Other Articles Written by Rolando Pasquali
This article, and the others listed above, are originals written by Rolando Pasquali. Many were published in legal journals and in newspapers of general circulation. Each article is based upon general principles of California Law in existence at the time that it was written. The law constantly changes. Therefore the articles, including this one, may contain information which is out of date. Also, even a small difference in facts can change how the law applies to any situation. No information in this article or anywhere on this website constitutes legal advice. These articles do not create an attorney-client relationship between you and this office. If you need legal advice, contact this office or an attorney in your area
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When Children are the Victims
by Rolando Pasquali
onlitigation insurance bad faithlitigation Title VII lawye will contests
The tears stopped when I asked if she would rather have "money" or see him go to jail. The eyes remained bleary, but they changed from sorrow to rage. She shot back one word... "prison." Usually, this question doesn't come up, usually, these cases come to this office after a successful criminal prosecution. In this case, it was a matter of convincing the authorities that there was enough evidence to prosecute with. Once that was done, and the prosecution completed, we proceeded.
Almost without exception, crimes can also be prosecuted as civil “torts.” Nowhere is this more true than in the context of adults who sexually abuse children. Because of the nature of the conduct, child molesters expose their personal assets to recovery in a civil lawsuit by the victim. This financial wrinkle makes sex abuse cases more complicated than normal personal injury lawsuits. The Pasquali Law Office has successfully represented children and young adults in suing sexual predators, child molesters, and even Peeping Toms.
As early as the time of their initial arrest, some child molesters try to “hide” their assets or even transfer them to third persons. Current law favors the victim.
Changes in California’s Uniform Fraudulent Transfer Act have restocked the plaintiff bar’s quiver of arrows for use against those who would intentionally commit torts, then try to hide their money. This office has used these tools in cases of California Insurance Code §533 uninsured intentional torts. Two decisions, one by the California Supreme Court, another by the 2nd District Court of Appeal, have sharpened plaintiffs’ arrows with two previously unavailable tools: the lis pendens and the right to a jury trial.
Fraudulent transfers of assets occur as debtors seek to render themselves judgment proof. Adopted by California in 1986, the Uniform Fraudulent Transfer Act (Civil Code § 3439) allows defrauded creditors to reach transferred assets under specified circumstances. Its roots derive from four centuries of British common law, explained thusly: “The principle is that a man is not entitled to go into a hazardous business, and immediately before doing so settle all his property voluntarily, the object being this ‘If I succeed in business, I make a fortune for myself. If I fail, I leave my creditors unpaid. They will bear the loss.’ That is the very thing which the Statute of Elizabeth was meant to prevent.” Re Butterworth (1882) 19 Chancery Division 588.
While the California statute’s remedies are far reaching: avoidance of transfer; attachment; injunctive relief; and receivership, it was not until the latter half of 2004 that either the right to jury trial or the right to lis pendens were permitted.
A lis pendens places a “cloud” over title to real property. While not a lien, it places such a stench on title that, as one realtor told this author “nobody will touch it.” The problem with its use has been twofold, availability of remedy and potential liability. Without a “real property claim,” a lis pendens is subject to judicial expungment (Code of Civil Procedure §405.31) thereby subjecting the party recording it, and their attorney, to liability for slander of title. A “real property claim,” was limited to causes of action affecting title to, possession of, or easements concerning real property.
The California Supreme Court examined a case where a husband and wife allegedly “looted” a family owned corporation in order to preclude plaintiff from recovering monies. Defendant’s conduct included obtaining a loan from the company under false pretenses, then using the money to purchase residential income property. Both the residential income property and a family residence were later transferred to a limited family partnership. The trial court expunged a lis pendens on both properties, finding that the fraudulent transfer case essentially had “nothing to do with real property” since the goal of the fraudulent transfer action was merely to make the property available for the collection of judgment. The Court of Appeal agreed. In reversing, the Supreme Court ruled that claims alleging fraudulent transfer of title do affect title to or the right to possession of real property within the meaning of California’s lis pendens statute. California’s highest court could not ignore what it found to be the plain language of the statute but noted that this “problematic” outcome (expanding the application of lis pendens law) was “up to the Legislature—and not this court—to change.” Kirkeby vs. Superior Court of Orange County (2004) 33 Cal. 4th 642.
The second shoe dropped in December 2004. California’s Second District Court of Appeal reviewed a trial court’s determination that, since fraudulent transfer actions are equitable in nature, no jury trial right exists. In holding that money judgment creditor plaintiffs were entitled to a jury trial, the Court of Appeal found it “beyond question” that a fraudulent conveyance action “was triable by a jury at common law in England in 1791.” Since there was no change in English common law “between 1791 and 1850 [when California adopted its Constitution, thus preserving common law jury trial rights] the California Constitution guarantees the right to jury trial in a similar action today.” Wisden vs. Superior Court of Los Angeles County (2004) 124 Cal. App.4th 750, rehearing denied.
- by Rolando Pasquali
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