>WEINKAUF v. FLOREZ

















Filed 7/22/10









>CERTIFIED FOR PUBLICATION



IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
TWO




>

Estate of GRANT WILLIAM HASTIE, Deceased.
STEVEN A. WEINKAUF, Petitioner and Respondent, v. TIMOTHY FLOREZ, Objector and Appellant.	A127069 (Alameda County Super. Ct. No. HG07358052)

I. INTRODUCTION

Timothy
Florez appeals from the probate court's determination, following a trial, that
two donative transfers of real property by the decedent were invalid. Appellant contends this action by the
administrator is barred by the statute of
limitations. We disagree and hence
affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND

Grant
William Hastie died on July 6, 2006,
at the age of 88. Hastie was the owner
and resident of real property commonly known as 3712
Anza Way, San Leandro, California
(the Anza Property). Hastie was survived
by no spouse, no issue, no parents or issue of parents, and no grandparents or
issue of grandparents. The only two
known heirs are James D. McCarty and David W. McCarty
(the McCartys), sons of his predeceased spouse, Mamie L. Hastie, who died on June 3, 1998. For the last 12 years of his life, Hastie was
in poor health and was unable to take care of his personal and financial
affairs.

For
decades there was a close relationship between decedent and defendant Bingham
Liverman. Liverman had a real estate
background including some probate matters.
A fiduciary relationship developed when Hastie granted Liverman power of
attorney in October 1999 and existed continuously at all times relevant to this
action, up to and including the date of Hastie's death. Liverman paid Hastie's bills by writing
checks on his behalf, and assisted Hastie in financial matters. Hastie paid Liverman $4,000 per year for his
services.

In
2000, Liverman drafted a Change in Beneficiary form, in his own handwriting,
for execution by Hastie on May 6, 2000,
naming Liverman and his daughter, Carmen Florez,[1]
the beneficiaries of Hastie's $150,000 insurance annuity.

In
2001, Liverman arranged for Carmen to become an in-home caregiver for
Hastie. She worked in this capacity for
Hastie from 2001 until two months before his death in 2006. For her services, she was paid $1,500 per
month plus a lump sum payment of $90,000.


In
2001, Liverman suggested that Hastie transfer an interest in the Anza Property
to Liverman's granddaughter and Carmen's daughter, Jenny, by executing a joint
tenancy grant deed in her favor. Hastie
executed the deed on June 13, 2001. It was recorded on March 29, 2002.


In
2006, Liverman suggested that Hastie, while in the hospital a few weeks prior
to his death, transfer his remaining interest in the Anza Property to
Liverman's grandson and Carmen's son, Timothy (appellant). Liverman drafted a quit claim deed from
Hastie in favor of Timothy. Hastie
executed the deed in June 2006.
Appellant did not pay anything to Hastie in exchange for the interest in
the Anza Property.

In
2006, Liverman secured a second power of attorney from Hastie while Hastie was
in the hospital just prior to his death.


In
2006, Liverman wrote a letter to the McCartys immediately after Hastie's death,
informing them that his relationship with Hastie was not charitable, but rather
was that of a caretaker, legal guardian, a business matter, and in expectation
of compensation.

The
McCartys hired George Weinkauf[2]
as their attorney to bring any claims they might have as heirs of the estate. The McCartys nominated George's brother,
Steven Weinkauf, also an attorney, to act as the administrator of Hastie's
estate. On January 4, 2008, the court issued letters of
administration to Steven as administrator.
Steven has no other relationship to the decedent and he has no other
role in this action.

On
August 29, 2007, Steven, as
administrator, filed a complaint and, on May
9, 2008, a second amended complaint seeking, inter alia, a judicial
determination that certain deeds to members of Liverman's family were
invalid. The complaint named as
defendants Liverman, Carmen, Jenny, and appellant.

The
administrator and appellant litigated cross motions for summary adjudication. The administrator's motion sought a
determination pursuant to Probate Code section 21350[3]
that (1) the donative transfer of the Anza Property to Jenny as evidenced by
the grant deed dated June 13, 2001 (the 2001 grant deed), was invalid; (2) the
donative transfer of the Anza Property to appellant as evidenced by the quit
claim deed dated June 6, 2006 (the 2006 grant deed), was invalid; (3) the grant
deed from Jenny transferring her interest in the Anza Property to appellant
dated February 20, 2007, was invalid because it was based on the invalid 2001
grant deed to Jenny; and (4) the deed of trust from appellant in favor of
Liverman dated March 22, 2007, was invalid because it was based on the invalid
deeds to appellant.

Appellant's
sole defense to the administrator's motion, and the sole basis for his own
motion, was his assertion that the administrator's action was barred by the statute of limitations.

After
the hearing on the summary adjudication motions, the probate court declared the
2001 and 2006 deeds to be invalid. The
court also declared the 2007 grant deed and the 2007 deed of trust invalid
because they were based on the invalid 2001 and 2006 deeds.

Following
a court trial on October 26, 2009,
the court ordered the return of assets, including the Anza Property, to the
Estate and awarded judgment against Liverman in the amount of $150,000 for
taking decedent's retirement annuity.
The judgment was filed and entered on November 30, 2009.


Appellant
filed a timely notice of appeal on December 7, 2009.[4]

III. DISCUSSION

A. Standard of Review

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