Lee v. Schoenfeld

Filed 3/6/07 Lee v. Schoenfeld CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Acting on behalf of several interested parties, special administrator David C. Lee prosecuted an elder abuse action against Max Schoenfeld, husband of the late Heidi Schoenfeld.[1] The jury rejected claims alleging fiduciary abuse, physical abuse, intentional infliction of emotional distress and constructive fraud, but it found Max liable for fraud and imposed damages of $50,000. In this appeal, the special administrator argues the trial court erred by excluding evidence of alleged incidents of abuse that occurred more than three years before Heidis death.[2] We conclude the ruling was within the courts discretion and affirm the judgment.

BACKGROUND

We previously discussed Heidi and Maxs relationship in great detail when we affirmed a trial court decision upholding the validity of Heidis will against allegations by her former husband, Alfred Grabisch, and other objectors that the will was procured by Maxs undue influence. (Schoenfeld v. Zwakenberg (Mar. 28, 2005, A101525) [nonpub. opn.].) Although we take judicial notice of our prior opinion,[3] we must derive the present statement of facts from evidence presented to the jury in this case.[4]

I. Undisputed Facts About Max and Heidis Relationship

Heidi and Alfred Grabisch met in Germany in 1939. The couple moved to the United States in 1954 and lived together in Oakland until they divorced in 1972. After the divorce, Grabisch moved to Santa Rosa, but he continued to manage Heidis finances.

Heidi met Max, an migr from Hungary, in the late 1970s at a ballroom dancing studio. Max and Heidi spent time together dancing, golfing and attending theater performances. During this period, Max was one of Heidis many friends, but the two were not romantically involved. In March of 1992, Heidi suffered a debilitating stroke that left her partially paralyzed. After more than a month in the hospital, Heidi was given the choice of moving into a convalescent hospital or returning home and using the assistance of in-home caregivers. She chose to go home, and Grabisch arranged for Heidi to be treated by a succession of caregivers. About two weeks later, Max moved in to help care for Heidi. Initially, Grabisch and Heidis close friends supported this arrangement. Max assisted Heidi with her personal hygiene, accompanied her to doctor appointments and church, took her outside, and entertained her with games, movies and television. In October 1993, Max and Heidi were married in a civil ceremony at the Alameda County courthouse. Maxs son was the best man at the wedding, but none of Heidis friends or family were present.

In November 1993, the month after Max and Heidi were married, Grabisch filed a contested petition for conservatorship of Heidi, and the court appointed a temporary conservator of her estate. Shortly after this appointment, Grabisch expressed anger at Max and concern for Heidis welfare, and he told the conservator he wanted to have Heidi and Maxs marriage annulled. Heidi retained attorney Betty Epstein in September 2004, and the parties settled the conservatorship case the following month. However, a formal settlement agreement was not finalized until October 1996. The settlement agreement called for Heidis assets to be placed in an irrevocable trust, with specified distributions, and provided for the hiring of a geriatric health care coordinator to manage services provided to Heidi. With the exception of one dispute between Heidi and Grabisch (which is irrelevant here), Heidi, Max and Grabisch agreed to release all existing claims against each other. In December 1994, Heidi changed her will, leaving the bulk of her estate to Max and his family.

In December 1997, Karl Senf, one of Heidis close friends, retained Grabischs attorney and filed a petition seeking to be named Heidis guardian ad litem. Shortly thereafter, in March 1998, Max moved out of Heidis house under pressure from Heidis geriatric care coordinator, Laurie Lowe. Lowe ordered Max to move, under threat of court order, because the agency that provided in-home caregivers for Heidi threatened to withdraw its attendants if he remained in the home. The agency complained Max was interfering with Heidis physical and emotional care and said he posed a potential danger to both Heidi and the caregivers. Faced with the choice of moving into a convalescent home or remaining in her own home without Max, Heidi chose to have Max move out. Max continued to visit Heidi and speak with her on the telephone after he moved. Heidi died on November 18, 1999.

The litigation proceedings during Heidis lifetime proved merely a prelude to the court battles that commenced after her death. Beneficiaries of a prior will contested Heidis 1994 will, which left the bulk of her $3.6 to $5.5 million estate to Max and his family.[5] After an extended bench trial, the lower court upheld the validity of the 1994 will against the objectors charges that it was procured by Maxs undue influence, and we affirmed this decision on appeal.

II. The Elder Abuse Trial

In March 2000, the same objectors, i.e., Grabisch, Senf and several of Heidis friends, filed the instant lawsuit against Max for elder abuse. After the standing of these plaintiffs was challenged, the court appointed David C. Lee as special administrator to prosecute the action.

A. In Limine Ruling Excluding Incidents Before 1996

The trial court considered dueling motions in limine from the special administrator and Max concerning the admissibility of evidence from the early years of Heidi and Maxs relationship. Arguing the elder abuse claims were governed by a one-year statute of limitations, Max sought to exclude evidence of alleged abusive conduct that occurred more than one year before Heidis death in 1999. In contrast, the special administrator identified the applicable statute of limitations as three years but argued the statute was tolled by Maxs continuous course of abusive conduct. Thus, the special administrator contended all of Maxs conduct was actionable. In the alternative, the special administrator argued conduct before 1996 should be admitted to prove Max acted with malice and oppression and as foundational evidence to provide context for the jurys understanding of the abuse that occurred in later years.

After taking the matter under submission, the trial court concluded a three-year statute of limitations applied to the elder abuse claims. Measured from the time of Heidis death, the relevant time period was thus November 18, 1996 through November 18, 1999. Furthermore, while noting that general background information would be admitted, the court granted Maxs motion to exclude specific incidents of misconduct before the limitations period. The special administrator challenged this ruling in a petition for writ of mandate and request for immediate stay of trial. On October 25, 2004, we summarily denied the writ.

The special administrator filed a detailed offer of proof in the trial court on October 28, 2004, describing all the evidence of abuse he had intended to present during the period from May 1992 through November 1996. Instead of the previous arguments the special administrator had raised, the offer of proof asserted this evidence was admissible under Evidence Code section 1101, subdivision (b).[6] Counsel argued the prior bad acts were relevant to prove Maxs state of mind and intent, and thus were admissible character evidence under section 1101, subdivision (b). After further argument, the court repeated its ruling that the evidence would be excluded. The court explained: I think the probative value of this evidence prior to the relevant time period is substantially outweighed by the likelihood that it will cause undue prejudice, confuse the jury, and consume undue time. The court also expressed concern about the lack of prior punishment for these acts and the fact that the parties entered a settlement agreement and release potentially covering the conduct in question.

B. Disputed Facts About Alleged Abuse of Heidi in 1996 - 1999

Trial proceeded in accordance with the courts in limine ruling, and little more than general background evidence was introduced concerning Maxs treatment of Heidi before November 1996. However, the jury heard lengthy testimony from both sides about incidents occurring from November 1996 until the time of Heidis death.

The special administrator presented live testimony from Grabisch, from Heidis friends Heidi Zwakenberg and Karl Senf, and from eight caregivers who worked with Heidi during the relevant time frame. All testified to the effect that Max was a controlling husband who insisted on taking responsibility for Heidis care, shunning the efforts of trained caregivers and often causing Heidi physical distress or injury, as well as humiliation. Despite the pain he inflicted, Max often belittled Heidi when she expressed distress. These witnesses also described Heidis evident intimidation by her husband. Max yelled at her, often in German, and Heidi told one caregiver she was afraid of Max. When Max was present, Heidi acted quiet and withdrawn, and some believed Max was purposefully brainwashing Heidi. Max also isolated Heidi from her family and friends. He refused to let Senf visit, would not let Zwakenberg talk with Heidi alone, and accused Grabisch of stealing Heidis money and trying to kill her for her money. Some caregivers reported to authorities what they saw as Maxs abusive behavior, and several asked to be removed from their assignment because they felt Max was interfering with their ability to care for Heidi.

The caregivers described some particularly disturbing incidents. Multiple caregivers who worked in Heidis home during the period from November 1996 until her death described how Max would often force Heidi to sit on her commode for up to an hour. During this time, he would sit next to her and ask for expensive presents for himself and his family or make her repeat things he wanted her to do for him. Max sometimes forced Heidis head down between her knees while she sat on the commode, claiming hospital personnel had trained him to use this position. He would not allow her to be removed from the commode until she agreed with his position on an issue or consented to give him what he wanted. The caregivers also criticized Maxs feeding of Heidi. Max insisted the caregivers prepare meals that were inappropriate for the diabetic diet she needed to follow, and he spoon-fed her in a dangerous manner. He fed her too quickly and gave her large chunks of food that were too difficult to chew, then he laughed or got angry if she coughed or choked or spit out some of the food. Similarly, Max refused to follow accepted technique in transferring Heidi in and out of her wheelchair. His transfers were inordinately rough and caused Heidi obvious pain. According to several witnesses, Heidi appeared happier and more animated after Max was forced to move out in March 1998. At Heidis request, Grabisch and Senf returned to visiting her regularly, and she appeared happy to have them back in her life.

Clinical and forensic psychologist Abraham Nievod testified as an expert witness for the special administrator. In Nievods expert opinion, which was based on medical records, declarations and other documents but not an examination of Heidi herself, Maxs treatment of Heidi after the stroke caused her to be a victim of physical and emotional elder abuse. Specifically, Nievod explained how Max kept Heidi isolated and overly dependent. Maxs harsh treatment of her, and his accusations against Heidis friends, fostered a siege mentality that caused Heidi to feel afraid and powerless. In short, Max altered Heidis external environment and internal understanding of the world so that she became totally dependent upon him.

Max, at age 81, was called by the special administrator as an adverse witness and testified again in his own defense. He described a typical day with Heidi after her stroke and denied abusing her. Heidi often seemed tired and depressed, and Max attributed this problem to a medication she was receiving. He also said Heidi complained about Grabisch and the various legal proceedings he instigated. Max admitted he did not get along with many of Heidis caregivers. He thought some of them were lazy and others tried to exert too much control over the details of Heidis care. Max did most of Heidis transfers when he was present, and he said Heidi complained the caregivers were not strong enough and did not do the transfers correctly. Max explained that he stayed with Heidi while she was on the commode and talked with her in order to keep her alert so that she could have a bowel movement. When Heidi was constipated, Max would lean her body forward to help ease the process. He disputed the caregivers description of how he moved Heidi and said Heidis doctors told him to use this maneuver.

Bette Epstein, Heidis lawyer, also testified for the defense. Over the years, Heidi told Epstein she loved Max and did not believe he was mistreating her, though she recognized he could be stubborn. Heidi was aware of the disputes between Max and the various caregivers, and she just wanted everyone to get along. Eventually, given the tension in the household, Heidi agreed that Max should move out, but after he did she repeatedly told Epstein she wanted Max to return home and said she was very unhappy without him there. Heidi also told Epstein several times that she wished Grabisch would leave her alone and stop intruding in her marriage to Max.

The psychiatrist who treated Heidi for the last six years of her life, and saw her well over a hundred times during this period, also testified on behalf of Max. In a typical visit, Alfred Hauptman saw Heidi alone and then together with Max. Heidi told Dr. Hauptman that she loved Max and appreciated his care for her and expressed that she wanted to be with him. Heidi also behaved in a manner that was consistent with her declaration of love for Max. When they were alone in sessions, Dr. Hauptman repeatedly asked Heidi whether she was being mistreated in any way by her husband, and she consistently denied suffering any abuse. Heidi conceded that Max got angry sometimes, but she said it was never directed at her. At times, Heidi attributed unhappiness she felt to her attorney and her ex-husband, and in 1997 Dr. Hauptman wrote a letter to the court to express his concern that Heidis mental health was suffering as a result of the protracted legal proceedings Grabisch had initiated.

C. Outcome of Trial

After deliberating for just over one day, the jury returned a special verdict rejecting all of the special administrators claims except fraud. Specifically, the jury found that Max did not wrongfully appropriate Heidis property (fiduciary abuse), did not physically abuse her, did not exhibit extreme and outrageous conduct toward her (intentional infliction of emotional distress), and did not abuse his position of trust by acting fraudulently toward her (constructive fraud). The jury did find that Max made intentional misrepresentations causing Heidi to suffer damages of $50,000, but they concluded he did not act maliciously. The trial court entered judgment on the verdict, and this appeal from the special administrator followed.

DISCUSSION

The sole issue on appeal is whether the trial court erred in excluding evidence of alleged incidents of abuse Max committed upon Heidi before November 1996, i.e., before the statute of limitations on the claims against him commenced.[7] The special administrator argues this evidence was relevant to provide context for the abuse the jury heard about during the statutory period and should have been admitted for impeachment and, pursuant to sections 1101, subdivision (b) and 1109, subdivision (b), as substantive proof of Maxs abusive motive and intent. We do not reach arguments about admissibility of the past events as character evidence because we conclude the trial court did not abuse its discretion in excluding them under section 352. (See People v. Ewoldt (1994) 7 Cal.4th 380, 404 [evidence admissible under section 1101, subdivision (b) must nevertheless be excluded if it contravenes the policies expressed in section 352]; People v. Mincey (1992) 2 Cal.4th 408, 440.)[8]

Section 352 describes the familiar balance trial courts must undertake in weighing the probative value of evidence against the risk of unfair prejudice: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. It is the exclusive province of the trial court to evaluate whether the potential prejudicial effect of evidence outweighs its probative value. (Gouskos v. Aptos Village Garage, Inc. (2001) 94 Cal.App.4th 754, 762.) We will not overturn or disturb a trial courts exercise of its discretion under section 352 in the absence of manifest abuse, upon a finding that its decision was palpably arbitrary, capricious and patently absurd. [Citations.] (People v. Jennings (2000) 81 Cal.App.4th 1301, 1314; see also People v. Mincey, supra, 2 Cal.4th at p. 439 [The courts exercise of discretion will not be reversed on appeal absent a clear showing of abuse].)

The special administrator intended to offer a great deal of evidence pertaining to the early years of Max and Heidis relationship. This evidence was summarized in the special administrators offer of proof as follows: (1) letters and other documents indicating Heidi made large cash gifts to Max in 1992, shortly after her stroke; (2) testimony from three caregivers who worked in the home from 1992 through 1993 about incidents in which Max once slapped Heidi, frightened her by threatening to rip off an infected toenail, shoved oral stool softeners into her rectum, sprayed burning hot water on her genitals during showers, fondled her breasts during baths, fed her unthickened liquids against doctors orders, interfered with telephone calls from her friends, took away her rosary, made her give him a Nazi salute, and told her Grabisch was stealing her money and trying to kill her; (3) testimony from Zwakenberg about humiliating incidents (making [Heidi] go out without a bra, rubbing makeup off her face, forbidding her to have facials, not allowing her to speak, not allowing her friends to visit alone with her) and statements by Max vilifying Grabisch as someone who had cancelled Heidis health insurance and stolen from her and who was trying to kill her; (4) testimony from Heidis prior lawyer about Maxs overriding of Heidis wishes on a legal matter and about the lawyers decision to withdraw from representing her due to Maxs dominating influence; (5) testimony from a psychiatrist who examined Heidi in 1994 that she was too impaired to protect herself from abuse; and (6) expert testimony from this prior psychiatrist and Abraham Nievod based on early reports of abuse.

As should be evident from our summary of the trial testimony, much of this proferred evidence was cumulative of testimony given by Heidis caregivers and friends at trial. The jury heard several examples from caregivers of the gruff manner in which Max sometimes spoke to and around Heidi, and about his physically rough attempts to perform tasks related to her daily care, feeding and hygiene. The jury also heard about Maxs domineering behavior, such as isolating Heidi from her friends and ex-husband, exerting influence over her decisions and even the impressions of some witnesses that he was brainwashing her. The special administrator presented evidence of physical and emotional mistreatment repeatedly, through multiple witnesses and through an adverse examination of Max himself (in which he also introduced accusations of fondling and possible sexual abuse). Although evidence about the 1992 cash gifts was excluded, witnesses did testify about Maxs successful efforts to persuade Heidi into buying him presents, including expensive cars. In short, as the trial court had predicted, evidence the special administrator sought to present from before the statutory period was almost entirely cumulative of evidence the jury heard about Maxs treatment of Heidi. Cumulative evidence is subject to exclusion under section 352. (People v. Mincey, supra, 2 Cal.4th at p. 439.) Given that the special administrator reduced his estimate of the length of trial by nearly two weeks after the courts in limine ruling to exclude the early evidence, it is also clear this evidence would have necessitated at least some unwarranted consumption of time. ( 352.)

Moreover, the trial court did not abuse its considerable discretion in concluding that the admission of evidence about early incidents of abuse would risk confusing the jury and causing unfair prejudice. In light of the courts ruling on the applicable statute of limitationsnot challenged on appealthe special administrator could only recover for actionable conduct during the three years before Heidis death. Had the jury heard evidence from numerous witnesses about incidents during the early period of Maxs relationship with Heidi, it may have improperly found him liable based on this early conduct aloneespecially because there is no indication Max suffered any punishment for these alleged acts of prior abuse. While the early evidence itself was not particularly inflammatory compared with the evidence introduced at trial (with the notable exception of the Heil Hitler salute), the accumulation of it from multiple witnesses risked causing juror confusion not easily cured by a limiting instruction.

Finally, we do not agree with the special administrators claim that public policy requires courts to apply relaxed evidentiary standards in elder abuse cases. This argument was made and rejected in Akers v. Miller (1998) 68 Cal.App.4th 1143, 1147-1148.) Although the Legislature found and declared that few elder abuse cases are brought due to problems of proof (Welf. & Inst. Code,  15600, subd. (h)), it did not alter standard evidentiary rules in these cases. Indeed, as the Akers court observed, relaxed rules of evidence for elder abuse cases would be inconsistent with the Legislatures requirement of a high standard of fault (recklessness) and a heavy burden of proof (clear and convincing evidence) for recovery of enhanced damages. (Akers v. Miller, supra, 68 Cal.App.4th at p. 1148.)

DISPOSITION

The judgment is affirmed. The special administrator shall bear costs on appeal.

_________________________

McGuiness, P.J.

We concur:

_________________________

Pollak, J.

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Siggins, J.

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[1] In keeping with the style adopted by the parties, and to avoid confusion, we refer to Max and Heidi Schoenfeld by their first names.

[2] Max filed a separate appeal from the judgment but later abandoned it.

[3] We previously deferred all requests for judicial notice, and we now grant Maxs request with respect to our prior opinion. However, we deny his request for judicial notice of the lower courts statement of decision in Schoenfeld v. Zwakenberg, and we likewise deny the special administrators request for judicial notice of various exhibits and pages excerpted from the clerks and reporters transcripts in Schoenfeld v. Zwakenberg, and from a prior conservatorship proceeding, because there is no indication these materials were made available to the trial court.

[4] Unfortunately, this task is more difficult than it should be. Although the elder abuse trial stretched through three weeks, neither party bothered to provide us with a chronological statement of facts supported by citations to the trial record. (See Cal. Rules of Court, rule 8.204(1)(C), (2)(C) [appellants opening brief must provide a summary of significant facts limited to matters in the record and supported by citations to the record].) The special administrators summary of facts is based almost entirely on documents and testimony that were not admitted into evidence below, and Maxs brief does not even attempt to recount the relevant background facts.

[5] Grabisch, who was not named in any of Heidis wills, participated in the action as an assignee of two former beneficiaries.

[6] All statutory references are to the Evidence Code unless otherwise stated.

[7] Although the special administrator also argued below that the statute of limitations was tolled by a continuous course of abusive conduct, he has not repeated this argument on appeal, and we therefore consider it waived.

[8] Moreover, the admissibility of prior acts of domestic violence described in section 1109 is expressly limited to evidence offered in criminal actions. ( 1109, subd. (a).)