Murrell v. Mankowski

Filed 8/14/06 Murrell v. Mankowski 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

This is a dispute between two sisters over ownership and possession of a condominium (the property) once owned by their deceased parents, as well as the proceeds from the sale of their father's apartment building, and money in a trust fund.

Appellant, Joyce Ann Murrell (Murrell), sued her sister, Mary Lou Mankowski (Mankowski), to establish a constructive trust over these assets on a number of theories. Mankowski cross-complained to eject Murrell from the property and for damages. Mankowski's motions for summary judgment on the complaint and cross-complaint were granted, and judgments were entered thereon. Murrell appeals from these judgments. We affirm.

Facts and Procedural History

In 1961, their father, Harvey Shearing Murrell (Harvey), established both a revocable trust designating himself as trustee, and a pour-over will. In 1979, Harvey and his wife, Mary Lou Murrell (Mary), sold their single family home and purchased the property at issue, as joint tenants. On March 21, 1980, Harvey and Mary conveyed the property to Harvey's trust. The other assets in the trust consisted of an apartment building in Chicago and a large Swiss bank account that has been referred to as a "foundation." Mary gave Murrell access to the foundation's assets so she could start a business, and to get Murrell to stop asking her for money.

Under a 1984 amendment to Harvey's trust, its assets were to be distributed upon his death, with half going to Mary and half going to each of the sisters, equally. Harvey died on November 4, 1988.

At the end of 1998, Mary retained counsel in Illinois, James Sturino, and sold the Chicago apartment building through probate. Mankowski told Mary she did not want any of the proceeds from the sale of the apartment building. Mary told Sturino that none of her children wanted any of the proceeds from the sale of that building. To verify this, Sturino sent disclaimers to both of the sisters, which they executed. These disclaimers referred to both the sale proceeds and the 1984 amended trust.

On December 4, 1998, Mary, Murrell and Mankowski executed a grant deed which placed title to the property solely in Mary's name. That deed remained unrecorded because Murrell expressed concern about potential judgment liens she thought might arise out of litigation between herself and her prior boyfriend.

On April 7, 1999, Mary executed documents creating her own trust and will. Through these documents, Mary provided a life estate in the property to Murrell, but retained ownership for herself. Upon Mary's death, the property and the remainder interest in the balance of her estate were to be distributed to Mankowski.

Murrell faced a large judgment against her in another matter. To protect herself from creditors, Murrell signed a second disclaimer of her interest in the proceeds from the apartment building and in any part of her father's trust, which had included the property. (See Prob. Code, § 275 et seq.)

By April 2000, Mary had become upset with Murrell because she kept demanding more money, even though Murrell had been allowed to use a great deal of her parents' "foundation" money to take trips to Europe. Mary did not think Murrell deserved any more of her parents' assets. Because of a threat of physical harm to Mary by Murrell, Mary instructed her attorney to remove any provisions in her trust which would give anything to Murrell, either then or in the future. Because Murrell had already taken so much, Mary wanted to leave the rest of her estate, including her interest in the property, to Mankowski, who had previously received very little from her parents.

Mary's attorney prepared a restated declaration of trust to effectuate these goals, which Mary executed on April 13, 2000. The new trust named only Mary and Mankowski as trustees. The same day, Mary's attorney prepared new deeds to reflect these changes, which Mary and Mankowski immediately executed. The effect of these changes was to divide title to the property equally between Mary and Mankowski. Mary's attorney opined that Mary was lucid, alert and attentive, and had the capacity to execute all of these estate planning documents. Mary understood completely what she was doing. When Mary later moved to a board and care facility on August 3, 2000, its experienced professional operator, Marge Mason, declared that Mary still possessed the mental capacity and lucidity to conduct her own affairs.

Mary died in March 2003. At the time, Murrell was living rent-free in the property, as Mary had permitted her to do while she was alive. After Mary's death, Mankowski became the sole successor trustee of Mary's trust. In April 2003, pursuant to distribution provisions of Mary's trust, counsel prepared a deed conveying the property from Mankowski, as its successor trustee, to Mankowski as an individual. Mankowski executed the deed and became sole owner of the property.

Mankowski continued to permit Murrell to live in the property rent-free, but she asked Murrell to pay the homeowner's association fees, property taxes, insurance, water, and the cost of the gardener. Murrell refused to pay for these items and violated homeowners' association parking rules. On May 26, 2004, Mankowski demanded that Murrell quit the property.

The Complaint

Murrell's complaint against Mankowski seeks a declaration that Mary's trust and will are invalid, and requests that a constructive trust be imposed in Murrell's favor for possession and ownership of the property, for her alleged interest in the apartment building, and for the remaining money in the trust fund.

Murrell alleged that her father died testate in 1988, and that the probated will provided that the residue of his estate, including some real estate, was bequeathed to the trustees or successors of Harvey's 1961 trust. She alleges that the 1984 amended trust provided that any additions to his trust estate would be divided - half going to Mary and half to the sisters, in equal shares. As a result of the amended trust, she claims she acquired a one-quarter interest in the trust property upon her father's death. Murrell pled that she disclaimed her interest in the Illinois apartment building only because Mary promised that the funds she would have received from its sale would be held by Mary on Murrell's behalf until she died. Murrell alleged that her mother fraudulently made this oral promise, so that Murrell is either a constructive trustee or holds a creditor's claim to the property. Murrell states no facts to support these allegations.

Murrell alleged that around December 1988, Mary and Murrell orally agreed that if Murrell would care for Mary at the property, instead of placing her in a board and care home, Mary would ensure that Murrell would receive the property upon her death. Murrell alleged that in reliance on this oral promise, she "gave away most of her furniture and furnishings," moved into the property, and cared full time for Mary for 121 months, including 5 years of "24/7" care. Murrell pled that during the same time period, Mankowski controlled all aspects of Mary's life, including her estate planning and financial affairs, and "gained a grossly oppressive and unfair advantage" over Mary. Murrell alleged that Mary breached the oral contract to transfer the property with intent to defraud Murrell. Murrell pled that Mary and Mankowski knew or should have known she expected to be compensated for Mary's care. Murrell alleged that because of Mary's incapacity, Mankowski's undue influence, and "mistake[s]" in the grant deed, Murrell is entitled to a one-quarter beneficial interest of that which is in the name of Mankowski, including the property, in constructive trust.

Murrell alleged that their deceased father created a "foundation" from an alleged $600,000 settlement of a personal injury claim she had against the Santa Barbara School District 39 years before. District has declared it has no knowledge of any such claim or lawsuit. Murrell alleged that her parents refused to disclose the location of this trust fund, and that her father took money from this account illegally. She also alleged that Mary and/or Mankowski controlled the funds and that her parents "used the Settlement Funds for their own use and took losses on their mishandling of the funds." Furthermore, Murrell alleges the foundation trust fund managers took large sums of money from the foundation. Murrell alleges that these embezzled funds are held in constructive trust for her or that she has a creditor's claim for them. On April 3, 2003, Mankowski contacted Louis Oehri, a manager of the Swiss "foundation" Harvey had established years ago, to ascertain the truth about these accusations. Oehri responded that Murrell's claims were patently "ridiculous." According to Oehri, Murrell herself had taken about $590,000 from the account, which was "a huge part of the foundation's assets." Even though her complaint only sounds in equity for declaratory relief and a constructive trust, Murrell also listed damages of over $4.3 million.

The Cross-Complaint

Mankowski filed a cross-complaint against Murrell for ejectment from the property and for damages. Murrell unsuccessfully demurred to the cross-complaint, accusing Mankowski and her counsel "of fraudulent transfers of the title altercating [sic] will trust and contracts [sic]," and of "committing perjury and misusing the judicial system . . . introducing manufactured evidence to mislead . . . [and] wasting the time of the court . . . by . . . figments of their imaginations . . . ."

Mankowski moved for summary judgments on both Murrell's complaint and her own cross-complaint. She also sought to expunge the lis pendens that Murrell had filed against the property. The trial court granted both motions for summary judgment, and ordered the lis pendens dissolved. Judgments were entered on both the complaint and the cross-complaint, and a writ of possession was granted to Mankowski.

Murrell filed a petition with this court for a writ of supersedeas, seeking a stay from ejection, but not a stay of the judgment from the trial court. (Code Civ. Proc., § 917.4.) We summarily denied the petition.

After Murrell unsuccessfully sought to remove this case to federal district court, Mankowski evicted Murrell from the property and filed a motion to have Murrell declared a vexatious litigant. Notwithstanding Murrell's opposition to the vexatious litigant motion, which she captioned "Answer to False Charges of Being a Vexacious [sic] Litigant. This Motion Should be Titled, Nichols the Vexacious [sic] Perjurer and Liar!" the motion was granted. Murrell attempted to file further documents in federal court, including a new complaint, but that court dismissed the complaint, sua sponte.

This appeal is from the summary judgments entered in favor of Mankowski and against Murrell on the complaint and cross-complaint.[1] Since the appeal was filed, Murrell has filed several petitions for writs of mandate which reiterate the arguments made in her appellate briefs.[2]

Discussion

"The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) The trial court must grant summary judgment if the papers submitted show there is no triable issue of material fact. (Ibid.) Where uncontradicted facts are susceptible of only one reasonable interpretation, summary judgment is proper. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1112; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 316.)

A defendant meets the burden of showing that a cause of action has no merit if he or she shows that one or more elements of the cause of action cannot be established by plaintiff, or if there is a complete defense to the cause. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 849, 853, 855.) Defendant may establish this by showing that plaintiff failed to present triable, material evidence crucial to his or her case. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767.) When defendant meets this burden, the burden shifts to the plaintiff who must then set forth specific, admissible facts showing that a triable issue of fact exists. (Aguilar, supra, at pp. 849-851; Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) At that point, plaintiff may not rely only on allegations or denials in the pleadings. (Saelzler, supra, at p. 767.) A triable issue of material fact exists if, and only if, the evidence would permit a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion, under the applicable standards of proof. (Aguilar, supra, at p. 850.)

After the trial court grants summary judgment, we independently review the record below by reconsidering all properly pleaded evidence presented to the trial court, except that to which objections were made and sustained. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Jenkins v. County of Riverside (2006) 138 Cal.App.4th 593, 601-602.) We use the same process and standards as the trial court in reviewing summary judgments. (Jenkins, supra, at pp. 601-602; Gackstetter v. Frawley (2006) 135 Cal.App.4th 1257, 1270.) Matters of statutory and contract interpretation present questions of law for this court to decide. (Jenkins, supra, at p. 604; Stewart v. Preston Pipeline Inc. (2005) 134 Cal.App.4th 1565, 1571, 1585-1589; Kitty-Anne Music Co. v. Swan (2003) 112 Cal.App.4th 30, 37.)

Murrell's Complaint

The Property

Murrell alleged that in exchange for caring for her mother, her mother said she would receive the property upon her death. At best, Murrell has alleged an oral contract to make a will to devise real property in violation of the requirements of former Probate Code section 150, and the statute of frauds. (Civ. Code, § 1624.) Murrell also alleged that Mary lacked the capacity to execute a valid will or trust when those documents were executed, and that Mankowski took unfair advantage over Mary and unduly influenced her.

In the alternative, Murrell alleges she is entitled to payment for her services in caring for her mother for 121 months because decedent and Mankowski "knew, or should have known, that [Murrell] reasonably expected to be compensated for her services." There are no facts pleaded, nor other sufficient evidence, to support Murrell's contentions that the trial court, in equity or otherwise, should have enforced the purported oral contract with her mother to make a will bequeathing the real property to Murrell in exchange for care, that Mary lacked testamentary capacity, or that Mankowski unduly influenced Mary. (See and cf. Estate of Brenzikofer (1996) 49 Cal.App.4th 1461, 1467-1468.)

Instead, Murrell alleged conclusional statements which constitute speculation, imagination, guesswork, and surmise. Such statements are not evidence and cannot raise a genuine issue of material fact that is required to oppose a motion for summary judgment. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 864-865; Saelzler v. Advanced Group 400, supra, 25 Cal.4th at p. 775; Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299.) As we have said before, "'[T]he opposition to summary judgment will be deemed insufficient when it is essentially conclusionary, argumentative or based on conjecture and speculation. . . .'" (Visueta v. General Motors Corp. (1991) 234 Cal.App.3d 1609, 1615; see also Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 1409, 1415.)

Mankowski presented admissible evidence from several sources that Mary was competent at all relevant times, and had good reasons for the distribution she devised. Mankowski presented executed deeds signed by Murrell herself, as well as Murrell's own oral and written declinations of interest in the trust property, of which the property was a part, to amply support Mankowski's position. These documents speak for themselves. (Evid. Code, §§ 622, 623 [on estoppel and veracity of written instruments between parties to be charged].) Alleged precatory, oral recitations of testamentary intent regarding the transfer of real property do not contravene written instruments to the contrary. (See former Prob. Code, § 150; Civ. Code, § 1624; Evid. Code, §§ 622, 623.) Moreover, when services like those described by Murrell are provided by relatives, they are presumed to be gratuitous, prompted by motives of kindness, love, and friendship. They are not deemed to be the basis for transferring ownership in real property. (See Ruble v. Richardson (1922) 188 Cal. 150, 157; Schaad v. Hazelton (1946) 72 Cal.App.2d 860, 865; Fuller v. Everett (1929) 100 Cal.App. 593, 596.)

The evidence shows that Mary executed a written declaration of trust and will in 1999 which granted Murrell only a life estate in the property, and that this declaration was superseded by Mary's written, restated declaration of trust that disinherited Murrell entirely. Furthermore, there is evidence that Murrell resided elsewhere during the time period she alleged she was Mary's caretaker, and was, herself, bedridden.

Murrell submitted no statement of contested issues of material facts from which it could be found that she had no knowledge or understanding of repeatedly relinquishing any interest she had in her father's trust, including any interest in the property. She provided no points and authorities to establish any basis upon which one could ignore Probate Code section 150 or the statute of frauds, in equity or otherwise. The only reasonable inference from the undisputed facts is that Murrell knowingly disclaimed her interest in any of Mary's property other than the right to reside in the property while her mother was still alive.

The Apartment Building

Murrell alleges that by virtue of the July 10, 1984, amendment to her father's trust, she acquired a one-quarter beneficial interest in the apartment building her father had owned, and the interest is held in constructive trust for Murrell. The evidence establishes she twice knowingly disclaimed her interest in this trust in writing.

Murrell attempts to explain away these repeated written disclaimers as meaningless because she thought others might be able to attach this property by executing on judgments against her. Such conjecture is insufficient in the face of two written disclaimers of her interest in the apartment building, executed at different times.

Murrell also alleges she agreed to disclaim her interest in the apartment building because her mother had fraudulently promised that she would give Murrell 25 percent of the proceeds from that sale through Mary's estate plan and that Murrell would receive the funds upon Mary's death by devise. Murrell presents no facts to support this allegation, much less written documentation that comports with former Probate Code section 150 and the statute of frauds. Nor does she offer any evidence to support equitable estoppel against Mankowski, who properly asserts former Probate Code section 150 as a defense.

The "Foundation" Funds

Murrell alleges that her father created a $600,000 Swiss fund (i.e., the "foundation") from the proceeds of a settlement with the Santa Barbara School District which Murrell claims arose out of a vehicular accident she suffered as a child. She alleges that her father refused to disclose the location of these funds or to allow access to them while he was alive. She contends that Mary and Mankowski refused to release such funds for neurosurgery she claims she needed. Indeed, she alleges her father and financial managers embezzled some of the funds, and that Mary and/or Mankowski wrongly used the funds for themselves.

Murrell has not presented any competent evidence or points and authorities to support any of these allegations. (See Cal. Rules of Court, rules 313, 342(e)(1).) Mankowski, on the other hand, has presented a sworn declaration from the district that no record of any such claim, suit, or settlement exists. Furthermore, Mankowski provided a declaration from Oehri, the fund manager, stating that Murrell's contention that her father or others embezzled, misused or mishandled the funds from the "foundation," is simply "ridiculous." Indeed, Oehri declared, Murrell herself had taken the equivalent of $590,000 of the roughly $600,000 of the foundation's assets.

Cross-Complaint for Ejectment

Mankowski's cross-complaint for ejectment and damages alleges she is the sole owner of the property and is entitled to exclusive possession of it. Mankowski alleges that Murrell had been in possession of the property as a tenant in sufferance, but that she became a trespasser. Mankowski states that she demanded that Murrell pay the expenses Mankowski incurred in owning the property, and that Murrell abide by the terms of the rules and regulations of the homeowners' association, but that Murrell failed or refused to do so. Mankowski alleges Murrell violated the regulations by improperly parking her vehicle, resulting in a lawsuit and damages of more than $2,000 that Mankowski incurred. Mankowski demanded that Murrell vacate the premises, but she refused to do so. Mankowski seeks damages for the reasonable rental value of the property of $2,500 per month since January 2002, and to recoup her losses stemming from the parking incident.

Mankowski submitted undisputed evidence establishing her cause of action for ejectment. She showed by grant deed that she is the sole owner of the property, that Murrell was wrongfully in possession of the property and refused to relinquish possession, and that Mankowski has suffered the damages she alleged.

No disputed issues of material fact exist regarding Mary's capacity to execute the instruments by which Mankowski acquired sole ownership of the property, or as to the validity of the disclaimers Murrell executed. Accordingly, Mankowski is entitled to judgment on her cross-complaint as a matter of law, and she should recover possession of the property from Murrell forthwith, together with the damages she set forth.

The summary judgments are affirmed. Costs are awarded to respondent.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Joyce Ann Murrell, in pro. per., for Appellant.

James R. Nichols, Jr., for Respondent.

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[1] Although Murrell has been declared a vexatious litigant by the trial court, the designation is prospective only. Accordingly, we consider this appeal and related writs on the merits without requiring permission to file them.

[2] We have denied these writs separately.