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Elaine Oliveira v. Dael N. Kiesler et al

June 15, 2012


(Super. Ct. No. 30-2008-00115103) Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge.

The opinion of the court was delivered by: Moore, J.




A widow sued her stepsons, a law firm, a lawyer, and a paralegal, over an estate plan that purportedly divested her of the 50 percent share of the marital estate that she would have received from her husband as the surviving joint tenant of the properties they held together in joint tenancy. The estate plan served to sever all of the joint tenancies and transfer the husband's 50 percent share in the properties to a trust for the benefit of the two stepsons, to the exclusion of the widow.

Before trial, the widow settled with the stepsons. After a jury awarded the widow $200,000 in damages against the law firm, the lawyer, and the paralegal, the court reduced the award to zero. On appeal, the widow claims the court erred in making a Code of Civil Procedure section 877 offset against the jury award. She has failed to meet her burden to show error. We affirm.


A. Allegations of the Second Amended Complaint:

Elaine Oliveira (Elaine) filed a second amended complaint against Richard Neil Oliveira, II (Rick) in his capacity as trustee of the Richard Neil Oliveira Trust dated April 26, 2008 (the trust), Patrick Neil Denmark (Patrick), Citadel Law Offices and Financial Services*fn1 (Citadel), Dael N. Kiesler (Kiesler), and Daniel Clark Hales (Hales). In that complaint, she alleged as follows.

She was married to Richard Neil Oliveira (decedent) at the time of his death on June 28, 2008, having been married to him for more than 18 years. Rick and Patrick were decedent's sons by a prior marriage. Hales was an attorney and the owner and operator of Citadel, and Kiesler was the agent and/or employee of Hales and Citadel. (Hales, Citadel and Kiesler are hereinafter collectively referred to as the Attorney Defendants, from time to time.)

Elaine and decedent owned a number of properties as their community property. Those properties were their marital residence on DeLong Street in Cypress, California, a single family residence on Tully Place in Cambria, California, and three undeveloped lots in Cambria. They held title to the properties in joint tenancy and it was always their mutual intention that the properties pass to the survivor of them.

Rick desired to obtain control of decedent's assets. In furtherance of this goal, he hired the Attorney Defendants to set up an estate plan for decedent.

When decedent was in failing health, Kiesler, not a lawyer, came to the residence of Elaine and decedent and recommended that each of them establish a separate trust. Kiesler did not disclose either that she was Rick's agent or that she, Hales and Citadel had a conflict of interest in representing both Elaine and decedent. Kiesler, either alone or with the assistance of Hales, prepared the trust and certain deeds, without explaining that the execution of the trust and the deeds would be to the disadvantage of Elaine. Via the three deeds, each recorded May 1, 2008, decedent severed the joint tenancies in the properties and transferred his undivided 50 percent interest in each property to the trust. The trust left all of the trust property to Rick (70 percent) and Patrick (30 percent). Had the properties not been transferred into the trust, Elaine would have acquired title to each of the properties on decedent's death, as the surviving joint tenant.

The second amended complaint contained six causes of action. The first cause of action, against Rick and Patrick only, was to invalidate, rescind and nullify the trust. Elaine asserted that at the time decedent executed the trust, he did not have the requisite mental capacity to do so. She further asserted that Rick and Kiesler exerted undue influence over decedent.

The second, third and fourth causes of action were against all defendants. In the second cause of action, Elaine sought to cancel the three deeds on the basis of undue influence. She reasserted all of the facts previously alleged and further alleged, inter alia, that Rick and the Attorney Defendants acted with malice and oppression and intended to cause her injury.

In the third cause of action, Elaine sought to cancel the three deeds due to mistake. Decedent did not understand that by executing the grant deeds, he was depriving Elaine of her right of survivorship. In the fourth cause of action, Elaine sought to cancel the three grant deeds due to fraudulent concealment. She alleged that Hales and Kiesler purported to provide legal services to decedent and Elaine without disclosing that they were operating as the agents of Rick and had an irremediable conflict of interest.

The fifth cause of action was against the Attorney Defendants only, for negligence. It was based on Kiesler's practicing law without a license, Hales and Citadel's permitting the same, and Hales and Citadel's failure to provide proper legal advice to Elaine, or to disclose the conflicts of interest to her.

The sixth cause of action was against Hales and Citadel, for legal malpractice. Elaine asserted that Rick contacted Hales and Citadel to take advantage of decedent when he was seriously ill and to cheat her out of her survivorship interests in the properties.

B. Good Faith Settlement with Rick and Patrick:

On September 21, 2010, Elaine entered into a settlement agreement with Rick, individually and as trustee of the trust, and Patrick. Elaine agreed to dismiss her complaint against Rick and Patrick, and Rick agreed to dismiss his cross-complaint against Elaine, in consideration of the following: (1) Rick and Patrick, would quitclaim their interests in the DeLong residence to Elaine, with Rick to retain a right of first refusal should Elaine choose to sell and an option to purchase should Elaine still own the property on her death; (2) the Tully Place residence would be listed for sale, with Elaine and Rick to receive one-half each of the net proceeds of sale; (3) Rick would receive the three vacant lots in fee simple and would assume all indebtedness thereon; (4) Elaine would receive a motor home, a boat, a motorcycle, and six additional vehicles; (5) Rick would receive 23 other motorcycles and vehicles; (6) Rick would receive certain tools, equipment and jewelry; (7) Elaine would receive certain antiques and the contents of the DeLong residence; (8) Elaine would release Rick and Patrick; and (9) Rick and Patrick would each release Elaine.

Rick, individually and as trustee, Patrick, and the Attorney Defendants, lodged a stipulation for determination of good faith settlement. In that stipulation, they agreed that the settlement between Elaine, Rick and Patrick was entered into in good faith, the court could so determine, and it could also determine that Rick and Patrick as settling defendants were entitled to the protections of Code of Civil Procedure section 877, subdivision (b). Elaine made no opposition. The court determined that the settlement ...

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