A profitable account does not by itself defeat a financial elder abuse claim—but plaintiffs must still prove the requirements of their particular theory. A new published Court of Appeal decision illustrates the distinction.
Maurice Voce, a barber and self-taught investor, traded stock options with Morgan Stanley & Co. LLC from the 1980s until his death in 2012 at age 93, primarily through adviser John Privitelli, and built a fortune of roughly $19 million. His children and nephew—as co-trustees of his trusts and personal representative of his estate—sued Morgan Stanley and Privitelli for breach of fiduciary duty and financial elder abuse. 1
The plaintiffs alleged that options trading, and the commissions it generated, continued even as Maurice’s cognitive health declined, and that the adviser’s role extended to tax and estate-planning advice. Those are the plaintiffs’ allegations; the testimony was evidence the appellate court discussed, not conclusively established wrongdoing. An earlier FINRA arbitration dismissed the claims without prejudice and not on the merits, permitting the lawsuit to proceed. 1
A Decision That Cut Both Ways
The opinion was filed October 8, 2026 and certified for publication October 29, 2026. The Court of Appeal reversed in part, affirmed in part, and remanded for further proceedings. It did not find the defendants liable or award damages. 1
Because the trial court granted nonsuit after the plaintiffs presented their case, appellate review credits their evidence and reasonable inferences favoring them. That is not a final credibility determination; disputed facts remain for the trier of fact. 1
Why Investment Gains Did Not End the Elder Abuse Claim
Financial elder abuse occurs when a person or entity takes, secretes, appropriates, obtains, or retains an elder’s property for a wrongful use or with intent to defraud. A taking is defined broadly: an elder can be deprived of a property right even through an agreement, regardless of whether the property is held directly or by a representative. 6
Under the wrongful-use theory, commissions generated by a wrongful transaction can constitute a taking. A taking is for a wrongful use if the defendant knew or should have known the conduct was likely to harm the elder. The inquiry is not whether the account gained value overall, but whether a wrongful deprivation of property occurred. 36
That distinction has limits. Age, risky trading, or charging commissions alone does not establish elder abuse; the plaintiff must still prove the statutory elements, including the knowledge standard, for the theory asserted. 3
Why One Fiduciary-Duty Theory Still Failed
The court affirmed nonsuit on the excessive-trading, or churning, theory because the plaintiffs lacked sufficient expert evidence that the trading or commissions were excessive and caused damages. Their securities expert offered no opinion on turnover or churning. 4
This was an evidentiary failure in this case, not a rule that profitable accounts categorically defeat fiduciary-duty claims. A record with expert support for excessiveness and harm could present a different question. 4
Why the Actual Advisory Relationship Matters
The scope of a professional’s fiduciary obligations may depend on the parties’ course of dealing, the reliance the adviser induced, and the advice actually provided—not solely the services formally retained or paid for. The court treated that formal-retention reasoning as too narrow. 5
The court permitted further proceedings on the fiduciary claim concerning tax and estate-planning advice. It did not conclusively establish responsibility for every tax or estate-planning issue; that remains for the trial court. 5
A Brief Procedural Clarification
The trial court calculated a damages cutoff by projecting the unexpired limitations period backward from the accrual date. The Court of Appeal rejected that approach: because the claims were timely filed, the limitations period did not operate as a backward-measured boundary on compensable conduct. 2
Disputed discovery and accrual questions remained for factual resolution. The decision does not make all historical conduct automatically actionable, and limitations defenses did not disappear. 2
The Practical Takeaway
Account performance, wrongful conduct, the scope of professional obligations, and recoverable damages are distinct questions. A profitable account does not answer any of them by itself.
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Omeed Mahrouyan is the founder of Mahrouyan Law, P.C., a California firm handling business and commercial litigation, property and cargo damage claims, personal injury, landlord representation, startup transactions, and practical intellectual property matters. Clients work directly with him on strategy, drafting, and case decisions.
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