Filed 5/12/17 Cumming v. Cumming CA4/2


NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



JANET ANNE CUMMING et al.,

Plaintiffs and Respondents,

v.

STEVEN ROBERTSON CUMMING,

Defendant and Appellant.


E066569

(Super.Ct.No. PROPS1301068)

OPINION


APPEAL from the Superior Court of San Bernardino County. Cynthia Ann Ludvigsen, Judge. Affirmed.
Steven Robertson Cumming, in pro. per., for Defendant and Appellant.
The Law Offices of Edward B. Fischel and Earl L. Roberts for Plaintiffs and Respondents.
Steven Robertson Cumming appeals a judgment arising from disputes with his siblings, William Henry Cumming and Janet Anne Cumming, concerning his actions as trustee of a family trust and as the caretaker of their mother, the trustor, during several years immediately preceding her death. Steven asserts that he had a right to a jury trial, that the court failed to provide an adequate statement of decision, and that the evidence was insufficient to justify the decision.
We will affirm the judgment.
PROCEDURAL BACKGROUND
On December 31, 2013, Janet and William Cumming filed a petition, pursuant to Probate Code sections 16080 and 17200, subdivision (b)(5), (6), (7) and (10), to compel Steven, as the acting successor cotrustee of the trust established by their parents, the Robert Bruce Cumming and Lois Wielen Cumming Trust, to report information concerning the trust; to account; to allow beneficiaries and/or the other successor cotrustee reasonable access to view trust property; and/or to remove the acting successor cotrustee and appoint a private professional second successor trustee. The petition alleged, among other things, that Steven, as acting successor cotrustee, had maintained exclusive control over the trust’s assets, had used them for his own benefit, and had refused requests by Janet for information concerning the trust’s assets.
On January 30, 2014, Steven filed a responsive pleading, denying most of the allegations of the petition and asserting a number of affirmative defenses.


On January 20, 2015, Janet and William filed a supplement to the original petition, under Probate Code section 259 and Welfare and Institutions Code sections 15610.30 and 15610.57, alleging that Steven had committed neglect and financial elder abuse against their mother, Lois, and seeking to disinherit Steven.
The matter eventually went to trial. Following a 13-day trial, the court issued a statement of decision and entered judgment. The court found that Steven had breached his duties as trustee in a number of specified respects, but found the evidence insufficient to establish financial elder abuse. The court found that Steven was liable for neglect of his mother, and that he acted recklessly and in bad faith. The court removed Steven as trustee and deemed him to have predeceased Lois. It denied him compensation for his services for failure to submit a bill within one year after Lois’s death and denied his claim for attorney fees. It also surcharged him a total of $193,136. The surcharge was doubled to $386,272, pursuant to Probate Code section 859.
Steven filed a timely notice of appeal.
FACTS
Because the record on appeal does not include a reporter’s transcript of the trial, we take the following facts from the trial court’s statement of decision.
Steven, Janet and William are siblings. Their parents, Robert and Lois Cumming, established a trust. Robert died in 1991. In accordance with the trust agreement, Lois then divided the trust into Trust A, a revocable trust for which Lois was the trustee and retained the power to amend, and Trust B, a trust that became irrevocable on Robert’s death but under which Lois was the income beneficiary while she was alive. Lois was the sole trustee of Trust A. Trust B provided for two trustees. Pursuant to the trust agreement, Steven became the successor trustee when Robert died. Lois was the other trustee.
In May 2005, Lois suffered a stroke. She spent several months in the hospital and in rehabilitation facilities. She returned home in September 2005. In the weeks immediately after the stroke, Steven moved into Lois’s house. He remained there to care for her until her death in April 2013.
During the ensuing eight years, Janet and William testified, Steven rebuffed any attempts on their part to assist him in caring for their mother. A neighbor of their mother testified that he was concerned for her well-being because her grooming had greatly deteriorated, to the point where he called adult protective services (APS). APS told him that although there were concerns about the care Lois was receiving, they did not rise to the level where APS could take action. In 2007, an APS social worker came to the house to hold a mediation to attempt to resolve the siblings’ concerns about Lois’s care and finances, but no resolution was achieved.
Steven, on the other hand, testified that he was left to care for Lois on his own with no help from his siblings. He also testified that she recovered her faculties after the stroke and was able to make her own decisions about care and finances and that she had approved everything he did in both areas. This was contradicted by the testimony of Carolyn Michaelis, a professional geriatric care manager and registered nurse, who was apparently retained to review Lois’ medical records. Ms. Michaelis testified that the records showed that Lois suffered from expressive aphasia after the stroke and never recovered the ability to speak, other than “a word here and there.” Lois was also diagnosed with dementia.
From 2009 until her death, Lois was taken only infrequently and irregularly for medical assessment and treatment. In 2009, she was noted to suffer from extreme anemia. It was also noted that although she was oriented and alert, she was anxious. She weighed 92 pounds. She was seen every two to three months from February to July 2010 because she was medically frail with multiple illnesses, including chronic obstructive pulmonary disease, iron deficiency, high blood pressure, weight loss, and had a history of a stroke. After July 2010, there were no hospital or doctor visits until July 2012, when she was taken to the emergency room to treat a wound she suffered in a fall. Records from that visit stated that Lois was incontinent and needed assistance to change her and that although she knew who she was, she was not oriented as to where she was, why she was there or who others were. She was agitated and her dementia was increasing. Her weight had dropped to 84 pounds. She had numerous skin tears and healing areas. She had follow-up visits with her doctor in July and August 2012, but was not seen again until April 19, 2013, when she was again taken to the emergency room, six days before she died. Ms. Michaelis testified that a reasonable person caring for an elderly person would not allow the person to go two years (July 2010 to July 2012) or eight months (August 2012 to April 2013) without a doctor visit. She said that if the elderly person refused care, the caregiver needed to seek help because an elderly person with dementia does not understand the consequences of refusing medical care.
Steven obtained a power of attorney appointing him Lois’s attorney in fact on June 17, 2005, while Lois was residing in a rehabilitation facility following her stroke. William testified that at that time, Lois was uncertain about everything and had a difficult time understanding what was happening. It was at that point that Steven moved into Lois’s home to care for her and to manage her finances. Until her death, all of his personal bills and expenses were paid by the trusts. During the trial, he testified that some of his financial actions were taken as trustee, others as attorney in fact, and others simply at his mother’s request.
In the fall of 2007, Janet came from Washington state to assist with Lois’s care. She stayed only three months because her relationship with Steven was so acrimonious. Their relationship as cotrustees was nonfunctional after that, and Steven took various actions to attempt to remove her or cause her to resign as cotrustee. William and Janet continued to visit on occasion.
On April 17, 2013, Lois apparently suffered a fall at home. The next morning, she was “acting funny—not sitting up straight, head funny, drooling.” Steven took her to the emergency room and she was admitted to the hospital. She was released on hospice care a few days later, and a few days after that, she died. A hospice nurse who went to the house after being informed that Lois had died found her body lying in a urine- and feces-soaked bed, with injuries to her chest, arm and legs, in an unclean room. She called the coroner, and a deputy coroner and homicide detectives arrived at the home. Lois’s death certificate listed her causes of death as chronic obstructive pulmonary disease, cardiovascular disease, hypertension and malnutrition. Her normal weight was about 100 pounds. At her death, Lois weighed 70 pounds.
At one point while Steven was caring for Lois, William found a festering open wound between two of Lois’s toes. Her right big toe ultimately had to be amputated as a result of the severe infection. When Lois was admitted to the hospital shortly before her death, a nurse took photographs showing that Lois had severe diaper rash, as well as numerous bruises and skin tears. Her toenails were elongated and curving downward, and obviously had not been trimmed in months. She was found to be dehydrated. When the hospice nurse found Lois’s body in the filthy bed, Steven explained that he had not wanted to disturb his mother by changing her diaper, even though he had been told that frequent changes were necessary to prevent rashes.
Steven failed throughout the pretrial proceedings and through the trial to provide records to back up his explanations of his financial actions. He denied acting as trustee because, he said, he was managing his mother’s affairs under the power of attorney. The court found this assertion not to be supported by the evidence. Evidence subpoenaed from banks and other financial institutions included numerous letters in which he identified himself as the trustee of Lois’s trusts, and letters in which lawyers asserted on his behalf that he was the trustee.


LEGAL ANALYSIS
1.
RIGHT TO JURY TRIAL
Steven filed a motion in limine requesting a jury trial concerning his capacity to act as Lois’s attorney in fact, pursuant to a power of attorney she executed, separate from his capacity as a trustee. The matter was tried without a jury. On appeal, Steven contends that he was improperly denied the right to a jury trial.
There is no constitutional right to a jury trial in probate matters. (Estate of Beach (1975) 15 Cal.3d 623, 642.) And, except as expressly provided in the Probate Code, there is also no statutory right to a jury trial in probate matters. (Ibid.; Prob. Code, § 825.) Probate Code section 4504 expressly states that there is no right to a jury trial in proceedings under Division 4.5 of the Probate Code. That division deals with powers of attorney. Steven does not cite any authority that does afford him a right to a jury trial. It is a fundamental principle of appellate review that the burden of affirmatively demonstrating error is on the appellant. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 434, fn. 9.) Steven has not met that burden.
2.
SUFFICIENCY OF THE STATEMENT OF DECISION
Steven asserts a number of alleged deficiencies in the posttrial proceedings, from issuance of the statement of intended decision through the filing of the final judgment. For the most part, he does not appear to be asserting that any of these alleged deficiencies require reversal of the judgment. The argument is captioned, “The Trial Court Committed Reversible Error When It Failed to Issue a Statement of Decision Explaining the Factual and Legal Basis for Its Decision as to Each of the Principal Controverted Issues at Trial,” and the argument concludes by stating that reversal is required because the trial court “failed to provide a legal basis to suddenly not allow authorized expenditures three years prior to Lois’ passing, at lines 6 through 15. (3 CT 809.) The Durable Power of Attorney[fn.] authorized the funding starting on 06/17/2005 through 04/25/2013. (5 CT 1199-1216.) Code of Civil Procedure Section [632] requires the court [to] provide a legal basis on this controverted issue and the invoking of Probate Code Section 859, at lines 19 and 20. (3 CT 809.)” Accordingly, we understand this final paragraph to be Steven’s contention, and we disregard all extraneous discussion contained in that portion of the brief.
Code of Civil Procedure section 632 requires that in a bench trial, upon a timely request, the trial court must issue a statement of decision “explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial . . . .” A statement of decision is sufficient if it “‘“disposes of all the basic issues”’” and “‘“fairly discloses the court’s determination as to ultimate facts and material issues in the case.”’” (Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 1314, fn. 12.) Steven contends that the statement of decision issued in this case failed to provide a factual and legal basis for the surcharges stated in the judgment.
Steven filed objections to the statement of decision. Steven’s objection to the intended statement of decision, with respect to surcharges, rests on the premise that he was acting within the scope of his authority under the durable power of attorney Lois executed on June 17, 2005, and that he was not acting as trustee of the trusts. He contended that there was no evidence at trial that Lois lacked capacity at any time before her death, implying that there was no evidence she lacked capacity to execute the power of attorney. The statement of decision does address this contention: The trial court found that although Steven argued that he was acting under the power of attorney, the evidence at trial showed that at all times he held himself out as the sole trustee of both trusts and that he was acting in that capacity in engaging the transactions that resulted in the surcharges.
Contrary to Steven’s contention, the statement of decision does state the legal basis for the surcharge: It states that the surcharges are authorized by Probate Code section 859. That statute provides: “If a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to a conservatee, a minor, an elder, a dependent adult, a trust, or the estate of a decedent, or has taken, concealed, or disposed of the property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30 of the Welfare and Institutions Code, the person shall be liable for twice the value of the property recovered by an action under this part. In addition, except as otherwise required by law, including Section 15657.5 of the Welfare and Institutions Code, the person may, in the court’s discretion, be liable for reasonable attorney’s fees and costs. The remedies provided in this section shall be in addition to any other remedies available in law to a person authorized to bring an action pursuant to this part.”
The factual basis for the surcharges themselves also appears in the statement of decision. This is sufficient. (Pannu v. Land Rover North America, Inc., supra, 191 Cal.App.4th at p. 1314, fn. 12.)
3.
SUFFICIENCY OF THE EVIDENCE
Steven contends that Janet and William failed to meet their burden of proof under Probate Code section 259. That statute provides:
“(a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply: [¶] (1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult. [¶] (2) The person is found to have acted in bad faith. [¶] (3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent. [¶] (4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.
“(b) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.
“(c) Any person found liable under subdivision (a) or convicted under subdivision (b) shall not (1) receive any property, damages, or costs that are awarded to the decedent’s estate in an action described in subdivision (a) or (b), whether that person’s entitlement is under a will, a trust, or the laws of intestacy; or (2) serve as a fiduciary as defined in Section 39, if the instrument nominating or appointing that person was executed during the period when the decedent was substantially unable to manage his or her financial resources or resist fraud or undue influence. This section shall not apply to a decedent who, at any time following the act or acts described in paragraph (1) of subdivision (a), or the act or acts described in subdivision (b), was substantially able to manage his or her financial resources and to resist fraud or undue influence within the meaning of subdivision (b) of Section 1801 of the Probate Code and subdivision (b) of Section 39 of the Civil Code.
“(d) For purposes of this section, the following definitions shall apply: [¶] (1) ‘Physical abuse’ as defined in Section 15610.63 of the Welfare and Institutions Code. [¶] (2) ‘Neglect’ as defined in Section 15610.57 of the Welfare and Institutions Code. [¶] (3) ‘False imprisonment’ as defined in Section 368 of the Penal Code. [¶] (4) ‘Financial abuse’ as defined in Section 15610.30 of the Welfare and Institutions Code.
“(e) Nothing in this section shall be construed to prohibit the severance and transfer of an action or proceeding to a separate civil action pursuant to Section 801.”
The trial court found that Steven had committed neglect within the meaning of Probate Code section 259, subdivision (d)(2), and Welfare and Institutions Code section 15610.57, and deemed him to have predeceased Lois.
When a party claims that there was insufficient evidence to support a factual finding, the reviewing court applies the deferential substantial evidence standard of review. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) “‘Where findings of fact are challenged on a civil appeal, we are bound by the “elementary, but often overlooked principle of law, that . . . the power of an appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted,” to support the findings below. [Citation.] We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court.’ [Citation.]” (Ibid.) Steven has not provided us with a reporter’s transcript of the trial in this case. We do not presume error on appeal; on the contrary, we presume that a judgment is correct. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.) Accordingly, it is the appellant’s burden to show reversible error by an adequate record. (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) In order to assess the sufficiency of evidence at trial to support the judgment, we must review the entire record, which must necessarily include a reporter’s transcript of the proceedings. Without a reporter’s transcript, we cannot assess the sufficiency of the evidence presented to the trial court. (Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) Accordingly, Steven has not met his burden on appeal.


DISPOSITION
The judgment is affirmed. Respondents Janet Cumming and William Cumming are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.
We concur:



MILLER
J.



SLOUGH
J.