Trusts and Estates

Kerley v. Weber

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Cite as B282202
Filed October 03, 2018, Second District, Div. Two

By Daniel C. Kim
Weintraub Tobin Chediak Coleman Grodin Law Corporation

Marcie Weber was convicted of theft from an elder, Philippa Johnston, and was ordered to pay restitution to the victim’s estate. Following Johnston’s death, her conservator, Sarah Kerley, filed a restitution action and an 850 petition to recover civil damages for the wrongful taking from an elder. In the restitution action, the parties stipulated to a judgment of $700,000. In the 850 action the court, based on principles of res judicata, granted the petition and awarded double damages of $1.4 million. The trial court rejected Weber’s argument that her prior restitution payments should be applied to the principal amount owed.

The appellate court affirmed in part and reversed in part. The trial court had appropriately entered judgment based on collateral and judicial estoppel because all of the elements for a taking under Section 850 had been met from the criminal conviction. Further, the criminal conviction also constituted a finding that Weber had taken property through elder abuse and, therefore, no separate proof of bad faith was needed to warrant double damages under section 859. The trial court also correctly held that the double damages award should not be reduced based on Weber’s restitution payments. Such an interpretation would go against the purpose of section 859 to punish and deter wrongdoers. However, the court of appeal reversed the judgment insofar as it had failed to apply Webber’s restitution payments to principal instead of interest, because the parties had agreed that they would be applied to principal.

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