Judge: Robert B. Broadbelt, Case: 20STCV08922, Date: 2024-12-13 Tentative Ruling

Tentative rulings are sometimes, but not always, posted. The purpose of posting a tentative ruling is to to help focus the argument. The posting of a tentative ruling is not an invitation for the filing of additional papers shortly before the hearing.

Case Number: 20STCV08922    Hearing Date: December 13, 2024    Dept: 53

Superior Court of California

County of Los Angeles – Central District

Department 53

Order to Show Cause (1) Whether the Durable Power of Attorney Granting Leslie Bushnell the Authority to Act on Defendant James Jones’s Behalf in Prosecuting or Defending Litigation has Been Revoked or Determined by a Court to be Invalid and, if not, (2) Whether the Substitution of Attorney – Civil Form Filed by Steven S. Vadihi on Behalf of Defendant James Jones Should be Stricken Because Steven S. Vahidi Did Not Have Authority to Sign and File it on Behalf of Defendant James Jones

The court considered the following papers filed in connection with the Order to Show Cause: (1) “Defendant James Jones’ Response to Order to Show Cause re Substitution of Attorney; Declaration of Steven S. Vahidi in Support Thereof,” filed by Steven S. Vahidi on behalf of defendant James Jones on November 21, 2024, and (2) “Leslie Bushnell’s (Agent for Defendant) Reply to Defendant James Jones Response to Order to Show Cause re Substitution of Attorney,” filed by Leslie Bushnell on December 9, 2024.

DISCUSSION

On June 13, 2024, the court issued a minute order stating, inter alia, that it appeared to the court that (1) at the time the answer to the Complaint was filed on behalf of defendant James Jones (“Defendant”) in this action, Claudia Moody Jones had been appointed as conservator of Defendant’s estate, but the answer was not filed by or on behalf of the conservator and therefore was filed without authority and is subject to being stricken as improper, and (2) since the Probate Court issued an order appointing Claudia Moody Jones as conservator, notice of the Final Status Conference, trial, and other matters in this action might not have been properly given to Leslie Bushnell (“Bushnell”) on behalf of Defendant since she might not have been authorized to receive notices in this action on his behalf.  (June 13, 2024 Minute Order, pp. 2-3.)  Thus, the court set an Order to Show Cause for hearing on August 7, 2024 (which was thereafter continued to August 12, 2024), to address those issues.  (June 13, 2024 Minute Order, p. 3.)

On August 12, 2024, the court issued an order discharging the Orders to Show Cause.  The court noted, based on the evidence presented in response to the Order to Show Cause, that “it [was] not clear that Defendant’s answer was filed without authority because . . . Bushnell has (1) submitted a copy of the Settlement Agreement executed by Bushnell, Defendant, C. Jones, and N. Jones, in which the parties agreed that Bushnell (or, in the alternative, N. Jones) would retain the rights and powers assigned to her in the 2017 Durable Power of Attorney, limited to those necessary to act on behalf of Defendant in any litigation, and (2) attested, in her declaration, that the Probate Court approved the Settlement Agreement in Case No. 20STPB00627 on June 17, 2021.”  (Aug. 12, 2024 Order, p. 5:9-17.)  

At the August 12, 2024 hearing on the Orders to Show Cause, attorney Steven S. Vahidi (“Vahidi”) appeared, asserting that Vahidi was representing Defendant.  (Oct. 10, 2024 Order, p. 1:27-28.)  Vahidi claimed that the Durable Power of Attorney is not valid, while Bushnell claimed that Defendant is not competent to make decisions about his estate and that she retains authority to act on Defendant’s behalf.  (Oct. 10, 2024 Order, pp. 1:28-2:3.)  On August 12, 2024, Vahidi filed a “Substitution of Attorney – Civil” form on behalf of Defendant, stating that Vahidi had substituted in as counsel to represent Defendant.  (Aug. 12, 2024 MC-050, ¶¶ 1-2.) 

Thus, on October 10, 2024, the court issued an order in which the court stated that “[i]t appears to the court that Vahidi may not have the authority to represent Defendant in this action since the Durable Power of Attorney remains in effect with regard to Bushnell’s authority to act on behalf of Defendant in litigation.”  (Oct. 10, 2024 Order, p. 2:7-9.)  The court also set for hearing on December 13, 2024, an Order to Show Cause (1) whether the Durable Power of Attorney granting Leslie Bushnell the authority to act on defendant James Jones’s behalf in prosecuting or defending litigation has been revoked or determined by a court to be invalid and, if not, (2) whether the Substitution of Attorney – Civil form filed by Steven S. Vahidi on behalf of defendant James Jones should be stricken because Steven S. Vahidi did not have authority to sign and file it on behalf of defendant James Jones.  (Oct. 10, 2024 Order, p. 2:10-15; Oct. 10, 2024 Minute Order, p. 1.)  The clerk mailed notice of the court’s October 10, 2024 minute order to Vahidi, counsel for plaintiff Law Firm of Fox and Fox, Claudia Moody Jones, Defendant, and Bushnell.  (Oct. 10, 2024 Cert. of Mailing.)

The court finds that Defendant’s response to the Order to Show Cause, filed by attorney Vahidi, does not show that Vahidi has the authority to represent Defendant in this action.  Defendant submitted the following evidence.

Defendant executed the “Durable Power of Attorney for Management of Property and Personal Affairs” on October 30, 2017, in which Defendant appointed Bushnell to be his attorney-in-fact and granted her the authority to, inter alia, take actions with respect to any claim that Defendant may have or has been asserted against Defendant with respect to any legal proceeding.  (Vahidi Decl., Ex. A, Durable Power of Attorney, ¶¶ 1.A, 2.A, subd. (10).)  On May 28, 2020, Defendant executed a “Revocation of Durable Power of Attorney,” in which Defendant “revoke[d]” the Durable Power of Attorney executed on October 30, 2017 and declared that “[a]ll powers and authorities granted under said power of attorney are hereby withdrawn and revoked effective immediately.”  (Vahidi Decl., Ex. B.)  However, the “Settlement and Mutual Release Agreement,” executed by Bushnell, Nicholas Jones, Claudia Moody Jones, and Defendant on December 21, 2020 included a provision in which the parties “agree[d] that the . . . 2020 DPOA Revocation [i.e., Defendant’s “Revocation of Durable Power of Attorney”] [is] invalidated upon the execution of this Agreement by all parties.”  (Vahidi Decl., Ex. C, Settlement, p. 1, § A [defining “2020 DPOA Revocation” to be the Revocation of Durable Power of Attorney executed by Defendant on May 28, 2020], p. 5, ¶ 2, subd. (a)(ii).)  Defendant does not dispute that the May 28, 2020 revocation was invalidated pursuant to this agreement.  (Def. Response to Order to Show Cause, p. 4:9-10 [“It is true that the Settlement Agreement in December of 2020 revoked (at least partially), the May 28, 2020 revocation of Bushnell’s purported DPOA of 2017”].)

The court notes that Defendant has argued that Bushnell’s subsequent breaches of the Settlement Agreement rendered it void.  However, Defendant has not cited authority establishing that breaches of that agreement rendered it “void,” such that Defendant’s Revocation of Durable Power of Attorney still has legal effect.  (Def. Response to Order to Show Cause, pp. 4:18-19, 5:16-17.)  The court further notes that, while Defendant asserts that Bushnell cannot represent him because he has filed an action against her for elder abuse, Defendant has not cited authority in support of that contention.  (Def. Response to Order to Show Cause, pp. 5:24-6:3.)  

Finally, Defendant has submitted correspondence from Vahidi dated February 1, 2024, in which Vahidi told counsel for Bushnell that Defendant, “in a notarized and acknowledged writing, has revoked all prior powers of attorneys delegated to date, effectively immediately.”  (Vahidi Decl., ¶ 5 and Ex. D, p. 2.)  However, Defendant did not submit that writing to the court.  Moreover, the statements from Vahidi regarding Defendant’s purported revocation of the power of attorney have no legal effect.  (Ibid.)

The court therefore has not been presented with competent evidence showing that Defendant has revoked the Durable Power of Attorney authorizing Bushnell to act on his behalf in any litigation or that the Durable Power of Attorney has been determined by a court to be invalid.  Thus, it appears that Vahidi does not have the authority to represent Defendant in this action since it appears that the Durable Power of Attorney remains in effect with regard to Bushnell’s authority to act on behalf of Defendant in litigation.    

Based on the evidence presented in connection with this Order to Show Cause, the court orders that the “Substitution of Attorney – Civil” form filed by Steven S. Vahidi on behalf of defendant James Jones on August 12, 2024 is stricken.  (Code Civ. Proc., § 436.)

            The court directs Leslie Bushnell to give notice of this ruling.

IT IS SO ORDERED.

DATED:  December 13, 2024

_____________________________

Robert B. Broadbelt III

Judge of the Superior Court