Hon. Marshall Whitley (Ret.)

Profile

Hon. Marshall Whitley served as a California Superior Court Judge in Alameda County for over 20 years. For many years he was the Supervising Judge at Alameda, Oakland, and Berkeley courthouses, and for 10 years was Presiding Judge in departments handling Probate, direct calendar Civil, and long cause Probate trials. He has been the trial judge for a number of complex and high profile civil and criminal cases.

Judge Whitley retired from the bench in 2013 and began working with ADR Services, Inc. as a mediator, arbitrator, special master and discovery referee. He has extensive experience and expertise in the areas of trusts, estates, conservatorships, taxation, malpractice, contracts, real estate, and business disputes. His flexible approach, technical expertise, and patience have enabled him to achieve an exceptionally high success rate in more than one thousand mediations and court settlement conferences. His 20 years managing all types of civil and criminal trials have made him a very fair, efficient, and decisive arbitrator, court appointed special master, and private judge.

Judge Whitley has been a law professor, either adjunct or full time, since 1985 teaching lawyers and law students in the above subject areas. Since leaving the bench he has trained hundreds of lawyers on mediation and dispute resolution and currently teaches a course he designed entitled “Mediating Trust and Estate Disputes” for the LL.M. program at Golden Gate University School of Law.

Prior to his judicial appointment, Judge Whitley, for 19 years, was a DC legislative counsel, a US Justice Department trial attorney, and a San Francisco private practitioner handling estate planning, tax and business litigation matters.

Judicial Experience

  • Judge, Superior Court, County of Alameda, 1999 – 2013
  • Judge, Municipal Court, County of Alameda, 1993 – 1998

Probate  

  • Presided over Long Cause Probate Trials, 2007-2013
  • Supervising Probate Judge, 2003-2007
  • Chair, Superior Court Probate Committee, 2003-2008

Civil  

  • Presided in Civil Trial and Civil Direct Calendar departments, 2007-2013
  • Included case management, motions, settlement conferences, and trial of all types of civil cases including: asbestos; commercial; collection; contract; copyright; labor; employment; environmental; malpractice and other tort; real property; and trade secrets

Administrative

  • Supervising Judge of George McDonald Courthouse, 2009-2010
  • Supervising Judge of Berkeley Courthouse, 2007-2008
  • Supervising Judge of Wiley Manuel Courthouse, 1999-2000

Committees  

  • Judicial Council Probate and Mental Health Advisory Committee, 2010-2013 Chair, Subcommittees on Trusts and on Rules & Forms.
  • Judicial Education & Research Division of the Administrative Office of the Courts (CJER), 2005-2008 Chair, Committee on Probate and Mental Health.
  • California Judges Association Probate and Mental Health Committee, 2006-2008

Attorney Experience

Managing Partner and Co-Managing Partner, Law Offices of Marshall Whitley and Tierney Walden & Whitley (San Francisco), 1985-1993
Law practices focused on federal and state tax controversies, business transactions and tax planning, estate planning, ERISA, and commercial litigation

Tax Supervisor, Coopers & Lybrand (San Francisco), 1983-1985
Tax compliance for clients, coordinated with Washington, DC office regarding pending and proposed tax legislation, and provided internal counsel regarding IRS practice and procedure

Trial Attorney, US Department of Justice, Tax Division (Washington, D.C.), 1979-1982
Represented the US Government in complex tax litigation and related civil matters in US District and Bankruptcy Courts throughout the western region of the United States.

Special Tax Counsel and Legislative Counsel, Washington, D.C. Finance & Revenue Department and Council of the District of Columbia, 1974-1979
Directed implementation of recently enacted real property tax measures, drafted proposed income and estate tax legislation, and coordinated with Congressional staff of Ways & Means and Finance Committees regarding D.C. finances and revenues.

Academic Experience

Professor and Director of LL.M. Programs in Taxation and Estate Planning, 2013-Present; Adjunct Professor, 1985-2013; Golden Gate University School of Law
Directs the administration of two LL.M. programs including selecting curricula, identifying and employing adjunct professors and all aspects of student admissions, matriculation, graduation and career placement.

Courses taught: Wills, Trusts & Estates; Mediating Trust and Estate Disputes; Probate Procedure and Litigation; IRS Practice and Procedure; Federal Tax Litigation; Standards of Tax Practice; IRS Collection Procedures.

Memberships and Awards

2016    Recipient of “Joanne M. Garvey Lifetime Achievement Award”, California State Bar Taxation Section
2013    Certificate in Mediation & Conflict Resolution, University of California, Berkeley Extension
2013    Member, San Francisco Mediation Society
1995-2012    Outstanding CJER Faculty commendations, Supreme Court Chief Justices & AOC
1993    Recipient of “V. Judson Klein Outstanding Tax Attorney Award,” California State Bar Tax Section
1991    Recipient of “Outstanding Faculty Award,” Golden Gate University School of Law
1989-1993    Executive Committee Taxation Section of State Bar of California, Chair-Elect 1992-1993
1985-1992    President, Vice President and Treasurer, San Francisco Tax Litigation Club

Education

1976    LL.M. (Taxation), Georgetown University Law School
1973    J.D., University of Connecticut School of Law (with awards)
1970    B.A., Bowie State University (Business and Accounting with honors)

Representative Cases

Accountant Malpractice / Taxation

  • At issue is the appropriate valuation for taxing plaintiff's machinery and equipment.
  • Plaintiff claims defendant failed to properly report the tax deferred IRC section 1042 ESOP stock exchange thereby making the transactions subject to tax.

Business

  • Plaintiff provided construction services pursuant to his understanding and was not paid in full according to his claim. Defendant disputes the amount charged and whether work was completed.
  • Representatives of deceased partner and conserved partner disputed allocation of real property net sales proceeds.
  • Plaintiff's boat was stolen from the defendant's storage facility and questions arose regarding insurance and liability.
  • Settled a case involving the purchase of a business with extenuating circumstances and full performance issues. The case was settled for a six-figure sum.
  • Settled a dispute regarding validity of power of attorney, contract, and assignment.
  • Dispute over value of loss.

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Construction

  • Plaintiff provided construction services pursuant to his understanding and was not paid in full according to his claim. Defendant disputes the amount charged and whether work was completed.

Employment

  • Settled a mediation where the plaintiffs allege wrongful termination and violation of laws and their attorney’s fees were covered as well as they were reinstated to their membership.
  • Employee termination with breach of employment agreement claim; fraud; negligent supervision; and age discrimination

Landlord/Tenant

  • Claim that tenant on commercial lease has failed to pay comply with terms of 5-year lease agreement.

Probate/Wills/Trusts

  • Dispute among beneficiaries and trustees regarding interpretation and validity of certain trust provisions.
  • Validity of several trust amendments and purported life estate to a beneficiary and trust mismanagement claims.
  • Trustee and Beneficiary of By-Pass Trust claims that there was a misallocation of the assets from the Family Trust to the By-Pass and Survivor's trusts, resulting in the By-Pass trust being underfunded.
  • Co-trustees seek to remove each other. One of the co-trustee’s accounting is the subject of an objection from the other. Claim of approximately $1 million of missing personal property assets.
  • Beneficiaries challenge trustee's administration and distribution.
  • Issues related to the proper administration of the Trust and the Statute of Limitations for Creditor's Claims.
  • Two beneficiaries where one is Trustee and objects to the accountings and buy-out of one beneficiary's interest in one of the Trust real properties.
  • Claims of breach of trust by fiduciary and appropriate allocations of assets among sub trusts.
  • Sale of auto with dispute as to ensuing damage and repairs.
  • Settled a dispute over ownership of sums remaining in a Transfer on Death Investment account after the death of the original owner.
  • Elder care and estate planning for couple that experience significant mental capacity and medical issues who have adult children from previous marriages who are adversaries in conservatorship and financial elder abuse litigation.
  • Settled a six figure elder abuse matter where the disinterested son accused his sister of unduly influencing their mother who was in a weakened mental state to remove her son from the estate in her will.
  • Petition to set aside estate and trust real property sale to fiduciary.
  • Division of estate real property into an estate for 10 years to surviving spouse and remainder to grandchildren.
  • Siblings dispute validity of Trust amendment and trustee's administrative decisions.
  • Two of three beneficiaries disputed Trust management and clam losses in the amount of their beneficial interest by the other beneficiary who was the Trustee.
  • Issues raised as to the acts of the former trustee and whether the trust was damaged thereby.
  • Estate creditor's claim litigation dispute in which decedent's live-in lady friend claimed to be entitled to certain assets of the estate based on enforceable oral promises/agreements between her and decedent, and alternatively as a surviving spouse based on a religiously sanctioned "spiritual marriage" relationship.
  • Decedent had long relationships with several people who worked in his businesses and with whom he had communal family relationships. Many promises were made but not reduced to a writing or a testamentary instrument before he unexpectedly died in a storm while out at sea.
  • Family members dispute intentions of the settlors of the trust and the management of it by the successor trustee.
  • Issues relating to the Trust's administration over 8-year period
  • Trustee and Beneficiary of By-pass Trust claims that there was a mis-allocation of the assets from the Family trust to the By-Pass and Survivor's trusts resulting in the By-Pass trust being underfunded.
  • Handled case involving influence claims as to trust and IRA beneficiary designations.
  • Beneficiary complained that trustee breached fiduciary duties and failed to make appropriate distribution.
  • Surviving settlor of trust failed to properly fund sub-trusts and avoid commingling of assets. Assets were reallocated by beneficiaries.
  • Named first successor trustee resigns and private professional fiduciary designated as sole trustee of trust.
  • Dispute as to interpretation of Trust amendment regarding beneficiary shares.
  • Handled a case involving division of a trust estate among four beneficiaries. The case involved alleged financial elder abuse and undue influence, inheritance advancements, and alleged enforceable contract to convey real property at death.
  • Settled a trust matter that delt with financial elder abuse, breach of trust, quiet title, and trust modifications.
  • Challenge to validity of several trust amendments based on undue influence, financial elder abuse, and wrongful taking.
  • Settled a high six figure matter regarding the buy-out of two beneficiaries of other beneficiary's interest in the trust and filling vacancy in trustee position.
  • Petition to invalidate trust based on claims of undue influence, lack of capacity, elder abuse, removal of trustee.
  • Family challenges trust amendment as being due to undue influence, lack of capacity, and elder abuse.
  • The issues related to the proper administration of the Trust and the Statute of Limitations for Creditor's Claims.
  • Adult children of surviving Trustor granted control of parents' financial and personal matters.
  • Handled case involving a dispute over whether or not a transfer of a six-figure sum from the settlor's trust to the settlor's daughter was a gift or a wrongful taking.
  • Handled a case involving a dispute between siblings over their deceased mother's estate assets.
  • Two beneficiaries where one is Trustee and objections to the accountings and buy-out of one beneficiary's interest in one of the Trust real properties.
  • Claims of breach of trust by fiduciary and appropriate allocations of assets among sub trusts.

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Real Estate/Real Property

  • Dispute as to whether the parties had an agreement for both to own the real property that was purchased, even though the title was taken in only one party's name and whether an altercation between them leading to injury was more the fault of one than the other.
  • Settled a case involving a buy-out of one beneficiary's interest in real property by another beneficiary.
  • Family Dissolution Judgment determined property rights of divorcing spouses. Subsequently, one spouse died and the trustee of the deceased ex-spouse's trust sued the surviving ex-spouse disputing the property division set forth in the Dissolution Judgment.