Estate of Quero

Filed 4/3/06 Estate of Quero CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Appellant Rosalinda Lopez Quero (Rosalinda) appeals from an order distributing proceeds of a pay-on-death (POD) account (Prob. Code, § 5302) to the named beneficiary of the account, respondent Michael A. Quero (Michael). We affirm.

FACTS AND PROCEDURAL HISTORY

Angel Garcia Quero died April 15, 2004, at age 89. Several years before his death, on September 19, 2001, he opened two accounts with the Bank of America. The accounts were controlled by a deposit contract. The contract states: "Upon my death the funds in each account listed on the reverse will become the property of, and payable to, the [POD] beneficiary(ies) shown below. However, no funds will be paid to the [POD] beneficiary(ies) until ten days after my death. During that period, you may continue to handle the account as you do now. This includes handling collection proceeds and accepting, paying and collecting items, charges and setoffs." The agreement designates respondent "Miguel Angel Quero" as the "POD Beneficiary." The agreement was written in both English and Spanish and signed by Angel and a bank officer.

At the time of Angel's death, the accounts contained approximately $73,000. Five days later, proceeds from the sale of a residence at 4634 Ninth Street, Carpenteria, in the amount of $273,000, were deposited into the accounts.

Angel married his caretaker, appellant Rosalinda, on June 10, 2003. Six days later, on June 16, Angel executed a will leaving the bulk of his estate to her. The will devised to Michael a one-half interest in the residence at 4634 Ninth Street, Carpenteria.

Rosalinda filed a petition for probate and for appointment as executor of the will and for authority to administer the estate. Michael filed an amended will contest and opposition to probate of the will. (Case No. 1157391.) He alleged that Angel lacked testamentary capacity at the time he executed the will and that the will was the product of Rosalinda's undue influence.

Michael also filed a civil action against Rosalinda, her attorney, and several members of her family. The complaint alleged 13 causes of action, including elder abuse, fraud and deceit, constructive fraud, conversion, breach of fiduciary duty, negligence, rescission of deeds, constructive trust, accounting and quiet title. The complaint also sought a declaration that Rosalinda predeceased Angel (Prob. Code, § 259) and that Angel was incompetent to contract. (Case No. 1158934.)[1]

On December 1, 2004, Michael filed a motion to distribute the proceeds of the POD accounts. After hearing on February 16, 2005, the trial court concluded that the accounts were valid POD accounts and that Michael was entitled to the money in them.

Rosalinda appealed the order of distribution. The trial court authorized the administrator to distribute funds in the POD accounts, notwithstanding the pendency of the appeal. Rosalinda filed a petition for writ of supersedeas in this court. We denied the writ.

In this appeal, Rosalinda argues Angel did not intend that Michael remain the beneficiary of the POD accounts. In the alternative, Rosalinda argues that the trial court erred in finding Michael was entitled to the money deposited into the accounts after Angel's death.

Michael asserts the trial court's order is correct because Rosalinda did not produce clear and convincing evidence of Angel's intent to change the beneficiary of the POD accounts and the POD contract establishes his entitlement to all funds in the accounts.

DISCUSSION

Evidence of Angel's Intent

Probate Code section 5302, subdivision (a) governs the distribution of POD accounts. Subdivision (a) states, to the extent relevant: "Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent."

Angel's intent regarding the POD accounts is a question of fact, governed by the substantial evidence test. (Brucks v. Home Federal S. & L. Assn. (1951) 36 Cal.2d 845, 850.) On review, "[w]e must accept as true all evidence and all reasonable inferences from that evidence tending to establish the correctness of the trial court's findings and decision, resolving every conflict in favor of the judgment. . . . Our authority begins and ends with a determination of whether, on the entire record, there is any 'substantial' evidence, contradicted or uncontradicted, which will support the judgment." (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 507.) We do not question the trial court's assessment of witness credibility or its weighing of the evidence. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 863, 866-867.) When two or more inferences can be reasonably drawn from the facts, the reviewing court is without power to substitute its conclusion for that of the trial court. (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043.)

The clear and convincing evidence test requires a finding of high probability, based on evidence so clear as to leave no substantial doubt and sufficiently strong to command the unhesitating assent of every reasonable mind. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 552.)

Rosalinda argues that Angel was under Michael's undue influence when he created the account in 2001. The evidence does not support this contention. Rosalinda admits that at the time Angel set up the POD accounts in 2001, he had been estranged from Michael for at least eight years. In this regard, the trial court said: "Rosalinda ... asks the court to determine that the POD documents are invalid based on presumed undue influence and constructive fraud, but offers no evidence of a confidential relationship between Michael Quero and Angel Quero upon which to base[] such a presumption." We agree.

Rosalinda also contends Angel simply forgot about the accounts and would have changed the beneficiary if he had remembered them. She relies on two videotapes--one made on June 16, 2003, during the will signing, and the other made on February 13, 2004, during an interview of Angel by Rosalinda's attorneys.

The trial court did not find this evidence clear and convincing, stating: "Rosalinda . . . offers a videotape prepared in Mexico subsequent to the POD documents as evidence of Angel Quero's express intent that no funds go to Miguel Quero. In the videotaped statement in 2/04, Decedent states among other things that he intends for bank accounts to go to his children, as well as his wife, and after considerable prompting by Mr. Shea states that his wife should decide which, if any, part of his bank funds will be distributed to Miguel Quero at his death. He does not specify that these particular accounts are no longer to be distributed to Miguel. Decedent's soundness of mind and understanding of the matters discussed at the time of the video are highly suspect (Declaration of Julio G. Diaz MD, treating physician), and no evidence has been presented that the Decedent updated or otherwise made any changes to the POD deposit contract after execution in 2001. 'A right of survivorship arising from the express terms of the account or under this section, a beneficiary designation in a Totten trust account, or a [POD] payee designation, cannot be changed by will.' [Prob. Code.,] § 5302(e)." Again, we agree.

Rosalinda also relies on declarations submitted by Angel and Michael in proceedings brought by Angel to obtain a restraining order against Michael and his wife to prevent harassment. She contends that the animosity between father and son shows that Angel did not intend that Michael inherit the funds in the accounts.

The evidence is undisputed that Michael and Angel had a falling out and Angel obtained a restraining order against Michael and his wife. Nonetheless, a few months later, on June 16, 2003, Angel made a will in which he devised to Michael a one-half interest in a single family residence. This indicates that, despite the ill feelings between father and son, Angel did not intend to disinherit Michael. No credible evidence was offered that Angel intended to revoke the beneficiary designation on the POD accounts.

Entitlement to Funds Deposited in the POD Accounts after Angel's Death

Rosalinda argues that the funds deposited in the POD accounts after Angel's death belong to Angel's estate. Rosalinda relies on Probate Code section 5302, subdivision (a), which states: "Sums remaining on deposit at the death of a party to a joint account belong to the surviving party . . . ." Rosalinda argues this language clearly limits Michael's entitlement to the amount in the accounts on the date of Angel's death. In making this argument, Rosalinda ignores the language in section 5303, subdivision (a), which states: "The provisions of Section 5302 as to rights of survivorship are determined by the form of the account at the death of a party."

Rosalinda cites no authority for her contention that the proceeds from the sale of residence do not belong to Michael. It is undisputed that the money deposited into the POD accounts five days after Angel's death were the proceeds from the sale of the residence Angel devised to Michael in his will. The POD contract permits deposits into the account 10 days following Angel's death. Michael's entitlement to all the funds in the POD accounts is established by the plain language of the relevant statutes and the POD contract.

The order of the trial court is affirmed. Respondent shall recover costs of appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Monty H. Amyx for Petitioner, Defendant and Appellant Rosalinda Lopez Quero.

Law Offices of A. George Glasco, A. George Glasco, Elisabeth G. Sundgren for Contestant, Plaintiff and Respondent Michael A. Quero.

Publication Courtesy of San Diego County Legal Resource Directory.

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[1] The two lawsuits were consolidated for trial. On December 6, 2005, a judgment on jury verdict was entered, finding for Michael on all counts. On January 11, 2006, the trial court granted Rosalinda's motion for a new trial based on erroneous and prejudicial jury instructions and a misleading verdict form.