Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Sunday, December 31, 2023

Year In Review, 2023.

Books Read (in order read)

1. Freezing Order by Bill Browder (2022)

2. American Prometheus: The Triumph and Tragedy of J. Robert Oppenheimer by Kai Bird and Martin J. Sherwin (2005) [cd unabridged]

3.  Sycamore Oaks by John Grisham (2013)

4. All Quiet on the Western Front by Erich Maria Remarque (1929) [cd unabridged]

5. The Psychology of Money by Morgan Housel (2021)

6. Off the Deep End: Jerry and Becki Falwell and the Collapse of an Evangelical Dynasty by Giancarlo Granda with Mark Ebner (2022)

7. Straight Man by Richard Russo (1997) [cd unabridged]

8. The Judge’s List by John Grisham (2021)

9. Confidence Man: The Making of Donald Trump and the Breaking of America by Maggie Haberman (2022)

10. Desert Star by Michael Connelly (2022) [cd unabridged]

11. Defend Us in Battle by George Monsoor and Rose Rea (2022)

12. Blue Nights by Joan Didion (2011) [cd unabridged]

13. Everything Reminds Me of Something by Adam Carolla (2022)

14. Under A Wing by Reeve Lindbergh (1998)

15. A Man for All Markets: From Las Vegas to Wall Street, How I Beat the Dealer and the Market by Edward O. Thorp (2017)

16. Route 66: The Mother Road by David Knudson (2012)

17. Facing Reality by Charles Murray (2021)

18. South and West by Joan Didion (2017)

19. A Father's Story by Lionel Dahmer (2021)

20. Paul: A Biography by N.T. Wright (2018)

21. The Drunkard’s Walk: How Randomness Rules Our Lives by Leonard Mlodinow (2008) [cd unabridged]

22. Homegrown: Timothy McVeigh And The Rise Of Right-Wing Extremism by Jeffrey Toobin (2023)

23. About Face: The Odyssey of an American Warrior by Col. David H. Hackworth (ret.) and Julie Sherman (1989)

24. It Can't Happen Here by Sinclair Lewis (1935)

25. Is Atheism Dead? by Eric Metaxas (2021)

26. Miracles by Eric Metaxas (2014) [cd unabridged]

27. Empire of Pain: The Secret History of the Sackler Dynasty by Patrick Radden Keefe (2021) [audio unabridged]

28. Laptop from Hell by Miranda Devine (2021)

29. A Time for Mercy by John Grisham (2020) [cd unabridged]

30. Sprinting Through No Man’s Land: Endurance, Tragedy, and Rebirth in the 1919 Tour de France by Adin Dobkin (2021)

31. Friends, Lovers, and the Big Terrible Thing: A Memoir by Matthew Perry (2022) [cd unabridged]

32. Elon Musk by Walter Isaacson (2023)

33. America's Cultural Revolution by Christopher F. Rufo (2023)

34. Social Justice Fallacies by Thomas Sowell (2023) [cd unabridged]

35. As Nature Made Him by John Colapinto (2000)

36. Going Infinite: The Rise and Fall of a New Tycoon by Michael Lewis (2023)

Book of the Year
About Face: The Odyssey of an American Warrior by Col. David H. Hackworth (ret.) and Julie Sherman (1989)
Honorable Mentions: Paul: A Biography by N.T. Wright (2018) and Empire of Pain: The Secret History of the Sackler Dynasty by Patrick Radden Keefe (2021)

Film of the Year
All Quiet On the Western Front
Honorable Mention: Oppenheimer

Concert of the Year
Greta Van Fleet (Honda Center--Anaheim, CA)

Appeal of the Year
This one's genesis is in a prior trial of the year (2021). The other side appealed the judgment against it. They contested the estate's liability under a prior judgment against a decedent. Like the trial court, the appellate court agreed with me that the earlier judgment applied to the estate on behalf of the decedent and that the estate violated it. To put the cherry on the proverbial sundae, we were awarded every cent of attorneys' fees requested for the appeal as well as the trial.

Trial of the Year
This one was an arbitration. Like a hotly contested trial, this arbitration involved multiple experts, witnesses, and documentary evidence. My clients purchased a million dollar house in South Orange County. After the escrow closed, they discovered that the written disclosures were false. According to the arbitrator, we proved fraud and breach of contract. The arbitrator set a hearing for punitive damages and/or attorneys' fees.
Athletic Achievement of the Year
106 5ks or longer in 2023
365/365 workouts (9th year in a row)
Ran at least one mile a day from 7/1/23 through 12/31/23 (as inspired by Wayne Z.C. Marsh)
Fulfilled annual treks to Hawaii and Sedona

Losses Sustained
Dr. Timothy Keller

Saturday, December 31, 2022

Year In Review, 2022.

Books Read (in order read)

1. The Brethren by John Grisham (2000)

2. The Premonition by Michael Lewis (2021)

3. Chaos: Charles Manson, the CIA, and the Secret History of the Sixties by Tom O'Neill with Dan Piepenbring (2019)

4. Peril by Bob Woodward and Robert Costa (2021)

5. Going There by Katie Couric (2021) [cd unabridged]

6. The Greatest Love Story Ever Told by Megan Mullally and Nick Offerman (2018) [cd unabridged]

7. My Dark Places by James Ellroy (1996)

8. Showtime by Jeff Pearlman (2014)

9. Three-Ring Circus by Jeff Pearlman (2020)

10. The Law of Innocence (sixth Lincoln Lawyer novel) by Michael Connelly (2020) [cd unabridged]

11. Nomadland: Surviving America in the Twenty-First Century (2017) by Jessica Bruder [audiobook unabridged]

12. Born On A Blue Day: Inside the Extraordinary Mind of an Autistic Savant by Daniel Tammet (2007) [cd unabridged]

13. Sweetness: The Enigmatic Life of Walter Payton by Jeff Pearlman (2011)

14. The Wrong Side of Goodbye by Michael Connelly (2016) [cd unabridged]

15. Under the Banner of Heaven by Jon Krakauer (2003) [cd unabridged]

16. The Drop by Michael Connelly (2016) [cd unabridged]

17. The Nineties by Chuck Klosterman (2022)

18. The Betrayal by Robert Mazur (2022)

19. Kennedy's Avenger: Assassination, Conspiracy, and Forgotten Trial of Jack Ruby by Dan Abrams and David Fisher (2021)

20. Call of the Wild by Jack London (1903)

21. Leonardo da Vinci by Walter Isaacson (2017)

22. One D%&@ Thing After Another: Memoirs of an Attorney General by William P. Barr (2022)

23. San Fransicko by Michael Shellenberger (2021)

24. The Partisan: The Life of William Rehnquist by John A. Jenkins (2012)

25. Is This Anything? by Jerry Seinfeld (2020)

26. Pesos: The Rise and Fall of a Border Family by Pietro La Greca, Jr. with Rebecca Paley

27. Our Class: Trauma and Transformation in an American Prison by Chris Hedges (2021) [cd unabridged]

28. Super Pumped: The Battle for Uber by Mike Isaac (2019)

29. The War on the West by Douglas Murray (2022)

30. The Appeal by John Grisham (2009) [cd unabridged]

31. The Tender Bar: A Memoir by J.R. Moehringer (2005)

32. The Great Gatsby by F. Scott Fitzgerald (1925) [audio unabridged]

33. Sparring Partners by John Grisham (2022) [cd unabridged]

34. Open: An Autobiography by Andre Agassi (2009) [cd unabridged]

35. No Country for Old Men by Cormac McCarthy (2005) [cd unabridged]

36. Holding the Line by Geoffrey Berman (2022)

Book of the Year
Chaos: Charles Manson, the CIA, and the Secret History of the Sixties by Tom O'Neill with Dan Piepenbring (2019)

It reminds one of Moby Dick. Both as Melville and Captain Ahab. Tremendous, decades-long effort that nearly destroyed the pursuer.

Athletic Achievement of the Year
53 10k runs
365/365 workouts (8th year in a row)
Honorable Mention: FKT (for me) Mt. Baldy (or Mt. San Antonio)

Concert of the Year
Tool Phoenix, AZ

Losses Sustained
Stephanie Radcliffe (Mom) (3-8-22)


Family was everything to Mom. And her roles in those families. I say plural because there were two families that were significant to her: the Human Family and the Family of God.

Human Family

Even though she was highly educated with a master’s degree and professionally accomplished as an educator (and other things), I've said that having children or being a mom was her life’s purpose within this human family.

She really was an excellent mother. I reflect on the hallmarks of her life as a mother. Some characteristics predominate: her selflessness, for example. If there was one last slice of pizza, she wasn't taking it.  

Her supportiveness stood out. While she wasn’t a sports fan in particular prior to my emergence on the scene, that changed. She would come to my baseball games, and as I recall, who write up summaries of the games in a newsletter that the Little League distributed. 

Mother-child wasn't her only relationship. She had rings of them. She was also a superb spouse, sister, aunt, cousin, daughter, and friend. People talked about how she support them often.

As her mother, she was unconditionally loving. I never questioned her love. And she set that example for her family. But she got this example from Christ (and her parents). This human familial setting leads us to the Family of God.

Family of God

Life of service. While pastor’s spouse, entertained often. She was a good host. I remember we had a guest book in the house. It was fun to review it and see who had some to visit over the years.

Growing up, I remember Mom and Dad singing the song, Family of God by Bill Gaither. Its lyrics include:

"I'm so glad I'm a part of the family of God-
I've been washed in the fountain,
cleansed by His blood!
Joint heirs with Jesus
as we travel this sod,
For I'm part of the family,
the family of God."

She loved the Lord and his Word. I remember she spent the time to write out in long hand the book of Proverbs, as if it were addressed to personally. In this and many other ways, she wanted me to develop the love she had for the Bible. 

Even after Dad left the professional ministry, they both remained involved in church, including  organizing a church library and playing piano. I remember meeting someone at their church who said, "People don’t see all the things they the do." It's an understatement to say that she exhibited a life of service.

I saw her the morning of her passing. And said to her, "You did it. You made it."

Appeal of the Year

"Do you like representing Appellants or winning?"
--question posed to appellate practitioner on podcast

It's true that appellate courts don't seem particularly happy to see appellants at oral arguments.

However, I'm pleased to report that I fell into the relatively small group of appellate attorneys who obtained a reversal of a judgment this year. The case pertained to an arcane issue where the trial court did not believe the plaintiff had standing to sue in state court due to earlier events in a federal court. The court of appeal reversed 3-0 and published it.

Trial Court Case of the Year

Used a statute to establish a breach of a fiduciary duty and in turn obtained a seven-figure judgment against several defendants for my client.

Honorable Mention:

Fulfilled annual treks to Maui and Sedona

Friday, December 31, 2021

Year In Review, 2021.

Books Read (in order read)
1. Live Not By Lies by Rob Dreher (2020)
2. The Sun Does Shine: How I Found Life and Freedom on Death Row (2018) by Anthony Ray Hinton with Lara Love Hardin
3. The Professor and the Madman: A Tale of Murder, Insanity, and the Making of the Oxford English Dictionary by Simon Winchester (1998) [cd unabridged]
4. Rage by Bob Woodward (2020) [audiobook unabridged]
5. Fortunate Son: The Healing of a Vietnam Vet by Lewis B. Puller, Jr. (1991)
6. The Racketeer by John Grisham (2012) 
7. Yes to Life: In Spite of Everything by Viktor Frankl (2019)
8. The Last Trial by Scott Turow (2020)
9. A Crack in the Edge of the World: America and the Great California Earthquake of 1906 by Simon Winchester (2005)
10. Limitations by Scott Turow (2006)
11. Exposure by Robert Bilott with Tom Shroder (2019)
12. Rational Male: Religion by Rollo Tomassi (2020)
13. American Pilgrim by Roosh Valizadeh (2021)
14. Living with a SEAL: 31 Days Training with the Toughest Man on the Planet by Jesse Itzler (2016)
15. Unacceptable: Privilege, Deceit & the Making of the College Admissions Scandal by Melissa Korn and Jennifer Levitz (2020)
16. The Decadent Society: How We Became the Victims of Our Own Success by Ross Douthat (2020) [cd unabridged]
17. At the End of the World: A True Story of Murder in the Arctic by Lawrence Millman (2017)
18. Disloyal by Michael Cohen (2020)
19. Innocent by Scott Turow (2010) [audiobook unabridged]
20. Can’t Hurt Me by David Goggins (2018)
21. The House of Morgan: An American Banking Dynasty and the Rise of Modern Finance by Ron Chernow (1990) [cd unabridged]
22. Grant by Ron Chernow (2017)
23. The Curmudgeon's Guide to Getting Ahead: Dos and Don'ts of Right Behavior, Tough Thinking, Clear Writing, and Living a Good Life by Charles Murray (2014)
24. The Psychopath by Mary Turner Thomson (2021)
25. Making Sense of God: An Invitation to the Skeptical by Timothy Kelly (2016) [cd unabridged]
26. Freedom by Sebastian Junger (2021)
27. Belichick: The Making of the Greatest Football Coach of All Time by Ian O'Connor (2018) [audiobook unabridged]
28. Theodore Roosevelt for the Defense: The Courtroom Battle to Save His Legacy by Dan Abrams and David Fisher (2019)
29. Sooley by John Grisham (2021) [cd unabridged]
30. So Good They Can't Ignore You: Why Skills Trump Passion in the Quest for Work You Love by Cal Newport (2012)
31. Drive: The Surprising Truth About What Motivates Us by Daniel H. Pink (2009) [cd unabridged]
32. There's a Hole in my Bucket: A Journey of Two Brothers by Royd Tolkien (2021)
33. A World Without Email: Reimagining Work in an Age of Communication Overload by Cal Newport (2021)
34. Red Notice: A True Story of High Finance, Murder, and One Man's Fight for Justice by Bill Browder (2015)
35. The Dynasty by Jeff Benedict (2020)
35. Anatomy of Injustice: A Murder Case Gone Wrong by Raymond Bonner (2012)
36. The Hidden Reality: Parallel Universes and the Deep Laws of the Cosmos by Brian Greene (2011) 37. Until the End of Time: Mind, Matter, and Our Search for Meaning in an Evolving Universe by Brian Greene (2020)
38. The Long Slide by Tucker Carlson (2021) [audiobook unabridged]
39. Mothertrucker by Amy Butcher (2021)
40. The Bomber Mafia by Malcolm Gladwell (2021)
41. The Billion Dollar Whale: The Man Who Fooled Wall Street, Hollywood, and the World by Tom Wright and Bradley Hope (2018) [audiobook unabridged]
42. The Madness of Crowds by Douglas Murray (2019)
43. Seven Years in Tibet by Heinrich Harrer (1954 [English trans.]) [cd unabridged]
44. The Parasitic Mind by Gad Saad (2020)

Book of the Year
Fortunate Son: The Healing of a Vietnam Vet by Lewis B. Puller, Jr. (1991)
Honorable Mention: Exposure by Robert Bilott with Tom Shroder (2019)

Film of the Year
Dark Waters (2019). It's inspired by the environmental litigation and other events described in book Exposure by Robert Bilott with Tom Shroder (2019).

Appeal of the Year

"Federal Court Really is Different"

Someone filed a petition claiming that she was the surviving spouse of a decedent, who died in late December, 2019. The petitioner demanded a share of his multimillion dollar estate. In response, the administrator and the law firm presented to the probate court a certified copy of a divorce decree dissolving the decedent and petitioner's marriage--in 1972. The petitioner claimed it was a fraud. The probate judge found that judgment for dissolution of the marriage was controlling and dismissed the purported surviving spouse's petition. Dissatisfied with this ruling, the petitioner sued the administrator and the law firm representing her in federal court asserting federal claims and pendant jurisdiction. I represented the administrator and law firm. I brought a Rule 12(b) motion to dismiss based on the grounds of (1) lack of standing; and (2) litigation privilege. In turn, the trial court dismissed the lawsuit against my clients. 

The plaintiff (and petitioner in the underlying probate) appealed. Before any briefs were filed, the Ninth Circuit issued an order indicating that upon its review of the record, it appeared to the reviewing court that the appeal might be frivolous and invited statements from the parties about whether the appeal should proceed. Appellant submitted one exceeding 30 pages, and I wrote our response.

The appellate court ruled: "Upon a review of the record and the responses to the court’s ... order, we conclude this appeal is frivolous...and dismiss this appeal as frivolous."

Federal court really is different.

Trial of the Year

"A Genius for a Client"

Many years ago, a Bay Area couple negotiated their own divorce. In their stipulation for dissolution of the marriage, they provided for monthly spousal support from husband to wife for a fixed period of time. However, they included an unusual provision. It stated that if the husband were to die before the expiration of the required payments, then the support obligation would be his estate's. Judgment was entered on the stipulation. Although husband was in his 40s when the stipulation was entered into, he unfortunately passed away as a relatively young man. He was married to another when this happened. The surviving spouse immediately discontinued the automatic payments to the prior wife, but paid other creditors. We filed a creditor's claim in the husband's probate proceeding, and then a lawsuit on the claim since no payments had been made. The lawsuit went to trial in Northern California and the court ruled that the estate breached the contract and awarded damages--including consequential damages on top of the unpaid support. Then, the court awarded virtually all of the attorneys' fees and other costs my client incurred over several years of the litigation (exceeding six figures) due to a prevailing party attorneys' fees provision in the stipulated judgment.

While I don't practice dissolution law, it seemed to me that the provision for support continuing after the death of one of the marriage partners was unusual. It was the idea of my client, who was representing herself at the time. Genius. Sometimes the adage--one who represents oneself has a fool for a client--doesn't apply.

Losses Sustained
Brian Sterzer

Athletic Achievement of the Year
PR in run distance (multiple runs in double digit miles)
Plus 365/365 workouts (7th year in a row)
Fulfilled annual trek to Sedona



Thursday, December 31, 2020

Year in Review, 2020.

Books Read (in order read)
1. Catch and Kill by Ronan Farrow (2019)
2. Nineteen Eighty-Four by George Orwell (1949) [cd unabridged]
3. Talking to Strangers by Malcolm Gladwell (2019)
4. The War of Art: Break Through and Win Your Inner Creative Battles by Steven Pressfield (2012; originally pub. 2002)
5. The Pioneers: The Heroic Story of the Settlers Who Brought the American Ideal West by David McCullough (2019) [cd unabridged]
6. Justice on Trial: The Kavanaugh Confirmation and the Future of the Supreme Court by Mollie Hemingway and Carrie Servino (2019)
7. Loserthink: How Untrained Brains are Ruining America by Scott Adams (2019)
8. Dreyer's English: An Utterly Correct Guide to Clarity and Style by Benjamin Dreyer (2019)
9. Genghis Khan and the Making of the Modern World by Jack Weatherford (2004) [cd unabridged]
10. Persuader by Lee Child (2003) [cd unabridged]
11. The Spirit of St. Louis by Charles Lindbergh (1953)
12. Extreme Ownership: How U.S. Navy SEALs Lead and Win by Jocko Willink and Leif Babin (2015) [audiobook unabridged]
13. Roadshow: A Concert Tour by Motorcycle by Neil Peart (2006)
14. The Flight: Charles Lindbergh's Daring and Immortal 1927 Transatlantic Crossing by Dan Hampton (2017)
15. Night School by Lee Child (2016) [cd unabridged]
16. Predictably Irrational: The Hidden Forces That Shape Our Decisions by Dan Ariely (2008) [audiobook unabridged]
17. Letters to the Church by Francis Chan (2018)
18. The Club King by Peter Gatien (2020)
19. Dying Every Day: Seneca at the Court of Nero by James Romm (2014)
20. I'm Your Emotional Support Animal by Adam Carolla (2020)
21. Far and Wide: Bring the Horizon to Me! by Neil Peart (2016)
22. Broken Faith by Mitch Weiss and Holbrook Mohr (2020)
23. The Operator by Robert O'Brien (2017)
24. The Devil's Casino: Friendship, Betrayal, and the High-Stakes Games Played Inside Lehman Brothers by Vicky Ward (2010)
25. Kushner, Inc. by Vicky Ward (2019)
26. Facebook: The Inside Story by Steven Levy (2020) [audiobook unabridged]
27. The Dog Went Over the Mountain by by Peter Zheutlin (2019)
28. Ender's Game by Orson Scott Card (1985) [cd unabridged]
29. Relentless Pursuit by Bradley J. Edwards with Brittany Henderson (2020)
30. Writing to Persuade by Trish Hall (2019) [audiobook unabridged]
31. The Liar's Ball: The Extraordinary Saga Of How One Building Broke the World's Toughest Tycoons by Vicky Ward (2014)
32. Travels with Charley: In Search of America by John Steinbeck (1962) [cd unabridged]
33. Chasing the Light: Writing, Directing, and Surviving Platoon, Midnight Express, Scarface, Salvador, and the Movie Game by Oliver Stone (2020) [audiobook unabridged]
34. We by Charles A. Lindbergh (1927)
35. The Body: A Guide for Occupants by Bill Bryson (2019) [cd unabridged]
36. Church of Cowards by Matt Walsh (2020)
37. How to Keep Your Cool: An Ancient Guide to Anger Management by Seneca (edited and translated by James S. Romm) (2019) [audiobook unabridged]
38. The Great Influenza: The Story of the Deadliest Plague in History by John M. Barry (2004) [cd unabridged]
39. Supreme Ambition: Brett Kavanaugh and the Conservative Takeover by Ruth Marcus (2019)
40. Quitter: A Memoir of Drinking, Relapse, and Recovery by Erica C. Barnett (2020)
41. So Long, And Thanks for All the Fish by Douglas Adams (1984) [cd unabridged]
42. Out of the Silence: After the Crash by Eduardo Strauch with Mireya Soriano (2019, translated by Jennie Erikson)
43. True Crimes and Misdemeanors: The Investigation of Donald Trump by Jeffrey Toobin (2020) [audiobook unabridged]
44. Greenlights by Matthew McConaughey (2020)
45. The Innocent Man: Murder and Injustice in a Small Town by John Grisham (2006)
46. 2000 Miles Together: The Story of the Largest Family to Hike the Appalachian Trail by Ben Crawford with Meghan McCraken (2020)

Losses Sustained

Neil Peart
James T. Capretz (former law partner)
Eddie Van Halen (saw him twice in concert--at LA Coliseum and Forum)
J.I. Packer
Sean Connery
Chuck Yeager

Concert of the Year
Tool (1/10/20 San Diego; 11th Tool Show attended)

Film of the Year
The Way Back
Honorable Mention: The Trial of the Chicago 7

Book of the Year
The Spirit of St. Louis by Charles Lindbergh (1953)
Honorable Mention: Relentless Pursuit by Bradley Edwards with Brittany Henderson (2020)

Trial of the Year

"Have a House"

My client befriended a gentleman in his neighborhood. Over the years, they bonded over their mutual loves of cars and sports. After the gentleman lost his wife, he received a terminal diagnosis as well. He told my client that he wanted to give him his house upon his death, but didn't want to deal with a will or trust. My client had heard of a "deed upon death" that would allow the gentleman to stay in the house for his lifetime, and then have the property transfer to my client at his death. My client suggested that the gentleman look into it. He did. The gentleman decided to have such a deed prepared, reviewed it, and then executed it with a notary. It was then recorded. However, it was not recorded in a timely fashion. As a result, my client was informed by a title company that it would not be able to insure title. Thus, my client would not be able to refinance or sell it. He was told he would need to quiet title to the property. He then came to us. We brought a lawsuit to quiet titled in his name. At the trial, I elicited extensive testimony of the deceden't intent to transfer title to my client. We introduced evidence of their long-standing relationship, but also that there was no "care-giver" relationship that could have potentially disqualified my client from receiving it. At the conclusion of the trial, the court quieted title to the property in favor of my client. At 25 years of age, my client had his first house.

Appeal of the Year

"A Record Without A Record"

Our client sued a tech company for breach of contracts. The tech company cross-complained. Each pleading demanded damages in the millions. My client, as plaintiff, brought an affirmative motion for summary adjudication on its complaint. Prior to the hearing, the tech company dismissed its cross-complaint without prejudice. The trial court granted my client's summary adjudication motion and awarded it damages of approximately $8 million, plus attorneys' fees and other costs. The other side appealed. At the oral argument, appellant's counsel argued first, as is customary. He told the justices that he would organize his remarks around the four main arguments of our respondent’s brief. I made a mental note that he was distracted from his contentions that the trial court somehow made an error below in granting summary adjudication and instead focused on our arguments. Among other things, we argued that the appellant failed to provide an adequate record for the appeal. We also contended that the trial court's written evidentiary rulings on our objections to the evidence were correct. One particularly amusing piece of purported evidence was that the appellant had included a declaration in opposition to the motion that averred he had "recently" visited a website to claim that it contents somehow violated the contracts. We objected this statement lacked foundation as to when he viewed it and whose website it was. One of the justices noted that “recently” was not defined, was not a "term of art", and needed a “temporal component” essential to foundation. She also observed that there was no date on the website print-out submitted to the trial court. Appellant’s told the panel they could check to see it was still up there now. Almost in unison, they said something to the effect of that’s not how we do things on appeal. The opinion ensued unanimously upholding the judgment in its entirety, and then tacked on additional attorneys' fees and costs. With interest, it has grown to eight figures. A personal record.

Athletic Achievement of the Year
Completed 52 Hike Challenge (in actuality, doubled it--over 104)
Plus 365/365 workouts (6th year in a row)
Fulfilled annual trek to Sedona (annual trek to Maui was a Covid-19 casualty)

Tuesday, December 31, 2019

Year In Review, 2019.

Books Read (in order read)
1. The Secret Knowledge: On the Dismantling of American Culture by David Mamet (2011) [cd unabridged]
2. America: The Farewell Tour by Chris Hedges (2018)
3. Bright-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America by Barbara Ehrenreich (2009)[cd unabridged]
4. The Tenth Island by Diana Marcum (2018)
5. Looking for Alaska by Peter Jenkins (2001)
6. 3 Uses of the Knife: On the Nature and Purpose of Drama by David Mamet (1998)
7. Fear: Trump in the White House by Bob Woodward(2018) [cd unabridged]
8. Melting Pot or Civil War? by Reihan Salam (2018)
9. Ghost Train to the Eastern Star by Paul Theroux (2008) [cd unabridged]
10. Hippie by Paulo Coelho (2018) [cd unabridged]
11. Ship of Fools by Tucker Carlson [cd unabridged]
12. Hoaxed: Everything They Told You is a Lie by Mike Cernovich (2108)
13. Lunar Park by Bret Easton Ellis (2005) [cd unabridged]
14. What Does This Button Do? by Bruce Dickinson (2017)
15. The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy (2013) [cd unabridged]
16. Big Answers to the Big Questions by Stephen Hawking (2018)
17. Dopesick by Beth Macy (2018)[cd unabridged]
18. Less Than Zero by Bret Easton Ellis (1985)
19. The Book of Five Rings by Miyamoto Musashi (English trans. 2002 by William Scott Wilson)
20. Why Religion? by Elaine Pagels (2018)[cd unabridged]
21. The Seven Year Trap: Back Office Observations of the Business of Law & the Path to Partnership by Charles Gillis (2018)
22. American Prison: A Reporter's Undercover Journey Into the Business of Punishment by Shane Bauer (2018) [cd unabridged]
23. The Gnostic Gospels by Elaine Pagels (1979)[cd unabridged]
24. The Fifth Risk by Michael Lewis (2018)
25. You've Been So Lucky Already: A Memoir by Alethea Black (2018)
26. Almost Everything: Notes on Hope by Anne Lamott (2018)[cd unabridged]
27. The Chief: The Life and Turbulent Times of Chief Justice John Roberts by Joan Biskupic (2019)
28. Contempt by Ken Starr (2018)
29. Business Adventures: Twelve Classic Tales from the World of Wall Street by John Brooks (1969)[cd unabridged]
30. The Rational Male by Rollo Tomassi (2013)
31. The Devil in the White City by Erik Larson (2003) [cd unabridged]
32. The Art of Non-Conformity by Chris Guillebeau (2010) [cd unabridged]
33. Team of Vipers by Cliff Sims (2018)
34. The Lincoln Lawyer by Michael Connelly (2005) [cd unabridged]
35. The Loudest Voice in the Room by Gabriel Sherman (2014)
36. Digital Minimalism: Choosing a Focused Life in a Noisy World by Cal Newport (2019)
37. Wake: The Last Crossing of the Lusitania by Erik Larson (2015) [cd unabridged]
38. Lead Yourself First: Inspiring Leadership Through Solitude by Raymond M. Kethledge and Michael S. Erwin (2017)
39. The Reversal (a Lincoln Lawyer novel) by Michael Connelly (2010) [cd unabridged]
40. First: Sandra Day O'Connor by Evan Thomas (2019)
41. Working: Researching, Interviewing, Writing by Robert A. Caro (2019)
42. The Brass Verdict (a Lincoln Lawyer novel) by Michael Connelly (2008) [cd unabridged]
43. The Fifth Witness (a Lincoln Lawyer novel) by Michael Connelly (2011) [cd unabridged]
44. Out of Order: Stories from the History of the Supreme Court by Sandra Day O'Connor (2013)
45. The Majesty of the Law: Reflections of a Supreme Court Justice by Sandra Day O'Connor (2003) [cd unabridged]
46. Solitude: Seeking Wisdom in Extremes; A Year Alone in the Patagonia Wilderness by Robert Kull (2008)
47. The Gods of Guilt (a Lincoln Lawyer novel) by Michael Connelly (2013) [cd unabridged]
48. Flow: The Psychology of Optimal Experience by Mihaly Csikszentmihalyi (1994) [cd abridged]
49. Deep Work by Cal Newport (2016)
50. Five Chiefs: A Supreme Court Memoir by John Paul Stevens (2011) [cd unabridged]
51. Ten Years A Nomad by Matthew Kepnes (2019)
52. The Sense of Style: The Thinking Person's Guide to Writing in the 21st Century by Steven Pinker (2014) [cd unabridged]
53. Bitcoin Billionaires by Ben Mezrich (2019)
54. Tribe of Mentors: Short Life Advice from the Best in the World by Timothy Ferriss (2017)
55. Doing Justice: A Prosecutor's Thoughts on Crime, Punishment, and the Rule of Law by Preet Bharara (2019) [cd unabridged]
56. White by Bret Easton Ellis (2019)
57. A Republic, If You Can Keep It by Neil Gorsuch with Jane Nitze and David J. Feder (2019)
58. The Innovators by Walter Isaacson (2014) [cd unabridged]
59. "Surely You're Joking, Mr. Feynman!" by Richard P. Feynman (1985) [cd unabridged]
60. Man's Search for Ultimate Meaning by Viktor E Frankl (1997) [cd unabridged]
61. "What Do You Care What Other People Think?": Further Adventures of a Curious Character by Richard P. Feynman (1988)
[cd unabridged]
62. Man's Search for Meaning by Viktor E. Frankl (1984 ed.) [cd unabridged]
63. Deep State: Trump, the FBI, and the Rule of Law by James B. Stewart (2019)
64. Permanent Record by Edward Snowden (2019)
65. Tools of Titans: The Tactics, Routines, and Habits of Billionaires, Icons, and World-Class Performers by Tim Ferriss (2016)
66. Something Deeply Hidden: Quantum Worlds and the Emergence of Spacetime by Sean Carroll (2019)
67. Eisenhower: A Life by Paul Johnson (2014) [cd unabridged]
68. Methods of Persuasion: How to Use Psychology to Influence Human Behavior by Nick Kolenda (2013)
69. Every Love Story Is a Ghost Story: A Life of David Foster Wallace by D. T. Max (2012)
70. The Broom of the System by David Foster Wallace (1989) [cd unabridged]

Losses Sustained
John Bogle
John Radcliffe (younger cousin)
Ric Ocasek

Book of the Year
Tie: Permanent Record by Edward Snowden (2019) and "Surely You're Joking, Mr. Feynman!" by Richard P. Feynman (1985)
Honorable Mention: Digital Minimalism: Choosing a Focused Life in a Noisy World by Cal Newport (2019)

Concert of the Year
Tool (10/20/19 Los Angeles)

Film of Year
The Irishman
Honorable Mentions: Once Upon a Time in Hollywood and Apollo 11

Trial of the Year
"What's in a Title?"

In a year where I went 5-0 in trials, one case particularly stood out for its windfall to my clients. My clients (husband and wife) purchased a four-unit investment property with the wife's sister and her spouse. So, the four of them went on title. The other couple advanced all of the down payment, and my clients' credit rating secured the loan on the property. (The other couple conceded they couldn't have qualified without help.) Thereafter, the other couple suffered a marital dissolution. As a result, wife (my client's sister) bought out her husband's interest in the property (using her own funds), leaving only three on title.

My clients grew weary of not receiving any income from the property, despite reporting all income on their taxes. They wondered what legal rights they had. Since they were on title, I suggested a partition by sale cause of action, which we filed. The other side cross-complained for breach of an oral agreement, alleging essentially that my clients never acquired any ownership interest in the property, but only lent their credit to help buy the property as a favor to their sister.

After a trial involving many witnesses, including the parties, tenants, family members, and even the ex-husband (who ardently advocated his ex-wife's position), the trial court ruled in my client's favor on the complaint and cross-complaint, ruling that they were 66.67 percent owners of the property, and accordingly, entitled to that percentage of the net proceeds of its sale that the court ordered, plus attorneys' fees. Distilled to its essence, title controlled.

As a bonus, opposing counsel after the trial remarked about my cross-examination, "You got my client to say whatever you wanted her to say." I offered no rebuttal.

Appeal of the Year
"Resurrection of a Wrongful Death Case"

A 75-year-old Alzheimer's patient was placed in a locked unit and positioned next to a young man known to be violent. The young man battered the helpless elderly patient, who eventually died. In turn, the decedent's personal representative brought a lawsuit against the hospital, attending physicians, and nurses for: (a) professional negligence, (b) elder abuse, (c) wrongful death, and (d) willful misconduct.

After a few attempts, the trial judge dismissed the lawsuit on a demurrer for "uncertainty" and untimeliness--without leave to amend. Plaintiff's counsel requested that I brief the appeal in this tragic case.

My arguments apparently convinced the court of appeal that the pleading was not "uncertain" and not time-barred, but in fact stated valid claims. The appellate court reversed the trial court's dismissal of the action, remanded the case for a trial, and awarded costs to my client.

Athletic Achievement of the Year

Best (running) mile time in decades
Long segment of PCT in Washington (Stevens Pass)

Plus 365/365 workouts [fifth year-in-row]
Fulfilled annual treks to Maui and Sedona

Monday, December 31, 2018

Year In Review, 2018.

Books Read (in order)
1. A Criminal Defense by William L. Myers, Jr. (2017)
2. A River in Darkness: One Man's Escape by Masaji Ishikawa (2017)
3. What I Talk About When I Talk About Running: A Memoir by Haruki Murakami (2008) [cd unabridged]
4. Deliverance by James Dickey (1970)
5. On Writing: A Memoir of the Craft by Stephen King (2000) [cd unabridged]
6. Colorless Tsukuru Tazaki and His Years of Pilgrimage by Haruki Murakami (2013) [cd unabridged]
7. Bowling Alone: The Collapse and Revival of American Community by Robert D. Putnam (2000)
8. Law Man: My Story of Robbing Banks, Winning Supreme Court Cases, and Finding Redemption by Shon Hopwood with Dennis Burke (2012)
9. I'm Fine...and Other Lies by Whitney Cummings (2017)
10. Capital Gains: Smart Things I Learned Doing Stupid Things by Chip Gaines (2017)
11. Hacks by Donna Brazile (2017)
12. Republican Like Me: How I Left the Liberal Bubble and Learned to Love the Right by Ken Stern (2017)
13. Jesus Before the Gospels: How the Earliest Christians Remembered, Changed, and Invented Their Stories of the Savior by Bart D. Ehrman (2016) [cd unabridged]
14. The Sports Gene: Inside the Science of Extraordinary Athletic Performance by David Epstein (2013)
15. Moonwalking with Einstein: The Art and Science of Remembering Everything by Joshua Foer (2011) [cd unabridged]
16. World Without Mind: The Existential Threat of Big Tech by Franklin Foer (2017)
17. Brain on Fire: My Month of Madness by Susannah Cahalan (2012)
18. Applied Economics: Thinking Beyond Stage One by Thomas Sowell (2004) [cd unabridged]
19. Making Sense of God: An Invitation to the Skeptical by Timothy Keller (2016)[cd unabridged]
20. 12 Rules for Life: An Antidote to Chaos by Jordan B. Peterson (2018)
21. How to Turn Down a Billion Dollars: The Snapchat Story by Billy Gallagher (2018)
22. After the New Testament: The Writings of the Apostolic Fathers by Bart D. Ehrman (2005) [cd unabridged]
23. Big Sur by Jack Jack Kerouac (1962) [cd unabridged]
24. Skin in the Game: Hidden Asymmetries in Daily Life by Nassim Nicholas Taleb (2018)
25. The Road by Cormac McCarthy (2006) [cd unabridged]
26. The Electric Kool-Aid Acid Test by Tom Wolfe (1968)
27. Rocket Men: The Epic Story of the First Men on the Moon by Craig Nelson (2009) [cd unabridged]
28. A Walk Across America by Peter Jenkins (1979)
29. Death is a Lonely Business by Ray Bradbury (1985) [cd unabridged]
30. North: finding My Way While Running the Appalachian Trail by Scott Jurek with Jenny Jurek (2018)
31. Finished I'll Be Gone in the Dark: One Woman's Obsessive Search for the Golden State Killer by Michelle McNamara (2018)
32. Conspiracy: Peter Thiel, Hulk Hogan, Gawker, and the Anatomy of Intrigue by Ryan Holiday (2018)
33. A Marriage in Dog Years: a Memoir by Nancy Balbirer (2018)
34. The Walk West: A Walk Across America 2 by Peter and Barbara Jenkins (1981)
35. The Glass Castle: A Memoir by Jeannette Walls (2005) [cd unabridged]
36. Submission by Michael Houellebecq (Lorin Stein, trans., 2015)
37. The Triumph of Christianity by Bart D. Ehrman (2018)
38. The Bonfire of the Vanities by Tom Wolfe (1987) [cd unabridged]
39. Just Mercy: A Story of Justice and Redemption by Bryan Stevenson (2014) [cd unabridged]
40. But Enough About Me by Burt Reynolds and Jon Winokur (2015) [cd unabridged]
41. Plunder and Deceit: Big Government's Exploitation of Young People and the Future by Mark Levin (2015) [cd unabridged]
42. The Prince by Niccolò Machiavelli (1532)[cd unabridged]
43. First Man: The Life of Neil A. Armstrong by James R. Hansen (2005)
44. The Triple Package: How Three Unlikely Traits Explain the Rise and Fall of Cultural Groups in America by Amy Chua and Jed Rubenfeld (2014) [cd unabridged]
45. Resistance is Futile! by Ann Coulter (2018)
46. Everyman by Philip Roth (2006) [cd unabridged]
47. Lincoln's Last Trial: The Murder Case that Propelled Him to the Presidency by Dan Abrams and David Fisher (2018)
48. Catch-22 by Joseph Heller (1961) [cd unabridged]
49. Enough. True Measures of Money, Business, and Life by John C. Bogle (2009)
50. Shattered Air: A True Account of Catastrophe and Courage on Yosemite's Half Dome by Bob Madgic (2005)
51. Shattered: Inside Hillary Clinton's Doomed Campaign by Jonathan Allen and Amie Parnes (2017) [cd unabridged]
52. The Little Book of Common Sense Investing by John C. Bogle (2007) [cd unabridged]
53. Bad Blood: Secrets and Lies in a Silicon Valley Startup by John Carreyrou (2018)
54. Small Fry by Lisa Brennan-Jobs (2018)
55. Alone on the Wall by Alex Honnold with Dave Roberts (2016)
56. Republicans Buy Sneakers, Too by Clay Travis (2018)
57. Educated by Tara Westover (2018) [cd unabridged]
58. The Alchemist by Paulo Coelho (1993) [cd unabridged]
59. The Bite in the Apple: A Memoir of My Life With Steve Jobs by Chrisann Brennan (2013)
60. Thomas Paine's Rights of Man by Christopher Hitchens (2007) [cd unabridged]
61. Over the Edge: The True Story of Four American Climbers' Kidnap and Escape in the Mountains of Central Asia by Greg Child (2002)
62. Thanks A Thousand by A.J. Jacobs (2018)

The Golden Decade of Cinema List (in order of year)
1. MASH (1970)
2. Patton (1970)
3. The Landlord (1970)
4. Love Story (1970)
5. Harold and Maude (1971)
6. Duel (1971)
7. The French Connection (1971)
8. A Clockwork Orange (1971)
9. Dirty Harry (1971)
10. The Godfather (1972)
11. Deliverance (1972)
12. The Poseidon Adventure (1972)
13. The Mechanic (1972)
14. The Exorcist (1973)
15. The Sting (1973)
16. Serpico (1973)
17. American Graffiti (1973)
18. The Paper Chase (1973)
19. High Plains Drifter (1973)
20. The Godfather, Part II (1974)
21. Thunderbolt and Lightfoot (1974)
22. Death Wish (1974)
23. The Conversation (1974)
24. One Flew Over the Cuckoo's Nest (1975)
25. Dog Day Afternoon (1975)
26. The Eiger Sanction (1975)
27. Jaws (1975)
28. Rocky (1976)
29. Taxi Driver (1976)
30. All the President's Men (1976)
31. The Gauntlet (1977)
32. Star Wars (1977)
33. Deer Hunter (1978)
34. Coming Home (1978)
35. Midnight Express (1978)
36. ...And Justice for All (1979)
37. Kramer vs. Kramer (1979)
38. Breaking Away (1979)
39. Being There (1979)
40. Apocalypse Now (1979)
Honorable Mention: Escape From Alcatraz (1979)

Losses Sustained
John W. Young
Stephen Hawking
Milos Forman
Tom Wolfe

Book of the Year
A River in Darkness: One Man's Escape by Masaji Ishikawa (2017)
Honorable Mentions: Skin in the Game: Hidden Asymmetries in Daily Life by Nassim Nicholas Taleb (2018) and Bad Blood: Secrets and Lies in a Silicon Valley Startup by John Carreyrou (2018)

Film of the Year
Free Solo

Trial of the Year


My client was the successor trustee of a trust. We obtained an order removing the predecessor trustee, his brother. In addition, the prior trustee and his spouse sought to charge the trust with "salaries" for himself and his wife. After we cross-examined them using logs of caregivers, who were paid separately from the trust, the trial judge found no reason for this duplication of expenses and efforts. The court disallowed six figures of these purported expenses and rejected the other side's attempt to remove my client as successor trustee or to find any breaches of fiduciary duty on my client's part. He was an inspirational figure. He became blind as an adult (while serving in the military), and thereafter obtained a master's degree in mathematics. He demonstrated grace and dignity under pressure.

Athletic Achievement of the Year
Long segment of PCT (near Big Bear Lake, CA)

Plus 365/365 workouts [fourth year-in-row]
Fulfilled annual treks to Maui and Sedona

Friday, December 29, 2017

Year In Review, 2017.

Books Read (in order)
1. Influence: The Psychology of Persuasion by Robert B. Cialdini, Ph.D. (2007 rev ed.)
2. A Life in Parts by Bryan Cranston (2016)
3. The Small Big: Small Changes That Spark Big Influence by Steve J. Martin, Noah J. Goldstein and Robert B. Cialdini (2014)
4. Thinking, Fast and Slow by Daniel Kahneman (2011) [cd unabridged]
5. The Subtle Art of Not Giving A #%&@: A Counterintuitive Approach to Living a Good Life by Mark Manson (2016)
6. Blood Meridian by Cormac McCarthy (1985) [cd unabridged]
7. The Kingdom of Speech by Tom Wolfe (2016)
8. Life Is a Series of Presentations by Tony Jeary with Kim Dower and J.E. Fishman (2003) [cd unabridged]
9. The Magnolia Story by Chip and Joanna Gaines with Mark Dagostino (2016)
10. Survival in the Killing Fields by Haing S. Ngor with Roger Warner (1987)
11. Filthy Rich: - The Shocking True Story of Jeffrey Epstein by James Patterson and John Connolly with Tim Malloy (2016) [cd unabridged]
12. A Perfect Union of Contrary Things by Sarah Jensen with Maynard James Keenan (2016)
13. The Greatest Comeback: How Richard Nixon Rose from Defeat to Create the New Majority by Patrick J. Buchanan (2014)
14. Don't Sleep, There Are Snakes: Life and Language in the Amazonian Jungle by Daniel L. Everett (2008)
15. The Undoing Project: A Friendship That Changed Our Minds by Michael Lewis (2016) [cd unabridged]
16. Powerhouse: The Untold Story of Hollywood's Creative Artists Agency by James Andrew Miller (2016)
17. The Fourth Turning: An American Prophecy by William Strauss and Neil Howe (1997)
18. The Gene: An Intimate History by Siddhartha Mukherjee (2016)[cd unabridged]
19. Cities of Gold: A Journey Across the American Southwest in Pursuit of Coronado by Douglas Preston (1992)
20. The Upstarts: How Uber, Airbnb, and the Killer Companies of the New Silicon Valley Are Changing the World by Brad Stone (2017) [cd unabridged]
21. The Everything Store: Jeff Bezos and the Age of Amazon by Brad Stone (2013) [cd unabridged]
22. The River of Doubt: Theodore Roosevelt's Darkest Journey by Candice Millard (2005)
23. The Lost City of the Monkey God: A True Story by Douglas Preston (2017) [cd unabridged]
24. Dixieland Delight: A Football Season on the Road in the Southeastern Conference by Clay Travis (2007)
25. The New Frugality by Chris Farrell (2009) [cd unabridged]
26. How to Murder Your Life by Cat Marnell (2017)
27. X by Chuck Klosterman (2017)
28. Everybody Lies: Big Data, New Data, And What The Internet Can Tell Us About Who We Really Are by Seth Stephens-Davidowitz (2017)
29. The Year of Magical Thinking by Joan Didion (2005) [cd unabridged]
30. The Social Animal by David Brooks (2011)
31. The Stranger in the Woods: The Extraordinary Story of the Last True Hermit by Michael Finkel (2017)
32. Slouching Towards Bethlehem by Joan Didion (1968)
33. Running With the Devil by Noel E. Monk with Joe Layden (2017)
34. Van Halen Rising by Greg Renoff (2015)
35. The Book of Joy: Lasting Happiness in a Changing World by Dalai Lama, Desmond Tutu with Douglas Abrams (2016)[cd unabridged]
36. Illusion of Justice: Inside Making a Murderer And America's Broken System by Jerome F. Buting (2017)
37. Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments by Richard A. Posner (2017)
38. Blackwater: The Rise of the World's Most Powerful Mercenary Army by Jeremy Scahill (2007) [cd unabridged]
39. Making Sense of the Alt-Right by George Hawley (2017)
40. Astrophysics for People in a Hurry by Neil deGrasse Tyson (2017) [cd unabridged]
41. What Is the Bible? by Rob Bell (2017)
42. The Chickens&%# Club: Why the Justice Department Fails to Prosecute Executives by Jesse Eisinger (2017)
43. Devil's Bargain: Steve Bannon, Donald Trump, and the Storming of the Presidency by Joshua Green (2017)
44. Washington's Crossing by David Hackett Fischer (2004) [cd unabridged]
45. Blindfolds Off: Judges on How They Decide by Joel Cohen (2014)
46. Gilead: A Novel by Marilynne Robinson (2004) [cd unabridged]
47. Jesus: A Biography from a Believer by Paul Johnson (2010)
48. Bannon: Always the Rebel by Keith Koffler (2017)
49. Win Bigly: Persuasion in a World Where Facts Don't Matter by Scott Adams (2017)
50. American Radical by Tamer Elnoury with Kevin Maurer (2017)

Losses Sustained
John Wetton
Chris Cornell
Chester Bennington
Malcolm Young
R.C. Sproul

Book of the Year
Survival in the Killing Fields by Haing S. Ngor with Roger Warner (1987)
Honorable Mentions: Win Bigly: Persuasion in a World Where Facts Don't Matter by Scott Adams (2017) and
Influence: The Psychology of Persuasion by Robert B. Cialdini, Ph.D. (2007 rev ed.)

Concert of the Year

Film of the Year

Trial of the Year

"Family Fued"

My client was the youngest of four brothers. After their mother died, they agreed that he would administer their mother's estate, for which there was no will or trust. As administrator, he submitted a proposed accounting. In response, his two eldest brothers brought a lawsuit against him and his wife, alleging that they committed financial elder abuse on their mother and that my client breached his fiduciary duty. They observed that the accounting did not contain a joint bank account between my client and her mother, the net rental income generated from her rental property for about eight years preceding her death, nor the proceeds from a line of credit deposited into the joint account. The arrangement for the joint account and management of the rental property was approved by all the brothers when he took over management of their mother's rental property (from the second brother who also had a joint account with his mom during his tenure as property manager) as well as her trusted financial advisor. They produced documents and witnesses from about 10 years ago (at the time of the opening of the joint account and approval of the arrangement) allegedly indicating that the mother was severely hallucinating and lacked capacity to take care of herself or to make any decisions, and therefore, they alleged that my client and his spouse visited financial elder abuse on his mother by taking net rental income from a house owned by the mom that was deposited into the joint bank account. All dressed up, the claim was about a million dollars.

Following a lengthy trial in which experts and percipient witnesses testified as to the mother's mental condition at the time the joint account was set up, the trial court found that, while the mother had fluctuations in her cognitive state, Petitioners had not shown that she lacked capacity to make any of the decisions that she made the decision to allow my client to use any funds that were left over after those of the rental house were taken care of and the mother's needs were taken care of. The court found the (nonparty) brother's testimony credible that he had conversations with his mother about the joint account and her intentions that my client could and his family could use the funds as he saw fit after payment of expenses. After my particularly eviscerating cross-examination of their expert doctor, the court did not find their doctor's analysis as to the mother's capacity to comport California Probate Code Section 811's factors. The court found it "completely logical and reasonable" that the mother wanted any surplus funds to go to my client, his wife and their daughter (the decedent's granddaughter) with whom she had a continuing close and substantial relationship.

Furthermore, the court ruled that my clients did not exert undue influence upon the mother. The court stated that what was clear was that the mother did not operate her family relationships like a company, and reasonably took into account each of her son's needs at their time of need. In sum, the court found that my clients did not take unfair advantage of their mother under the law of undue influence or otherwise meet the standard for financial elder abuse. Also, the trial court ruled that there was no breach of fiduciary duty committed by my client because he included all assets of the estate in his accounting, and any others that the other brothers' were complaining about were not assets of the estate.

The case was ruled in favor of my clients on every point, including approval of the accounting. The suing brothers recovered exactly nothing on their claims.

Appeal of the Year

"Beware of the Lawyer"

A lawyer received documents from his client and distributed them to other lawyers in furtherance of a case in which he was attorney of record. Two corporations alleged that these documents were "stolen", contained trade secrets and were obligated by the client's contract with them to be returned.

The corporations sued the lawyer (but not the client). We brought a special motion to strike the lawsuit under California's anti-SLAPP law. (C.C.P. Section 425.16.) The trial court agreed and dismissed the case in its entirety and awarded attorneys' fees. The corporations appealed.

At the oral argument on appeal, one of the justices said that he had “substantial concern” that Appellants “did not even begin to make” the factual showing of the elements of the prima facie case against the lawyer. He observed that the trial judge addressed Appellants’ attempt with a mere 10 lines in its ruling mostly citing to the unverified complaint. The justice asked the corporation's attorney where in Appellants’ submissions was their evidence tied to the elements of the claims? Counsel conceded their "showing was not complete.”

The justices also expressed concern that the case was barred by the litigation privilege, meaning the attorney had the right to use the documents for litigation purposes (even other cases). Another justice stated to Appellants' counsel “many of your claims are deficient.” And moreover, there are “defects that could not be cured.” The corporations' counsel conceded: “If the defects cannot be cured, then we lose.”

While the opinion is still pending, one does not need to be psychic to read the "tea leaves" here. A rough day at the office for the Appellants.

Athletic Achievement of the Year
Two Summits, One Day (Mojeska and Santiago Peaks, together: Saddleback Mountain) [33 miles, approximately 5000' elevation gain]