Metropolitan News-Enterprise


Monday, November 13, 2017


Page 3


Court of Appeal:

Denial of TRO Does Not Bar Action for Elder Abuse

Third District Finds Inapplicable What Has Been Known as Doctrine of ‘Res Judicata’—Which It Brands Outdated Terminology—Proclaiming That Expedited Determinations Do Not Create ‘Claim Preclusion’


By a MetNews Staff Writer


Denial of a woman’s two applications for a temporary restraining order against her daughter, whom she accused of causing her bodily and emotional harm, did not bar the mother’s subsequent lawsuit for elder abuse, the Third District Court of Appeal has held.

The opinion by Justice M. Kathleen Butz reinstates a cause of action put forth in a cross complaint filed by the mother, Sarah McDowell, against daughter Lorna A. McDowell, saying that “claim preclusion” does not apply, and decrying the trial court’s passé reference to “res judicata.”

The litigation started in 2011 when Lorna McDowell sued her mother for a partition of the real property they jointly occupied. When the mother sought a temporary restraining order, it was denied in June 2011 by then-Calaveras Superior Court Judge John E. Martin, since retired.

Martin reasoned that “the thread underlying the testimony is a contentious family dispute over real property” held in joint tenancy by Sarah and Lorna McDowell, and that the “dispute needs to be resolved in the proper forum and an expedited procedure such as a protective order” banning Lorna McDowell from the residence “is not the appropriate remedy.” Martin also found that “the allegations of abuse…have not been shown by a preponderance of the evidence.”

Another application by Sarah McDowell for a TRO was denied in November 2011 by then-Judge Douglas V. Mewhinney (now retired).

Sarah McDowell Dies

In January 2012, Sarah McDowell brought her cross complaint for elder abuse, along with other causes of action. She died in May 2012, at the age of 74.

Her daughter Donna Chiesa became successor trustee of her mother’s trust and pursued the litigation against her sister.

Judge Thomas A. Smith, acting pursuant to California Code of Civil Procedure §597—which allows the judge to decide the merits of a “defense not involving the merits of the plaintiff s cause of action but constituting a bar or ground of abatement to the prosecution thereof—in August 2013 held that the orders denying temporary restraining orders “constitute a bar under the doctrine of res judicata.”

He also found that Chiesa had failed to state a cause of action to quiet title.

Causes of action for infliction of emotional distress, fraud, conversion, and breach of contract went to the jury and were decided in favor of Lorna McDowell in 2015.

Affirmed, Reversed

The judgment was reversed as to dismissal of the cause of action for elder abuse, in an unpublished opinion on Wednesday—in Chiesa v. McDowell, C080872—and otherwise affirmed.

Butz said the allegedly prejudicial effect on the jury caused by repeated references to the failure of the action for elder abuse could not be considered because Chiesa failed to show what evidence was adduced in support of the causes of action that were considered by the jury which could have resulted in her success had it not been for those references.

Explaining the limited reversal, Butz said that recognition of “elder abuse” as a discrete wrong is recent, and there is a lack of relevant case law—but that in the context of harassment, there’s an instructive 1997 Court of Appeal decision in Byers v. Cathcart. There, it was held that obtaining a protective order was an inappropriate means of resolving a boundary dispute.

Paraphrasing what that case said, Butz recounted that it was set forth there that “[p]rotective orders are of limited duration and must be renewed, which means the order is not a final determination of rights and duties” and there is “an expedited and summary adjudication, limited to only injunctive relief, in contrast with an ordinary civil case seeking an injunction in which the opportunities for discovery and a full trial are available.”

She commented:

“In the same manner, the expedited and summary procedure for obtaining a protective order against conduct constituting elder abuse is not a final determination of rights and duties, and cannot be a substitute for an ordinary civil proceeding seeking to recover the panoply of remedies for a cause of action for elder abuse.”

New Terminology

Butz faulted Smith for having concluded that the doctrine of res judicata applied “without further analysis other than a citation to one case” and, in a footnote, criticized his use of the term “res judicata.”

She wrote:

“This is a dated and adumbrative term for the preclusive effects of prior judgments in subsequent litigation where privity exists, which can refer either to claim preclusion or issue preclusion, to use the ‘modern’ terminology first used in the Restatement Second of Judgments in 1980.”

(The Random House Dictionary defines “adumbrative” as “foreshadowing; sketchy; faintly indicative.”)

Butz cited a 1994 Court of Appeal opinion—which notes that “The Restatement Second of Judgments…describes collateral estoppel as ‘issue preclusion’ and res judicata as ‘claim preclusion’—and the U.S. Supreme Court’s 2008 opinion in Taylor v. Sturgell in which a footnote says: “Claim preclusion describes the rules formerly known as ‘merger’ and ‘bar,’ while issue preclusion encompasses the doctrines once known as ‘collateral estoppel’ and ‘direct estoppel.’ ”

State Supreme Court

The California Supreme Court, in an opinion handed down two years after Smith ruled, said in DKN Holdings LLC v. Faerber (2015):

We have sometimes described ‘res judicata’ as synonymous with claim preclusion, while reserving the term ‘collateral estoppel’ for issue preclusion….On occasion, however, we have used the term ‘res judicata’ more broadly, even in a case involving only issue preclusion, or collateral estoppel….We are not the only court to sometimes use the term ‘res judicata’ with imprecision….To avoid future confusion, we will follow the example of other courts and use the terms ‘claim preclusion’ to describe the primary aspect of the res judicata doctrine and ‘issue preclusion’ to encompass the notion of collateral estoppel.”

Justice Goodwin Liu nonetheless made reference to “res judicata” in a concurring opinion last Aug. 24.

Public Reproval

One offshoot of the litigation is that a lawyer for Chiesa wound up with a public reproval from the State Bar. Douglas R. Ensminger—who also goes by the name D. Randall Ensminger, and who has offices in the City of Lincoln, in Placer County, as well as Fairbanks, Alaska—failed to provide an accounting to Chiesa despite approximately 15 emails from her demanding a tally as to what was owed.

Her concern was raised when Ensminger did not turn over to her a $1,200 check from Calaveras County. She had posted that sum to secure testimony by eight deputy sheriffs; the trial was delayed; a refund check was sent to Ensminger; the lawyer pocketed the money, applying it to Chiesa’s debt to him for fees—but he wouldn’t forward the check, as she demanded, nor tell her what the debt was.

Only after the State Bar interceded did he forward the $1,200 to Chiesa and provide an accounting.

The State Bar Court order indicates that Ensminger was jointly hired by Sarah McDowell and Chiesa to oppose efforts of Lorna McDowell.

Wrongful Death Suit

An April 20 Third District opinion, which was not certified for publication, affirms a summary judgment in favor of a hospital which Chiesa sued on July 22, 2013, for allegedly causing her mother’s death in May of 2012. Sarah McDowell had arrived there by ambulance on April 20, 2012, after complaining of abdominal pain, was placed in intensive care, and underwent operations.

The hospital prevailed based on the applicable one-year statute of limitation.

While Chiesa acknowledged that she was immediately mistrustful in connection with the death—pointing to her “suspicion that the sister Lorna McDowell had killed the mother”—she maintained that it was not until November of 2012 that she was on notice as to possible medical malpractice.

Acting Presiding Justice Harry E. Hull Jr. wrote that the “undisputed facts establish Chiesa demonstrated actual suspicion of wrongdoing by the Hospital, conducted an investigation by paying for an autopsy, and even consulted with legal counsel by June 6, 2012,” and that her action was therefore time-barred.


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