Tuesday, January 22, 2019
By a MetNews Staff Writer
The Fourth District Court of Appeal on Friday held that Probate Code §859 provides for double, not treble, damages against persons found to have taken property by means of elder abuse—rejecting the contention that legislators intended that actual damages be doubled, with that figure then added to the base amount.
The opinion, by Acting Presiding Justice Eileen C. Moore of Div. Three, reverses an award of attorney fees because the motion for the fees, made by the estate of conservatee Joseph E. Ribal, was untimely. This was so, Moore said, because the underlying judgment—for a return of moneys taken by Ribal’s former domestic partner, Lu Tuan Nguyen—had already been satisfied.
Conservator Linda Rogers contended that the moneys were still owing, insisting that the base award of $79,991 for elder abuse had to be tripled.
“Rogers’s argument appears to be that because the last sentence of Probate Code section 859 states that the remedies in that section are ‘in addition to any other remedies,’ the amount due should be calculated by first assessing the amount of the damages, then doubling the damages and assessing that amount separately—essentially, 1 + 2 = 3.”
The jurist declared:
“We find this contention unsupported by law. If the Legislature had intended damages to be tripled, it would have written something akin to ‘the person shall be liable for [three times] the value of the property recovered by an action under this part.’…In our experience, the Legislature knows how to distinguish between double damages and treble damages and has provided for each in numerous contexts. The trial court understood this and awarded double, not treble, damages.”
The opinion was the third to come before Div. Three relating to Ribal and Nguyen.
In a 2015 decision, Div. Three affirmed a judgment nullifying the domestic partnership between Nguyen and Ribal on the ground of Ribal’s incompetency at the time he executed a declaration of such a partnership. A year later, in an opinion by Moore, the appeals court affirmed a judgment ordering Nguyen ordered to return roughly $180,000, plus costs and fees, to Ribal’s estate.
On remand, Rogers, brought a motion for attorney’s fees incurred in collecting the judgment. Orange Superior Court senior research attorney Aaron W. Heisler, sitting as a temporary judge, granted Rogers’s request, awarding attorney fees in the amount of $43,507.50.
Timeliness of Request
Under Code of Civil Procedure §685.080(a), such fee requests are timely only when made prior to satisfaction of the underlying judgment. That section, Nguyen argued, precluded a award because he had paid $159,982—double the $79,991 award, plus a personal-injury award of $20,000, in addition to costs and fees.
Moore noted that at oral argument, San Juan Capistrano elder law attorney, representing Rogers, advised the justices that the propriety of tripling the damage award “had been the topic of debate among probate attorneys, who had concluded it was appropriate.”
The jurist remarked that “in the context of this case, arguing that a judgment for ‘double damages,’ as stated by the judgment itself, was actually an award of treble damages is, indeed, an absurd interpretation.”
Nguyen, who has a J.D. from the now-defunct Northrop University in Inglewood but is not a member of the State Bar, is a reference librarian at the Orange County Public Law Library and represented himself in the appeal.
The case is Conservatorship of Ribald, G056105.
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