Estate of Cueny

Filed 4/30/07 Estate of Cueny CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Georgia Fuller appeals from a judgment entered after the court determined in a nonjury trial that she was liable for taking assets in bad faith from the Estate of Frances F. Cueny (Cueny Estate). She contends that the ruling was not supported by substantial evidence. We will affirm the judgment.

I. FACTS AND PROCEDURAL HISTORY
Frances Cueny died in November 2000, leaving a will that devised her estate to respondent Robert Schafer (Schafer) and nominated Susan Fuller (Susan) as executor.^[1]Susans daughter, appellant Georgia Fuller (Georgia), was an account executive for the brokerage firm of Gruntal & Co. LLC (Gruntal). After Susan was appointed executor in January 2001, she transferred over $650,000 of Cuenys assets to a Gruntal account.

Susan failed to comply with certain court orders as executor. In May 2002, the court accepted her resignation and appointed the San Francisco Public Administrator as successor estate representative.

In October 2002, the court issued an order requiring all Cueny Estate assets to be turned over to the estate administrator. The order named Susan and Georgia explicitly and stated the following as to Georgia: In particular, Georgia Fuller, the account executive for the brokerage account at Gruntal and Co., L.L.C., Account No. 72Z-877945, is to give an accounting of all assets currently held with the brokerage firm and to send all assets, both cash and securities, to the Public Administrator. Georgia was served with this order.

In March 2003, believing that Susan and Georgia had not complied with the October 2002 order, Schafer filed a petition to require transfer of property to the estate. By this petition, Schafer sought an order under Probate Code section 850 requiring Susan and Georgia to return estate assets they had wrongfully taken and refused to return.

Susan and Georgia filed a counter-petition, seeking to revoke the will that had been admitted to probate, asserting they were entitled to Cueny Estate funds under a purported codicil to the will, and claiming that Cueny had planned to give Georgia furniture valued at $40,000. The trial court denied their counter-petition. On appeal, we affirmed the courts ruling on the grounds that the request to revoke the will was untimely and substantial evidence supported the conclusion that the purported codicil did not reflect a gift of stock certificates. (Estate of Frances Cueny, A104880.)

In January 2004, after Susan had also died, Schafer filed an account for the period that Susan had been the estate executor. Schaffer asserted that Susan had wrongfully taken over $384,000 of Cueny Estate assets and transferred another $40,000 directly to Georgia. Georgia contested Schafers account and was ordered to file her own account.

Schafer filed an amended petition to require Georgia to return assets to the Cueny Estate. Georgia did not respond to Schafers requests for admissions, and after she failed to oppose motions to compel her responses, the court ordered that the matters involved in the requests for admission be deemed admitted. (See Code Civ. Proc.,  2033.290, subd. (e).) The deemed admissions evinced Georgias receipt of $10,000 and $40,000 of Cueny Estate funds without benefit to the estate: (1) a $10,000 check Susan had written to Georgia from Susans personal Bank of America account number 0332-22073, into which Susan had transferred $50,000 from the estates Bank of America account number 0332-24855 (check 97); and (2) a $40,000 check from the estates Gruntal account (check 126), which Georgia deposited into her own Bank of the West account. The court approved Schafers accounting.

In response to an in-court examination pursuant to Probate Code section 8870 on November 19, 2004, Georgia confirmed that, consistent with her deemed admissions, she had received payments of $10,000 (February 2001) and $40,000 (May or June 2001) from Cueny Estate funds. In addition, Georgia admitted that in June 2001 Susan had transferred $75,000 of Cueny Estate assets from a Wells Fargo Bank account into Susans own Bank of the West account (100039296), from that account Susan transferred $50,000 in July 2001 into a Gruntal account jointly held by Susan and Georgia (878117), from that joint account Susan transferred $50,000 into a Gruntal account held solely by Georgia, and then Georgia spent the $50,000. Based on the February 2001 transfer of $10,000, the May 2001 transfer of $40,000, and the $50,000 transfer in July 2001, Georgia had received $100,000 of Cueny Estate funds.

In 2005, Georgia filed her own account, in which she admitted that Susan had taken $50,000 from Cueny Estate funds (from which Georgia received the $10,000 in February 2001) and that Georgia had received the $40,000 of Cueny Estate funds in May 2001.

In December 2005, the matter proceeded to trial without a jury on Schafers amended petition for an order requiring Georgia to return assets to the estate. In regard to her receipt of approximately $50,000 (which had allegedly come from the $75,000 Susan had deposited into her Bank of the West account from estate funds), Georgia argued that she made the transfer pursuant to the advice of a Medicare worker who, when Susan was in failing health in July 2002, suggested that Georgia get all of Susans assets out of her name because Susan did not have health insurance and the cost of long-term care would quickly deplete her assets. Georgia claimed that she spent all of the $50,000 for the care and benefit of Susan.

After the trial, both parties submitted post-trial briefs. Schafer argued that Georgia was liable for the $10,000, $40,000 and $50,000 transfers of Cueny Estate assets, which Georgia either received or concealed. Schafer summarized the evidence as follows: (1) as deemed admitted in the requests for admission and as Georgia expressly admitted in her objection to Schafers petition, in February 2001 Georgia deposited into her own Bank of the West account the $10,000 check Susan had written on Susans Bank of America account 332-22073, after Susan had transferred $50,000 into account 332-22073 from the estates Bank of America account; (2) also as deemed admitted and as admitted in her objection to the petition, Georgia deposited and eventually spent the $40,000 check Susan had written to her from a Cueny Estate account; and (3) as Georgia admitted, in June 2001 Georgia transferred into her Gruntal account and eventually spent $50,000 that had come from Susan and Georgias joint Gruntal account, into which Susan had deposited $50,000 from Susans personal Bank of the West account, into which Susan had deposited $75,000 of Cueny Estate funds.

In her post-trial brief, Georgia argued that it was proper for her to receive the $10,000 and $40,000 payments as proceeds from the sale of the furniture, art, and antiques Cueny had promised Georgia before Cueny died. Georgia also claimed that she was not liable for the $50,000 in Cueny Estate money that Georgia had spent for Susans benefit, asserting that she had not known the funds had come from the Cueny Estate.

The court issued a minute order in Schafers favor, and the parties submitted proposed statements of decision. Schafer requested that judgment be entered against Georgia for $200,000, based on Georgias taking, concealing, or disposing of $100,000 of estate funds (the $10,000, $40,000, and $50,000 checks) and a provision in Probate Code section 859 rendering her liable for twice the amount taken due to her bad faith.

The trial court issued its statement of decision in April 2006. The court first summarized Susans liability: Susan Fuller breached her fiduciary duties as the Cueny Estate executor by failing to account and by commingling Cueny Estate assets with her own and by causing the Cueny Estate $101,976.31 in losses on the securities sales. Susan Fuller is liable for $1,075,162.70 for wrongfully taking, concealing, and disposing of Cueny Estate assets in bad faith. The court next addressed whether Georgia was liable under a breach of fiduciary duty theory, concluding that Georgia did not have a fiduciary duty as the special administrator of the Estate of Susan Fuller to account for the period that Susan Fuller was the Cueny Estate executor, that she did not participate in, approve, acquiesce, or conceal Susan Fullers breaches of fiduciary duty, and that she was not a coconspirator with Susan Fuller for breaches of fiduciary duty to the Estate of Cueny. However, noting that Susan had fraudulently transferred $100,000 to Georgia, the court found that Georgia Fuller is liable for $200,000 plus interest from June 1, 2001 for wrongfully taking, concealing, and for disposing of Estate of Cueny assets in bad faith. (Probate Code Section 859).^[2]

Georgia did not object to the courts statement of decision, and judgment was entered against her.

Georgia filed a notice of appeal and elected to prepare her own appendix in lieu of a court-prepared clerks transcript (Cal. Rules of Court, rule 5.1). Georgia thereafter filed her opening brief in this appeal without an appendix.

II. DISCUSSION

Georgias sole contention on appeal is that the judgment is not supported by substantial evidence. Her arguments are without merit.

A. Substantial Evidence

Under Probate Code section 859, a person who has wrongfully taken, concealed, or disposed of a decedents property in bad faith shall be liable to the decedents estate for twice the property value taken.^[3]

Substantial evidence supports the trial courts finding that Georgia wrongfully and in bad faith took, concealed, or disposed of $100,000 from the Cueny Estate. Her deemed admissions, her in-court testimony, and the bank statements introduced at trial demonstrated that Georgia took payments of $10,000 and $40,000 of Cueny Estate assets for no benefit to the estate. (See Code Civ. Proc.,  2033.410 [matter admitted in response to request for admission is conclusively established against the party].) Georgia also admitted that she took $50,000 from the Gruntal account she jointly held with Susan, and spent those funds on Susan; bank statements suggested that this $50,000 belonged to the estate as well, as the sum had been transferred into the joint account from an account into which Susan had earlier deposited $75,000 of estate funds. Ample evidence, therefore, supports the conclusion that Georgia received $100,000 of estate funds without benefit to the estate.

Furthermore, Georgias bad faith in these transactions was demonstrated by evidence that she knew the $10,000 and $40,000 payments were from Cueny Estate assetssince the checks were written on Cueny Estate accountsyet she refused to return those assets to the estate notwithstanding the October 21 court order. Given her bad faith as to the $10,000 and $40,000 checks, it was not unreasonable for the trier of fact to conclude that she obtained and spent the $50,000 in bad faith as well. The judgment awarding$200,000 to Schafer is supported by substantial evidence.

Georgias arguments to the contrary are unavailing. In the first place, her argument that substantial evidence did not support the judgment is precluded by her failure to provide an adequate record and briefing on appeal. Georgia failed to file an appellants appendix. Furthermore, her brief fails to state the evidence fairly, presenting only the evidence and inferences most favorable to the appellant. We may deem her substantial evidence argument to be waived. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246.)

In any event, Georgias arguments are meritless. She contends that she could not be guilty of wrongfully taking, concealing, or disposing of estate assets in bad faith, because she was found by the trial court to be innocent of a breach of fiduciary duty. In particular, the court found that Georgia did not have a fiduciary duty as the special administrator of the Estate of Susan Fuller to account for the period that Susan Fuller was the Cueny Estate executor, she did not participate in, approve, acquiesce, or conceal Susan Fullers breaches of fiduciary duty, and was not a coconspirator with Susan for breaches of fiduciary duty to the Cueny Estate. However, findings that Georgia did not breach a fiduciaryduty do not necessarily preclude a finding that she took or concealed estate assets in bad faith. Because substantial evidence supports the conclusion that she took or concealed the $100,000 in bad faith, the fact that the court did not find her liable under other legal theories is immaterial.

Georgia also argues that the $10,000 and $40,000 payments reflected Cuenys gift or bequest of art and furniture which, upon Cuenys demise, had been sold for Georgias benefit. Further, as to the $50,000 she spent on Susans care, Georgia argues that she did not know that the funds had come from the estate. However, Georgia asserted these factual arguments at trial, and the trier of fact rejected them. In our review for substantial evidence, it is not our role to reweigh the evidence or to select between competing inferences; the credibility of the witnesses and the weight of the evidence are for the trial court, and we indulge all reasonable inferences that may be deduced from the facts in support of the prevailing party. (Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633.)

Lastly, in regard to the $50,000 Georgia spent for Susans benefit, Georgia argues that Susans estate, and not she, should be liable for return of the funds. For this proposition she relies on Katz v. Enos (1945) 68 Cal.App.2d 266 (Katz).

In Katz, a plaintiff sued the estate of his deceased sister for damages arising from the sisters alleged conversion of 42 acres. (Katz, supra, 68 Cal.App.2d at p. 269.) In particular, the sister had induced the plaintiff to sign a deed conveying the property to her while he was hospitalized and unaware of the nature of the document. (Ibid.) The sister then sold the land, spent the proceeds, and died. (Ibid.) The trial court awarded the plaintiff judgment against the representatives of his sisters estate, and the judgment was affirmed on appeal.

Katz is inapposite to the matter at hand. Judgment in Katz was imposed against the estate of the sister because she was the wrongdoer but had died before entry of judgment. Here, judgment was properly imposed against Georgia herself because the court found her to be a wrongdoer.

III. DISPOSITION
The judgment is affirmed.^[4]

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

GEMELLO, J.

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^[1] Because Susan Fuller and Georgia Fuller have the same last name, we refer to them by their first names in this opinion.

^[2] Lastly, the court ruled as follows: Georgia Fuller contested the filing of Robert Schafers account for the period that Susan Fuller was the Cueny Estate executor without reasonable cause and in bad faith. Therefore, Georgia Fuller is liable to Robert Schafer for attorneys fees and other costs incurred to defend his account. (Probate Code Section 11003).

^[3] Probate Code section 859 reads: If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent, conservatee, minor, or trust, the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided in this section shall be in addition to any other remedies available in law to a trustee, guardian or conservator, or personal representative or other successor in interest of a decedent.

^[4] Schafer has filed a motion for sanctions against Georgia and her appellate counsel, contending that the appeal is frivolous. (Cal. Rules of Court, rule 8.276(e)(1).) We will rule on the motion in a separate order.