July 8th, 2014

Conservatorship of McQueen (July 7, 2014)

On July 7, the State Supreme Court issued its opinion in McQueen, which examined whether more restrictive provisions in the Code of Civil Procedure allowing for enforcement of judgment when in conflict, would supersede provisions in the Elder Abuse Act (see Welf. & Inst. Code §15657; 15657.5).

The successful plaintiff had sought attorney fees for the cost of defending the judgment which included findings of elder abuse.  In time, the defendant paid the judgment in full, and relied on provisions in the Code of Civil Procedure providing for attorney fees on appeal which precluded an award of attorney fees after the judgment was satisfied.

Even more interesting, the successful plaintiff had also initiated an action under the Fraudulent Conveyance Act and sought attorney fees incurred in that action, even after the judgment was paid in full.

McQueen held that as to fees incurred in defending the elder abuse judgment fees would be recovered even though the judgment had been paid in full, as provided in §15657.  Attorney fees for the fraudulent conveyance action would not be allowed, based on the restriction in the Code of Civil Procedure on attorney fees following satisfaction of the judgment.

Comment: McQueen makes perfect sense, but could set of a race between the movant seeking an award of attorney fees in a fraudulent conveyance action on one hand, and an alert defendant who, fearing an adverse ruling could satisfy the judgment in order to ward off levy and judicial sale or property even during the appellate process, and continue with the appeal.

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