Buffington Law Firm, PC

When you litigate: Hourly or Contingent Fee

2026-04-27T22:45:00Z

By: Roger J. Buffington, Esq. One of the subjects that often comes up in attorney-client discussions is the question as to how the client will pay his or her attorney's fees. In this brief Blog article we will discuss the considerations between the two most common billing practices: hourly fee versus contingent fee. Hourly billing is simple: the number of hours the attorney worked multiplied by the attorney's hourly fee rate. Contingent fee arrangements are flexible, but generally involve the attorney deferring most or all compensation until the conclusion of the case, at which time the attorney is entitled to collect a percentage of the recovery, if any. There is also a so-called "hybrid" arrangement where the attorney takes a lower hourly fee and also takes a percentage (usually smaller than the percentage in a straight contingency case) at the conclusion of the case. Most clients most of the time pay their attorneys on an hourly basis. It goes without saying that essentially all defense cases are billed this way. There is a mythos in the mind of the public that most lawyers bill most plaintiff's cases on a contingent fee basis. This is, in fact, generally not true. It is true that certain types of cases are often billed on a contingent fee basis. Auto collision cases and personal injury cases tend to fall into this category. Since these are two of the most common types of cases with which the general public has experience, this is undoubtedly why many members of the public believe that contingent fee cases are more common than they actually are. Attorneys most commonly bill most kinds of business and contract disputes, inheritance disputes, and disputes over real estate matters on an hourly basis. 1. Hourly Billing Considerations. Most plaintiff's cases (and essentially all defense cases) are billed hourly because it is conceptually the most straightforward way for an attorney to bill. There is a strong notion that a simple matter that requires a relatively modest amount of work by the attorney should entail only a modest bill. Contrary to what some think, many legal matters and even many lawsuits fall into this category. Even high-dollar cases often resolve without a huge expenditure of attorney hours. Clients often do not want to pay a large percentage of an outcome recovery to attorneys if the attorneys did not work a proportionate amount of hours on the case. This is understandable. There is an argument to be made that an hourly billing engagement is fairest to both the client and the attorney since the attorney is compensated commensurate with the amount of work he or she put into the case. As discussed above, this is how many or most cases are billed by attorneys and paid by clients. In addition to the above argument, another argument in favor of hourly billing is that the case is, ultimately, the client's case. It is ultimately the client's decision whether to bring a case, maintain it, take it to trial, or settle it. It is the attorney's duty to understand the client's goals and try to achieve them. By this argument it is appropriate that the client takes the risks of the case and enjoys the reward of a favorable outcome without an attorney taking a contingent fee. 2. Contingent Fee Billing. There are several solid rationales for a contingent fee arrangement in a case. In our opinion one of the most compelling arguments is that a contingent fee agreement aligns the interests of the attorney more precisely with that of the client. Clients often worry that attorneys on an hourly-billing case have an incentive to "keep a case going" so that they can continue to earn money from the case. An ethical attorney will of course not do this, but it is understandable nonetheless that clients sometimes worry about this. This is obviously not a factor in a contingent fee arrangement. In contingent fee scenarios the attorney and the client both have an incentive for the case to conclude with the best possible outcome. In a contingent fee case, in sharp contrast with an hourly billing arrangement, the attorney and the client share the risk as to whether the case will conclude satisfactorily. Indeed, the attorney is absorbing a great deal of risk, since if the case fails the attorney will collect little or nothing -- sometimes despite a great deal of very competent effort. This is why contingent fees are frequently at least one-third (33.33%) of the gross proceeds recovered in a case, and sometimes more. In California all contingent fee percentages are freely negotiable between attorney and client, subject to certain ethical considerations. Because of the risk that the attorney will not recover a significant fee in a given contingent fee case, overall attorney fees in a contingent fee case from a financial perspective can be expected to be higher than in an hourly case where the attorney takes no risk and is simply paid linearly for the amount of time and work he or she expends. One big advantage to a contingent fee arrangement is that it often allows a litigant who has a good case to pursue the case in situations where the client simply cannot afford to pay the attorney hourly. In such situations a worthy case can see its day in court despite a plaintiff who lacks the wherewithal to pay hourly fees. For a solid plaintiff's case there is often no right answer as to how the case should be paid for. If you have a trust litigation case, a real estate dispute, or a business dispute that you need to bring, Buffington Law Firm offers a Free Legal Consultation. All consultations are completely confidential and are with an experienced trial attorney. And there is never any cost or financial obligation.

California Trust Litigation: Who Owns that Bank Account?

2026-04-17T19:13:18Z

There is a serious gap in the law concerning the inheritance of bank accounts. The problem turns on the lack of clarity as to the intent of the bank account creator as to how a bank account is to pass to his or her beneficiaries upon the creator's death. Buffington Law Firm's trust litigation team sees this problem recur repeatedly, and the lack of clarity on this issue is quite honestly baffling and infuriating in equal measure. The problem lies with the question as to whether a given person is actually supposed to be a "pay on death beneficiary." This determination can be far-reaching. When a bank account holder makes a given person a "pay on death beneficiary" this means that the contents of the bank account pass to the beneficiary completely outside of the bank account owner's estate plan. Upon the creator's death, the "POD Beneficiary" immediately becomes the owner of the bank account. The provisions of the creator's will or trust do not control and are, in fact, completely irrelevant. Title to the bank account passes to the POD Beneficiary in much the same fashion as title to real property passes outside of any estate plan when a party makes another party a joint tenant on a real property parcel. This can literally render most or all of an otherwise carefully crafted estate plan completely irrelevant -- frustrating the actual intent of the decedent. Buffington Law Firm's trust litigation team has frequently encountered situations where it was quite plain that a trustmaker intended for his or her estate to pass (for example) equally among several beneficiaries, e.g. the trustmaker's children, But one child helped the trustmaker pay bills and the trust maker had placed that child on the bank account as a signatory and either inadverently made that child the POD Beneficiary on the account, or worse, the bank paperwork is ambiguous on this point. When the trustmaker passes, the co-signatory on the bank account quietly writes a check to him or herself, closes the account, and that's that. The actual testamentary intent of the decedent, however clearly stated in the subject trust or will, may become irrelevant. The problem is amplified by the problem that bank account documentation is often ambiguous. Banks often call signatories "co-owners" which may be completely untrue. California law does not make someone who is merely a signatory a "co-owner" no matter what the often poorly-drafted bank documentation may say. During the lifetime of all parties, an account belongs to the parties in proportion to the net contributions by each, unless there is clear and convincing evidence of a different intent [Prob. Code § 5301(a); see Prob. Code §§ 5134, 5150 (“net contribution” and “sums on deposit” defined); see also Lee v. Yang (2003) 111 Cal. App. 4th 481, 490–494 (boyfriend had no right to reimbursement of funds disproportionate to contributions which were withdrawn by girlfriend from account to which she was added as signatory; due to her unrestricted right to withdraw and apply funds, ownership of any withdrawn funds passed to her by way of gift)]. If a party makes an excess withdrawal [see Prob. Code § 5301(f)(definition)] from an account, the other parties to the account have an ownership interest in the excess withdrawal in proportion to the net contributions of each to the amount on deposit in the account immediately following the excess withdrawal, unless there is clear and convincing evidence of a contrary agreement between the parties [Prob. Code § 5301(b)]. A court, in its discretion, and in the interest of justice, may reduce any recovery to reflect funds withdrawn and applied for the benefit of the claiming party [Prob. Code § 5301(c)] In the case of a P.O.D. account, the P.O.D. payee has no rights to the sums on deposit during the lifetime of any party, unless there is clear and convincing evidence of a different intent [Prob. Code § 5301(d)].

Whether the account documentation seems to make a co-signatory on an account a POD Beneficiary is not absolute. In Placencia v. Strazicich [(2019) 42 Cal. App. 5th 730] the Court of Appeal clarified that the intent of the person who established the account is paramount such that the surviving account holder’s presumed right of survivorship can be overcome by just about any sort of admissible evidence, as long as it is clear and convincing. People whom the bank deems to be "co-owners" may not have any ownership interest in the account at all, either during the life of the creator of the account, or after his or her passing. A right of survivorship in a joint account is not absolute. Whether a joint account has a right of survivorship will turn on evidence of the decedent’s intent, which can include statements made in a will.

In our experience, trial courts as well as banks are often obtuse on this area of law. When trust beneficiaries discover that one child of a decedent has walked away with a disproportionate share of the estate because that person was a signatory on a bank account (and often intended to be nothing more) it can be an uphill battle convincing a trial court that this was improper. Trial courts are often deferential to the determination of the subject bank on this. They should not be. In our experience banks are rarely knowledgeable about the law as it applies to the post-death disposition of a bank account, and it is the duty of the trial court to be prepared to review such determination when litigation is brought before the trial court. If you are dealing with this type of situation, or any kind of trust or inheritance dispute, Buffington Law Firm's trust litigation attorneys offer a free legal consultation at which you may discuss your case confidentially. All consultations are with an experienced trust litigation trial attorney, and there is never any obligation or charge.

Trust and Real Estate Litigation — Lis Pendens does more than merely notify

2026-04-17T18:24:20Z

By: Roger J. Buffington In last week's Blog article, we discussed our take with respect to California law as it handles expungement of a lis pendens, and why the current trend in the law is troublesome. Essentially, we observed that key holdings by California Courts of Appeal have greatly eroded one of the requirements to withstand a motion to expunge a lis pendens, to wit: that the party seeking to maintain the lis pendens need show that the claim in question state a claim that affects title to real property. Pacific Lumber v. Superior Court [(1990) 226 Cal. App. 3d 371, 375] clarifies that a lis pendens does not require that the party filing it him or herself have a real property claim; it only requires that the lawsuit in question "affect title" to real property. Newell v. Superior Court [(2024) 107 Cal. App. 5th 728, 734], a 2024 case, holds that in a trust dispute where the dispute involves a possible change in the identity of the trustee, such a dispute constitutes a claim that "affects title to real property. " The rather tortured rationale is that the trustee is the person that holds title to trust property and that accordingly a dispute over the identity of the trustee in turn affects the title of trust real property. Taken together, Pacific Lumber and Newell essentially mean that any interested person in a trust dispute (i.e. a person who has standing to appear in the action) can appear and file a Notice of Pendency of Action against any real estate parcel that the trust owns, so long as the dispute involves a possible change in the identity of the trustee. The party filing the lis pendens need not have any interest in the real property parcel. The party filing the lis pendens need not be a claimant to be trustee. Since typical trust disputes often or usually involve numerous interested persons, it would logically appear that the element of maintaining a lis pendens that the claim "affect title" to real property has been greatly eroded and expanded to include far more potential claimants than earlier. Newell, supra in particular, appears to radically erode the "real property claim" element of maintaining a lis pendens. It essentially means that anyone who chooses to appear in the action can file a lis pendens in a trust dispute in which the trust owns real property and someone is disputing the identity of the trustee, i.e. seeking to remove the current trustee. Our position is that this trend is not desirable. These holdings essentially mean that any disgruntled trust beneficiary can file a lis pendens against any trust real property if the dispute, in any way, involves a potential change in the trustee. Courts have justified the holdings in Pacific Lumber and Newell by the notion that it is to the public's benefit to be aware of a pending lawsuit that might affect real property. The Court in Newell, supra, stated that the purpose of a lis pendens is to notify potential buyers of real property that there is a legal action pending regarding that property and to bind any buyers to the resulting judgment. [Newell v. Superior Court of Los Angeles County (2024) 107 Cal.App.5th 728, 734]. We believe that this logic is incorrect because it mischaracterizes both the usual intent and the actual effect of a lis pendens. Contrary to the Court's reasoning in Newell, supra, a lis pendens does not merely inform. It is well understood that when a lis pendens is filed on a property title, that the effect is to cloud title to the point where the property is instantly unsalable. Make no mistake: filing a lis pendens is a hostile acts that freezes the property in place until the lawsuit ends or the lis pendens is expunged. Many, perhaps even most, lis pendens filings are strategic insofar as the filing party is acting to assert leverage over the opposing party by preventing the sale of real property. The effect is a restraint on alienation that in many cases may not really relate to the disposition of the real property itself or the real nature of the lawsuit, such as in a circumstance where only the identity of the trustee of a trust is at dispute. Such a dispute often does not reasonably justify a lis pendens and instead conflicts with the ancient public policy that strongly disfavors restraints on alienation. We respectfully submit that it is clearly wrong to justify a lis pendens with its potential far-reaching effects merely because the identity of a trustee of a trust is in dispute. This has nothing to do with the validity of the sale of real property. We believe that the Court of Appeal's reasoning in Newell is erroneous in this context. Because of the erosion in the "affects real property" element of maintaining a lis pendens, most motions to expunge lis pendens will turn on the second prong, i.e. probability of success. In the past it was common for courts to sustain motions to expunge for failure to find that the claim "affects real property." This first prong did not turn on a subjective evaluation of facts -- it is solely determined by the pleadings of the party filing the lis pendens and whether they state, as a matter of law, a qualifying claim concerning title to real property, more or less akin to the way courts evaluate a demurrer. Thus, in the past, trial courts often expunged lis pendens filings that plainly did not justify a lis pendens cloud upon title. Under Pacific Lumber and Newell, trial courts will much more rarely grant motions to expunge based on failure to state a real property claim. The moving party will usually have to depend upon convincing the trial court that the party that filed the lis pendens cannot sustain their burden of showing likelihood of prevailing in the action by a preponderance of the evidence. Most Motions to Expunge will accordingly function in much the same way as a summary judgment motion. Such motions are expensive to bring since they require a strong marshaling of facts rather than a careful analysis of law akin to a demur. The cumulative effect of Newell and Pacific Lumber will be to make expungement of lis pendens much more problematic. Expect lis pendens filings to proliferate as a tool for leverage, especially in trust litigation cases. The effect of Pacific Lumber, Newell, and their progeny will be to strengthen the hand of trust beneficiaries by amplifying their ability to exert leverage over the trustee. As we argued last week, particularly in the context of California trust litigation, this is inappropriate because the Probate Court itself is charged with ensuring the efficient administration of trusts. This should include whether it is proper for a trustee to sell real property during the pendency of a trust dispute. If there is a dispute about whether trust property should be sold during the pendency of a trust petition, the Probate Judge should be the decider as to whether to allow the trustee to sell trust property. The Probate Court should not be bound by the relatively inflexible criteria under the Code to wit: California Code of Civil Procedure Section 405.30 et seq. that governs the expungement of lis pendens.

Lis Pendens in Trust Litigation — A Serious Problem in the Law

2026-05-08T14:55:10Z

By: Roger J. Buffington One of the fascinations of Trust law is that unlike some areas of law, which have been around for a very long time and for which the caselaw is largely settled, in trust litigation the law is in a state of flux and continues to rapidly develop. In this blog article we will address the current state of California trust law as it affects an interesting legal tool, specifically the Notice of Pendency of Action (a/k/a "lis pendens") as it applies concerning property owned by a trust, when some aspect of the trust is being disputed in court. In this article we will explain where things stand, and take the position that the Courts of Appeal have taken an erroneous path that will greatly and needlessly complicate trust litigation and trust administration in future years. We recommend that the courts or the legislature correct this issue.

Basics of a Notice of Pendency of Action (a/k/a lis pendens)

Basically a lis pendens is the Latin term for "Notice of Pendency of Action" (roughly translated). Put simply, California Code of Civil Procedure Section 405.30 et seq. provides that if a party is asserting a "real property claim" to a disputed real property asset in an actual lawsuit, the claiming party can have an attorney file a "Notice of Pendency of Action" (lis pendens) on the title of the disputed property parcel. This gives notice to the world that ownership of the property is in dispute. The legal effect is that if a buyer purchases the disputed property notwithstanding the recorded lis pendens, he or she is not a "bona fide purchaser." This means that the buyer takes the property subject to the claims of the claimant. If the claimant later wins in court, the claimant may be able to nullify and reverse the transfer and take ownership of the property. The buyer would obviously have recourse against the seller to get his, her, or its money back. In other words, a mess. The practical effect of a lis pendens when recorded on a property is that it clouds title and makes most sales impracticable. Lenders will not lend, and title insurers will not insure until and unless the lis pendens is removed. Thus, the usual reality is that the property is tied up and unsalable, often for years as a given lawsuit proceeds through the court system. Buyers almost universally will take a hard pass on any property encumbered by a lis pendens. Because a lis pendens has such a drastic effect upon the salability of property, California law traditionally has been strict in allowing a claimant to maintain a lis pendens. In other words, there are strict requirements for a lis pendens and courts will readily grant a motion to expunge a lis pendens unless it meets strict criteria. The main criteria are: a) the claimant (the party filing the lis pendens) must have stated a real property claim, which is essentially a claim that affects title to the property, and b) in opposing a Motion to Expunge a lis pendens, the claimant must show in the opposing brief that the claimant has, by preponderance of the evidence, shown a probability of success in the actual claim, i.e. the merits of the lawsuit. [See generally Cal. Code Civ. Proc. Section 405.30 (real property claim required)]. Thus, the second prong of maintaining a lis pendens when the lis pendens is challenged in court is that the court must order expungement of a lis pendens if the claimant has not established, in its Opposition by a preponderance of the evidence the probable validity of the real property claim. [Code Civ. Proc. § 405.32; see Code Civ. Proc. § 405.30 (claimant has burden of proof in motion to expunge under Code Civ. Proc. § 405.32)] There are certain nuances to this whereby sometimes the opposing side can post a bond in order to expunge a lis pendens. We will not discuss that exception in this brief article. 2.Appellate Law has loosened the requirements to maintain a lis pendens in California trust litigation. In the last several decades, the courts have eroded the first prong of the elements of maintaining a lis pendens, to wit: stating a real property claim. In Pacific Lumber v. Superior Court (1990 226 Cal. App. 3d 371,375, the Court of Appeal held that the claimant need not have a claim to title him, her, or itself. The Court stated that "[t]he party filing the notice of lis pendens need only show that the action "affects" title to or right of possession of the real property, not that the party itself is seeking an interest in the title or possession. Put another way, the person filing the lis pendens need not have a "dog in the fight." The courts have reasoned that this distinction is consistent with the purpose of the lis pendens statute: "to furnish the most certain means of notifying all persons of the pendency of the action, and thereby warning them against attempting to acquire a legal or equitable interest in the property." (cites omitted)]. In many cases this distinction was not particularly critical since litigation is often or usually two-sided, and the side filing the lis pendens was, of course, the party whose title was affected by the litigation giving rise to the lis pendens. However, this is often not the case for trust litigation. Trust litigation often involves a multitude of parties with standing, but often some of these people are completely unaffected by the disposition of a given real property parcel that the trust corpus may contain. But under Pacific Lumber, supra, any of these persons can tie up the property indefinitely since, if they decide to appear in the action, they would have standing to file a lis pendens. For a long time, probate trial courts did not regard most disputes over a living trust to constitute a real property claim. This was because in most cases the beneficiaries of a trust, who are often the parties that might seek to tie up trust real property with a lis pendens, usually only had a beneficial interest in the trust corpus as beneficiaries. Most beneficiaries did not have a direct claim of title to the property unless or until the trustee actually conveyed a fee interest. Trial courts often or usually (and in our experience, inconsistently) determined that such claims are really claims for money akin to a creditor's claim. Creditor's claims were deemed not to satisfy the "afffects title to real property" requirement to maintain a lis pendens. This is the holding in Campbell v. Superior Court, a 4^th District Court of Appeal holding. [Campbell v. Superior Court (2005) 132 Cal. App. 4^th 904, 922]. In Campbell, supra our 4^th District Court of Appeal found that a lis pendens was inappropriate where the plaintiff was seeking to maintain a lis pendens in a case where plaintiff sought to impose a constructive trust to secure a monetary claim. While the Court acknowledged that this claim involved seeking some sort of title interest by virtue of a constructive trust, since money damages could satisfy plaintiff’s claim “…such a prayer for relief does not support the filing of a lis pendens…” [Id. at 922]. The Court of Appeal in Campell, supra, noted that “…the majority of … courts have concluded that a claim that seeks an interest in real property for the purpose of securing a money damage judgment does not support the recording of a lis pendens… (extensive cites omitted)” [Campbell, 132 Cal. App. 4^th at 912]. This holding often acted as a bar to beneficiaries' attempts to tie up trust property with a lis pendens during the pendency of a trust dispute. The Court of Appeal has recently greatly weakened and limited the holding in Campbell, supra. In Newell v. Superior Court the Court of Appeal reasoned that “[t]he trustee of a trust holds title to real property” and in so reasoning allowed a lis pendens to stand. [Newell v. Superior Court (2024) 107 Cal. App. 5^th 728, 736-737]. The effect of Newell will be to regard almost any California trust petition case in which the Trust owns real property, in which the identity of the trustee is disputed, as satisfying the "real property claim" prong of maintaining a lis pendens (discussion supra]. Any claim that seeks to change the identity of a trustee in any way will now satisfy that requirement. For example, a straight claim seeking to remove a trustee will meet the requirement. A petition seeking to nullify an amendment that may have the incidental effect of changing the successor-trustee will satisfy the "affects real property" element of maintaining a lis pendens under the holding in Newell. This is a sweeping change that will greatly expand the use of the lis pendent tool. The effect of the erosion of the requirements to bring a claim that "affects title" to real property in effect will mean that most motions to expunge a lis pendens in trust litigation will turn on the second element, probability of success. [Discussion supra]. This element requires the party seeking to maintain a lis pendens to show with a preponderance of the evidence that the party seeking to maintain a lis pendens is likely to prevail in the litigation. This is an important safeguard, but it will become in many and perhaps most trust litigation contexts the only safeguard against meritless lis pendens filings. This trend is not desirable. Trust litigation is famously contentious, and beneficiaries and their attorneys not infrequently will seek to file a lis pendens on trust property for reasons that may not, ultimately, benefit the Trust or meet with the approval of the Probate Court. Trust litigation differs fundamentally from other real estate litigation due to the broad powers that a Probate Court has to issue rulings affecting the administration of a trust. Such as whether to allow the sale of real property. [Cal. Prob. Code Section 17206; Schwartz v. Labow (2008) 164 Cal.App.4th 417, 428]. In ordinary civil trials, the powers of courts to intervene before trial is limited. In Trust litigation, by contrast, the Probate Court has both the power and the duty to intervene for the benefit of the administration of the subject trust. This can include decisions as to whether to prevent a trustee from selling or encumbering real property. 3. A Policy Proposal. In the context of Trust litigation the decision to sell real property should not be controlled by California Code of Civil Procedure Section 405.30 et seq. (lis pendens statute) and in most circumstances this decision should be left to the trustee as supervised by the sound discretion of the subject Probate Court, exercising its equitable powers. Under current law, the Probate Court is bound by the Code and by Newell, supra. This in practice is almost certain to lead to many unwise lis pendens being maintained for long periods of time by disgruntled beneficiaries thereby making critical trust assets illiquid during the pendency of litigation. Trust litigation notoriously can take years to work through the court system. We submit that the Court's reasoning in Newell, supra is tortured at best, and merely because a change in trustee could technically affect technical title to the property, this often or usually has nothing to do with an actual claim by anyone to real property. But under current law controlled by Newell, many claims that simply relate to control of the entire trust, or hypothetical claims to the trust residual, will be construed as satisfying California Code of Civil Procedure Section 405.30 (claim affecting real property title). Again, we submit that this is not desirable. Whether to allow a trustee to sell, or not sell, a real property asset can be placed before the applicable Probate Court, which has the continuing duty to monitor the administration of a trust brought within its jurisdiction. The lis pendens process allows a disgruntled trust beneficiary to tie up property without good cause. Under Newell, supra, filing a lis pendens is likely to become a standard tactic of disgruntled beneficiaries. Some of the time this will be justified. Sometimes not. Under our proposal the disposition of real property during the pendency of trust litigation would be within the supervision of the Probate Court rather than bound by the relatively inflexible law governing a lis pendens. This is how the conduct of trust administration is supposed to operate. New Court holdings or new legislation would be required for this to occur as regards lis pendens.

Business Litigation: Basic facts about investment fraud

2026-01-04T21:05:06Z

By: Roger J. Buffington Investment fraud is a serious problem in California in common with many other states. It is a fact of life that for various reasons Southern California in particular has long been a hotbed of investment fraud. Buffington Law Firm's business litigation attorneys have handled many cases concerning this type of lawsuit. In this brief Blog article we will discuss some basic facts about investment fraud. As cynical as it may sound, all investment fraud schemes share a couple of basic features. Essentially, the fraud perpetrator takes the investor's money on a pretext, and then eventually refuses to return it. That is the basic simple formula of almost all investment fraud schemes. Sometimes the fraud is immediately apparent to the victim after he or she has parted with the money; the investor quickly sees that the perpetrator is dishonoring whatever agreement he or she made with the investor. More commonly, for a time the investor believes (or wants to believe) that all is well. Sometimes the illusion that all is going as promised is supported by a pattern whereby the fraudulent scheme returns small amounts back to the investor which the investor believes represents legitimate returns on his or her investment. In reality it will turn out that either the fraud perpetrator is simply giving back small, de minimus amounts of the investor's own money to the investor, or in the classic Ponzi Scheme the perpetrator pays earlier investors with money that he or she obtained from newer investors. In one case that our Firm was involved in the investors had walked around for years or longer believing that they owned million-dollar sized investment accounts. In reality, no one owned anything and the perpetrator was enjoying the money by splurging on a fleet of cars, luxury condominiums in Aspen, luxury ocean liner cruises, and the like. Eventually the system comes crashing down when someone demands their investment be returned and the perpetrator does not (and often cannot) make good on the demand. In all of these cases the perpetrator is not actually creating actual profits that go to pay back the investor -- the investment is a house of cards not supported by an actual successful venture by the perpetrator. Many investment fraudulent schemes share certain characteristics. Often, an experienced attorney can confirm that a client's suspected investment is fraudulent in a matter of minutes. Here are some of the almost sure-fire red flags that an investment scheme typically possesses:

An unrealistic rate of return. Buffington Law Firm has worked cases involving investment schemes that promised annual returns in the double-digits; one well-known case promised over 50% per year. No investment can consistently yield such results or promise such. It is an impossibility.
A guaranteed high rate of return. It is a basic principle of investments that greater returns must entail greater risk. If an investment promises a high guaranteed rate of return this is invariably a danger signal.
The actual nature of the investment is hard to understand or doesn't make sense. If the investment is convoluted to the point where a high school student cannot understand it, it is probably not authentic.
The investment is promising that the investor is participating in some kind of unethical or improper "inside" advantage. Some of the famous Madoff investment victims are an example of this. Some of Madoff's victims believed that Madoff was able to consistently return very high returns because he was involved in "front running" whereby he would find out where the smart money was investing, and invest his fund money ahead of the smart money that was investing with him or in ways known confidentially to him. This practice is usually illegal. If an investment scheme is promising to allow an investor to participate in an improper scheme, it is a certainty that the investment scheme will not end well for the investor. Why should the investors believe that the unethical investment scheme will be ethical with respect to the investor? The question is its own answer.

Unfortunately, many investors who are victimized by these fraudulent schemes start to live on hope. No one ever likes to face up to the evident fact that he or she has been the victim of fraud. But without doubt, if this has happened the best thing that the victim can do is to contact an experienced investment litigation attorney to get an opinion. Fast action can sometimes salvage or remedy this kind of situation. If you believe that you may be a victim of an illegal fraudulent investment scheme, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an actual, experienced business litigation trial attorney and are completely confidential and protected by the attorney-client privilege. And there is never any obligation.

When you receive a Probate Code 16061.7 “120 Day Letter” do not delay!

2026-01-03T19:33:30Z

By: Roger J. Buffington, Esq. Trust litigation often begins with a beneficiary or heir's receipt of a "120 Day Letter" from a successor-trustee of a living trust. On this Blog we have written frequently about such letters because they are of critical importance to actual or potential trust beneficiaries. The 120 Day Letter contains many important provisions but the single most important component of such a letter is its short time horizon for a beneficiary to contest the trust. Essentially, the recipient of such a letter has a limited time, either 60 or 120 days as explained in the letter, after receipt of such letter to bring a trust contest. This is not a great deal of time. Most other Statutes of Limitations are measured in years, not a few months. This narrow time window reflects a very strong public policy in favor of getting trust disputes out of the way and inheritances distributed without a lot of delay. No doubt on balance this policy operates for the public good. But there can be no question that it penalizes those who choose to procrastinate dealing with what is sometimes an obviously troubling situation that requires, at a minimum, legal advice. To be clear, not all trust disputes are trust contests. Most trust contests are disputes dealing with the actual trust provisions. There are an infinite number of examples of these, but some of the most common are when there is a suspicious amendment to the trust, often created late in the life of the trustor (trustmaker) that appears to plainly contradict the known wishes of the deceased trustor. Again, there are an infinite number of variations on this theme. Often in these situations undue influence against the trustor is involved. Buffington Law Firm's trust litigation attorneys once dealt with a case in which the trustor was known to have been comatose, completely non-responsive and on life support, for her last two months of death. But miraculously that same person while comatose had apparently engaged an attorney (not her usual longstanding attorney) and approved a 40 page restated trust that gave the entire estate to one of the trustor's five children despite a longstanding wish that the five children would take equally. By incredible coincidence, only the attorney involved in this scenario was a witness to the now-deceased trustor having approved the complete change to the estate plan. The need for legal action was obvious. Delay almost prevented successful legal action. A trust contest differs from certain other trust disputes that are not subject to the 60 or 120 day time limitation. For example, the trust writing itself may be just fine, but the trustee may be engaging in breaches of trust. Taking court action against such a misbehaving trustee is not a trust contest, and generally does not implicate a trust's no-contest clause. Nonetheless, delay in seeking legal advice is never a good idea when confronted with such a situation. If you are involved in a trust dispute, whether it be a possible trust contest, or some other trust dispute, Buffington Law Firm invites you to contact us for a free legal consultation. All consultations are with an experienced trust litigation attorney, and are completely confidential and subject to the attorney-client privilege. And there is never any obligation.

Trust Litigation: What to do if you need to bring a trust contest

2026-01-02T21:25:59Z

By: Roger J. Buffington, Esq. Trust contests are sometimes a necessity when an inheritance activates upon the death of a loved one. Most commonly, an actual or potential beneficiary learns that a decedent's trust and estate plan has been tampered with by means of a Probate Code Section 16061.7 "120 Day Letter". This is a letter that a trustee is required to send all "interested persons" as the law defines them, within 60 days of the new successor-trustee accepting the role. Among other things, the 120 day letter advises the recipients that: a) the Trust has become irrevocable in whole or in part; b) the recipients have a right to request a copy of the trust writing; c) the name of the successor-trustee and the primary place of administration of the trust i.e. the mailing address; and d) a warning that the recipient has a strict time limit as to bringing any contest of the trust writing's validity. Receiving a 120 letter is an important event, and it is a mistake to ignore it or let time pass before evaluating one's options. Trust contests normally arise when a beneficiary or potential beneficiary receives the 120 Day Letter and requests a copy of the trust writing, or discovers by some other means that someone has tampered with the estate plan of the decedent. Such tampering takes an infinite number of possible forms. The most common scenario is one in which a person, usually someone related to or close to the trustmaker/decedent, (called a "trustor" under California law) has exercised undue influence over the trustor to alter his or her bequests in favor of the influencer. It is not necessary that the trustor outright lacked testamentary capacity if and when this happened, although this is sometimes the case. Mere "excessive persuasion" as the law defines it is sufficient to constitute undue influence. The most common scenario, although certainly not the only one, is one in which an influencer isolates the trustor late in life, causes dependency, and then persistently urges the trustor to alter his or her estate plan to favor the influencer; sometimes even giving the entire estate to him or her. Most commonly, the other former beneficiaries learn of this sort of thing after receiving a copy of the trust instrument after the trustor's death. Other times the family members may simply see the influencer take control of the decedent trustor's assets without any notice at all. In either case, when a person becomes aware of such a situation, it is important to consult with a trust litigation attorney without delay. Particularly in the case of a 120 Day Letter notification, time is of the essence because courts take these deadlines very seriously. Upon consultation with a trust litigation attorney, the potential beneficiary can evaluate whether a trust contest or some other type of legal action is justified or practical. There are many factors that go into this evaluation. Do not make that determination without counsel. Many trust litigation law firm, including Buffington Law Firm, offer a free legal consultation in which you will consult directly with an experienced trust litigation attorney to evaluate your potential case, determine the costs and benefits, and so forth. All consultations are completely confidential and protected by the attorney-client privilege. Call us today!

Trust Litigation: Trust Contests and Contesting Trust Amendments

2026-01-02T21:27:03Z

By: Roger J. Buffington, Esq. A trust contest is a type of litigation in which the challenger brings a trust petition for the primary purpose of causing the Probate Court to issue a ruling in which the Court formally invalidates either the entire trust, or perhaps a portion of the trust such as an amendment. Buffington Law Firm's trust litigation team has frequently dealt with situations in which one side seeks to invalidate one or more trust provisions. In extreme examples someone may have obtained the Trustor's signature on the new trust or trust amendment shortly before the Trustor's death -- to cite one recurring example. Sometimes the new trust amendment will completely change the trust bequests, upending an estate plan that has been in place for many years. Not infrequently, the person who engineered the drafting of the trust amendment and its presentation to the Trustor is the person who benefits from the new instrument or amendment. Incidentally, nearly all of the analysis in this article also apply to will contests. However, in recent decades it has become increasingly rare for estates in California to pass by will rather than by trust, and thus this article will focus on trust litigation. In order to set aside a trust or a part of a trust, generally the Court must make a finding that the contested provision was obtained by either undue influence or outright lack of testamentary capacity. Contestant has initial burden of proof by clear and convincing evidence. [David v. Hermann (2005) 129 Cal. App. 4^th 672, 684; Estate of Clementi (2008) 166 Cal. App. 4^th 375, 384]. To meet the higher standard, the contestant must show that it is ‘highly probable’ that the challenged trust provision was the result of undue influence or incapacity (as opposed to ‘more likely than not’) [Mattco Forge, Inc. v. Arthur Young & Co. (1977) 52 Cal. App. 4^th 820, 848]. In a typical trust contest the petitioner will normally allege both incapacity and undue influence. In practice, undue influence is a more common basis for a petitioner prevailing in a trust contest. Under certain circumstances, a skilled litigation attorney can build a case in which the burden of proof shifts from the petitioner having to present clear and convincing evidence, to the proponent of the amendment or trust having to prove by a preponderance of the evidence (not clear and convincing evidence) that the disputed provision or instrument represented the trustor's true intent. The burden of proof shifts to the proponent of the disputed provision upon a showing by the party asserting undue influence that the following elements are met: 1) the person alleged to have exercised undue influence had a confidential relationship with the testator; 2) the person actively participated in procuring the instrument’s preparation or execution; and 3) the person would benefit unduly by the testamentary instrument.. [Id.] Upon such showing, “…a presumption of undue influence may arise, shifting to the proponent of the disposition ... the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.” [David v. Hermann (2005) 129 Cal. App. 4^th 672, 684]. In addition to the usual grounds of undue influence and lack of testamentary capacity, there can be other grounds for a trust contest. Buffington Law Firm's trust litigation team has dealt with several situations in which the evidence showed that a certain page in a trust document had been replaced with a different page, with very different provisions. In other cases, the signature of the trustor on the disputed document was itself disputed. Incidentally, these two situations illustrate why it is good practice for an estate planning attorney to have the trustor initial each page of the trust, and notarize the trustor's signature. Neither of these are required by law, but they certainly represent best practice. If you are involved in a trust or will dispute, Buffington Law Firm's estate litigation attorneys invite you to contact us for a free legal consultation to evaluate your case. All consultations are with an experienced trust litigation attorney, and are completely confidential and protected by the attorney-client privilege. And of course there is never any obligation.

Business Litigation — The Litigation Budget

2026-01-02T21:27:40Z

By: Roger J. Buffington, Esq. Business litigation, in common with many other forms of litigation, is akin to a battle. Both sides are compelled to devote time, energy, and financial resources in order to prepare for trial. Obviously no one ever wants to begin trial unprepared. In litigation, the adage is "if you fail to prepare, you must prepare to fail." Nonetheless it is a fact of life that most litigants do not have limitless resources. It is also sometimes the case that the other side has greater resources to devote to the litigation than your side does. Sometimes the opposing side genuinely has greater financial wherewithal. Not infrequently, the other side may simply have greater motivation as well. A rational litigant wants to prevail in the litigation, or negotiate a suitable settlement, without spending more money than necessary and certainly not more money than the outcome is worth. But winning is always the objective. Most business litigation disputes are a financial calculation. A plaintiff normally does not want to spend more money pursuing, for example, a breach of contract claim than the litigant stands to gain by winning the case at trial or settling the case through negotiations. A plaintiff's lawsuit is a financial investment in which the party should expect to obtain more benefit than the cost of pursuing the claim. A defense case is essentially an exercise in cost control. Normally the rational goal of a defendant in a business dispute is to either prevail in court or settle the case out of court for as little cost as possible. Given that attorney's fees are not known for being negligible, this can be a challenge. There are many ways to meet this challenge in either a plaintiff case or a defense case. A skillful litigation attorney knows that he or she must be mindful of costs. While every lawyer naturally loves a case in which cost is no object, few cases are like that. There have to be trade-offs. For example, there may be a certain number of critical witnesses that the attorney intends to call at trial. In a perfect world the attorney would prefer to have taken the depositions of perhaps all of these witnesses. In a seven figure case this might be practicable, while in a six figure case that is rarely practical due to time and cost considerations. So the attorney must make trade-offs. The attorney may have confidence in some witnesses testifying along the expected lines. For these witnesses, the attorney may simply dispense with the deposition, instead relying upon informally interviewing the witness without "locking in" the testimony of the witness by taking his or her deposition. Skillful use of written discovery can be another way for the attorney to prepare for trial without "breaking the bank" in terms of the litigation budget. At Buffington Law Firm we view every business litigation dispute, trust dispute, or real estate dispute as a financial investment by the client. This means that the objective must be not only to prevail (or settle on terms that equate to prevailing) but to do so at a cost that is acceptable to the client and which is commensurate to the value of the case. If you are involved in a business litigation, trust, or real estate dispute, Buffington Law Firm invites you to contact us for a free legal consultation to discuss and evaluate your case. All consultations are with an actual experienced litigation attorney and are confidential and protected by the attorney-client privilege. And there is never any obligation.

Breach of Contract Litigation — Some Common Pitfalls

2025-12-26T23:47:13Z

By: Roger J. Buffington, Esq. Breach of contract litigation is a common type of litigation in which one party alleges that the other party violated the terms of an enforceable contract between the parties, leading to causation of damages to the plaintiff. One of the usual defining characteristics of most of these suits is, of course, the existence of an actual written document between the parties. While some contracts may be oral (and his invokes a host of issues including the Statute of Frauds, which can render many oral contracts unenforceable) in practice most of these suits involve a written contract. This stands in sharp contrast to many other types of lawsuits in which oral testimony is at the centerpiece of the evidence -- often leading to a "he said, she said" type of dispute. In most breach of contract lawsuits there is a written contract. This fact is often more important than it appears. Juries, and even judges, place great weight upon "the written word" and what is written in the contract is likely to carry a lot more weight than disputes over who said what, or even who did what. At trial the written terms of the contract are almost always going to frame the lawsuit, at least initially. This would, at first consideration, appear to simplify many breach of contract lawsuit. But not always. There can be many pitfalls to a written contract that were not always obvious to the parties at the time that they agreed to and did enter into the written contract. In this article we will briefly discuss a few of them.

Errors as to the identity of the parties. One might expect that this could not occur, but in fact it often does. A well-drafted contract makes it clear who the parties entering into the contract are, but it is surprising how often this rather fundamental matter can get fouled up. For example, sometimes two sides want to enter into a contract. One of the sides is in the process of forming a corporation or an LLC, and enters into the contract in the name of this anticipated future entity. Then, unexpectedly, the new entity does not get formed for whatever reason and no one remembers to correct or reform the contract to reflect the actual parties. Quite a while later, if and when one side wants to sue for breach of contract, the contract is discovered to have been misdrafted as to who one of the parties is. This happens more often than one might think. There are many other ways that it can happen.
Hostile venue provisions. One of the most common pitfalls of breach of contract lawsuits is a hostile venue provision. The venue for a breach of contract action in California is determined by several factors, as outlined in the California Code of Civil Procedure and relevant case law. Under California Code of Civil Procedure § 395. the proper venue is generally the county where the defendant resides, where the contract was entered into, or where the contract was to be performed, unless there is a special written agreement specifying otherwise. Additionally, if the defendant is a corporation, the action may also be brought in the county where the corporation’s principal place of business is located. [Cal Code Civ Proc § 395, Cal Code Civ Proc § 395.5]. The usual twist and hazard with respect to venue is when the contract specifies an unfamiliar and/or distant venue. This can mean that a plaintiff must sue a defendant in a distant state (or country!) despite the contract performance occurring in, and perhaps the contract having been entered into at, a much more convenient venue. Having to bring a breach of contract action in a distant and unfamiliar venue can introduce a great deal of complexity and expense into the lawsuit.
Attorney's fee provision. For most litigation, the "American Rule" prevails, which simply means that for most disputes in the United States the loser will not pay the winner's attorney's fees. However, an exception to this rule exists where the contract explicitly specifies that the loser will pay the winner's attorney's fees. A provision of this type can greatly increase the stakes in what might otherwise be a fairly straightforward breach of contract lawsuit. Not uncommonly, attorney's fees claimed by the winning side will be, to put it politely, incredible in relation to the lawsuit itself. It is depressingly common for attorneys to be very creative (again, putting it politely) when claiming and enumerating attorney's fees after winning a suit in which a fee provision applies. Often the parties paid little attention to this provision when they signed the contract, not expecting any disputes, and certainly not expecting to lose one. But it happens and when it does the results can be as disagreeable as they are unexpected. An attorney's fee provision can change the entire dynamics and calculus of a lawsuit.
Arbitration clause. Sometimes a contract will include an arbitration clause, requiring the parties to arbitrate a dispute over the contract rather than have it heard by the Superior Court. This greatly changes the nature of the dispute, and there are many pros and cons of arbitration. Very commonly some attorney or other slipped in an arbitration clause when drafting the contract and just as commonly the parties gave it little or no thought at the time, focusing instead on the operational obligations of the parties. However, arbitration greatly changes the cost structure and other factors of a breach of contract dispute.
Cockeyed contract provisions from internet contracts. The internet has made it possible for laymen to search out, download, and enter into form contracts without recourse to a skilled attorney. Often these contracts are larded with legalistic language that gives such works an aura of professionalism and credibility. Not uncommonly, such contracts contain errors or even outright contradictory terms. Buffington Law Firm's breach of contract attorneys have encountered situations in which someone got ahold of a stitched-together contract from the internet with a plethora of contradictory provisions. One example contained a provision whereby the loser paid the winner's attorney's fees, with another provision a few paragraphs further down providing just the opposite. Another example contained bizarre provisions pertaining to the loser paying the winner's expert witness fees and other non-standard costs. This kind of errors can greatly complicate a lawsuit.

There are many other kinds of pitfalls in breach of contract lawsuits. These are simply a few of the more common ones. If you are involved in a breach of contract dispute, Buffington Law Firm's breach of contract team invites you to contact our Firm for a free legal consultation. All consultations are with an experienced breach of contract trial attorney and are completely confidential and protected by the attorney-client privilege. And of course there is never any obligation.