Estate of Quero

Filed 4/25/07 Estate of Quero C2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

The death of Angel Quero spawned a will contest and a civil complaint for damages for elder abuse by Angel's son Michael against Angel's wife Rosalinda, her brother Edgar, and Dennis Shea, the attorney who drafted Angel's will. Michael obtained a jury verdict of $805,000 in damages against the three defendants. The trial court granted defendants' motions for a new trial on the grounds of error in jury instructions and a confusing and misleading special verdict form.

Michael filed an appeal of the orders granting a new trial. Shea filed a separate appeal asserting the court erred in granting his new trial motion when he was entitled to judgment notwithstanding the verdict. Michael's attorney filed a separate appeal from an order granting attorney fees for legal work relating to the administration of the estate. We affirm the orders of the trial court in all particulars except with respect to appellant Dennis Shea. As we shall explain, we reverse the order granting the motion for new trial entered against him and direct the trial court to enter judgment notwithstanding the verdict in his favor.

FACTS AND PROCEDURAL HISTORY

Michael is the adult son of decedent. Rosalinda Lopez Quero (Rosalinda) is decedent's 37-year-old widow. Edgar Lopez (Edgar) is Rosalinda's brother. Dennis Shea (Shea) was an attorney for decedent.

At the age of 87, decedent's health began to decline. In May 2002, he hired Rosalinda to be his caretaker. In August 2002, decedent executed a power of attorney for property management giving Rosalinda the authority to manage his properties, including collecting rents from two rental properties he owned in Carpenteria. Decedent also executed a document authorizing Rosalinda to act as his agent for medical care. In January 2003, decedent gave similar powers to Edgar.

In September through November 2002, decedent was hospitalized on three occasions for several serious ailments. Decedent was transferred to Buena Vista Care Center, where Edgar was the business manager. Decedent remained a patient there until January 20, 2003. During this time, Rosalinda took decedent to his medical appointments and handled his financial affairs, including the collecting of rents.

On January 23, 2003, Rosalinda accompanied him to the office of attorney Tomas Castelo to update his estate plan and obtain a restraining order against Michael. During that visit, Castelo discussed with decedent bequeathing his entire estate to his children and entering into an employment contract with Rosalinda. Castelo gave the will and contract he had prepared to decedent. They were to be signed at their next meeting on February 13, 2003.

At the February 13 meeting, decedent gave Castelo a handwritten will, purportedly drafted by Rosalinda or Edgar. He said he wanted to sign it instead of the documents Castelo prepared. The handwritten will bequeathed the rental property at 4634 Ninth Street, Carpenteria, to Michael and Michael's sister, Ninfa Cervantes Quero. A rental property at 4640 Ninth Street, Carpenteria, was to be sold and the proceeds used for decedent's personal and medical expenses. Decedent was to live in his residence at 101 Juana Maria Avenue, Santa Barbara, during his lifetime. Upon his death, the property would go to Rosalinda.

On March 25, 2003, Castelo transferred his records and files regarding decedent, including the handwritten will, to Dennis Shea, who became decedent's attorney for all purposes. Shea prepared a new will which decedent signed on April 9, 2003. In that will, decedent devised all his personal property, the residence at 101 Juana Maria, and the residue of his estate to Rosalinda. The will also stated that decedent intended to sell the property at 4640 Ninth Street, but if it was not sold at the time of his death, the property would go to Rosalinda. The will bequeathed the rental property at 4634 Ninth Street to Michael and Michael's sister in equal shares.

On June 10, 2003, Rosalinda and decedent married. Six days later, Shea prepared yet another will reflecting the change in marital status. The bequests in the will were identical to those in the April 9 will. The will signing was videotaped.

In August 2003, Rosalinda and decedent drove to Mexico. Shortly after arriving in Mexico, decedent became ill, had gall bladder surgery in Guanajuato, and remained in the hospital for a month. Rosalinda and decedent remained in Mexico until decedent's death on April 15, 2004.

On January 26, 2004, decedent executed purchase agreements to sell the Carpenteria properties to Edgar and Monica Lopez for $315,000 each.[1] In February 2004, Shea traveled to Mexico at decedent's request to obtain a power of attorney authorizing him to handle the sale of the Carpenteria properties. The signing of the deeds was videotaped. On February 17, 2004, the property at 4640 Ninth Street was appraised at $535,000, and the property at 4634 Ninth Street was appraised at $545,000.

After decedent's death, Rosalinda filed a petition for probate and for appointment as executor of the will and for authority to administer the estate. Shea was named alternative executor.

Michael filed an amended will contest and opposition to probate of the will. He alleged decedent lacked testamentary capacity at the time he executed the will and that the will was the product of undue influence, breach of fiduciary duty, fraud and misrepresentation on the part of the three defendants.

Michael also filed a civil action against Rosalinda, Edgar and Shea. The 67-page complaint alleged 16 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. Countrywide Bank, Mortgage Electronic Registration Systems, Inc., and First Federal Bank of California, holders of the mortgages on the Carpenteria properties, filed a complaint in intervention opposing the quiet title action.[2]

The lawsuits were consolidated for trial. The trial court submitted the equitable issues of the will contest and quiet title to the jury for an advisory verdict. On December 6, 2005, a judgment on jury verdict was entered, finding for Michael on all counts and awarding him $555,000 in economic damages and $250,000 in noneconomic damages against all defendants, and one dollar in punitive damages against Rosalinda and Edgar.

Rosalinda filed a motion for judgment notwithstanding the verdict or in the alternative a motion for new trial alleging that the trial court failed to instruct the jury on the burden of proof applicable to each cause of action, the special verdict form was confusing and misleading, and the jury was not properly instructed on the law of undue influence. She also challenged the trial court's refusal to give several requested special instructions.

Edgar filed a motion for judgment notwithstanding the verdict or in the alternative a motion for new trial asserting the jury was not given instructions as to the burden of proof applicable to the various theories of recovery, the verdict form contained a theory of recovery against defendants for which no jury instructions were given, Michael lacked standing to pursue a claim for survival damages on behalf of the estate, the damages were excessive, the noneconomic damages award was not supported by the evidence, and Michael received a double recovery.

Shea filed a motion to set aside the verdict. Subsequently, he requested that his motion be considered as a motion for judgment notwithstanding the verdict or a motion that the judgment be set aside and a new and different judgment entered. He asserted he was entitled to judgment because the trial court gave no instruction as to breach of fiduciary duty and found that there was no evidence to support the breach of fiduciary duty claim, the only count on which the jury found him liable.

Michael filed lengthy opposition to each of the motions. On January 11, 2006, the trial court granted the motions for new trial as to all defendants and denied their alternative motions. The trial court's order gave detailed reasons for its decision.

As to Rosalinda, the order states in part: "Rosalinda Quero was prevented from having a fair trial due to irregularity in the proceedings of the court (CCP  657(1)) and error in law occurring at the trial and excepted to by Rosalinda (CCP  657(7)) based upon erroneous and prejudicial jury instructions and a misleading verdict form. [] . . . [] The court failed to instruct the jury that the causes of action for Intentional Misrepresentation . . . [and] Concealment . . . were to be proved by a preponderance whereas the causes of action for Elder Financial Abuse . . . , Elder Physical Abuse . . . , Recklessness . . . , Malice, Oppression and Fraud . . . and Conspiracy . . . were to be proved by clear and convincing evidence. [] . . . [] There was a failure to instruct on the apportionment of non-economic damages. . . . [] There was evidence of a fiduciary duty to support giving [an instruction on] . . . Conspiracy to commit breach of fiduciary duty. . . . The jury was never instructed on the legal requirements of a claim for breach of fiduciary duty. [] . . . [] The Verdict Form was confusing and misleading."

As to Edgar, the order states in part: "Edgar Lopez was prevented from having a fair trial due to irregularity in the proceedings of the court, due to erroneous jury instructions and verdict form. . . . [] Edgar joins in the motions of his codefendants concerning instructions. He emphasizes the fail[ure] to specify which facts must be found by clear and convincing evidence, the including of breach of fiduciary duty in the verdict form without instruction on the elements, and questions from juror[s] indicating confusion. [] . . . [] Damages [were] not properly reached or apportioned due to instructional error."

As to Shea, the order states in part:

"New trial should be granted insofar as after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. CCP 657.

"The only theory under which Dennis Shea was found to have engaged in conduct that was a substantial factor in injury or damages to the plaintiff was breach of fiduciary duty. [] . . .

"The jury was not instructed on breach of fiduciary duty as to Dennis Shea, but nonetheless found him liable for breach of fiduciary duty on the special verdict matrix.

"At trial, the Court refused the instruction CACI 605, Breach of Fiduciary Duty by attorney, based on lack of evidence upon which the jury could find Dennis Shea liable for breach of fiduciary duty. [Citation.] However, the Verdict Form matrix mistakenly included a box for breach of fiduciary duty as to Shea, and the jury checked the box, making a finding contrary to instructions.

"The error resulted from combined formatting efforts of the court and counsel and did not constitute a waiver by Dennis Shea or invited error. [] . . .

"The verdict should be set aside as to damages against Dennis Shea, because non-economic damages were not recoverable against him on the survival action, and economic damages should have been apportioned.

"The only theory under which Dennis Shea was found to have engaged in conduct that was a substantial factor in injury or damages to the plaintiff was breach of fiduciary duty. [] . . .

"On 12/9/05, after the Opposition was filed, Dennis Shea filed a request to have this motion considered alternatively as a Motion for Judgment Notwithstanding the Verdict, Motion for New Trial, and/or Motion to Set Aside Judgment and Enter New and Different Judgment. [] . . .

"The Alternative Motion for New Trial is GRANTED as to all claims against Dennis Shea."

On appeal, Michael asserts the court abused its discretion in granting a new trial as to all defendants because: (1) the "new trial order does not criticize [the will and deeds] and no inextricable link exists with the issues in the complaint," (2) the "special verdict compensated for the trial court's failure to instruct [on] the standard of proof on particular counts," (3) the "absence of instruction on breach of fiduciary duty [was not prejudicial] where no reasonable jury would have concluded differently," and (4) granting a new trial on apportionment as to all defendants was error because only Shea made such request. (Initial capitalization omitted.)

In a separate appeal, Michael's attorney, George Glasco, contends the trial court abused its discretion in awarding him $500 for administration of the estate, rather than the requested amount of $12,850.

Shea filed a response to Michael's appeal of the new trial motions and filed a separate appeal asserting the trial court erred in not granting his motion for judgment notwithstanding the verdict.

DISCUSSION

1. Michael's Appeal of the Orders Granting a New Trial to Rosalinda and Edgar

A. Standard of Review

The standard of review of an order granting a new trial motion is both well established and highly deferential. On review, all presumptions are in favor of the order granting a new trial. The appellate court will reverse only if a manifest and unmistakable abuse of discretion is shown. (Weathers v. Kaiser Foundation Hospitals (1971) 5 Cal.3d 98, 109.)

"'[T]he presumption of correctness normally accorded on appeal to the jury's verdict is replaced by a presumption in favor of the [new trial] order.' [Citation.] [] The reason for this deference 'is that the trial court, in ruling on [a new trial] motion, sits ... as an independent trier of fact.' [Citation.] Therefore, the trial court's factual determinations, reflected in its decision to grant the new trial, are entitled to the same deference that an appellate court would ordinarily accord a jury's factual determinations. [] . . . The only relevant limitation on this discretion is that the trial court must state its reasons for granting the new trial, and there must be substantial evidence in the record to support those reasons." (Lane v. Hughes Aircraft Co. (2000) 22 Cal.4th 405, 412.)

An order granting a new trial "will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. This is particularly true when the discretion is exercised in favor of awarding a new trial, for this action does not finally dispose of the matter. So long as a reasonable or even fairly debatable justification under the law is shown for the order granting the new trial, the order will not be set aside." (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.)

B. The Court Did Not Abuse Its Discretion in Granting a

New Trial to Rosalinda and Edgar on All Issues

Michael asserts the trial court erred in granting a new trial on all issues because the order granting the new trial "does not criticize [the will and deeds] and no inextricable link exists with the issues in the complaint."

"An appellate court may reverse a judgment in part and order a retrial of a single issue if it is distinct and severable from the remaining issues. But where a limited retrial might be prejudicial to either party, failure to grant a new trial on all related issues is an abuse of discretion." (Curties v. Hill Top Developers, Inc. (1993) 14 Cal.App.4th 1651, 1656-1657.)

Michael cites Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 457, for the proposition that: "There is no reason to subject the parties and the courts to the expense and delay of retrial of those issues on which the jury and trial court agreed and which are supported by the evidence. Where, as here, the trial court has reviewed the jury's special verdicts and has properly concluded that the jury's apportionment of damages is erroneous but that the damage award is incorrect only to the extent that it reflects an improper apportionment of liability, the trial court should have limited its new trial order to that issue. Accordingly, the new trial order is modified to limit the new trial to the issue of apportionment of liability."

Here, unlike Schelbauer, the trial court's reasons for granting a new trial went far beyond error in apportionment of damages. The issue of decedent's competency to sign the will and deeds to the Carpinteria property affected the claims against all the parties for breach of fiduciary duty, fraud, conversion, and financial elder abuse. Where, as here, the issues in a trial are inextricably intertwined, the court properly exercises its discretion in granting a new trial on all issues. (See Liepert v. Honold (1952)39 Cal.2d 462, 466-467 [request for a limited new trial should be considered "with the utmost caution" and "any doubts should be resolved in favor of granting a complete new trial"].)

C. The Court Did Not Abuse Its Discretion in Granting a New Trial to

Rosalinda and Edgar Because No Instructions Were Given to the

Jury on the Standard of Proof Applicable to the Various Claims

And the Special Verdict Form Was Erroneous and Confusing

Michael argues that Rosalinda and Edgar were not prejudiced by the court's failure to instruct the jury on the standard of proof applicable to the various claims because jury instructions were given as to the preponderance of the evidence and clear and convincing evidence standards of proof. He also argues the special verdict form gave the jury accurate and adequate information on which to decide the issues without such instructions. We disagree.

The special verdict form only mentioned a standard of proof with regard to two findings: (1) whether clear and convincing evidence established that the will was the product of undue influence, and (2) whether clear and convincing evidence established that any of the defendants acted with malice, oppression or fraud in the conduct for which they were found liable. The special verdict form did not indicate the standard of proof applicable to financial elder abuse, physical elder abuse, isolation or abduction abuse, conspiracy or breach of fiduciary duty. The failure to give instructions as to the proper burden of proof for issues relating to elder abuse could have confused the jury and led to an improper verdict because there is a two-tiered level of proof in such cases. Findings of neglect and related conduct are to be found by a preponderance of the evidence. Findings of recklessness, oppression, fraud or malice are subject to a clear and convincing evidence standard. (Norman v. Life Care Centers of America, Inc. (2003) 107 Cal.App.4th 1233, 1240, fn. 8.)

In addition, breach of fiduciary duty is contained in the special verdict matrix and the jury found Rosalinda and Edgar breached that duty even though the trial court gave no instruction on this claim. Far from providing accurate and adequate information to the jury as Michael asserts, the special verdict was confusing and misleading.

D. The Trial Court Did Not Abuse Its Discretion in Granting a New Trial

to Edgar and Rosalinda on the Issue of Apportionment of Damages

Michael argues it was error to grant Rosalinda and Edgar a new trial on the issue of apportionment because only Shea included the issue in his motion and apportionment does not apply to intentional tortfeasors. The case Michael cites to support the latter contention is inapposite. In Thomas v. Duggins Construction Co., Inc. (2006) 139 Cal.App.4th 1105, 1112, the court held that apportionment does not apply as between intentional and nonintentional tortfeasors. Michal has not cited, and we have not found, any case holding that apportionment does not apply as between intentional tortfeasors.

Michael's assertion that Edgar failed to raise the issue of apportionment is mistaken. Edgar's motion contained this assertion of error. Rosalinda's failure to raise the issue in her motion is not fatal. Apportionment of damages as to Edgar will necessarily involve apportionment of damages to Rosalinda. Moreover, a reviewing court may affirm an order granting a new trial on any ground stated in a new trial motion. (Jordy v. County of Humboldt (1992) 11 Cal.App.4th 735, 741; Hand Electronics, Inc. v. Snowline Joint Unified School Dist. (1994) 21 Cal.App.4th 862, 868.) Therefore, Edgar's motion raising the issue of apportionment was sufficient to grant a new trial on the issue to Rosalinda.

2. Shea's Motion for Judgment Notwithstanding the Verdict Should Have Been Granted

Shea separately appeals from the trial court's denial of his motion for judgment notwithstanding the verdict. Shea argues he is entitled to judgment notwithstanding the verdict because the trial court found there was insufficient evidence to support the only count on which the jury found Shea liable and ordering a new trial was inconsistent with that finding. We agree.

A plaintiff is not entitled to a jury trial on equitable issues. A jury may be used for advisory verdicts as to questions of fact, but it is the duty of the trial court to make its own independent findings and to adopt or reject the findings of the jury as it deems proper. (A-C Co. v. Security Pacific Nat. Bank (1985) 173 Cal.App.3d 462, 474.)

An action for breach of fiduciary duty is equitable even where the only remedy sought may be damages. (Interactive Multimedia Artists, Inc. v. Superior Court (1998) 62 Cal.App.4th 1546, 1555; Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863-865; C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 11.)

It is apparent from the trial court's order that the court exercised its duty to make independent findings and rejected the advisory verdict of the jury as to the equitable claim against Shea for breach of fiduciary duty. As noted above, the order states:

"[A]fter weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. [Citation.]

"The only theory under which Dennis Shea was found to have engaged in conduct that was a substantial factor in injury or damages to the plaintiff was breach of fiduciary duty. [] . . .

"The jury was not instructed on breach of fiduciary duty as to Dennis Shea, but nonetheless found him liable for breach of fiduciary duty on the special verdict matrix.

"At trial, the Court refused the instruction CACI 605, Breach of Fiduciary Duty by attorney, based on lack of evidence upon which the jury could find Dennis Shea liable for breach of fiduciary duty. [Citation.] However, the Verdict Form matrix mistakenly included a box for breach of fiduciary duty as to Shea, and the jury checked the box, making a finding contrary to instructions."

The order then grants a new trial to Shea, a disposition contrary to the findings stated earlier in the order that there was insufficient evidence that Shea breached a fiduciary duty. The proper disposition was to grant Shea's motion for judgment notwithstanding the verdict. (See Campbell v. Cal-Gard Sur. Services, Inc. (1998) 62 Cal.App.4th 563, 570 [motion for judgment notwithstanding the verdict properly granted if it appears from the evidence viewed in the light most favorable to the party obtaining the verdict that there is no substantial evidence supporting the verdict].)

"It is a well-established principle of appellate review that '[a] judgment or order of the lower court is presumed correct. [Citation.] However, even taking into account the deference afforded trial courts' determinations, a judgment or verdict which is inherently and logically inconsistent cannot be upheld. [Citation.] . . . '[T]he inconsistent verdict rule is based upon the fundamental proposition that a factfinder may not make inconsistent determinations of fact based on the same evidence.' A defective or inconsistent verdict is therefore subject to reversal on appeal . . . ." (Gebert v. Yank (1985) 172 Cal.App.3d 544, 550.)

We will remand the matter to the trial court to issue a corrected order granting Shea's motion for judgment notwithstanding the verdict.

3. The Trial Court Did Not Abuse Its Discretion in Limiting

Glasco's Attorney Fees to $500

Michael's attorney, George Glasco, separately appeals the trial court's attorney fee award of $500 for work done in obtaining a settlement on behalf of the estate with one of the defendants in the elder abuse complaint.

The court appointed Michael as administrator of the estate with will annexed. Letters of administration were issued. Under the Probate Code, an attorney for the personal representative may be paid for extraordinary services under a contingency fee agreement if the trial court approves the agreement after a noticed hearing. (Prob. Code,  10811, subd. (c).)

"'[The statute authorizing allowances of extraordinary fees] leaves the matter within the sound discretion of the trial court, and does not make it mandatory upon the court to grant extra allowance of fees on account of [extraordinary] services. In making such allowance or disallowing a claim therefor, the trial court necessarily takes into consideration the value of the estate, the work performed by the attorney in the routine administration thereof, and the amount to which the attorney would legally be entitled, calculated according to the provisions of the Probate Code, and if the sum allowed by law appears to be a reasonable compensation, even though the attorney may have performed some extraordinary services, it is within the sound discretion of the trial court to disallow claims for extra compensation . . . .'" (Estate of Hilton (1996) 44 Cal.App.4th 890, 918-919, italics omitted.)

The trial court found, based on undisputed evidence, that most of the fees claimed by Glasco were incurred before the contingency fee contract was approved and properly awarded only those fees the evidence showed were incurred after the court approved the contract. (See Cal. Rules of Court, rule 7.703(d)(3) ["In the absence of an emergency or other unusual circumstances, the personal representative must obtain the court's approval of the contingency fee agreement before services are performed under it"]; and see, e.g., Estate of Stevenson (2006) 141 Cal.App.4th 1074, 1083 ["[Probate Code] section 10811(c) permits an attorney to perform extraordinary services on a contingency fee basis provided the fee agreement is first approved by the court"]; see also Reither v. Murdock (1901) 135 Cal. 197, 201 ["The probate court has only a limited jurisdiction, and its proceedings therein are regulated and governed entirely by statute. It can only settle the accounts of administrators or guardians in the manner prescribed by the code"].)

By statute, Glasco was entitled only to those fees incurred after approval of the contract. The trial court complied with the law by limiting the award of fees to those incurred after the agreement was approved by the court.

4. Edgar's Request that Sanctions Be Imposed for a Frivolous Appeal Is Defective

In his respondent's brief, Edgar requests that sanctions be imposed for a frivolous appeal. The request is not well taken. A request for sanctions must comply with California Rules of Court, rule 8.276(e). (Bono v. Clark (2002) 103 Cal.App.4th 1409, 1434.) Simply requesting sanctions in a respondent's brief does not comply with the court rule.[3]

Disposition

The orders of the trial court granting a new trial to Rosalinda and Edgar and awarding attorney fees to Glasco are affirmed. The order granting a new trial to Shea is reversed and remanded for entry of a new order granting Shea's motion for judgment notwithstanding the verdict. The request for sanctions is denied. Each party shall bear his or her own costs on appeal.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

James W. Brown, Judge

Superior Court County of Santa Barbara

______________________________

Law Offices of A. George Glasco, P.C., A. George Glasco, Elisabeth G. Sundgren; Law Offices of Robert E. Racine, Robert Racine for Contestant, Plaintiff and Appellant Michael A. Quero.

Dennis J. Shea, in pro. per., for Defendant, Respondent and Appellant Dennis J. Shea.

Monty H. Amyx for Petitioner and Respondent Rosalinda Lopez Quero.

Snyder Law, Barry Clifford Snyder for Defendant and Respondent Edgar Lopez.

Publication Courtesy of California attorney directory.

Analysis and review provided by Oceanside Property line attorney.

[1]Monica Lopez was Edgar's wife and was named as a party in the complaint but was dismissed after trial.

[2]These entities are not parties to this appeal.

[3]California Rules of Court, rule 8.276(e)(2) states: "A party's motion [for sanctions] . . . must include a declaration supporting the amount of any monetary sanction sought and must be served and filed before any order dismissing the appeal but no later than 10 days after the appellant's reply brief is due."