Herren v. George S. - Case Brief

Herren v. George S. - Case Brief

Herren v. George S.

Case Number: A171257A

Court: Cal. Ct. App.

Date Filed: 2025-03-04

Case Brief – Herren v. George S.

Court: COURT OF APPEAL OF THE STATE OF CALIFORNIA
Date: 2025‑09‑02
Case Number: A171257
Disposition: The Court of Appeal affirmed the trial court’s protective restraining order against attorney Jaime B. Herren, holding that (1) an attorney‑in‑fact may seek an elder‑abuse restraining order under the Elder Abuse Act without a prior adjudication of the protected person’s capacity, and (2) substantial evidence established that Herren obtained a property right from George S. by undue influence, satisfying the statutory elements of elder financial abuse.

Holding

The court held that a petition for an elder‑abuse restraining order may be filed and granted on the basis of substantial evidence of abuse even when the protected elder’s capacity has not been formally determined, and that the evidence in this case proved Herren’s acquisition of a $100,000 retainer agreement through undue influence, thereby justifying the restraining order.

Narrative

Lead

In a decision that sharpens the boundary between legitimate attorney‑client outreach and elder financial abuse, the California Court of Appeal upheld a protective order barring trust‑and‑estate lawyer Jaime B. Herren from contacting or “abusing” an 86‑year‑old man with severe dementia. The ruling confirms that a trustee or attorney‑in‑fact may invoke the Elder Abuse and Dependent Adult Civil Protection Act (the “Elder Abuse Act”) without first proving the elder’s incapacity, and that the statutory “undue influence” test can be satisfied by the very conduct that many attorneys consider routine—meeting a vulnerable client alone and securing a fee agreement.

Procedural History

George S., an octogenarian diagnosed 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 S. 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 (EA‑RO) under Welfare & Institutions Code § 15657.03, alleging financial abuse and undue influence. The trial court issued a temporary restraining order, held a evidentiary hearing, and ultimately entered a permanent restraining order prohibiting Herren from contacting George and ordering her to stay 100 feet away. Herren appealed; Gabriella did not seek review of the denial of her cross‑petition for contact.

Facts

  • Vulnerability: George suffered from severe Alzheimer’s/Lewy‑body dementia, was legally blind, and required 24‑hour caregiving. Two physicians (a geropsychologist and a neurologist) had formally declared him incompetent to make medical or financial decisions in early 2023. He was frequently disoriented, could not recall his own home, family members, or recent events, and experienced anxiety, paranoia, and physical frailty.

  • The Meeting: On May 3, 2024, while Susannah was out of town, Gabriella invited Herren into George’s home. Caregiver Karen Moore testified that Herren demanded privacy, threatened Moore with an elder‑abuse charge if she stayed, and then proceeded to discuss legal representation with George. George, who could not read the entire retainer, signed after Herren read only the first two pages and pointed to the signature line. He later told Susannah he “never met” Herren and was “appalled” at the $100,000 bill.

  • Post‑Meeting Harm: George’s mood deteriorated dramatically; he exhibited high blood pressure, insomnia, diarrhea, and paranoid rumination. Dr. Sutherland, the geropsychologist, reported the incident to Adult Protective Services and recommended limiting George’s phone access and Gabriella’s visits.

  • Legal Positions: Herren argued that Susannah lacked standing to seek an EA‑RO because the Elder Abuse Act required a prior capacity determination; she also contended that the meeting merely explored representation and did not constitute abuse. The trial court rejected both contentions, finding that the statutory language of § 15657.03 expressly authorizes a trustee or attorney‑in‑fact to file a petition, and that the evidence satisfied the four‑factor undue‑influence test of § 15610.70.

Issues

  1. Standing/Authority: Whether a trustee or attorney‑in‑fact may seek an elder‑abuse restraining order without first establishing that the protected elder lacks capacity.
  2. Substantial Evidence: Whether the record contains sufficient proof that Herren obtained a property right from George by undue influence, thereby meeting the statutory definition of elder financial abuse.
  3. Procedural Waiver: Whether Herren forfeited her capacity‑determination argument by agreeing at trial that the court would not decide capacity in the EA‑RO proceeding.

Court’s Reasoning

1. Authority to Seek Relief

The appellate court turned first to the plain language of the Elder Abuse Act. § 15657.03(a)(2)(A) lists “an attorney‑in‑fact of an elder … who acts within the authority of a power of attorney” as an authorized petitioner. The statute does not condition that authority on a prior adjudication of capacity. Moreover, the Act’s legislative findings (§ 15600(a), (c), (h), (j)) underscore a policy of broad standing to protect vulnerable elders, expressly “to enable interested persons to engage attorneys to take up the cause of abused elderly persons.” The court rejected Herren’s reliance on Probate Code §§ 810‑811, noting that those provisions govern capacity determinations in probate matters, not the standing requirements of the Elder Abuse Act. By emphasizing that “undue influence” is a separate inquiry from capacity, the court affirmed that a petition may proceed even when the elder’s competence is contested.

The court also held that Herren forfeited her capacity‑argument. Throughout the trial, Herren’s counsel acquiesced that the EA‑RO proceeding would not resolve George’s capacity, thereby waiving the issue on appeal (In re Marriage of Broderick, 209 Cal.App.3d 489 (1989)).

2. Substantial Evidence of Undue Influence

The appellate panel applied the statutory four‑factor test of § 15610.70:

  1. Vulnerability – The record established George’s advanced age, severe dementia, visual impairment, and emotional fragility. Both treating physicians had declared him incompetent, satisfying the “incapacity” prong of the vulnerability factor.

  2. Apparent Authority – Herren was a licensed attorney who presented herself as George’s counsel. Testimony showed she asserted attorney‑client privilege and demanded privacy, reinforcing her perceived authority.

  3. Actions/Tactics – Herren arranged a secret meeting while Susannah was absent, threatened caregiver Moore with an elder‑abuse charge, isolated George, and used a hurried, one‑sided fee presentation. She also failed to read the entire retainer, required George to sign by pointing to the signature line, and secured a $100,000 property right despite George’s documented inability to comprehend the agreement.

  4. Equity of Result – The $100,000 retainer diverged sharply from George’s prior expressed intent (as reflected in his trust and DPOA) to keep Susannah as sole fiduciary. The agreement imposed a substantial financial burden on an elder who had already been deemed incompetent to manage his affairs.

The court concluded that each factor was supported by “substantial evidence” – the evidentiary standard that requires the trial court’s findings to be upheld when they are supported by “reasonable inferences” and “any competent evidence” (Newman v. Casey, 99 Cal.App.5th 359 (2024)). The appellate panel therefore affirmed the restraining order.

3. Policy Considerations

The decision reinforces the legislature’s intent to provide a low‑threshold avenue for protecting elders from financial exploitation, even when capacity is not yet adjudicated. The court warned that imposing a capacity‑determination prerequisite would “discourage restraining‑order applications for elders who are not incapacitated but are nonetheless vulnerable,” contrary to the Elder Abuse Act’s purpose.

The opinion also addressed, in brief, Herren’s reliance on a State Bar formal opinion (2021‑207) suggesting her conduct was permissible. The court declined to treat the Bar opinion as controlling, emphasizing that the factual record—not abstract ethical guidance—governs the abuse analysis.

Impact and Unresolved Questions

Precedential Effect. By affirming that a trustee or attorney‑in‑fact may seek an EA‑RO without a prior capacity hearing, the ruling clarifies a long‑standing ambiguity at the intersection of probate and elder‑abuse law. Practitioners should now recognize that the Elder Abuse Act creates an independent civil remedy that bypasses the more cumbersome probate‑court capacity process.

Attorney‑Client Boundaries. The decision signals that attorneys must exercise heightened caution when meeting elders with documented cognitive impairment, especially in unsupervised settings. The “undue influence” analysis will likely be invoked more frequently in fee‑dispute contexts, prompting law firms to adopt stricter protocols (e.g., requiring a neutral third‑party witness, ensuring full disclosure of fee terms, and avoiding private meetings when a caregiver is present).

Future Litigation. Two issues remain fertile ground for appellate development:

  1. Scope of “Undue Influence” vs. “Capacity.” While the court treated them as distinct, lower courts may still conflate the concepts, especially in cases where the elder’s capacity is borderline. Clarifying the evidentiary line between a permissible “assessment meeting” and impermissible “exploitation” will be essential.

  2. Due Process in EA‑RO Proceedings. Herren raised due‑process concerns about the ability of an elder to be heard when incapacitated. The appellate court sidestepped a full due‑process analysis, noting the order could be issued on past abuse alone. Future challenges may test whether the procedural safeguards of the Elder Abuse Act satisfy constitutional requirements when the protected person cannot meaningfully participate.

Overall, Herren v. George S. strengthens the protective shield around California’s most vulnerable adults while reminding attorneys that the privilege of representation does not immunize them from civil liability for financial exploitation.

Referenced Statutes and Doctrines

  • Welfare & Institutions Code §§ 15600‑15657.03 – Elder Abuse and Dependent Adult Civil Protection Act; definitions of “elder,” “financial abuse,” “undue influence,” and procedural mechanisms for restraining orders.
  • Welfare & Institutions Code §§ 15610.07, 15610.30, 15610.70 – Elements of elder financial abuse and the four‑factor undue‑influence test.
  • Probate Code §§ 810, 811, 1003 – Rebuttable presumption of capacity and standards for adjudicating incapacity in probate matters.
  • Due Process in Competence Determinations Act (Stats. 1995, ch. 842; 1997, ch. 581) – Governs procedural rights in competence hearings (cited but held inapplicable to EA‑RO standing).
  • California Rules of Court, rule 8.90 – Anonymity provisions for protected persons.

Key Cases Cited

  • 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 Marriage of Broderick, 209 Cal.App.3d 489 (1989) – Waiver/forfeiture of issues on appeal.
  • Bookout v. Nielsen, 155 Cal.App.4th 1131 (2007) – Standard of proof (preponderance) and substantial‑evidence review for EA‑ROs.
  • Newman v. Casey, 99 Cal.App.5th 359 (2024) – Definition of “substantial evidence.”
  • Badie v. Bank of America, 67 Cal.App.4th 779 (1998) – Waiver of issues when not raised at trial.
  • Gdowski v. Gdowski, 175 Cal.App.4th 128 (2009) – Protective orders may be issued on past abuse alone.
  • Estate of Olson, 19 Cal.App.3d 379 (1912) – Undue influence distinct from capacity.

These authorities collectively shape the appellate court’s analysis and will guide future practitioners navigating elder‑abuse restraining orders in California.

Last updated September 05, 2025.