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Court of Appeal Upholds Berliner Cohen’s Victory in Brown v. Jimenez

Berliner Cohen’s previous trial court victory in Brown v. Jimenez, an action for breach of fiduciary duty and failure to account against a Trustee in Mariposa County Superior Court, has been upheld by the Fifth District Court of Appeal. Leslie Kalim McHugh, who practices in our Modesto office, was lead counsel on the case. The matter began with a request for an accounting to the Trustee in August 2012. Our client had just turned 18, and requested funds for school from the Trustee of the Trust that had been established by her benefit by her mother. The Trustee informed our client that there was no money but refused to provide an accounting.

We then filed a Petition to Compel the Trustee to Account and for Removal of the Trustee. The Mariposa County Superior Court removed the Trustee in January 2013, and ordered the Trustee to account to our client. Our review of subpoenaed bank records showed numerous occurrences of breach of trust and breach of fiduciary duty. We therefore filed a Petition to Surcharge the Trustee. The Trustee vigorously opposed both the Petition to Compel and the Petition for Surcharge. The trial court found that the Trustee’s opposition to the Petitions was in bad faith, and that she breached her fiduciary duty in a number of ways:

  1. She breached her duty of loyalty

  2. She failed to take control of and preserve the Trust’s property

  3. She failed to separate and identify property as that of the Trust; and

  4. She failed to ever provide an accounting


The trial court surcharged the Trustee, assessed treble damages under Probate Code section 859, and awarded attorneys’ fees and costs for both Petitions.


Leslie Kalim McHugh’s practice areas include business planning, formation, and business transactions as well as real estate, estate planning and trust administration.  



Berliner Cohen is one of the largest and oldest law firms in San Jose serving the business and regulatory needs of private business and public agencies.  Berliner Cohen also meets the growing demands of the Northern San Joaquin Valley with its expanding offices in Modesto and Merced.  For over 40 years, the Firm has developed the special expertise required by a diverse client base consisting of nationally recognized business interests and a number of Silicon Valley’s largest national and multinational corporations, new ventures, leading real estate developers and brokerages, cutting-edge technology companies, agribusiness, healthcare and other service providers, banking and financial institutions, employers, municipalities, public agencies, and individuals.