Cortese v. SherwoodAnnotate this Case
Cortese is the daughter of Francesca, and the stepdaughter of Robert. Attorney Sherwood handled their legal matters under Robert’s direction. Cortese alleges Robert promised her that, upon his death, “he would treat her equally as his other children.” Sherwood drafted Francesca’s will and represented Robert as executor during the administration of Francesca’s estate after Francesca’s 1997 death. Robert was worth $2 billion; Francesca’s estate was valued at $2 million. Robert became the trustee and life beneficiary of Francesca’s trust. Cortese and her sister were remainder beneficiaries. “Relying on Robert’s promises and [Sherwood]’s representations, [Cortese] did not challenge Robert’s acts as executor.” In 2008, “in reliance on promises,” by Sherwood and Robert, Cortese “reluctantly agreed to terminate the Trust … without the advice of counsel.” Cortese alleges the termination favored Robert, causing Cortese and her sister to bear unnecessary capital gains tax. After Robert’s 2016 death, Cortese was not a beneficiary of Robert’s estate. Cortese alleged breach of fiduciary duty against Sherwood and Topham, as co-trustees of Robert’s trust; third-party liability for breach of trust against Sherwood; and return of trust property against both. The court dismissed the second claim against Sherwood, apparently for failure to comply with Civil Code 1714.10: A party must establish a reasonable probability of prevailing before pursuing a “cause of action against an attorney for a civil conspiracy with his ... client arising from any attempt to contest or compromise a claim or dispute.” The court of appeal agreed. Cortese alleged Sherwood conspired with Robert and induced her to forego challenges to Robert’s actions--conduct arising from the compromise of a dispute. No statutory exceptions apply.