Elder Justice Prosecutor Samples

Requests Court dismiss counts two, seven, eight, nine, ten, eleven, twelve, thirteen, fifteen, sixteen, seventeen, eighteen, twenty and twenty-one of indictment because evidence does not conform to state law

Requests Court deny motion in its entirety or, in the alternative, grant plaintiff leave to file amendment to operative pleading because: plaintiff's claims are not time-barred; facts establish claims plausible; motion addresses evidence rather than pleadings

Requests Court deny motion in its entirety or, in the alternative, grant plaintiff leave to file amended complaint pursuant to pending motion for leave to amend because: claims are not time-barred; sufficient facts establish claims plausible; defendants' motion improperly addresses evidence rather than pleadings

Requests Court dismiss all claims with prejudice because: claims for promissory estoppel and fraud are frivolous; claims for breach of fiduciary duty and constructive fraud are not viable; claims for unjust enrichment, conversion, financial elder abuse, dissolution of joint venture and accounting lack merit; claims for financial elder abuse and accounting are time-barred; claim for intentional infliction of emotional distress cannot be sustained

Requests Court dismiss fourth and fifth causes of action and treble damages claim because: plaintiff does not allege defendant wrongfully took any property; unfair advertising, misleading sales practices and trebeling of statutory penalities do not apply to insurance disputes

Recommends Court dismiss fourth and fifth causes of action and treble compensatory damages claim because: plaintiff does not allege defendant took or retained property or insurance benefits; treble damages do not apply to common law or statutory claims for compensatory damages

Requests Court remand case to Superior Court and award attorneys' fees because: elder abuse constitutes independent cause of action; plaintiffs can establish financial elder abuse claim by and through defendant's actionable misconduct; defendants refused to stipulate to remand

Requests Court dismiss claims of elder/dependent adult abuse, punitive damages and wrongful death without leave to amend because: decedent was neither elderly nor dependent; allegations establishing damages are conclusionary; plaintiff failed to allege supporting facts

Requests Court grant motion and deny claim for financial elder abuse because: plaintiff was not deprived of a property right; defendant did not exercise undue influence;; defendant's denial was not "likely to be harmful" to plaintiff

Requests Court assert defendant is entitled to judgment on plaintiff's claim for financial elder abuse because plaintiff failed to plead mental suffering as required by the statute

Recommends Court deny motion because: defendant's arguments disregard allegations; defendant's arguments ignore language in loan agreement with plaintiff; defendant ignores authorities which contradict its arguments; California law applies to plaintiff's claims; plaintiff's claims are sufficiently pled and are not preempted

Requests Court grant preliminary injunction to restrain and enjoin detendants from conducting trustee's sale, transferring ownership interest or encumbering subject property until after trial to preserve status quo because: defendant failed to meet burden of proof to request an injunction; plaintiff met burden of proof on financial elder abuse, fraud and negligence claims; Home Owners' Loan Act does not preempt plaintiff's claim

Recommends Court grant preliminary injunction to restrain and enjoin defendants from conducting trustee's sale, transferring ownership interest or encumbering subject property to maintain status quo and complete discovery because plaintiff pleads causes of action alleging: breach of fiduciary duty; negligence; fraud; financial elder abuse

Requests Court deny motion because defendants' attempt to wrongfully deny benefits to elderly is liable for elder abuse

Recommends Court dismiss third cause of action of third amended complaint for elder abuse without leave to amend because: plaintiffs have not sufficiently amended complaint to state a cause of action for elder abuse; plaintiffs have repeatedly failed to adequately allege defendant wrongfully took, secreted or retained property with intent to defraud

Recommends Court grant motion to dismiss plaintiffs' third casue of action under elder abuse act and strike damages, attorneys' fees and costs sought because as a matter of law plaintiffs' theory of recovery is improper and plaintiffs fail to provide facts in support of their claims

Recommends Court deny motion to strike cause for elder financial abuse because facts are presumed true at the pleading stage and 2008 amendments on financial abuse support the third cause of action; plaintiffs request right to amend this cause of action

Recommends Court deny motion to strike cause for elder financial abuse because facts are presumed true at the pleading stage and 2008 amendments on financial abuse support the third cause of action; plaintiffs request right to amend this cause of action if there are questions as to factual applicability

Recommends Court dismiss plaintiffs' third cause of action under Elder Abuse Act and stike damages, attorneys' fees and costs because plaintiffs: assert a theory improper as a matter of law; allege no facts in support of claims entitling relief under statute; cannot allege defendant's refusal to pay policy benefits constitutes "wrongful use" or financial elder abuse

Requests Court dismiss plaintiff's cause under Elder Abuse Act and strike damages, attorneys' fees and costs sought because plaintiffs: assert elements of financial elder abuse as a matter of law; allege elements of fraud or undue influence in support of claims; cannot allege defendant's refusal to pay policy benefits constitutes "wrongful use" as a matter of law

Annotated collection and analysis of state court civil and criminal elder abuse law cases (2003)

Count I: Common-Law Fraud; Count II: Conversion; Count III: Unjust Enrichment; Count IV: Violation of Uniform Trade Practices Act; Count V: Slander; Count VI: Violation of Hawaii Unfair Competition and Practices Statute (2013)

Argues Court must dismiss appeal because: plaintiff-appellant was damaged and suffered injury based upon Medicare Part B double premium; misrepresentations cost plaintiff-appellant double premium for late enrollment

Argues Court must vacate judgment, remand case, vacate cost award, assign new judge, award plaintiff costs and fees because circuit court erred: granting judgment based on Employee Retirement Income Security Act preemption; granting judgment based on Railway Labor Act preemption; deciding Unfair Deceptive Acts or Practices was not applicable to former employee's claim; violating plaintiff's rights to due process and equal protection; taxing costs against plaintiff

Agues Court must find trial court did not err in granting judgment on punitive damages claim because: there was no evidence of willful, wanton or outrageous misconduct; parties failed to document agreement