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Stine v. Dell'Osso

California Court of Appeals, First District, First Division

October 17, 2014

JOANNE HOLMAN STINE, Plaintiff and Appellant,
v.
MONICA DELL'OSSO et al., Defendants and Respondents.

[As Modification on November 14, 2014]

Alameda County Superior Court No. RG11608188 Honorable George C. Hernandez, Jr., Judge.

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COUNSEL

Aaron, Riechert, Carpol & Riffle; Kathleen A. Durrans, Brian E. Kulich and Sarah A. Brooks for Plaintiff and Appellant.

Law Offices of Steven B. Piser, Steven B. Piser; Murphy, Pearson, Bradley & Feeney, Timothy J. Halloran and Jonathan M. Blute for Defendants and Respondents.

OPINION

BANKE, J.   

I. Introduction

Joanne Holman Stine (Stine), the conservator of Donna L. Davis (Donna), brought this malpractice action against Monica Dell’Osso and Burnham Brown, APC (Attorneys), for alleged dereliction in representing the prior conservator, David B. Davis III (David). David is Donna’s son, and was

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removed as conservator after allegedly misappropriating over $1 million in assets from the conservatorship estate.

The trial court sustained the Attorneys’ demurrer to the complaint without leave to amend on two grounds: (1) the Attorneys’ attorney-client relationship was with David, not Stine, and therefore the Attorneys owed no duty of care to Stine, and (2) Stine, as successor conservator, is subject to any defense that can be interposed against David and David’s malfeasance, therefore, bars Stine from asserting a malpractice claim against the Attorneys under the doctrine of unclean hands. We reverse, concluding Stine, as the successor conservator, may pursue a malpractice claim against the Attorneys and she is not burdened by David’s malfeasance.

II. Procedural and Factual Background

Because this appeal is from a judgment following the sustaining of a demurrer without leave to amend, we set forth the facts as alleged in the operative (third amended) complaint. (See Mendoza v. Town of Ross (2005) 128 Cal.App.4th 625, 629, fn. 3 [27 Cal.Rptr.3d 452] [“A demurrer admits, provisionally for purposes of testing the pleading, all material facts properly pleaded. Accordingly, the reviewing court may draw its facts, which it accepts as true for purposes of the appeal, from the plaintiff’s complaint.”].)

In 2002, David hired the Attorneys to represent him in connection with a “petition for the appointment of a probate conservator of the person and estate” of his mother. Thus, the “primary reason” David and the Attorneys established an attorney-client relationship was “to establish a conservatorship proceeding for [Donna] in order to preserve [Donna’s] property and to ensure that [her] interests could be adequately protected in a family law action pending at the time in Alameda County.”

In his petition for appointment as conservator, David represented “there were no conservatorship assets, as all of [Donna’s] assets were held in her Trust, ” and therefore no bond was required. Donna, however, actually owned significant assets, including real property and several individual retirement accounts (IRAs), individually and not as assets of her Trust.

On January 10, 2003, the probate court issued letters of conservatorship and appointed David as conservator of both Donna’s person and estate, finding she was “unable properly to provide for her personal needs for physical health, food, clothing or shelter and was substantially unable to manage... her financial resources or to resist fraud or undue influence.” In the order appointing David, “the court waived bond.”

The Attorneys continued to represent David following his appointment as conservator. During their representation, the ...


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