The matters described below should be viewed as examples of the types of cases and range of results that Kenneth Prochnow has undertaken and achieved. Each case, however, is different, and past results should not be viewed as predictions or guaranties of resolutions in any other matter.

ESTATE – TRUST LITIGATION

In a recently resolved estate contest, Kenneth Prochnow represented the step-children of a decedent. The children’s father had predeceased their step-mother; his will was never found; his estate was not probated; the children received nothing at the time of his death. The step-mother then created a personal services agreement with a caregiver that, if fully realized, would have given the caregiver all of her assets. In addition, the step-mother later executed two wills, and a trust, leaving all of her estate to her surviving son and/or the caregiver. At the time the firm was retained, the step-children clients could only advance allegations of a purported mutual reciprocal will that their step-mother had executed decades before and had promised not to revoke; neither the original nor a copy of this mutual reciprocal will had been found.

Through discovery and investigation, the original of the mutual reciprocal will favoring the firm’s clients was found and submitted for probate. Deposition discovery revealed that the wills and trust benefiting the step-mother’s caregiver had been drafted by the caregiver himself. The caregiver was compelled to dismiss with prejudice his petition to probate the wills favoring him, and to dismiss the will contest challenging the clients’ mutual reciprocal will. The step-mother’s son asserted that she had died intestate (given the revocation language in three instruments the step-mother signed in the months before her death).

After many months of contested litigation and the defense of a summary judgment motion by the son, the parties resolved their dispute at the Mandatory Settlement Conference, with the firm’s clients to receive and share in one-half of their step-mother’s estate.

ESTATE – TRUST LITIGATION

In a recently decided case, the Sixth District Court of Appeals affirmed an order of the Santa Clara Superior Court’s Probate Department that favored the firm’s client. Kenneth Prochnow was retained by the former spouse of a decedent; the deceased spouse left a purported trust leaving substantial assets to his sister, brother and mother, despite alleged promises and assurances that his assets would be left in trust for the son that he had when married to the firm’s client. Opposing counsel claimed that a “no-contest” clause in the trust would bar the son from any recovery if the firm’s contemplated trust contest was unsuccessful.

The firm secured the former spouse’s appointment as her son’s guardian ad litem, and then filed a Probate Code Sec. 21320 petition for an order granting leave to file the trust contest despite the no-contest clause. The trial court (Santa Clara County Superior Court, Hon. Eugene Hyman) granted the firm’s petition, accepting the firm’s position that because the trust’s no-contest clause applied by its terms only to actions “voluntarily” filed by a trust contestant, the firm’s proposed petition for the minor son’s guardian ad litem was not the son’s voluntary act and would therefore not fall within the reach of the no-contest clause.

Opposing counsel appealed Judge Hyman’s decision. In a published decision, the Sixth District Court of Appeals affirmed the trial court order won by the firm, permitting the guardian ad litem’s trust contest to proceed. See Safai v. Safai, 164 Cal.App.4th 233 (6th Dist. 2008).

CONSTRUCTION DISPUTE – MECHANIC’S LIEN

In a recent construction dispute, Kenneth Prochnow was retained by a homeowner whose contractor had recorded a mechanics’ lien against his home for amounts allegedly due and owing under a home improvement contract. For the homeowner, the firm found grounds to attack the mechanics’ lien, and prepared a demurrer to the contractor’s complaint to foreclose the mechanics’ lien. Based upon the threatened demurrer, the contractor dismissed his cause of action for foreclosure and withdrew the mechanics’ lien. Following the firm’s filing and service of a cross-complaint for damages against the contractor, the matter was submitted to mediation, and the parties agreed to a compromise resolution satisfactory to both.

EMPLOYMENT LAW

In an employment dispute, Kenneth Prochnow was retained by a brokerage firm employee who alleged that she was wrongfully terminated by the brokerage firm and the registered representative for whom she worked. The brokerage firm petitioned to dismiss or stay the firm’s civil action and its jury trial threat by claiming the benefit of an arbitration clause contained in the employment application the client had filled out at the time the brokerage firm hired her, and signed again when she changed jobs within the firm. Before the trial court, the firm successfully resisted the brokerage firm’s petition to arbitrate, presenting evidence and argument to support the client’s claim that the arbitration agreement was substantively and procedurally unconscionable.

The brokerage firm appealed the trial court’s decision denying its petition for arbitration. With the case pending before the Sixth District Court of Appeals, fully briefed by the parties, the matter was settled just before the scheduled oral argument.

EMPLOYMENT LAW

In an employment dispute, Robert Chiles and Kenneth Prochnow were retained by the former employee of a Silicon Valley high-tech company. The company had terminated the employee’s employment, and then filed an action for injunction and temporary restraining order damages against the employee, based on alleged theft and use of trade secrets. Chiles and Prochnow successfully resisted the company’s claim for injunction and filed its own action for a temporary restraining order and injunction, seeking to restore and retain the employee’s rights to exercise stock options. The trial court granted the employee’s application for a temporary restraining order (preserving the employee’s stock option rights for a time), although the motion for preliminary injunction was denied.

The case settled at the Mandatory Settlement Conference on the Wednesday before trial, with the plaintiff company agreeing at the MSC to dismiss its complaint against the employee, and to pay him $90,000 in attorney’s fees and costs.