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Herzog Faces Imposition of Elder-Abuse Restraining Order
He, Others, Fail in Appeal From Denial of Anti-SLAPP Motion Aimed at Killing Action to Bar Their Further Attempts
To Cause Nonagenarian Conservatee With $40 Million in Assets to Revise His Longstanding Estate Plan
By a MetNews Staff Writer
West Los Angeles personal injury attorney Ian “Buddy” Herzog and a member of his firm are among defendants who have failed in their efforts to rid themselves of an action that seeks to have restraining orders imposed on them based on their alleged efforts to unduly influence a 96-year-old conservatee, possessed of more than $40 million in assets, by causing him to change his estate plan.
Div. Two of the Fourth District Court of Appeal on Thursday affirmed an order by Riverside Superior Court Judge Kenneth J. Fernandez denying anti-SLAPP motions filed by each of the defendants. In so acting, Fernandez declared:
“Nothing here involves a protected activity.”
The appeals court also announced that an application for an elder-abuse restraining order (“EARO”) may be heard contemporaneously with a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16.
Allegation Against Lawyers
Herzog—the 1983 president of what was then the Los Angeles Trial Lawyers Association and 1991 president of what was known as the California Trial Lawyers Association—and Evan D. Marshall, both of Herzog, Yuhas, Ehrlich & Ardell, APC, are accused of participating in a scheme to divert the holdings of Thomas S. Tedesco from the present beneficiaries of his longstanding living trust, the three daughters of himself and his deceased wife. Tedesco is now mentally impaired.
The assets are sought by Tedesco’s second wife, Gloria Tedesco, and her daughter by a previous marriage, Debra Wear. Although Wear, like her mother, is among six defendants in the action seeking a restraining order and is appealing the denial of an anti-SLAPP motion, an EARO is already in place against her and was upheld earlier by the Court of Appeal.
The controversy has spawned litigation both in Riverside and Orange counties and decisions by Fourth District panels sitting in those counties.
Other Defendants
There are two other defendants in the action. One is attorney Russell Lowell Davis of Indian Wells, for whom Wear is a paralegal.
He repeatedly sought, unsuccessfully, court appointment as Tedesco’s independent counsel. At one point, a judge admonished Davis that if he “continues to contact a person under conservatorship, it may start fitting under the elder abuse statute, and there may be injunctive relief of another type, which, if violated, would then lead to a misdemeanor on behalf of an experienced member of the bar.”
Davis nonetheless put Tedesco in touch with Herzog. He and his firm have sought to end the conservatorship with the purported aim of returning to Tedesco control over his property.
Under a June 2, 2017 attorney-client agreement, Herzog’s firm would be entitled to one-third of any recovery made before a suit was filed, 40 percent after litigation was instituted, and 50 percent after an appeal.
The sixth defendant in the action for an EARO is Stephen Carpenter who, Fernandez found, “has attempted in many different ways to inject himself in the litigation” as a guardian ad litem or a “person of interest” and “was a conduit to allow non-appointed counsel to continue to file pleadings.”
Denial of Motions
In denying the anti-SLAPP motions, Fernandez pointed to evidence that Gloria Tedesco had acted to “isolate” her husband from his children, providing him with “scripts” to read in response to telephone calls, and was “a driving force” behind an attempt to cause her husband to revise his estate plan, “benefitting her and disinheriting” his offspring.
The judge noted that Herzog, Marshall, and Davis were not appointed by the court as counsel for the conservatee and said that court filings, supposedly to benefit Tedesco, that were unauthorized by the conservator, “are evidence of non-appointed counsel and Carpenter’s continuing involvement” in the unprotected exerting of “undue influence” on Tedesco.
Agreeing, Justice Art W. McKinister said in Thursday’s opinion:
“While defendants’ various litigation activities are protected petitioning activities under the anti-SLAPP statute, their plans to unduly influence Thomas and change his estate plan are not….[D]efendants’ litigation activities merely evidence their nefarious actions to control Thomas through isolation, confusion, and mental suffering designed to overcome his free will.”
In light of the determination that protected conduct—the first prong of §425.16—is not implicated, McKinster said there was no need to discuss the second prong: whether the plaintiff has shown a probability of prevailing on the merits.
Procedural Matter Calendar
Sec. 425.16 provides that an anti-SLAPP motion is to be heard “not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing,” and a hearing on such a motion customarily precedes any ruling touching on the merits. However, in this case, a temporary EARO was denied by Riverside Superior Court Judge John G. Evans before Fernandez acted on the anti-SLAPP motions filed by plaintiff Laura K. White, one of Tedesco’s daughters.
In a cross-appeal, White asserted that Fernandez erred in declining to act on her application for permanent elder abuse restraining orders before ruling on the anti-SLAPP motions. Without discussing the appealability of such an action, McKinster wrote:
“Given the nature of the relief sought—protection from financial abuse of a dependent adult—we conclude that the trial court abused its discretion in failing to utilize its case management tools and prevent a delay in hearing the merits of the EARO applications. It could have either (1) revisited the prior denial of temporary EAROs and granted such temporary relief pending resolution of defendants’ anti-SLAPP motions (through appeal), or (2) decided the applications and the anti-SLAPP motions at the same time.”
McKinister did not explain why Fernandez would consider himself at liberty to “revisit” the prospect of issuing a temporary restraining order, absent the showing of something new, given the rule against one superior court judge overruling a judge of the same court and did not set forth authority for issuing a decision on the merits at the same time as ruling on an anti-SLAPP motion, apparently expecting Fernandez to anticipate the appellate decision.
Wear’s Involvement
The reason for Wear’s inclusion as a defendant and then as an appellant was unclear given that she was already the subject of an EARO. McKinister observed in a footnote:
“Arguably Wear’s anti-SLAPP motion is moot; however, even if we assume that it is not, she failed to sustain her burden of showing that White’s claim arises from protected activity.”
His opinion directs that the Riverside Superior Court “proceed to trial on White’s applications for EAROs regarding all defendants except Wear.”
The case is White v. Davis, 2023 S.O.S. 81.
Herzog and Marshall represented themselves and the other four defendant on appeal, and were joined by Stephen Glick and by M. Anthony Jenkins of his office. Adam F. Streisand, Nicholas J. Van Brunt and Valerie E Alter of Sheppard, Mullin, Richter & Hampton acted for White.
Herzog’s Accolades
Herzog in 1987 received the Los Angeles Trial Lawyers Association’s Ted Horne Memorial Award for service to the legal profession, in 2000, the group—under its new name of “The Consumer Attorneys of Los Angeles”—created the Ian Herzog Appellate Lawyer of the Year Award and made him the first recipient, and in 2006 inducted him into its Hall of Fame.
The California Trial Lawyers Association in 1993 conferred on him its Marvin E. Lewis Memorial Award and, under its revised name—The California Consumer Attorneys—in 2002 gave him its Legislative Champion Award.
There is no indication in the State Bar website that Herzog, Marshall or Davis has ever received discipline or is facing possible discipline in connection with the Tedesco matter or any other matter.
Copyright 2023, Metropolitan News Company