Tag: news

New California case – an attorney cannot make assertions in court that lack factual support and supporting law – why this is important, because unfortunately it happens too often

New California appellate case in part discusses attorney rules of professionalism and professional conduct – and that “Lawyers may not make assertions in court that lack factual support, regardless of how much the lawyer or the client ‘earnestly believes’ them,” and “the legal profession runs on facts, law, and justice.” Whereas the facts in N.D. v. The Superior Court (E.F.) involve attorney conduct or misconduct at the trial court level and also at the appellate court level, and in part pertain to accusations that were made against the trial judge, the discussion and the quotes from the case in this post pertain to attorneys in the whole and overall (N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest (January 20, 2-26) 117 Cal. App. 5th 1292).

It is too relatively easy to throw a bunch of unsupported fact and law allegations into a pleading or other filing with the court, and it also can be easy to argue unsupported fact and law allegations, including new allegations, at a hearing, if the court so allows over objection. For the most part, the majority of attorneys do not do this, and many judges will not allow it, but it still happens. Whereas it is easy to throw in a bunch of persuasive one-liner allegations, it takes considerable time and effort to then disprove them. A case like N.D. v. Superior Court (E.F.) along with other already existing supporting authorities are important to help try to keep cases under procedural and legal due process control.

The following are quotes from the case:

“There are many respected professions in which one may write solely to express someone’s sentiments. An advertiser can trumpet the good qualities of their client’s product without disclosing the negatives. A PR professional can put their client’s crisis in the best light without acknowledging the counterpoints. A speechwriter can craft aspirational promises without conceding the candidate’s limited ability to follow through. In these fields, delivering the client’s message is the name of the game.

The law is not one of those professions.

Lawyers are not mere mouthpieces for clients. Our profession depends on exercising judgment in what we say and how we say it. At times, the only correct professional judgment is to tell the client, “no.”

We publish this opinion as a cautionary tale: Lawyers may not make assertions in court that lack factual support, regardless of how much the lawyer or the client “earnestly believes” them. Lawyers may not impugn the integrity of the very system of justice in which they serve without a solid basis in both fact and law. Dissatisfaction with a ruling, however deeply felt, is not itself evidence of judicial misconduct.”

* * * * *

“Most lawyers show remarkable skill in helping clients understand our professional obligations yet too many mistake the need for zealous advocacy with a “the customer is always right” policy. We remind them that the legal profession runs on facts, law, and justice. The law cannot tolerate unsupported assertions fueled only by desires, especially baseless accusations against our hardworking trial judges.”

* * * * *

“‘This court may find a writ petition to be frivolous and order sanctions if we conclude the petition was prosecuted for an improper motive or the petition is indisputably without merit . . . .’”

* * * * *

“We are particularly concerned with [attorney’s name removed for this post] disregard of his duty to uphold the respect owed to the judiciary. It is one thing to assert in a petition that the trial court committed error. An attorney acts well within their duty as an advocate to raise good-faith arguments challenging rulings, even when it presents an uphill battle. There is nothing inherently improper about making allegations of bias or discrimination against a trial court. (Citations omitted.) Attorneys can and should raise such claims, even if they are ultimately unsuccessful—as long as there is a plausible legal basis and evidence in the record to support them.”

* * * * *

“Rather than offering evidence, [attorney’s name removed from this post] wrongly relies on “earnest” beliefs he shares with his client. An attorney cannot raise a claim in court based solely on the sincerity of an unsupported belief. (Rules of Prof. Conduct, rules 3.1 [a lawyer shall not “assert a position in litigation” “without probable cause”], 3.3 [a lawyer shall not “knowingly make a false statement of fact or law” to the court].) “[C]ounsel has a professional responsibility not to pursue an appeal [or assert a position] that is frivolous or taken for the purpose of delay, just because the client instructs him or her to do so.” (In re Marriage of Gong & Kwong (2008) 163 Cal. App. 4th 510, 521.)

An attorney’s duty to advocate zealously for their client does not trump the equally important duty to “exercise independent professional judgment and render candid advice.” (Rules of Prof. Conduct, rule 2.1) An attorney owes a duty to the client and the profession to advise the client that accusations like those presented here must be supported by evidence in the record. If the client continues to press the attorney to raise the claim in court, “the high ethical and professional standards of a member of the bar and an officer of the court require the attorney to inform the client that the attorney’s professional responsibility precludes him or her from pursuing such [a claim].” (In re Marriage of Gong & Kwong, supra, 163 Cal. App. 4th at 521.)”

Concluding comments:

N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest is another case in a line of legal authorities and rules of professional conduct which hold that an attorney cannot plead or make or be involved in pleading or making claims or arguments that are not sufficiently supported by actual existing facts (evidence) and supporting law – that doesn’t mean that those facts (evidence) and that that law will or must ultimately prevail in the case, but they must nevertheless exist. In N.D., Petitioner v. The SUPERIOR COURT OF ORANGE COUNTY, Respondent, E.F., Real Party in Interest the attorney was sanctioned $25,000. Unfortunately during the past few years I have seen or been involved in certain cases where an attorney on the other side in my view played the system too far in disregard of the actual facts, the evidence, and the law.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

New California elder abuse case holding that when there are counter elder abuse claims the fact that the prevailing party incurred defense attorneys’ fees does not prevent that party from recovering fees under W&I Code Section 15657.5

In elder abuse cases it is not uncommon for there to be counter and cross claims back and forth and sideways. In relevant part in Haun v. Pagano (February 18, 2026) there were claims of financial elder abuse and that undue influence and undue pressure were exerted upon Charles Frazier, age 83, to induce him execute a new trust. But after which he then expressed concern that the trust that he executed did not express his wishes and that he had been pressured, whereupon he was then taken to a new attorney where he executed a new later-in-time trust which substantially reverted back to his prior estate plan. The facts are more detailed, of course, and claims of financial elder abuse were alleged back and forth.

Attorneys’ fee and the possible recovery of attorneys’ fees can be very significant in elder abuse cases. Further, often there are claims of fraud and deceit, claims under California Probate Sections 850-859 and for double damages and also for attorneys’ fees under those statutes, and claims for punitive damages.

In relevant part in Haun v. Pagano the California Court of Appeal held that the prevailing party on a claim for financial elder abuse can recover attorneys’ fees including overlapping and intertwined attorneys’ fees incurred to defend that prevailing party against counter claims of elder abuse. The Court held that Welfare & Institutions Code Section 15657.5 is a unilateral fee shifting provision allowing for the recovery of attorneys’ fees reasonably incurred in prosecuting a successful financial elder abuse claim even if the attorney work and fees overlap with the defensive litigation, in relevant part because the Legislature enacted the elder abuse statutes to encourage and incentivize private enforcement of elder abuse claims.

Both defendants/respondents and plaintiffs/petitioners should keep the holding in Haun v. Pagano in mind. And also be mindful that the recovery of attorneys’ fees is not automatic – the trial court still must make a determination that attorneys’ fees should be awarded and the amount, if any.

I am also attaching a copy of my undue influence in estate planning eBook.

Undue Influence in Estate Planning eBook David Tate, Esq. final emailable June 17 2025 V6-smDownload

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

California Partition of Real Property Act – Other Claims and Issues That Arise (this is the fourth in this series)

In this post I briefly discuss some of the other claims and issues that arise or that can arise in your partition action under the California Partition of Real Property Act. This post is the fourth post in this series about the Act, and it is the last post in this series. However, of course, I will be making other posts about the partition of real property both under the California Partition of Real Property Act and also under the other already existing California partition statutes. The following are not in any particular order, and, I must add that of course the following are brief summaries and it also is not possible to anticipate all of the other claims and issues that might arise and be presented to the Court.

1. The methods for service of the Complaint under the Act are the same as under other statutes and case law, including, for example, service by publication. Service is important for the Court to have jurisdiction (consider, for example, personal and in rem jurisdiction, and also consider possibly applicable service options under the Code of Civil Procedure, the Probate Code, the Civil Code, and pursuant to agreement between the people and entity parties). See, e.g., California Code of Civil Procedure §874.314.

2.  The Court can appoint a referee, and which should be anticipated as a possiblity. See, e.g., California Code of Civil Procedure §874.315.

3.  The following is a copy and paste of the California Partition of Real Property Act §§874.317(g) and (h):

(g) Not later than 45 days after the court sends notice to the parties pursuant to subdivision (a), any cotenant entitled to buy an interest under this section may request the court to authorize the sale as part of the pending action of the interests of cotenants named as defendants and served with the complaint but that did not appear in the action.

(h) If the court receives a timely request under subdivision (g), the court, after a hearing, may deny the request or authorize the requested additional sale on such terms as the court determines are fair and reasonable, subject to the following limitations:

(1) A sale authorized under this subdivision may occur only after the purchase prices for all interests subject to sale under subdivisions (a) to (f), inclusive, have been paid into court and those interests have been reallocated among the cotenants as provided in those subdivisions.

(2) The purchase price for the interest of a nonappearing cotenant is based on the court’s determination of value under Section 874.316.

As you can see – there can be significant repercussions for a defendant who is served with the Complaint under the Act but who does not appear in the action.

4. If all the interests of all cotenants that requested partition by sale are not purchased by other cotenants pursuant to California Code of Civil Procedure §874.317, or if after conclusion of the buyout under Section 874.317 a cotenant remains that has requested partition in kind, the Court shall order partition in kind unless the Court, after consideration of the factors listed in Section 874.319, finds that partition in kind will result in great prejudice to the cotenants as a group. In considering whether to order partition in kind, the Court shall approve a request by two or more parties to have their individual interests aggregated. See, e.g., California Code of Civil Procedure §874.318.

The following are the factors that are listed in Section 874.319:

California Code of Civil Procedure §874.319  

(a) In determining whether partition in kind would result in great prejudice to the cotenants as a group, the court shall consider the following:

(1) Whether the property practicably can be divided among the cotenants.

(2) Whether partition in kind would apportion the property in such a way that the aggregate fair market value of the parcels resulting from the division would be materially less than the value of the property if it were sold as a whole, taking into account the condition under which a court-ordered sale likely would occur.

(3) Evidence of the collective duration of ownership or possession of the property by a cotenant and one or more predecessors in title or predecessors in possession to the cotenant who are or were relatives of the cotenant or each other.

(4) A cotenant’s sentimental attachment to the property, including any attachment arising because the property has ancestral or other unique or special value to the cotenant.

(5) The lawful use being made of the property by a cotenant and the degree to which the cotenant would be harmed if the cotenant could not continue the same use of the property.

(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.

(7) Any other relevant factor.

(b) The court shall not consider any one factor in subdivision (a) to be dispositive without weighing the totality of all relevant factors and circumstances.

5. Apportionment – costs, fees, taxes, insurance, other expenses, and possibly attorneys’ fees.

The possible apportionment or charging of costs, expenses, and fees including possibly attorneys’ fees requires careful analysis case-by-case – thus, for example, and so that you can get a feel for some of the possibilities that can occur, I am providing you with the following statutes or part thereof.

California Code of Civil Procedure §874.321.5 provides as follows:

In an action for partition of property, the court may apportion the costs of partition, including an appraisal fee, pursuant to Section 874.040, except that the court shall not apportion the costs of partition to any party that opposes the partition unless doing so is equitable and consistent with the purposes of this chapter.

Further, in its discussion of whether partition in kind would result in great prejudice, California Code of Civil Procedure §874.319(a)(6) lists the following as being relevant:

(6) The degree to which the cotenants have contributed their pro rata share of the property taxes, insurance, and other expenses associated with maintaining ownership of the property or have contributed to the physical improvement, maintenance, or upkeep of the property.

As California Code of Civil Procedure §874.321.5 (see above) references Section 874.040, California Code of Civil Procedure §§874.010 through 874.050 (including Section 874.040) provide as follows:

Section 874.010:

The costs of partition include:

(a) Reasonable attorney’s fees incurred or paid by a party for the common benefit.

(b) The fee and expenses of the referee.

(c) The compensation provided by contract for services of a surveyor or other person employed by the referee in the action.

(d) The reasonable costs of a title report procured pursuant to Section 872.220 with interest thereon at the legal rate from the time of payment or, if paid before commencement of the action, from the time of commencement of the action.

(e) Other disbursements or expenses determined by the court to have been incurred or paid for the common benefit.

Section 874.020:

The costs of partition include reasonable expenses, including attorney’s fees, necessarily incurred by a party for the common benefit in prosecuting or defending other actions or other proceedings for the protection, confirmation, or perfection of title, setting the boundaries, or making a survey of the property, with interest thereon at the legal rate from the time of making the expenditures.

Section 874.030:  

Where disbursements have been made by a party under the direction of the court, interest at the legal rate shall be allowed thereon from the time of making such disbursements.

Section 874.040:  

Except as otherwise provided in this article, the court shall apportion the costs of partition among the parties in proportion to their interests or make such other apportionment as may be equitable.

Section 874.050:  

(a) The court may order that the share of the costs apportioned to a future interest be paid by other parties to the action or by the persons who are then the presumptive owners of the future interest.

(b) Where the court orders payment pursuant to this section, such payment is subject to a right of reimbursement, with interest at the legal rate, secured by a charge upon the future interest.

Thus, the possible apportionment or charging of costs, expenses, and fees including possibly attorneys’ fees can be quite broad (and see, for example, Section 874.010(e) above), and see also 6. below discussing possible additional claims, requests for damages and remedies.

6. Finally, but this is a very big “finally” category – real property partition actions both under the California Partition of Real Property Act and under the other California partition statutes that apply if the Act does not often involve or are related to or might be consolidated with additional claims such as for fraud and deceit, breach of contractual duties, breach of fiduciary duties, minority interest claims, conflicts of interest, theft, constructive trust, accounting, and the list of possible claims and possible requests for damages and remedies goes on.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

California Partition of Real Property Act – The Court’s Determination and the Process for Determination of the Property’s Fair Market Value

            If a claim or action is brought for partition of real property to which the California Partition of Real Property Act applies – e.g., if the ownership is held as tenants in common, the Court shall determine the fair market value of the property, after which the tenant in common owner or owners who did not bring the partition claim or action have the right to buy the interest of the tenant in common owner or owners who did bring the claim or action for partition.

            Obviously the Court’s determination of fair market value is a key determination in the partition case. Note however, if the property is ultimately sold on the open market, such as because the tenant in common owner or owners who is or who are entitled to purchase the interest or interests of the tenant in common owner or owners who initiated the partition action decide not to purchase, the Court can allow sale of the property for an amount or value that is greater or less than the appraised value. Thus, partition actions and the valuation and partition process present multiple strategy points for all and each tenant in common.

            In relevant part California Code of Civil Procedure §874.316 contains many of the valuation provisions.

            If the cotenants (i.e., the tenant in common owners) have agreed to the value of the property or to a method of valuation, the Court shall adopt that value or the value that is produced by the agreed upon method of valuation.

            If the Court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the Court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.

            If the Court orders an appraisal, the Court shall appoint a disinterested real estate appraiser licensed in the State of California to determine the fair market value of the property assuming sole ownership of the fee simple estate. On completion of the appraisal, the appraiser shall file a sworn or verified appraisal with the Court. If an appraisal is conducted, not later than 10 days after the appraisal is filed, the Court shall send notice to each party with a known address, stating all of the following:

  • The appraised fair market value of the property.
  • That the appraisal is available at the Court Clerk’s office.
  • That a party may file with the Court an objection to the appraisal not later than 30 days after the notice is sent, stating the grounds for the objection.

            Continuing with the appraisal valuation process, the Court shall conduct a hearing to determine the fair market value of the property not sooner than 30 days after a copy of the notice of the appraisal is sent to each party, whether or not an objection to the appraisal is filed. Further, in addition to the Court-ordered appraisal, the Court may consider any other evidence of value offered by a party (thus, e.g., evidence of a different value). After the hearing, but before considering the merits of the partition action, the Court shall determine the fair market value of the property and send notice to the parties of the value.

Each situation and case must be carefully evaluated. And since the Partition of Real Property Act is very new, there are few guiding California legal authorities. Further, as I have said previously, at least in theory it might also be possible that a Court in California on a particular issue might follow or consider a determination from another state under the model act, the Uniform Partition of Heirs Property Act (UPHPA). Remember, if the Partition of Real Property Act does not apply, in the case of a partition action California’s other already-existing partition statutes and cases will apply. I am doing a series of posts about the Partition of Real Property Act – this post is the second post about the Act and the partition process. Next up, tenant in common buyout rights and the buyout process, and other issues and situations that arise in real property partition actions.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

First, is it a real property tenancy in common (TIC) to which the Partition of Real Property Act applies?

The California Partition of Real Property Act applies to real property owned by tenants in common for legal actions for partition of real property that are filed on or after January 1, 2023.

When real property multiple co-owners who hold ownership as tenants in common do not get along, or cannot agree on what to do with the property, a partition action is a lawsuit filed to partition or to divide the real property.

The division can be in kind where the property ownership is physically divided into different parcels and APNs (by law this is preferred, but I seldom see it), or sometimes a tenant in common or tenants in common can buyout the other tenant or tenants in common, or sometimes the property is sold to a third party or to third parties and the sale proceeds are allocated between the tenants in common.

One situation in which tenant in common co-ownership can occur is when someone dies and real property in their estate or trust is distributed to multiple beneficiaries where each then owns a partial ownership percentage as a tenant in common. The ownership percentages can be equal but they do not have to be.

The Partition of Real Property Act applies to real property held by tenants in common, but interestingly the Act often references “cotenants,” but a cotenant or co-tenancy can be different than a tenancy in common.

What about where some of the co-owners own by tenancy in common and some own by joint tenancy,  or perhaps an LLC, or a partnership, or a corporation is one of the co-owners? Each case and situation must be evaluated carefully. If the Partition of Real Property Act does not apply, standard partition statutes still already exist and may apply.

Here’s an interesting one. Can a life estate or a remainder interest in real property be a tenancy in common to which the Act applies? The answer is yes, it is possible in some situations. For example, you could have two or more holders of life estate interests that are tenants in common, or you could have two or more holders of remainder interests that are tenants in common.

Each situation and case must be carefully evaluated. And since the Partition of Real Property Act is very new, there are few guiding California legal authorities (and in theory it might also be possible that a Court in California on a particular issue might follow or consider a determination from another state under the model act, the Uniform Partition of Heirs Property Act (UPHPA)). I am doing a series of posts about the Partition of Real Property Act. Remember, if the Partition of Real Property Act does not apply, in the case of a partition action California’s other already-existing partition statutes and cases will apply. Next up, the mandatory appraisal process, tenant in common buyout rights, and other issues and situations that arise in real property partition actions.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, real property partition, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, real property partition, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property breach of contract, and ownership and co-ownership disputes and litigation, and real property partition actions.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

2026 is a Defining Year for Disability Advocacy in California (forwarding an ARC video)

Greetings all. I am forwarding a video from the ARC of California – there are several good points – 2026 is a Defining Year for Disability Advocacy.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

Wishing you success and a winning 2026 and conquer your challenges . . . . (video)

I will be using video more in 2026 – there are many different presentation options – but here is a simple presentation – Wishing you success and a winning 2026 and conquer your challenges, David Tate, Esq.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

LLC member business law exam question – plus my undue influence eBook attached

The following is a sample LLC member business law exam question – (relating to the University business class that I taught), plus my undue influence eBook is attached below:

Mary and Julie form an LLC (limited liability company) in California and go into business together repairing Apple computers. The LLC is a member managed LLC and Mary and Julie sign an Operating Agreement. The Operating Agreement specifies that Mary and Julie are equal members. Everything starts out fine. But after about a year it is apparent that Julie is spending more time running and operating the business than Mary, and this causes a dispute between Mary and Julie.
1. Discuss Mary’s and Julie’s fiduciary duties and duties of loyalty as members, and how those duties might apply in this situation.
2. Discuss Mary’s and Julie’s managerial rights and duties to each other, and how those rights and duties apply in this situation.
3. Discuss Mary’s and Julie’s voting rights.

I have also attached below my undue influence in estate planning eBook, was it free will or foul play?

Undue Influence in Estate Planning eBook David Tate, Esq. final emailable June 17 2025 V6-smDownload

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

What should you do if you have received a copy of a trust, a will, a deed, a power of attorney, account or other estate planning or transfer document – first consider whether it expresses the signer’s true wishes

You may have wondered what you should do when you first receive a copy of a trust or other estate planning or transfer document – well . . . as often, it depends on the specific facts and circumstances but here could be a plausible short answer – this and the following are not legal requirements, but they can be human factors and some could be possible:

  • Read the document.
  • Are its wording and provisions clear and understandable?
  • Does it cover all significant scenarios?
  • Are any of its wording or provisions contradictory?
  • Does it correctly express the signer’s true wishes?
  • Do you believe that the signer understood the wording and provisions? Do you understand the wording and provisions?
  • Is there evidence of forgery, fraud or deceit, undue influence, misrepresentation, concealment, omission, elder or dependent adult abuse, inducement by undue persuasion, dependency or reliance, or lack of legal capacity for the signer to legally and validly sign the document? You may also be required to consider legal presumptions and burdens of proof.
  • Is there evidence of a mistake in the document or that the document was signed under a circumstance of mistake or mistaken belief?

And the list is longer. You get the point that whether a document is valid, and whether select wording or provisions in the document are legally valid is determined by the facts and circumstance (the evidence), and the law including presumptions and burdens of proof. What you do in that circumstance depends on your options and on your authority, rights and duties or responsibilities. But you should consult with an attorney.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

Please also subscribe to this blog and my other blog (see below), and connect with me on LinkedIn and Twitter.

My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.

How would you interpret California AB 316, Krell. Artificial intelligence: defenses – which prohibits everyone’s defenses when AI use is alleged to have been one cause of injury to plaintiff

Below I have provided the text of AB 316 from the California Legislature and which Governor Newsom signed into law on October 13, 2025 – AB 316 is another new California law in an ever expanding list of California laws regulating AI and computer or software automation. In my view, this is a legal area that should be and might already be preempted by national commerce and the commerce clause. And it really is not workable to have legislation and conflicting legislation coming from all States, in addition to international regulation. Surprisingly for legislation, AB 316 is very brief – you can read it quickly (see below) – but I would challenge a jury to interpret and understand what AB 316 says and I look forward to seeing AB 316-related jury instructions.

As enacted and worded AB 316 applies to every “defendant who developed, modified, or used artificial intelligence that is alleged to have caused a harm to the plaintiff” and prohibits that defendant from asserting a defense “that the artificial intelligence autonomously caused the harm to the plaintiff.” Arguably AB 316 almost turns simply the use of AI into product or into a form of perhaps quasi-product strict liability against the defendant. It is important to note that AB 316 is not limited to businesses but applies to all defendants including individuals and people are not in the act of business, and also is not limited to the manner in which the AI was used which often and probably most often has nothing to do with the design, manufacture, or sale of a product – instead it is simply the use of AI by anyone in some manner which then is alleged by the plaintiff to have been a cause or a partial cause of injury to the plaintiff.

The following is the wording of AB 316 including the Legislative Counsel’s Digest.

Assembly Bill No. 316

CHAPTER 672

An act to add Section 1714.46 to the Civil Code, relating to civil actions.

[ Approved by Governor October 13, 2025. Filed with Secretary of State October 13, 2025. ]

LEGISLATIVE COUNSEL’S DIGEST

AB 316, Krell. Artificial intelligence: defenses.

Existing law provides that everyone is responsible not only for the result of their willful acts, but also for an injury occasioned to another by their want of ordinary care or skill in the management of their property or person.

Existing law requires the developer of a generative artificial intelligence system or service that is released on or after January 1, 2022, and made publicly available to Californians for use, to post on the developer’s internet website documentation regarding the data used by the developer to train the generative artificial intelligence system or service. Existing law defines “artificial intelligence” for these purposes.

This bill would prohibit a defendant who developed, modified, or used artificial intelligence, as defined, from asserting a defense that the artificial intelligence autonomously caused the harm to the plaintiff.

Digest Key

Vote: MAJORITY   Appropriation: NO   Fiscal Committee: NO   Local Program: NO  

Bill Text

The people of the State of California do enact as follows:

SECTION 1.

 Section 1714.46 is added to the Civil Code, to read:

 (a) “Artificial intelligence” means an engineered or machine-based system that varies in its level of autonomy and that can, for explicit or implicit objectives, infer from the input it receives how to generate outputs that can influence physical or virtual environments.

(b) In an action against a defendant who developed, modified, or used artificial intelligence that is alleged to have caused a harm to the plaintiff, it shall not be a defense, and the defendant may not assert, that the artificial intelligence autonomously caused the harm to the plaintiff.

(c) This section does not limit or preclude a defendant from presenting either of the following:

(1) Any other affirmative defense, including evidence relevant to causation or foreseeability.

(2) Other evidence relevant to the comparative fault of any other person or entity.

Best to you, David Tate, Esq.

Please reach out on this topic or on other topics if you wish.

* * * *

Thank you for viewing and reading this discussion. Please do pass this blog and blog post and information to other people who would be interested as it is only through collaboration and sharing that great things and success are more quickly achieved. If you are interested in discussing anything that I have said in the discussion above or in either of my two blogs (see blog addresses below), or if you simply want to reach out or are seeking assistance, it is best to reach me by email at dave@tateattorney.com.

David Tate, Esq. (and inactive CPA)

Trust, estate, probate, power of attorney, fiduciary, beneficiary, conservatorship, and elder and dependent adult abuse litigation and contentious administrations, undue influence, fraud and deceit, physical and mental health and challenging and contentious personalities and relationships.

Trust, estate and probate administrations and litigation involving special assets such as business ownership interests and operating businesses, asset co-ownership disputes, contentious governance, intellectual property assets, art and collectible assets, ongoing future contractual rights, buyouts and sales, M&A disputes, businesses divorces, and accountings.

Businesses and third party disputes and litigation – contract, licensing, co-business, royalty and other arrangements, unfair business practices, fraud and deceit, lack of good faith and fair dealing, buyouts and sales, mergers, acquisitions, ventures, etc.

Business co-ownership and internal governance disputes and litigation, business divorces, buyouts and sales, merger and acquisition disputes, family, closely held and professional businesses, accountings, and audits, D&O, boards, audit committees and investigations. Legal authority, rights, duties, conflicts of interest, diligence, compliance, liability, BJR, legal risk management, and resolution.

Real property and financial and personal property ownership and co-ownership disputes and litigation.

Trials.

Mediator and dispute and litigation resolution services.

Legal risk and uncertainty management processes – authority, rights, duties, conflicts of interest, governance, diligence, compliance, liability, and resolution.

Other and additional disputes, litigation and issues that fall within the above areas – court and trial evidence, persuasion, debate and fallacies, using AI assistance, IP, meetings, defamation, risk management processes, workplace, new laws, regulations and government actions – impact/legality, law and legal matters in the news, etc.

Remember, every case and situation is different. It is important to obtain and evaluate all of the evidence that is available, and to apply that evidence to the applicable standards and laws. You do need to consult with an attorney and other professionals about your particular situation. This post is not a solicitation for legal or other services inside of or outside of California, and, of course, this post only is a summary of information that changes from time to time, and does not apply to any particular situation or to your specific situation. So . . . you cannot rely on this post for your situation or as legal or other professional advice or representation, or as or for my opinions and views on the subject matter.

Also note – sometimes I include links to or comments about materials from other organizations or people – if I do so, it is because I believe that the materials are worthwhile reading or viewing; however, that does not mean that I do not or that I might not have a different view about some or even all of the subject matter or materials, or that I necessarily agree with, or agree with everything about or relating to, that organization or person, or those materials or the subject matter.

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My blogs are:

http://tateattorney.com – business, D&O, audit committee, governance, compliance, etc. – previously at http://auditcommitteeupdate.com

Prior blog: Trust, estate, conservatorship, elder and elder abuse, etc. litigation and contentious administrations http://californiaestatetrust.com

David Tate, Esq. (and inactive California CPA) – practicing only as an attorney in California.