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Where do I file a civil case for elder finance abuse, the place the deceased elder lived, or the place defender lives currently?

San Jose, CA |

If the answer is the place defender lives, why would we give the favor to the defender in respect of transportation, legal sources, etc.

Attorney Answers 7


  1. Best answer

    Are you seeking to file an action against a business or another individual who harmed the deceased elder?

    Also, if the elder is deceaesed, you may not have a cause of action to bring - as financial abuse may be personal to the decedent - in otherwords, survivors may not have standing to sue. However, if the finances that were "diverted" or stolen belonged to the survivors than they have a vested interest in what happened to the decedent.

    In any event, where the abuse took place (which is normally where the injured party resides) is usually sufficient to establish venue.
    So to clarify, briefly, jurisdiction says in what state and what court you file your lawsuit, “venue” is the county where you file your action.
    Usually, venue is in the county where:
    The person you are suing lives or does business (if you are suing a business or organization); or
    The dispute arose, like where an accident happened, or where a contract was entered into or broken.

    Because it is possible to have a situation where more than one county is the proper venue for you to file your lawsuit file where it's most convenient for you!!

    This is my opinion and should not be construed as legal advise for your specific case as there are many more facts which you have not provided.


  2. The simple answer is you don't file; you get a lawyer to handle the case because elder abuse cases are complicated. If you insist on doing this yourself, it depends on whether you are in state or federal court, how much is at issue, where the parties live, the nature of the claim, etc.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.

    Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (LL.M.) in Taxation from N.Y.U. School of Law. Visit SpecialNeedsNJ.com for articles and Q&A on elder law, special needs, wills, trusts, estates, and tax. Visit SpecialNeedsNJ.com/blog and subscribe for free timely updates to be delivered to your inbox. Information on both Avvo and SpecialNeedsNJ.com does not constitute legal advice, as it is general in nature and may not apply to your situation or be subject to important changes. No attorney client relationship exists unless set forth in written engagement terms.


  3. Your question is regarding the "proper venue" in which a complaint may (or should) be filed.

    Legally, venue is defined as the proper, or most convenient location, for the trial of a case. As you suspected, in civil cases, venue is usually in the district or county in which the principal defendant resides. It may also be the location where a contract was executed, where a contract is to be (or was) performed, or where an accident (the injury) took place.

    Sometimes complaints are purposely 'tried' in the 'wrong' venue (i.e., county in which the plaintiff resides rather than the county in which the defendant resides), because the parties agreed to proceed in a different venue as a matter of convenience.

    However, in the case where a lawsuit is filed in a district or county that is not the proper venue, and the defendant promptly objects by filing a request for a change of venue, then 'usually' the court will issue an order transferring the case to the proper venue. I say 'usually' because a change of venue is left to the discretion of a judge in the court (venue) where the case or prosecution was originally filed.

    In your example above, however, if the defendant is member of a larger institution or corporation, such as a financial advisor or bank employee, then venue could be proper in a variety of locations (venues), simply because the institution/corporation "does business" there.

    If the defendant is an individual who entered into and performed the "contracted" services within a county, which is 'not' the county in which the abused elder lives, then the "general" rules pertaining to "proper venue" will apply and, therefore, the complaint should be filed in a court within the defendant's county.

    With respect to your question concerning why "we give the favor to the defendant" concerning the benefits concomitant with venue, it is simply due to the manner in which our legal system structured. In our legal system, 'anyone' can file a complaint against 'anyone else' at 'any time' and for 'any reason'; in spite of whether there are enough facts or circumstances to meet the legal requirements to file a legitimate lawsuit.

    In addition, in our legal system, even when a defendant is found 'NOT liable' of the allegations contained in a complaint, the filing party (plaintiff) is not obligated to reimburse or compensate the defendant, in any way, for the time and cost expended in defense of (what turned out to be) false or baseless accusations. Therefore, as a consequence, our legal system awards the 'slight' advantage of "venue" to the defendant for the purpose of potentially lessening the total time and cost expending for their defense; particularly in the case of a completely innocent defendant.

    Also, and just as a clarification, the concept of "venue" should not to be confused with "jurisdiction." Jurisdiction concerns the laws/rules applicable to the determination of which court, or judicial system, has the "authority" to 'hear' or 'rule on' a complaint, i.e., Federal Court versus State Court.

    Barbara Bangs is a licensed attorney, in California, who also earned a Masters Law Degree in Taxation. Any legal information contained in this answer is specific to individuals who are seeking (or have) Medi-Cal and may not be applicable in other State-specific situations, or to other areas of law. Anyone reading this answer should seek the advice of an attorney in their own State or in the area of law applicable to their question.


  4. I would need more facts. But you are generally safe filing in the jurisdiction where the injury occurred.

    This can be a complicated issue. I recommend that you meet with a qualified attorney in person to answer this question. You can find one on AVVO.

    Good luck.

    AVVO DISCLAIMER I am licensed in Minnesota only and my answers on Avvo assume Minnesota law. The answers I provide are for general information only and are NOT INTENDED AS LEGAL ADVICE and therefore must not be relied upon. Legal advice must be based on the interaction between an attorney and client and specific exact facts and the law. I do not retain clients without a signed RETAINER AGREEMENT. The Avvo forum does not allow for the discussion and the interaction necessary to form a complete legal analysis. Therefore the answers given to any specific question would most likely be different if there was attorney-client interaction. The exchange of information through this forum does not establish such an attorney client relationship. An attorney-client relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website are not privileged nor are they confidential and I assume no duty to anyone by my participation on Avvo or because I have answered or commented on a question. All legal proceedings involve deadlines and statutory time limiting statutes. So that legal rights are not lost for failure to timely take appropriate action and because I do not provide legal advice in the answers to any question, if you are an interested party you should promptly and personally consult with an qualified attorney for legal advice licensed in the proper jurisdiction. Finally, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.


  5. The case should be filed where the alleged acts occurred. However, Elder Abuse is very difficult to prove as the standard is clear and convincing evidence. It is highly recommended that you contact an attorney immediately in order to determine if the case should be filed.

    Also, there are a lot of issues that go into elder abuse, such as standing (i.e. whether you can bring the suit or not) among other issues that need to be addressed by an attorney.

    Best of luck.

    Ian A. Scharg, Esq.
    Law Offices of Mark A. Redmond
    555 Capitol Mall, Suite 770
    Sacramento, CA 95818
    916-444-8240

    Elder Financial and Physical Abuse. Fraud. Class Actions.

    This is not legal advice and does not create an attorney-client relationship. This is not legal advice, it is only legal information. You should consult an attorney if you have any questions regarding this matter.


  6. From the one sentence of facts you provided for consideration, I would suggest that the proper venue would be the County where the elder abuse took place.

    If you have found this information helpful, please let the attorney know by marking best answer. Thank you. This participating Attorney does not warrant any information provided, nor are we creating an Attorney-Client relationship by providing said information to you on this site. Nothing contained herein is intended to constitute, offer, induce, promise, or contract of any kind. The content provided is presented as a courtesy to be used only for informational purposes and is not represented to be error free. The Law Offices of John N. Kitta makes no representations or warranties of any kind with respect to its answer to inquiries, and such representations and warranties are being expressly disclaimed. Given limited facts, we are attempting to share relevant information concerning this area of the law as a public service.


  7. As previously stated, this is a complicated area of law. I recommend contacting an attorney in Santa Clara County, if that is where the abuse occurred, as soon as possible. I provide a 1/2 hour complimentary consultation and would be happy to discuss your case with you.

    The statements made here are for informational purposes only and are not intended to serve as legal advice.

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