2765 and
indicated she was also appearing as George’s counsel in the case and various
related matters, including Gabriella’s cross-petition in case 2766 for an order
allowing contact. William Webb announced he was appearing on behalf of
George and Susannah. Ultimately, the trial court continued the hearing and
ordered that the temporary restraining orders remain in effect. Herren
objected to the continuance of the temporary restraining orders, contending
that she could speak on George’s behalf, that George would disagree with the
restraining order requests, and that he would agree with Gabriella’s request
allowing contact. Herren requested appointment of a guardian ad litem for
George pursuant to Probate Code section 1003. The court denied that
request without prejudice.
Though case 2765 and case 2766 were not consolidated, at the parties’
request, the court took evidence in both cases. The evidentiary hearing
5
continued over numerous days in June and July 2024. The following is a
summary of the testimony presented.
Dr. Sutherland, an expert in “geropsychology with a background in
neuropsychological evaluations including capacity evaluations,” testified as
follows. She sees George about once a week and has diagnosed him with
“[m]ajor neurocognitive disorder, multifactorial, Alzheimer’s and Lewy body
with behavioral challenges,” which is a “severe dementia.” George talks to
her about stressors, and she has observed certain patterns, e.g., “when there
is contact with [Gabriella], there is a consequence of distress around money.”
To maintain George’s baseline, it is important to keep him in calm, low
stimulation environments. Dr. Sutherland has told Gabriella that financial
conversations distress George.
When Dr. Sutherland saw George in late April 2024, he was stable and
in a good mood. But on May 2, 2024, he was distressed and had a hand
tremor because his former wife called asking for money. This response was
generally consistent with George’s response on a dozen or so prior occasions
when people asked him for money.
Dr. Sutherland saw George on May 4, 2024, the day after Herren met
with George. George was extremely distressed, paranoid, and ruminating; he
talked about feeling unsafe and being held against his will. He had never
before expressed feeling locked up or like a prisoner. Pursuant to her duty as
a mandatory reporter, Dr. Sutherland reported the incident involving Herren
to APS. At Dr. Sutherland’s recommendation, George’s phone access was
restricted because many calls were coming in and causing more distress. Dr.
Sutherland also recommended limiting Gabriella’s access to George and his
calendar, though Susannah did not want to do so.
6
On May 7, 2024, upon learning Gabriella was at George’s home, Dr.
Sutherland called the police and proceeded to the home. When she arrived,
Gabriella had already left and George appeared deflated, ruminating, and
distressed. George kept stating he was “locked in” and expressed confusion
about his location and his caregivers. George also said he did not want to
talk about money anymore. He mentioned something about a $100,000 “ ‘bill
for work,’ ” but could not remember what kind of work.
Dr. Sutherland believes that George lacks capacity to make financial
and medical decisions and that Herren should be kept away from George if
her goal is to have him sign contracts and ask him for money. Given the
severity of his dementia, George would not seek out an attorney, nor could he
communicate goals in detail. In Dr. Sutherland’s view, someone meeting
George should know within about five minutes that something is “amiss.”
Susannah has never asked Dr. Sutherland to do anything unethical, and Dr.
Sutherland has no reason to suspect that Susannah has exercised undue
influence over George.
Karen Moore testified as follows. She is a home health aide and
certified nursing assistant, and she has been a caregiver for George for the
last three and a half years. Presently, when Moore greets George, she always
tells him her name because his memory is not good. George has to be
reminded about “[a]lmost everything.” On a daily basis, he is unable to
remember that he is at his home and that he has children and was previously
married. He does not know whether he has a girlfriend or if his parents are
still alive. It is unsafe for George to shower alone, and Moore does not think
he is capable of fully dressing himself.
George has a calendar so that his caregivers know what is happening
each day. Prior to May 2024, Susannah had never told Moore that the
7
calendar could not be shown to Gabriella or that Gabriella was not allowed at
the house.
On May 2, 2024, around 8:30 p.m., Moore heard George’s former wife
call and ask him on the speaker phone, “ ‘did you get that $10,000 for my air
fare?’ ” George responded, “ ‘I don’t know where I am. I have slept in three
different places this week.’ ” The next day, George—who is usually is happy
and smiling—appeared “flat” and scared, and said “ ‘I can’t remember
something.’ ”
At some point on May 3, 2024, Gabriella arrived. After leaving
Gabriella and George alone, Moore eventually saw Gabriella heading to the
door and Herren talking with George. Moore told Herren she was not in the
calendar and could not be there. Herren claimed that George called her, set
up an appointment, and knew her, but George said he did not know her.
Moore and Herren bickered until Herren threatened that Moore would be
“ ‘charged with elder abuse’ ” if she did not give George privacy. Then George
said Moore had better leave. Moore moved to a window seat in the room, but
heard George tell Herren, “ ‘She is still here,’ ” at which point Moore left the
room completely. George never told Moore he wanted to meet with Herren.
The meeting lasted an hour and a half. Before leaving, Herren asked
Moore for George’s phone number and email. Moore provided the house
number, but said Herren would have to get the rest from Susannah and said,
“ ‘If you are his counsel, shouldn’t you have this information?’ ” After the
meeting, George looked drained, hungry, and tired, and he went to bed.
When Gabriella called later and asked how the meeting went, George
responded, “ ‘I don’t know.’ ” After the May 3 incident, Moore told Susannah
she wanted a restraining order against Gabriella. Prior to that date,
Susannah had never tried to prevent George from meeting anybody.
8
Susannah testified as follows. In April 2023, she and co-trustee Karie
Dewan—a professional fiduciary—informed the trust beneficiaries that
George lacked capacity to make financial decisions. George has since said
that Gabriella asks him about money, that this upsets him, and that he
would like to not think about such things. About once a month, George has
expressed not wanting to see Gabriella because she asks for money.
Susannah has told Gabriella that conversations about money upset George.
George asked to talk with Susannah and Gabriella about his estate, but
Susannah refused for George’s health and safety.
Though George is very intelligent and has good verbal skills, it becomes
apparent after a few minutes of talking that he has memory loss and confuses
topics of conversation. George’s short-term memory is “almost gone,” and he
could not, for example, say what he had for breakfast. He gets confused daily
about things such as where he lives and if he has grandchildren. Susannah
has not heard George direct a conversation since 2018 or 2019, and has not
heard him correct something in a conversation for years.
After Herren’s meeting on May 3, 3024, George’s doctors told Susannah
that George was exhausted, fragile, and on extra medication, and he had
developed high blood pressure. Caregivers told her that George was having
urgent bowel movements, ruminating, and sleeping poorly. Susannah, who
had been out of town, did not see George until May 8. By that time, George
had calmed down, though he said he felt like something was wrong and
somebody wanted something from him. When Susannah asked George if he
wanted Herren’s invoice paid, George replied he had never met Herren and
was appalled someone would ask him for $100,000.
After consulting with Dr. Sutherland, Susannah blocked calls to and
from Gabriella and Gabriella’s husband and son, who had been calling
9
George repeatedly, and removed Gabriella’s access to George’s calendar.
According to the calendar, Gabriella visited George 65 times from 2023 to the
present.
Herren testified as follows. She has practiced trusts and estates law
for about 12 years. She had a video call with Gabriella and understood
George wanted counsel, but it was unclear what exactly he wanted or if he
was competent. Gabriella told Herren there had been a conservatorship but
it ended at some point. Herren did not ask and did not know if Gabriella was
acting with powers of attorney, though it may have been mentioned that
Susannah held the power of attorney. The only information Herren
requested from Gabriella was the “ ‘trustee notification,’ ” i.e., a standard
notice a trustee sends out when a trust becomes irrevocable. Gabriella
provided documents to Herren, including a copy of the trust and letters
indicating that George had been declared incapacitated and that Susannah
was a co-trustee. Herren did not ask for any other information as she wanted
to reach her own conclusions after meeting George.
Before the meeting, Herren prepared an engagement letter. When she
met George, he was well groomed and wearing a house robe over clothes.
Moore was upset Herren was there, but George told Moore he wanted Herren
there and to speak to her privately. Herren told Moore that George invited
her and asked Moore to leave because they were going to have “an attorney-
client privileged conversation.” Herren denied telling Moore she would be
charged with elder abuse.
The meeting with George lasted about 55 minutes. George appeared to
be in good health and led the conversation and seemed to have his own
agenda. When asked whether George appeared oriented to “time, place,
situation,” Herren testified she had no “point of reference” for that, except
10
that toward the end of the meeting, he agreed with her statement that it was
close to lunch. Herren believed George had the capacity to retain her and
understood the consequences of the legal tasks they discussed.
George asked Herren for her fee agreement, which stated Herren’s role
was to represent George regarding the “ ‘administration of [his] trust.’ ” After
pulling out the agreement, Herren perceived George’s vision was impaired so
she read him the first two pages and summarized the remaining pages,
including the billing terms. George signed it, but Herren had to point to the
place for his signature. George told her to get his contact information from
Moore.
Invoking the attorney-client privilege at the hearing, Herren declined
to discuss the agreed goal of the representation, and indicated the extent of
what she could disclose was stated in her letters to the Stimmel firm. But in
seeming contradiction to her earlier declaration, Herren asserted George did
not authorize her to file anything having to do with his competency; rather,
what George wanted was another meeting with Herren, and “the extent of
[her] authority was [to] ask for the next meeting.”
Gabriella testified as follows. Since February 2023, she has never
asked George for money. Though she previously had visited and called
George, she has only been able to see him twice after this action was filed,
and both times he was happy to see her and expressed loneliness.
The trial court allowed Gabriella to testify about the following hearsay
conversation she had with George, though the court indicated it would weigh
the conversation accordingly. In April 2024, George told Gabriella he
understood that Susannah was “ ‘doing all the work.’ ” He asked her if the
work had been divided equally. When Gabriella said it had not, George was
in “complete shock and disbelief.” He said those were not his wishes and
11
asked for help finding counsel. Gabriella acted on this by having
conversations with some legal professionals, including Herren. When George
and Herren met, Gabriella heard George tell Moore that Herren would be
staying.
D. The Trial Court’s Rulings
The trial court ultimately issued a restraining order against Herren.
In finding that Herren engaged in elder financial abuse, the court concluded
the evidence established that Herren obtained a property right from George
by undue influence (§ 15610.30, subd. (a)(3)), and that she knew or should
have known the taking would be harmful to George (§ 15610.30, subd. (b)).
The order prohibited Herren from abusing and contacting George, and
ordered her to stay 100 yards away from him and his home.
The court denied the requested restraining order against Gabriella, but
admonished Gabriella of the risks of bringing people to meet with George
contrary to his doctors’ instructions. The court also denied Gabriella’s cross-
petition for an order allowing contact.
Herren has appealed the restraining order against her, but Gabriella
does not seek review of the order denying her cross-petition.
DISCUSSION
Before proceeding, we note the restraining order in this case was set to
expire on January 17, 2025. Neither party has addressed the issue of
mootness in their briefs, and we exercise our discretion to consider the
merits, as there may be a recurrence of controversy between the parties. (In
re D.P. (2023) 14 Cal.5th 266, 282.)
A. Authority to Seek Court Relief
Citing the Due Process in Competence Determinations Act (Stats. 1995,
ch. 842, §§ 2, 3, as amended by Stats. 1997, ch. 581, §§ 19, 20), Herren
12
contends Susannah had no authority or standing to seek a restraining order
under the Elder Abuse Act without first rebutting the presumption that
George had capacity to make decisions such as retaining Herren. Relatedly,
she argues the trial court was powerless to consider the restraining order
request without first adjudicating George’s competence.
In so contending, Herren relies principally on Probate Code
sections 810 and 811. Probate Code section 810, subdivision (a), provides:
“For purposes of this part, there shall exist a rebuttable presumption
affecting the burden of proof that all persons have the capacity to make
decisions and to be responsible for their acts or decisions.” In turn, Probate
Code section 811 expressly contemplates that a determination of a person’s
unsound mind or incapacity to make a decision, “including, but not limited to,
the incapacity to contract . . . shall be supported by evidence of a deficit in at
least one of the following mental functions [(alertness and attention,
information processing, thought processes, ability to modulate mood and
affect)], . . . and evidence of a correlation between the deficit or deficits and
the decision or acts in question.” Probate Code section 811 further provides:
“The mere diagnosis of a mental or physical disorder shall not be sufficient in
and of itself to support a determination that a person is of unsound mind or
lacks the capacity to do a certain act.”
Additionally, noting that George’s trust permits George to petition a
court to adjudicate his competence and requires a trustee to cooperate with
any such petition, Herren argues Susannah could not unilaterally exercise
her authority as attorney-in-fact to reject Herren’s engagement and accuse
Herren of elder abuse. Thus, in Herren’s view, both the law and the terms of
the trust call for Susannah to “first to carry the burden to rebut the
presumption that George had capacity to engage Herren.”
13
These arguments raise questions of law and statutory interpretation
that we review de novo. (In re Dezi (2024) 16 Cal.5th 1112, 1128.)
Initially, we observe Herren’s counsel agreed several times that the
trial court would not be deciding George’s capacity in the restraining order
proceeding. Herren has thus forfeited this issue. (See In re Marriage of
Broderick (1989) 209 Cal.App.3d 489, 501 [“an appellant waives his right to
attack error by expressly or implicitly agreeing or acquiescing at trial to the
ruling or procedure objected to on appeal”].) 3
In any event, Herren cites no authority indicating that Susannah was
required to rebut a presumption of George’s capacity in order to have
authority or standing to request a restraining order pursuant to
section 15657.03 of the Elder Abuse Act, or that the trial court was required
to determine George’s capacity before adjudicating the restraining order
application.
We start with the terms of the Elder Abuse Act. The act explicitly
provides that “ [a] petition may be brought on behalf of an abused elder or
dependent adult by a conservator or a trustee of the elder or dependent adult,
an attorney-in-fact of an elder or dependent adult who acts within the
authority of a power of attorney, a person appointed as a guardian ad litem
for the elder or dependent adult, or other person legally authorized to seek the
relief.” (§ 15657.03, subd. (a)(2)(A), italics added.) As relevant here, an
abused elder includes an elder who is financially abused (§ 15610.07), such as
3 At times, Herren’s counsel also argued to the trial court that George’s
capacity could not be determined in the proceeding because George was not
present. At one point, Herren’s counsel indicated he was contemplating
subpoenaing George, but then Webb indicated he was agreeable to coming up
with an accommodation so that George could be heard, but the topic was
never brought up again. Herren’s failure to pursue this accommodation
further supports the finding of a forfeiture.
14
in situations where a property right is obtained from an elder by undue
influence. (§ 15610.30, subd. (a)(3).)
The Elder Abuse Act then defines “ ‘[u]ndue influence’ ” as meaning
“excessive persuasion that causes another person to act or refrain from acting
by overcoming that person’s free will and results in inequity.” (§ 15610.70,
subd. (a).) By its terms, the act contains no language suggesting that Probate
Code section 810’s presumption of capacity must be rebutted before a trustee
or an attorney-in-fact may seek protection of an elder from this type of abuse.
Importantly, however, the act does require trial courts to consider the
following four factors in determining whether undue influence produced an
inappropriate result: (1) the victim’s vulnerability; (2) the influencer’s
apparent authority; (3) the influencer’s actions or tactics; and (4) the equity of
the result. (§ 15610.70, subd. (a)(1)–(4).) As to the first factor, evidence of
the alleged victim’s vulnerability “may include, but is not limited to,
incapacity, illness, disability, injury, age, . . . impaired cognitive function,
emotional distress, isolation, or dependency, and whether the influencer
knew or should have known of the alleged victim’s vulnerability.”
(§ 15610.70, subd. (a)(1), italics added.) Notably, section 15610.70’s express
contemplation that evidence of an alleged elder victim’s vulnerability “may
include” evidence of “incapacity” to show the elder’s susceptibility to undue
influence appears to undercut Herren’s contention that a petitioner must
establish a victim’s lack of capacity as a prerequisite to seeking an order
protecting the elder from financial abuse under section 15610.30,
subdivision (a)(3).
Indeed, to promote its goal of protecting vulnerable persons such as
George, the Elder Abuse Act includes the following legislative declarations:
“elders and dependent adults may be subjected to abuse, neglect, or
15
abandonment and . . . this state has a responsibility to protect these persons”;
“mental and verbal limitations often leave them vulnerable to abuse and
incapable of asking for help and protection”; and “infirm elderly persons and
dependent adults are a disadvantaged class, [such] that cases of abuse of
these persons are seldom prosecuted as criminal matters, and few civil cases
are brought in connection with this abuse due to problems of proof, court
delays, and the lack of incentives to prosecute these suits.” (§ 15600,
subds. (a), (c), (h).) In this regard, the Legislature was explicit in its intent
“to enable interested persons to engage attorneys to take up the cause of
abused elderly persons and dependent adults.” (§ 15600, subd. (j), italics
added.) “This statement of legislative intent suggests the Legislature
intended a broad definition of standing in the context of elder abuse cases.”
(Estate of Lowrie (2004) 118 Cal.App.4th 220, 227 (Lowrie).)
Not only does Herren’s proposal to require an adjudication of capacity
appear contrary to the language of the Elder Abuse Act, but it would
discourage restraining order applications for elders who are not incapacitated
but are nonetheless vulnerable to abuse, which appears contrary to the
Legislature’s intent to broadly allow standing in elder abuse cases. As one
court reasoned, “[s]tanding, for purposes of the Elder Abuse Act, must be
analyzed in a manner” that protects “the victimized” and “induces interested
persons to report elder abuse and to file lawsuits against elder abuse and
neglect.” (Lowrie, supra, 118 Cal.App.4th at p. 230.) Here, it was undisputed
that Susannah is George’s trustee and his attorney-in-fact with the power to
prosecute legal actions involving George. Thus, we conclude that Susannah
had standing to seek and obtain a protective order on behalf of George
without an adjudication of his capacity.
16
Our conclusion that a restraining order may be sought and issued
without a capacity determination is consistent with the principle that an
elder’s capacity is not a general defense to abuse under the Elder Abuse Act.
Longstanding case law recognizes, for example, that “[s]oundness of mind
and body does not imply immunity from undue influence. It may require
greater ingenuity to unduly influence a person of sound mind and body, and
more evidence may be required to show that such a person was overcome
than in the case of one weak of body and mind. But history and experience
teach that minds of strong men and women have often been overborne.” (In
re Estate of Olson (1912) 19 Cal.App. 379, 386; see American Bar
Association’s Commission on Law and Aging & American Psychological
Association, Assessment of Older Adults with Diminished Capacities (2d ed.
2021), p. 25 [“[u]ndue influence is a separate issue from capacity,” though
diminished capacity or vulnerability (e.g., illness or stressful circumstances)
are risk factors for undue influence].)
In sum, we reject Herren’s contentions that the restraining order could
not be sought or issued without the trial court first adjudicating George’s
competence. 4
4 At oral argument, Herren seemed to abandon these contentions.
Instead, she claimed for the first time that in cases such as this—where an
elder allegedly enters an attorney-client relationship and executes an
agreement for attorney fees—trial courts need not determine the elder’s
capacity but must ascertain whether a valid attorney-client relationship was
formed. Setting aside Herren’s apparent forfeiture of this belatedly-raised
contention (see Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784–
785), we note this new proposal does not seem materially different or any
more meritorious than her argument that courts must make a threshold
determination of the elder’s capacity, at least in the circumstances of this
case. Specifically, determining whether a valid attorney-client relationship
was formed would likewise entail an examination of whether Herren exerted
17
B. Substantial Evidence
Herren next argues there is no substantial evidence she engaged in any
conduct that qualifies as elder abuse. We cannot agree.
Under the Elder Abuse Act, an elder is any adult residing in state who
is 65 years or older. (§ 15610.27.) “ ‘Abuse of an elder’ ” includes “[p]hysical
abuse . . . or other treatment with resulting physical harm or pain or mental
suffering” (§ 15610.07, subd. (a)(1); see § 15657.03, subd. (b)(1)), as well as
“[f]inancial abuse,” which includes situations where a person “[t]akes,”
“obtains,” or assists in taking or obtaining “real or personal property of an
elder or dependent adult by undue influence.” (§§ 15610.07, subd. (a)(3),
15610.30, subd. (a)(3).) Such abuse may be found “when an elder or
dependent adult is deprived of any property right, including by means of an
agreement . . . , regardless of whether the property is held directly or by a
representative of an elder or dependent adult.” (§ 15610.30, subd. (c), italics
added.) A “ ‘representative’ ” includes a trustee, attorney-in-fact, or other
representative of the estate of an elder. (§ 15610.30, subd. (d).)
When a trustee or an attorney-in-fact brings a petition on behalf of an
elder (§ 15657.03, subd. (a)(2)(A)), a protective order may be issued, “with or
without notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if a declaration shows, to the satisfaction of the court,
reasonable proof of a past act or acts of abuse” of the elder (§ 15657.03,
undue influence on George to secure her right to represent him and his
agreement to pay for her representation. As recounted above, and in part B,
post, the record establishes that George’s two doctors had declared him
incompetent to make financial decisions, and George does not know who
Herren is, does not recall meeting with her or their discussions, and does not
want to pay Herren’s $100,000 retainer. Meanwhile, Herren contends she is
not at liberty to discuss her conversation with George because of the
attorney-client privilege.
18
subd. (c)). Further, upon notice and a hearing, a court may issue any of the
statutorily enumerated restraining orders, including orders “enjoining a
party from abusing, . . . harassing, telephoning, . . . contacting, either directly
or indirectly, by mail or otherwise, or coming within a specified distance of, or
disturbing the peace of,” the elder. (§ 15657.03, subds. (b)(5)(A), (h).)
“[P]rotective orders under the Elder Abuse Act require proof by a
preponderance of the evidence of a past act or acts of elder abuse.” (Bookout
v. Nielsen (2007) 155 Cal.App.4th 1131, 1134.) Elder abuse protective orders
are reviewed for abuse of discretion, and the factual findings necessary to
support such orders are reviewed for substantial evidence. (Id. at p. 1137.)
Under the substantial evidence test, “ ‘[w]e resolve all conflicts in the
evidence in favor of respondent, the prevailing party, and indulge all
legitimate and reasonable inferences in favor of upholding the trial court’s
findings.’ [Citations.] . . . [T]he testimony of even one witness may support a
finding based thereon.” (Newman v. Casey (2024) 99 Cal.App.5th 359, 375.)
Having reviewed the entire record, we conclude substantial evidence
supports the trial court’s finding that Herren committed elder financial abuse
by exerting undue influence to obtain a property right from George.
(§ 15610.30, subd. (a)(3).)
First of all, it is undisputed that George is an elder and that Herren
obtained George’s agreement to pay a $100,000 retainer. Such an agreement
is a property right, as evidenced by Herren’s demand for payment. As one
court explains, “The concept of property in California is extremely broad.
‘ “The term ‘property’ is sufficiently comprehensive to include every species of
estate, real and personal, and everything which one person can own and
transfer to another. It extends to every species of right and interest capable
of being enjoyed as such upon which it is practicable to place a money
19
value.” ’ ” (Estate of Sigourney (2001) 93 Cal.App.4th 593, 603; see, e.g., In re
Marriage of Brown (1976) 15 Cal.3d 838, 845 [a contractual right is “a chose
in action, a form of property”]; Mahan v. Charles W. Chan Ins. Agency, Inc.
(2017) 14 Cal.App.5th 841, 861, 853–854, 864 [deprivation of a property right
under section 15610.30 implicated where respondents allegedly restructured
insurance policies held by plaintiffs’ trust with increased premiums that
required payment by plaintiffs]; Bounds v. Superior Court (2014) 229
Cal.App.4th 468, 472, 479–480 (Bounds) [same conclusion where allegations
showed that elderly petitioner executed escrow instructions authorizing the
sale of real property owned by her trust, even though escrow was later
cancelled and title and possession of the property were not transferred].)
The record also contains substantial evidence establishing that Herren
obtained this property right by undue influence. As to the first factor
relevant to this determination, evidence of the alleged victim’s vulnerability
“may include, but is not limited to, incapacity, illness, disability, injury, age,
. . . impaired cognitive function, emotional distress, isolation, or dependency,
and whether the influencer knew or should have known of the alleged
victim’s vulnerability.” (§ 15610.70, subd. (a)(1).)
Here, George was 86 years old when he met with Herren. Just a few
years prior, at the end of a romantic relationship, George’s mental health and
mood became erratic; he was sad, anxious, suicidal and scared “all the time.”
Physically, he was unstable and weak. In February 2023, George’s treating
doctors declared their professional judgment that he lacked capacity to make
medical and financial decisions. By May 2024, George’s health had improved,
but he still experienced anxiety and depression, macular degeneration such
that he is legally blind, and severe and progressive dementia. The testimony
established that, on a daily basis, he is unable to remember that he is at his
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home and that he has children and was formerly married. Similarly, he does
not know if he has a girlfriend or if his parents are still alive, and he cannot
remember his long-time caregiver’s name. Moreover, he is not oriented to
time and his short-term memory is “almost gone.” Other evidence of
vulnerability included testimony that George is lonely and desires
companionship, and multiple witnesses testified that conversations about
money and finances distress him.
As for the second factor in determining whether undue influence has
been exercised, courts assess the influencer’s “apparent authority.”
(§ 15610.70, subd. (a)(2).) Evidence of such authority “may include, but is not
limited to, status as a fiduciary, family member, care provider, health care
professional, legal professional, spiritual adviser, expert, or other
qualification.” (Ibid.) Here, there is no question that Herren is a lawyer, and
that Gabriella introduced her to George as such. According to Moore, Herren
demanded, in George’s presence, to be alone with George and threatened
Moore with a charge of elder abuse. Conversely, Herren testified she told
Moore to leave in George’s presence and said “ ‘this is going to be an attorney-
client privileged conversation that you can’t listen in on.’ ” Either way,
George evidently witnessed Herren’s assertion of authority as a legal
professional.
As for the third factor, evidence of the influencer’s actions or tactics
“may include, but is not limited to, all of the following: [¶] (A) Controlling . . .
the victim’s interactions with others . . . . [¶] (B) Use of affection,
intimidation, or coercion. [¶] (C) Initiation of changes in personal or property
rights, use of haste or secrecy in effecting those changes, effecting changes at
inappropriate times and places, and claims of expertise in effecting changes.”
(§ 15610.70, subd. (a)(3).) In this case, Herren knew that George had a trust
21
and that Susannah was a co-trustee, yet she met with George while
Susannah was out of town. Herren also knew two medical professionals had
found that George lacked capacity to make medical and financial decisions.
Aside from asking Gabriella for a copy of the trustee notification, Herren
intentionally refrained from asking anyone, including Gabriella, for any other
information. Herren’s visit was not on George’s calendar, and when Herren
informed Moore during his visit with George that George knew her and had
set up the appointment, George said he did not know Herren or her name.
Nor did George indicate he wanted to meet with Herren.
Additionally, despite Moore’s protests, Herren got George alone by
threatening Moore in front of George with being “ ‘charged with elder
abuse.’ ” Once alone, the two spoke privately for up to an hour and a half. At
the end of that meeting, Herren procured George’s signature on a retainer
agreement that she brought with her. George has macular degeneration and
is legally blind. Notably, Herren did not read George the entire attorney fee
agreement; she only read him the first two pages and summarized other
parts, including the billing terms. George signed it, but Herren had to point
to the place for him to sign. Moore’s testimony also established that, after
the meeting, George looked drained, hungry, and tired. Furthermore, when
Susannah asked George a few days later if he wanted to pay Herren’s invoice
for $100,000, George said he had never met Herren and was appalled
someone would ask him for that amount of money.
Finally, the fourth factor pertaining to the equity of the result
contemplates the court’s consideration of evidence that “may include, but is
not limited to, the economic consequences to the victim, any divergence from
the victim’s prior intent or course of conduct or dealing, the relationship of
the value conveyed to the value of any services or consideration received, or
22
the appropriateness of the change in light of the length and nature of the
relationship.” (§ 15610.70, subd. (a)(4).)
Here, George’s trust names Susannah as a successor co-trustee in the
event of his incapacity, and it defines incapacity to include when a “medical
doctor” or “the Settlor’s treating physician” examines the elder “and declares
under penalty of perjury that such person is either temporarily or
permanently incapacitated . . . .” George’s DPOA also names Susannah as a
successor attorney-in-fact, specifically giving her broad power to litigate on
his behalf and in any matters involving him. Thus, contrary to Herren’s
contentions, the purported hiring of Herren to explore filing a petition to
challenge the diagnosis of George’s incompetence represents a complete
divergence from George’s intent as expressed in his trust and DPOA, which
were executed before his treating doctors authored letters stating he lacked
capacity.
In arguing that substantial evidence does not support the finding of
elder abuse, Herren contends that she “simply met with a putative client to
assess an engagement for a purpose authorized in a trust,” and that she “did
not coax George to sell real estate or other property to her” but “merely
allowed George to express his concerns to her and concluded he was within
his rights to petition a court.” “As a matter of law,” she argues, “that is not
elder abuse.” Several amici curiae characterize this case in the same manner
and suggest affirmance of the instant restraining order would imply that an
attorney commits elder abuse “simply by meeting alone with the client.”
Herren’s and amici’s concerns are off the mark. This is not a situation
in which a finding of elder financial abuse is predicated on the mere
circumstance that an attorney met with a putative client who has diminished
capacity. Rather, as discussed, the record contains ample evidence Herren
23
committed financial abuse by exerting undue influence in meeting with
George alone to secure his consent to legal representation and a $100,000
retainer fee, even though she knew he had been declared incompetent by two
medical professionals. Our conclusion fully comports with the Legislature’s
contemplation that the propriety of issuing an elder abuse restraining order
calls for the evaluation of evidence on a case-by-case basis. And while we
acknowledge that other cases with different facts may present the potential
for tension between the interest in allowing attorneys to meet with and
represent elderly people with diminished capacity, and the interest in
protecting elders against the types of abusive conduct set out in the Elder
Abuse Act, we are confident in the ability of trial courts to carefully scrutinize
the evidence presented by all sides in evaluating whether an attorney has
crossed the line in securing fee agreements and other rights from an elder.
In sum, substantial evidence supports the trial court’s findings of
undue influence and elder abuse.
C. Other Contentions
Herren makes a number of additional contentions in challenging the
restraining order. None is availing.
For example, Herren contends Gabriella told her that a court had
terminated a conservatorship over George, meaning there had been a finding
that George could make his own decisions. But the record reflects Herren
knew from the trustee notification provided by Gabriella before the meeting
with George that the trust was deemed irrevocable and that Susannah was a
co-trustee because George had been declared incapacitated.
Herren next argues that because she sent the retainer agreement to
Susannah’s counsel, the Stimmel firm, Herren “would only obtain property if
an independent fiduciary (or a court) approved the engagement,” and so she
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did not “wrongfully deprive George of property.” Herren relatedly contends
her presentation of the agreement to Susannah “precluded a finding of an
intent to defraud or undue influence.” But Herren cites no authority to
support this proposition, and it is contrary to case law (e.g., Bounds, supra,
229 Cal.App.4th at pp. 472–473 [“ ‘taking’ ” for purposes of financial abuse
under the Elder Abuse Act occurs when an elder entered “an unconsummated
agreement which, in effect, significantly impairs the value of the elder’s
property”]), and to section 15610.30, subdivision (c), which provides that “a
person or entity takes, . . . obtains, or retains . . . personal property when an
elder or dependent adult is deprived of any property right, including by
means of an agreement, . . . regardless of whether the property is held directly
or by a representative of an elder or dependent adult.” (Italics added.)
Herren also contends the restraining order must be reversed “on the
independent ground that there was (and is) no substantial evidence of a
prospective threat.” This argument, however, is unaccompanied by record
citations or citations to authority and so is forfeited. (Yield Dynamics, Inc. v.
TEA Systems Corp. (2007) 154 Cal.App.4th 547, 557 (Yield Dynamics).)
Indeed, it appears contrary to the record, which reflects that Herren intends
to pursue representing George and will seek a court order for payment of the
retainer. Moreover, and in any event, “a protective order under the Elder
Abuse Act may issue on the basis of evidence of past abuse, without any
particularized showing that the wrongful acts will be continued or repeated.”
(Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; § 15657.03, subd. (c).)
Herren additionally contends the State Bar of California’s Standing
Committee on Professional Responsibility and Conduct formal opinion No.
2021-207 (State Bar Opinion) suggests that her conduct “is what an attorney
should do with regard to a putative client who had diminished capacity.” To
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the extent Herren is relying on the State Bar Opinion to challenge the trial
court’s determination that she obtained a property right from George by
undue influence, we reject this. The court heard the evidence, and it is not
our role to reweigh it. Nor are we persuaded that the State Bar Opinion
indicates Herren’s conduct does not constitute elder abuse as a matter of law;
the State Bar Opinion does not directly address the facts of this case, much
less validate her conduct as a matter of law.
In sum, substantial evidence supports the trial court’s determination
that Herren engaged in conduct that qualifies as elder financial abuse under
subdivision (a)(3) of section 15610.30. 5
D. Conflict of Interest and Due Process Arguments
Herren sets out a series of arguments under the heading the trial court
should never have “allowed the elder abuse action against Herren in light of
the profound conflicts of interest and other due process problems inherent in
such a proceeding.” (Capitalization and bold omitted.) We address these in
turn.
First, Herren argues the instant restraining order action deprived
George of his civil rights without due process. This is so, she claims, because
“George asked Herren to petition a court to remove [Susannah] as trustee and
to adjudicate his capacity, yet the elder abuse action prevented the trial court
5 Given our conclusion, we need not and do not address Herren’s
contention that the evidence was insufficient to establish her commission of
any physical abuse of George, or George’s contention and the trial court’s
apparent finding that Herren also engaged in financial abuse under
subdivisions (a)(1) and (a)(2) of section 15610.30.
We likewise do not address other lurking and unsupported arguments
in Herren’s opening brief, such as her contention that Susannah’s action was
an “unnecessary overreaction” because Susannah could have petitioned the
court to decide whether George was competent to retain Herren.
26
from adjudicating any such petition, nor even determining George’s capacity.
In other words, by abusing her power as George’s agent to sue Herren,
[Susannah] silenced George’s expressed wish to petition the court—without
the court ever hearing from George or affording him any due process.”
(Italics omitted and added.)
This argument is unsupported by record citations or citations to
authority, and so it is forfeited. (Yield Dynamics, supra, 154 Cal.App.4th at
p. 557.) It is also unpersuasive. The premise of the claim that George asked
Herren “to petition a court to remove [Susannah] as trustee and to adjudicate
his capacity” is contradicted by Herren’s own testimony that George did not
authorize her to file anything regarding his competency; instead, what
George wanted was a second meeting, and “the extent of [her] authority was
[to] ask for the next meeting.”
Second, Herren claims this action “blessed an attorney conflict” because
Webb filed this action in George’s name while simultaneously representing
Susannah, which was impermissible because George and Susannah had
conflicting interests. Apart from cursorily suggesting Webb had a conflict,
Herren never formally moved to have Webb disqualified nor pursued or
obtained a ruling as to whether Webb had a conflict. The issue was thus
forfeited. (In re Candida S. (1992) 7 Cal.App.4th 1240, 1253, fn. 8
[meaningful appellate review can only occur if a party raises a potential
conflict of interest, the trial court hears the matter, and the trial court
decides whether an actual conflict exists]; see generally People v. Braxton
(2004) 34 Cal.4th 798, 813–814 [failure to press for a ruling results in
forfeiture of issue on appeal].)
Citing Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197 (Kennedy),
Herren appears to suggest Webb should have been disqualified sua sponte,
27
despite her failure to seek his disqualification. We are unpersuaded.
Kennedy involved support and custody of an infant where the trial court
granted the mother’s motion to disqualify the child’s paternal grandfather,
Richard, from representing the father. (Kennedy, at p. 1200.) Kennedy
affirmed, concluding that “where an attorney’s continued representation
threatens an opposing litigant with cognizable injury or would undermine the
integrity of the judicial process, the trial court may grant a motion for
disqualification, regardless of whether a motion is brought by a present or
former client of recused counsel.” (Id. at pp. 1204–1205.)
Though Kennedy indicates a trial court may grant a nonclient’s motion
to disqualify counsel, it does not purport to hold that a trial court has a sua
sponte duty to disqualify counsel, nor does Kennedy set out the parameters of
what might trigger such a sua sponte duty.
Third, Herren argues the action “endorsed fiduciary self-dealing”
because George “retained Herren to petition a court to remove [Susannah] as
trustee,” and therefore Susannah had a direct conflict with George’s retention
of Herren and any proposed petition concerning George’s competency. Again,
this does not appear to have been raised below. Further, as already
discussed, this too rests on the false premise that Herren was hired to file a
petition adjudicating George’s competency.
Fourth, Herren contends: “The elder abuse statute also should not be
read to proscribe [her] conduct because any such statutory interpretation
would be at odds with other legal principles and their underlying public
policy.” Herren urges us to harmonize the Elder Abuse Act with other laws
that protect the right to petition a court—namely, the anti-SLAPP statute
and litigation privilege—and conclude her conduct does not constitute elder
abuse. This argument was never raised below. Herren never filed a special
28
motion to strike under anti-SLAPP statute nor raised the litigation privilege.
We deem the claim forfeited. (Yield Dynamics, supra, 154 Cal.App.4th at
p. 557.)
Next, Herren contends the proceeding was fundamentally unfair to her
because the “attorney-client privilege precluded her from testifying to the
contents of her conversation with George.” We decline to consider this
contention because not only did Herren fail to raise this issue below, but her
argument on appeal consists solely of one conclusory sentence and a citation
to Qualcomm Inc. v. Broadcom Corp. (S.D.Cal. Mar. 5, 2008, No. 05CV1958-
RMR (BLM)), 2008 U.S. Dist. Lexis 16897 without any discussion of how that
opinion applies to the case at hand.
Herren’s brief sets out additional arguments under the heading stating
that Susannah’s “elder abuse action should not be allowed because it would
permit malevolent trustees to engage in elder abuse without due process.”
(Capitalization and bold omitted.) In Herren’s view, the “potential for abuse
in this situation is apparent because no one independent of [Susannah] had
access to George, and the court relied only on [Susannah’s] account, without
due process safeguards.” Setting aside the lack of authority for these
arguments, her premise that “no one independent of [Susannah] had access
to George” is untrue. Apart from Susannah, various people had access to
George both before and after Herren’s visit, including caregiver Moore, Dr.
Sutherland, and Gabriella, all of whom testified at the evidentiary hearing.
Finally, Herren posits a hypothetical—that a malevolent trustee might
commit financial elder abuse then use an elder abuse restraining order action
to “silence the settlor and disable [their] counsel”—as an illustration why the
trial court thus should not have allowed the action to proceed. But the
29
hypothetical is incongruent with the evidence in this case, and it does not
compel a different outcome.
In conclusion, we reiterate that the Legislature enacted the Elder
Abuse Act with the intent to broadly protect vulnerable elders, and that trial
courts must decide what constitutes elder abuse on a case-by-case basis.
DISPOSITION
The order is affirmed. George is entitled to recover costs on appeal.
FUJISAKI, P. J.
WE CONCUR:
PETROU, J.
RODRÍGUEZ, J.
30
Trial Court: Marin County Superior Court
Trial Judge: Hon. Simon J. Frankel*
Counsel: Reed Smith and Raymond A. Cardozo for Defendant and
Appellant
Webb Legal Group and William T. Webb for Plaintiffs and
Respondents
*Judge of the San Francisco Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
31