>Campbell> v. >Campbell>

 

 

 

 

 

 

 

Filed 7/12/13  Campbell v. Campbell CA4/3

 

 

 

 

 

 

 

 

 

>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

 

 

 

California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b).  This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.

 

 

 

 

IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

FOURTH
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

JAMES F. CAMPBELL et al.,         Plaintiffs and Respondents,               v.   DENNIS CAMPBELL et al.,         Defendants and Appellants.

G047181            (Super. Ct. No. 30-2010-00415843)            O P I N I O N

 

                        Appeal from a judgment
of the Superior Court
of Orange County,
B. Tam Nomoto Schumann, Judge.  Affirmed.

                        Sean K. Higgins for
Defendants and Appellants.

                        The Walker Law Firm and
Joseph A. Walker for Plaintiffs and Respondents.

 

*                      *                      *

 

                        This
appeal concerns a trust amendment and certain other documents executed by Helen
Campbell (Helen), the now deceased mother of defendants Dennis Campbell and
Doreen McAlister and plaintiffs James F. Campbell, Lawrence S. Campbell, and
Laurinda Claus.  The parties were
originally coequal beneficiaries of a trust executed by Helen and her husband
James W. Campbell (father).  After father
died and Helen was mentally and physically impaired, and while Dennis was a
cotrustee, defendants impinged on Helen to amend her trust to give ownership of
her home to defendants, to execute a promissory note for $65,000 secured by a
trust deed on the home in favor of Dennis, and to execute a 10-year lease with
defendants allowing them to live in the house rent free until Helen’s
death.  Plaintiffs petitioned to invalidate
all these documents (the 2010 documents) 
and to remove Dennis as a cotrustee. 
The court granted the petition and also found defendants should be
treated as if they had predeceased Helen.

                        Defendants appeal,
arguing the judgment should be reversed because the statement of decision is
legally insufficient and the judgment is not supported by substantial
evidence.  We disagree and affirm. 

 

FACTS AND PROCEDURAL HISTORY

 

>1. 
The Original Trust

                        In 1993 father and
Helen, parents of the parties, had their family attorney, Timothy Blied, draw
up the inter vivos Campbell Family Trust. 
In 2001 Blied was retained to amend and restate the trust.  In 2007 Blied again was retained to amend the
trust to change the trustees from father and Helen to Helen, Dennis, and
James.  All trustees had the power to act
independently.  From creation of the
trust until 2010 all parties were to share equally in the trust assets upon
death of both settlors. 

 

 

>2. 
The Parties’ Interactions with Father and Helen

                        Doreen lived with her
parents in their home (residence) beginning in 1989.  She paid rent until 2007.  Dennis moved in with his parents in 2001; he
paid no rent.  James and Laurinda
regularly visited Helen.  There was no
evidence of any falling out between Helen and plaintiffs.  Laurinda held Helen’s healthcare power of
attorney until Helen’s death.  Dennis
testified Helen was not capable of taking care of her finances and Doreen
testified Helen had never done so.

                        Beginning in 2007,
without telling James, Dennis comingled his own personal funds with money in a
bank account in the name of his parents. 
These included approximately $19,000 he and a third party won at the
racetrack.  Father paid the income tax on
the winnings.  Dennis paid the third
party money from this account.                

                        Before father died in
2008 Dennis obtained a line of credit secured by a deed of trust against the
residence.  Laurinda testified that
before father died he and Helen told her they were unhappy Doreen did not pay
rent.  After father died Helen never told
her she intended to amend the trust, give Dennis a $65,000 note secured by a
trust deed, or grant defendants a 10-year lease. 

 

>3. 
Helen’s Health

                        In 2007 Helen was placed
on hospice and, though expected to live only another six months, did not die
until May 2010. 

                        From February 2009 up to
the date Helen signed the 2010 documents when she was 90 years old, her
physical and mental condition declined severely.  In September 2009 she had “[c]ognitive
decline with impaired short memory and decreased attention span,” did not eat
well, and could not feed herself or perform any daily activities without
assistance.  It was difficult for her to
answer questions.  In October she was
diagnosed with “significant cognitive decline.” 
By December she slept up to 20 hours a day. 

                        After 2009 Helen could
not read and only shadows were visible on the television.  By 2010 she could barely see due to macular
degeneration.  At that time she had a
pacemaker and suffered from emphysema, using oxygen continuously.  She could not walk and had to use a
wheelchair.  The day after she signed the
2010 documents her hospice physician reported “[c]ontinued cognitive decline.”

 

>4. 
Hiring the Lawyer

                        According to defendants,
in 2009 Helen decided she wanted to amend her trust and asked them to find a
lawyer for her.  Without telling
cotrustee James, Dennis made an appointment for her with attorney Lee Goldberg;
Dennis had met him at a bar and grill where Dennis worked.  Goldberghref="#_ftn1" name="_ftnref1" title="">[1]
testified he sees Dennis only at the restaurant, about twice a month.  He is a real estate attorney and has drafted
only about 36 estate documents in his 25 years of practice.  Doreen also testified she had set up the
meeting with Goldberg. 

                        Goldberg did not prepare
a retainer agreement, kept no timesheets, and did not bill for his services nor
for any costs associated with his services, although he did tell Helen and
Dennis the fee would be $750.  Dennis
testified he thought Goldberg performed the services because he was his friend.


 

>5. 
The Note and Trust Deed                      

                        Dennis testified that
over 20 years during father’s life, father borrowed $65,000 from him.  After father died he found Post-it notes with
amounts written on them but they did not add up to $65,000.  Father never gave Dennis any receipts or signed
documents evidencing any loan.  Dennis
testified he gave the Post-it notes to Goldberg before the latter prepared the
promissory note, and he also testified he gave them to him afterward.  Dennis said he spoke to Goldberg about the
loan but also testified he did not even know about the promissory note.  Dennis testified Goldberg instructed him to
throw away some of the evidence supporting the amount of the loan. 

                        Goldberg testified the
only evidence he saw supporting a loan were some handwritten notations, which
did not equal $65,000.  Moreover, Helen
was unable to point to any evidence of owing that amount.  Goldberg testified the slips of paper Dennis
supplied did not total $65,000 but Helen “was adamant” that she owed him that
sum.  Goldberg prepared a promissory note
for that amount in favor of Dennis and a deed of trust on the residence
securing the note. 

 

>6. 
The Lease

                        Goldberg also prepared a
10-year lease in favor of defendants, which required no payment of rent until
Helen’s death.  The term of the lease
began in February 2010.  Doreen testified
the lease was a “complete surprise.” 

 

>7. 
The Amendment to the Trust

                        The final document
Goldberg prepared was an amendment to the trust, which gave the residence to
defendants, eliminating plaintiffs’ portion of the gift. 

 

>8. 
Execution of the 2010 Documents

                        Helen signed the 2010
documents on February 8, 2010.  Doreen
testified she had to help Helen sign the documents because Helen could not
see.  The only way Helen knew where to
sign was the location of Doreen’s finger. 
Doreen also said Goldberg read all the February 2010 documents to
Helen.  Goldberg testified he did as
well.  At that time Helen could not hear
and did not wear her hearing aids. 
Doreen “did not pay attention to what [Goldberg] was reading.”  Goldberg testified Helen did not have anyone
assist her in signing the documents and Doreen was not present.        

                        Defendants never told
James, as cotrustee, or the other plaintiffs about any of Goldberg’s visits or
that Helen signed the 2010 documents; Goldberg did not provide them with copies
of those documents.  Dennis informed
Goldberg he was a cotrustee but probably did not tell him James was as well.

                        After Helen died,
defendants obtained James’s consent to use about $48,000 in a bank account to
pay down the line of credit.  Under the
residual clause of the trust, the money would have been divided equally among
the parties. 

 

>9. 
The Petition, Trial, Statement of Decision and Judgment

                        Plaintiffs filed a
petition for financial elder abuse (Elder Abuse and Dependent Adult Civil
Protection Act; Welf. & Inst. Code, §15600 et seq.) (Elder Abuse Act),
undue influence, and breach of trust, seeking rescission of the 2010 documents
and return of the property.  Defendants’
cross-petition for a declaration plaintiffs breached the no-contest clause is
not part of this appeal. 

                        After trial the court
found in favor of plaintiffs and ordered them to prepare a statement of
decision.  The proposed statement of
decision addressed the 11 joint disputed factual issues set out in the joint
pretrial statement.  Defendants’ request
for the statement of decision included 47 questions for which they sought a
ruling, many of which were included in the original statement of decision. 

                        In response to an objection
to the statement of decision, the court ordered plaintiffs to revise the
statement of decision to include findings as to Doreen, the burden of proof for
each cause of action, and a statement that credible evidence supported each of
them, which plaintiffs did.  After an
objection to the revised statement, the court ordered one additional change,
i.e., that Doreen’s testimony she did not know the nature of the documents
being discussed at the meetings between Goldberg and Helen was not
credible.  All other objections were
overruled.  That change was made and
judgment was entered.  

                        The judgment stated
defendants had committed financial elder abuse against Helen and the 2010
documents were a product of undue influence. 
All the 2010 documents were cancelled, Dennis was removed as a
cotrustee, and defendants were deemed to have predeceased Helen under Probate
Code section 259;href="#_ftn2"
name="_ftnref2" title="">[2]
the court ruled that, pursuant to that section, plaintiffs were entitled to
reasonable attorney fees.  The statement
of decision also ruled plaintiffs had not violated the no contest clause. 

 

DISCUSSION

 

>1. 
Introduction and Basic Legal Principles

                        Before we get to the
substance of the appeal, we must address the parties’ violations of the court
rules governing appeals.  California
Rules of Court, rule 8.204(a)(1)(C) requires “any reference to a matter in the
record” to be supported by a citation to its location.  These citations must be included in both the
summary of facts and the argument portion of the brief even if duplicative.  (City
of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239, fn. 16.) 

            Although
both parties included some record references, neither party fully cited to the
record, improperly requiring the court to do counsel’s work.  (Schmidlin
v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738 [“‘It is neither
practical nor appropriate for us to comb the record on [a party’s]
behalf’”].)  In defendants’ case, failure
to comply with this rule could have lead to a forfeiture of their
arguments.  (Evans v. CenterStone Development Co. (2005) 134 Cal.App.4th 151,
166-167.)   We have reluctantly
overlooked this deficiency to decide the case on the merits.

                        Turning to the substance
of the appeal, a statement of decision must “explain[] the factual and legal
basis for [the court’s] decision as to each of the principal controverted
issues at trial . . . .” 
(Code Civ. Proc., § 632.) 
But it need not make findings on subsidiary issues even if they are
material to the ultimate issues.  (>Kuffel v. Seaside Oil Co. (1977) 69
Cal.App.3d 555, 565-566.)

                        Defendants devote a
substantial portion of their briefs arguing the statement of decision was
insufficient because it either relied on incorrect legal standards or failed to
state a legal standard.  They also
contend it failed to set out required factual findings for the various causes
of action.  The material issues here are
those set out in the stipulated facts. 
Even if we look at each cause of action separately, the trial court
explained the required legal standards and factual findings to support the
statement of decision.  Defendants’
arguments to the contrary are not persuasive.

 

>2. 
Undue Influence

                        a.  Trust Amendment           

                        Defendants argue the
statement of decision failed to set out the legal standard           
for undue influence concerning the
trust amendment.  They claim the court
incorrectly relied on Civil Code section 1575, which applies to
irrevocable inter vivos transfers such as contracts and not to testamentary
transfers such as the trust amendment.  

                        Undue
influence in a testamentary context “is pressure brought to bear directly on
the testamentary act, sufficient to overcome the testator’s free will,
amounting in effect to coercion destroying the testator’s free agency.”  (Rice
v. Clark (2002) 28 Cal.4th 89, 96.) 
It is “extraordinary and abnormal pressure [that] subverts independent
free will and diverts it from its natural course in accordance with the
dictates of another person.”  (>Estate of Sarabia (1990) 221 Cal.App.3d
599, 605, superseded by statute on other grounds as stated in> Rice v. Clark, supra, 28 Cal.4th 89.) 
“‘“[T]he circumstances must be inconsistent
with voluntary action on the part of the testator” [citation]; and “[the] mere
opportunity to influence the mind of the testator, even coupled with an interest
or a motive to do so, is not sufficient.”’ 
[Citation.]”  (>Estate of Sarabia, supra, 221 Cal.App.3d at pp. 604-605.)  Defendants assert this standard was omitted
from the statement of decision as it made a finding Helen’s execution of the
trust amendment was not based on her free will or true intent.

                        But this argument is
irrelevant because the statement of decision relied on the presumption of undue
influence, which supplants the usual burden of proof resting on the party
attacking a testamentary document. 
(§ 8252, subd. (a).)  The
presumption shifts the burden of proof if the challenger shows “(1) the person
alleged to have exerted undue influence had a confidential relationship with
the testator; (2) the person actively participated in procuring the
instrument’s preparation or execution; and (3) the person would benefit unduly
by the testamentary instrument.” (Rice v.
Clark, supra, 28 Cal.4th at pp.
96-97.)  The trier of fact decides
whether the presumption will be applied and if it has been rebutted.  (Conservatorship
of Davidson (2003) 113 Cal.App.4th 1035, 1060 disapproved on another ground
in Bernard v. Foley (2006) 39 Cal.4th
794, 816, fn. 14.) 

                        The statement of
decision set out the standard and the factual basis for the finding.  First, Dennis, as cotrustee, had a
confidential relationship with Helen. 
Helen “relied greatly” on both Doreen and Dennis, her children, as
caregivers, and, although not mentioned, both lived with Helen for several
years.  We reject defendants’ conclusory
claim there is no evidence they pressured Helen. 

                        The second factor,
procurement of execution of the amendment, which may be shown by circumstantial
evidence (Estate of Baker (1982) 131
Cal.App.3d 471, 481), includes the alleged wrongdoers’ “‘“control over the
decedent’s business affairs, dependency of the decedent upon the beneficiary
for care and attention, or domination on the part of the beneficiary and
subserviency on the part of the deceased”’” (ibid.).  Here, as set out in
the statement of decision, defendants were extensively involved in procuring
the amendment, hiring Goldberg, instead of Helen’s usual estate planning
lawyer, and scheduling meetings with him. 
Helen could not hear or see and Doreen had to point to where she should
sign documents.  Dennis was heavily
involved in Helen’s financial affairs. 
This evidence controverts defendants’ claim they did nothing more than
help Helen find a lawyer and, in accordance with her wishes, attend certain
meetings.  (Cf. Estate of Mann (1986) 184 Cal.App.3d 593, 607 [beneficiaries’
selection of lawyer to prepare trust or presence at signing alone not
sufficient to support undue influence].)

                        Contrary
to defendants’ rather conclusory claim, there are also facts showing they
received undue profit, the third factor. 
Before the amendment, the five children were to share in the house
equally.  Afterwards, the three
plaintiffs were to receive no share.  The
house was the primary asset of the estate so the effect of the amendment was to
virtually disinherit plaintiffs. 

                        Defendants argue undue
profit is determined “based on a qualitative assessment of the evidence, not a
quantitative one.”  (Conservatorship of Davidson, supra,
113 Cal.App.4th at p. 1060.)  In other
words, “‘undue’” depends on “‘what profit would be “due.”’”  (Ibid.)  There was evidence Helen would not want to
amend the trust to cut plaintiffs out of her estate.  James was a cotrustee and assisted Helen with
some of her finances.  He and Laurinda
lived near Helen and visited her regularly. 
Laurinda was Helen’s attorney in fact in her health care power of
attorney.  Thus, under this standard and
based on these facts, the trust amendment gave defendants an undue profit.

                        Defendants
assert there was “uncontroverted evidence” of both Helen’s true intent and the
lack of undue profit that the court failed to consider.  They set out nine pages of evidence they
claim warrants reversal.  This includes
testimony from caregivers other than defendants that Helen told them she wanted
the house to go to defendants, and Goldberg’s testimony he gave Helen several
options as to how to divide her estate. 
They also refer to their own testimony about outings with and care of
Helen and a friend’s testimony Helen was unhappy plaintiffs did not visit more
often.  

                        This argument fails.  The court did not have to believe any of this
testimony.  It is reasonable to infer the
court found the evidence suspect given defendants’ relationship with Helen.  In addition, there was contrary evidence
supporting the presumption.  Even the
testimony of one witness can constitute substantial evidence, despite
conflicting testimony from several witnesses. 
(Evid. Code, § 411; City and
County of San Francisco v. Givens (2000) 85 Cal.App.4th 51, 56.)  The trier of fact evaluates evidence and
rules on the credibility of witnesses. 
It is not our function to reweigh those decisions.  (White
v. Inbound Aviation (1999) 69 Cal.App.4th 910, 927.)  Likewise, when the evidence supports two or
more reasonable inferences, we may not substitute our conclusion for that of
the trial court.  (Ortega v. Pajara Valley Unified School Dist. (1998) 64 Cal.App.4th
1023, 1043.)

                        We reject defendants’
argument the court erroneously relied on Civil Code section 1575 as the
standard for undue influence as to the trust amendment.  The court relied on the presumption of undue
influence.  As set out below, Civil Code
section 1575 was the the basis for the finding of undue influence as to
the promissory note, trust deed, and lease (other documents). 

                       

                        >b. 
Other Documents

                        Civil
Code section 1575 states undue influence occurs when a party “tak[es] an
unfair advantage of another’s weakness of mind; or,
[¶] . . . tak[es] a grossly oppressive and unfair advantage
of another’s necessities or distress.” 
(Civ. Code, § 1575, subds. 2, 3.) 
The court found the other documents were all the product of undue
influence by defendants and should be set aside.

                        Defendants
claim there is insufficient evidence to support the finding.  They assert seven factors (>Odorizzi v. Bloomfield School Dist.
(1966) 246 Cal.App.2d 123) are required to prove undue influence and maintain
the statement of decision makes findings as to none of them.  These include things such as a demand a
transaction be concluded immediately, discussions of the transaction at an odd
time, the lack of a third-party adviser, and the inability to consult such an
adviser.  (Id. at p. 133.)  But the very
premise of this argument is incorrect.  >Odorizzi does not presume to set out an
exclusive list of facts necessary to show undue influence.  (Id.
at p. 133.) 

                        “What constitutes undue
influence and what constitutes sufficient proof thereof depend upon the facts
and circumstances of each particular case. 
It ‘is a species of constructive fraud which the courts will not undertake
to define by any fixed principles, lest the very definition itself furnish a
finger-board pointing out the path by which it may be evaded.’  [Citation.]” 
(Sparks v. Sparks (1950) 101
Cal.App.2d 129, 135.)  Undue influence
“involves the use of excessive pressure to persuade one vulnerable to such
pressure . . . .”  (>Odorizzi v. Bloomfield School Dist.,> supra, 246 Cal.App.2d at p. 131.)  It “may consist of total weakness of mind
which leaves a person entirely without understanding [citation]; or, a lesser
weakness which destroys the capacity of a person to make a contract even though
he is not totally incapacitated . . . .”  (Ibid.)  It “need not be longlasting nor wholly
incapacitating, but may be merely a lack of full vigor due to age [citation],
physical condition [citation] . . ., or a combination of
such factors.  The reported cases have
usually involved elderly, sick, senile persons alleged to have executed wills
or deeds under pressure. 
[Citations.]”  (>Ibid.)

                        A review of the evidence
set out in detail above and the findings in the statement of decision
demonstrates there is substantial evidence to show undue influence.  Helen was 90 years old and had “mental
deficits,” including severe cognitive decline. 
She slept 20 hours a day. 
Defendants lived with her and acted as her caregivers part of the
time.  They secured her attorney, and
Doreen had to point to where Helen should sign the other documents because she
could not see or hear.  The court ruled
Doreen’s testimony she did not know the contents of the other documents was not
credible.  Based on this evidence the
court reasonably found defendants exerted undue influence on Helen.

                        In the second argument,
defendants claim the finding they did not rebut the presumption of undue
influence under Civil Code section 1575 is legally insufficient.  Undue influence in this context is “[i]n the
use, by one in whom a confidence is reposed by another, or who holds a real or
apparent authority over him, of such confidence or authority for the purpose of
obtaining an unfair advantage over him [or her].”  (Civ. Code, § 1575, subd. 1.)  Section 16004, subdivision (c) states, “A
transaction between the trustee and a beneficiary which occurs during the
existence of the trust or while the trustee’s influence with the beneficiary
remains and by which the trustee obtains an advantage from the beneficiary is
presumed to be a violation of the trustee’s fiduciary duties.  This presumption is a presumption affecting
the burden of proof.” 

                        “There are certain
relations from the existence of which the law will infer special
confidence . . . .  [Citation.]  A confidential relation in fact should be the
test. Where a grantor has trust and confidence in the integrity and fidelity of
the grantee and the latter takes advantage of the grantor relief will be
afforded.  [Citation.]  One who holds a confidential relationship
will be presumed to have taken undue advantage of his trusting friend unless it
shall appear that the latter had independent advice and acted not only of his
own volition but with full comprehension of the results of his action.  [Citation.]” 
(Sparks v. Sparks, >supra, 101 Cal.App.2d at pp.
135-136.) 

                        The court found Dennis,
as cotrustee of the trust, had a confidential relationship with Helen.  It also determined the note and the rent free
lease gave Dennis an advantage.  Dennis
failed to meet his burden to show the other documents were not a result of
undue influence. 

                        Defendants assert the
statement of decision lacked findings showing Helen was not fully informed when
she agreed to execute the other documents or that these documents were unfair,
claiming there was uncontroverted evidence Helen wanted to execute these
documents.  They point to testimony of
the caregivers and Goldberg that Helen told them Dennis was owed the
money.  They also maintain the note and
trust deed were fair because Dennis had loaned father money over the
years.  They likewise argue the lease was
fair because defendants had to pay on the line of credit and because they had
not previously paid rent.  But this
testimony is not unrebutted, as discussed above, and again, defendants are
asking us to reweigh evidence, a task not within our province.  The statement of decision was sufficient in
this regard.

                        In a related argument,
defendants claim there is no substantial evidence Helen lacked contractual
capacity.  Under section 811, subdivision
(b) and as shown by the evidence already laid out, Helen lacked the capacity to
execute the other documents because her mental deficits “significantly impair[ed
her] ability to understand and appreciate the consequences
of . . . [her] actions with regard to” them.  There was a direct correlation between her
deficits and execution of the other documents. 
Defendants’ claim there was insufficient evidence is another instance of
their inappropriate request we reweigh evidence.

 

>3. 
Elder Abuse

>                        a.  Trust Amendment

                        Defendants argue the
statement of decision finding they engaged in financial elder abuse to procure
the trust amendment did not use the correct legal standard.  They claim Welfare and Institutions Code
section 15610.30, which sets out the elements of financial elder abuse,
does not apply to the trust amendment because it did not transfer any property
rights to them. 

                        Under Welfare and
Institutions Code section 15610.30 financial elder abuse occurs when a
person “[t]akes, secretes, appropriates, obtains, or retains real or personal
property of an elder,” among other things, for “wrongful use or or with intent
to defraud, or both,” or “by undue influence, as defined in Section 1575 of the
Civil Code.”  (Welf. & Inst. Code,
§ 15610.30, subd. (a)(1), (2).)  A
person “takes, secretes, appropriates, obtains, or retains real or personal
property when an elder . . . is deprived of >any property right, including by means
of an agreement, donative transfer, or testamentary
bequest . . . .” 
(Welf. & Inst. Code, § 15610.30, subd. (c), italics
added.) 

                        Although ownership of
the residence did not vest in defendants at the time Helen signed the
amendment, given her medical condition, defendants’ control over her, and the
fact she died three months after signing the trust amendment, at minimum
defendants “secrete[d]” (Welf. & Inst. Code, § 15610.30, subd. (a)(1),
(3)) the residence from her.  The effect
of defendants’ undue influence was to deprive Helen of her interest at the time
she executed the trust amendment. 

 

>                        b.  Other Documents

                        As to the other
documents, defendants make only a passing reference in one of their headings
that there was no substantial evidence of elder abuse “relying exclusively” on
undue influence.  (Boldface and
capitalization omitted.)  Failure to make
any reasoned legal argument forfeits this claim.  (Benach
v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852.) 

 

>4. 
Section 259

                        Defendants maintain that
even if they committed elder abuse, full disinheritance under section 259
was erroneous.  This argument has no
merit. 

                        Section 259
provides four conditions that must be met before disinheritance applies.  They are that defendants committed financial
abuse (requiring proof by clear and convincing evidence), they acted in bad
faith and were “reckless, oppressive, fraudulent or malicious,” and Helen was
“substantially unable to manage . . . her financial
resources or to resist fraud or undue influence” at the time of the abuse and
thereafter until her death.  (§ 259,
subd. (a).)  We have already determined
these conditions were proven and in this argument defendants do not challenge
these conditions, except to state a conclusion there was no financial elder
abuse.

                        As a result of the
abuse, defendants may not “receive any property, damages, or costs that are
awarded to [Helen’s] estate” resulting from an action arising out of the
abuse.  (§ 259, subd. (c)(1).)  They are also barred from serving as Helen’s
fiduciary since the will or trust designating them was executed while Helen was
unable to manage her finances or resist undue influence of fraud.  (§ 259, subd. (c)(2).)  In other words, section 259 “does not
necessarily disinherit an abuser entirely but rather restricts the abuser’s
right to benefit from his or her abusive conduct.  [Citations.]” 
(Estate of Dito (2011) 198
Cal.App.4th 791, 803, fn. omitted.)  The
statute “restricts the value of the estate to which the abuser’s percentage share
is applied and prevents that person from benefiting from his or her own
wrongful conduct.”  (Id. at p. 804.)  The abusers
are considered “to have predeceased the decedent only to the extent the person
would have been entitled through a will, trust, or laws of intestacy to receive
a distribution of the damages and costs the person is found to be liable to pay
to the estate as a result of the abuse.” 
(Id. at pp. 803-804, fn.
omitted.)

                        The statement of
decision provides that the 2010 documents were procured by defendants’ undue
influence.  It also specifies that,
because defendants committed financial elder abuse by taking an interest in
Helen’s real property by virtue of the lease, they are deemed to have predeceased
her.  The judgment states defendants are
considered to have predeceased Helen and the assets of the trust “are to be
distributed accordingly.” 

                        Defendants argue they
should not be disinherited because they never “took any [of Helen’s]
property . . . into their own names.”  They are not correct.  They lived in the residence rent free, Dennis
received $65,000 under the note secured by a trust deed on the residence, and
they “secrete[d]” (Welf. & Inst. Code, § 15610.30, subd. (c)) the
residence from her.  The 2010 documents
were all cancelled and defendants were required to return all the interests
they obtained via the 2010 documents. 

                        Section 259 is a
forfeiture statute, the purpose of which is “to deter the abuse of elders by
prohibiting abusers from benefiting from the
abuse. . . .  By enacting this statute, the
Legislature hoped that the threat of extinguishing inheritance rights, and the
financial incentive to others to report abuse, would deter abuse.”  (Estate
of Lowrie (2004) 118 Cal.App.4th 220, 229.) 
In giving effect to a statute we presume the Legislature did not intend
absurd results.  (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 893.) 

                        There would be no need
for the statute if defendants could engage in the conduct described here to
pressure Helen to transfer the various interests to them and avoid any
consequences.  Merely cancelling the 2010
documents and then allowing defendants to share in the estate as they would
have absent the abuse is no deterrence at all. 
Defendants would be in no worse position than if they had not employed
the undue influence.  That result would
violate both the spirit and the intent of section 259.

 

>5. 
Fraud

                        Defendants complain the
court failed to make a finding as to whether fraud was “an independent cause of
action” and challenge the statement of decision for failing to discuss elements
or findings of fraud.  This argument
borders on frivolous.  Review of the
petition shows there is no fraud cause of action, nor is the judgment for
fraud.  Therefore, there would be no need
to discuss it in the statement of decision or to make factual findings.  The statement in the judgment the trust
amendment was procured by “fraud/undue influence” is superfluous since the
statement of decision supports a finding of undue influence. 

 

>6. 
Testamentary Capacity

                        Defendants claim the
statement of decision conflates the standard for testamentary capacity with
that of contractual capacity in the context of the trust amendment.  This is incorrect.

                        Section 6100.5,
subdivision (a)href="#_ftn3" name="_ftnref3"
title="">[3]
provides a person is “not mentally competent to make a will if at the time of
making” it the person â€œdoes not have sufficient mental capacity to be able
to (A) understand the nature of the testamentary act, (B) understand and
recollect the nature and situation of the individual’s property, >or (C) remember and understand the
individual’s relations to living descendants . . . and
those whose interests are affected by the will.”  (Italics added.)  Section 6100.5 applies to the capacity to
amend a trust by virtue of section 811. 
(Andersen v. Hunt (2011) 196
Cal.App.4th 722, 731.)

                        Section 811,
cited in the statement of decision, lists the “mental functions” to be
considered when a court is making a decision a person “lacks the capacity
to . . . to contract . . . or to
execute trusts . . . .” 
(§ 811, subd. (a).)  They
include “(1) Alertness and attention, including, but not limited
to, . . . [¶] (A) Level of arousal or consciousness[ and]
[¶] (B) Orientation to time, place, person, and situation.”  (Ibid.)  “A deficit in the mental functions listed
above may be considered only if the deficit, by itself or in combination with
one or more other mental function deficits, significantly impairs the person’s
ability to understand and appreciate the consequences of his or her actions
with regard to the type of act or decision in question.”  (§ 811, subd. (b).)  The court also pointed to section 810,
subdivision (c), which states that a finding a person “lack[s] the legal
capacity to perform a specific act” must rest on “evidence of a deficit in one
or more of the person’s mental functions rather than on a diagnosis of a
person’s mental or physical disorder.” 

                        The statement of
decision met these requirements.  It laid
out the evidence showing Helen’s necessity and distress based on her poor
health and her heavy reliance on defendants as caregivers.  It also found Helen had “weakness of mind”
“evidenced by documented mental deficits that affected her testamentary
capacity,” which defendants took advantage of. 
It further specified there was credible evidence Helen “was not oriented
to time, place, person and situation in and around February 2010.”  She slept as much as 20 hours a day around
the time she executed the 2010 documents. 
This, and the evidence she could not read or hear and of her severe cognitive
decline at the time she executed the trust amendment, was sufficient to show
Helen was mentally incompetent. 

                        The absence of a finding
Helen suffered from hallucinations or delusions is inconsequential; that is an
alternate factor proving incompetence (§ 6100.5, subd. (a)(2)) and not
required.  For the same reasons as stated above, we again reject
defendants’ claim there is uncontroverted evidence to show plaintiffs did not
prove the section 6100.5 factors.  

> 

>7. 
Breach of Trust

                        The statement of
decision found Dennis breached the trust, both as to Helen during her lifetime
and as to the plaintiffs after Helen’s death. 
Defendants rely on trust language that Dennis should not be liable for
breach of trust if he acts in good faith and without gross negligence.  He argues the statement of decision fails to
include findings to support these two factors and the evidence shows he was
neither grossly negligent nor acted in bad faith.   This argument is easily disposed of. 

                        There is not only
sufficient evidence, there is overwhelming evidence Dennis did not act in good
faith.  As set out in the statement of
decision, he exerted undue influence to obtain the trust amendment whereby
Helen transferred all of the interest in the residence to defendants, to the
exclusion of plaintiffs.  He procured the
$65,000 note in his favor secured by a deed of trust on the residence, a trust
asset, and there was substantial evidence there was no consideration for the
note.  He also procured the lease of the
residence on behalf of himself and Doreen, providing they were not obligated to
pay rent until after Helen’s death.  He
never revealed his actions or the existence of the 2010 documents to James, his
cotrustee, or to any of the other plaintiffs who were trust beneficiaries.  He fraudulently induced James to agree to use
a trust bank account to substantially pay down the line of credit secured by
the residence when it would have been his personal responsibility to pay that
off.  And this is just some of the
evidence showing a breach of trust.

                        Dennis’s one contrary
argument that he had no intent to breach the trust and did not know the
contents of the trust amendment again improperly seeks to have us reweigh
evidence.  Since he did not act in good
faith we need not discuss whether he was negligent since the trust required
both elements to be satisfied.

 

>8. 
Attorney Fees

                        The amount of attorney
fees to be awarded is within the court’s sound discretion, taking into account
the type and difficulty of the matter, counsel’s skill vis-à-vis the skill
required to handle the case, counsel’s age and experience, the time and
attention counsel gave to the case, and the outcome.  (Contractors
Labor Pool, Inc. v. Westway Contractors, Inc. (1997) 53 Cal.App.4th 152,
168.)  An experienced trial judge is best
qualified to decide the value of an attorney’s services in a given matter, and
on appeal we will not reverse that decision unless it is clearly wrong.  (11382
Beach Partnership v. Libaw (1999) 70 Cal.App.4th 212, 220.)  We are not persuaded the trial court abused
its discretion in its apportionment of the fees.  The fact the court did not consider all of
the transactions on which plaintiffs relied to prove elder abuse is irrelevant.  In deciding whether to segregate attorney
fees, the court does not look at individual pieces of evidence but at the
various causes of action.

 

 

 

 

DISPOSITION

 

                        The judgment is
affirmed.  Plaintiffs are entitled to
costs on appeal.

 

 

                                                                                   

                                                                                    THOMPSON,
J.

 

WE CONCUR:

 

 

O’LEARY, P. J.

 

 

 

ARONSON, J.