Fahlman
v. Lagomarsino
Filed 9/6/12 Fahlman v.
Lagomarsino CA2/6
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
JUDY FAHLMAN,
Plaintiff and Respondent,
v.
JOHN A. LAGOMARSINO III,
Individually and as Trustee, etc.
Defendant and Appellant.
2d Civil No. B231431
(Super. Ct. No. 56-2009-
00348782-PR-TR-OXN)
(Ventura
County)
Appellant
and respondent are brother and sister.
Their mother died leaving property to be disposed of by will, trust and
deed. Appellant received virtually all
of that property. Respondent
successfully sought to set aside that disposition on the ground that appellant
had unduly influenced their mother.
Appellant contends that there is not
judgment of the trial court. The role of
this court is elementary and clear: We
decide questions of law. The trial court
decides questions of fact. (
262-263.) Here, the trial court found,
inter alia: (1) appellant was "not
credible," (2) appellant had the motive and the opportunity to exercise
undue influence upon his mother and physically isolated her from her daughter;
and (3) appellant overcame his mother's will, destroyed her "free
agency," and caused an "unnatural disposition" of her
estate. These findings and the evidence
presented at trial amply support the judgment.
John A.
Largomarsino, III, (John) son of Helen Lagomarsino (Helen), trustee of the
Helen Lagomarsino Trust dated September 26, 2008 (2008 trust), appeals from a
judgment granting the petition filed by Helen's daughter, Judy Fahlman (Judy). John was the primary beneficiary of Helen's
2008 trust, and contemporaneous will and quitclaim deed. The trial court found that Helen's 2008
trust, will and quitclaim deed were the "result of the undue influence
of" John, and therefore void. John
contends that there is not sufficient evidence to support the court's findings
and judgment. Because this case is fact
driven, we set forth in detail the evidence adduced at trial and conclude that
John's contention is without merit.
Accordingly, we affirm.
BACKGROUND
Judy
and John's parents, Helen and John A. Largomarsino, Jr., (Pud) married in
1951. Their only two children, Judy and
John, were born in 1955, and 1960, respectively. In 1974, Helen and Pud's marriage ended with
a final judgment of dissolution.
In
1973, in 1980, and again, in 1988, Helen signed a will. Her 1973 and 1988 wills provided for the
equal distribution of her estate to John and Judy. The 1980 will also had provided for an equal
distribution of her assets to them, subject to a life estate for their aunt.
In
2001, Pud's third wife, Joni, died suddenly.
In 2002, Pud signed a will that named Judy as his personal
representative. It also provided for
equal distribution of his assets to John and Judy.
In
2002, after separating from his wife, Marilyn Lagomarsino (Marilyn), John
acquired her 50 percent interest in their residence at 284 Orange Drive in
Oxnard (the Oxnard house). John invited
Helen, who was then 70 years old, and her husband, Calvin Pauley (Cal), to move
into the Oxnard house. John told her
that he would lose everything, including that house, if Helen did not help
him. Helen paid John $150,000, acquired
a 50 percent interest in the Oxnard house, and moved there with Cal. Helen sold her house. Helen did not drive. John helped her with transportation. They spoke daily and shared their meals. Cal predeceased Helen.
Judy
lived in the same community as John and Helen.
For many years after Helen moved into the Oxnard house, she and Judy
maintained a close and loving mother-daughter relationship, with frequent
visits and telephone contact. Helen
spent holidays and birthdays with Judy's family.
Pud
remained in a house on his 40-acre ranch in Oregon for several years. In November 2006, Pud was diagnosed with
cancer. In February 2007, during a visit
with Pud, John accompanied him to the office of his estate planning attorney,
Robert S. Lovlien. On March 2, 2007, Pud
signed a will that revoked his prior will and left the bulk of his estate,
including his ranch, free of encumbrance, to John, with the residue to be
divided between John and Judy. Pud died
on March 12, 2008.
After
Pud's death, Helen and Judy were both surprised to learn the terms of his 2007
will. John testified that Pud did not
tell him the terms of that will before he died.
On
July 17, 2008, Judy filed an action in Oregon claiming that John had unduly
influenced Pud to execute a will and trust for the primary benefit of John
(Oregon will contest). Judy did not
discuss the Oregon will contest with Helen.
After John discussed it with her, she became upset, believing that
Lagomarsino family men "always get the ranches," and that the will
contest would ruin family gatherings.
Within
days of her filing of the Oregon will contest, Judy found that she was banned
from the Oxnard house. The gate was now
locked, and an answering machine was installed on the telephone. According to John, Helen wanted the answering
machine so that the phone would not disturb her when she was on the treadmill.
On
July 24, 2008, Judy scaled the wall between a neighbor's property and the
Oxnard house to see Helen. Helen
appeared frightened and shaken, and she told Judy to leave before John returned
and found her there.
On
August 25, 2008, John called the Nordman Cormany law firm and asked for an
appointment with its "best" estate planning attorney. On September 5, 2008, he drove Helen to that
firm, where they met for approximately 30 minutes with Scott Samsky, an estate
planning attorney. Helen told Samsky
that she planned to disinherit Judy.
Samsky then met with Helen alone.
Helen told him that she intended to disinherit Judy because she did not
want Judy to use her inheritance to finance litigation against John, and that
Judy had lied to her. Helen told him
that Lagomarsino family men "always get the ranches." However, she also advised Samsky that she
might later change her views about disinheriting Judy.
On
September 16, 2008, John sent Samsky an email message regarding his agreement
to expedite the estate planning process, if possible, and expressing Helen's
appreciation for that. On September 22,
2008, Samsky sent Helen a draft of the estate planning documents with a letter
describing the trust and will provisions, including those that would disinherit
Judy. Helen called Samsky and told him
that the draft documents were what she wanted, and that the disposition for
Judy was correct. Samsky then completed
the documents.
On
September 26, 2008, John drove Helen to Samsky's office. John was present when Helen signed the will,
trust and quitclaim deed. He also signed
the trust, as cotrustee. The trust and
will disinherited Judy and named John as Helen's primary beneficiary. The trust explained Helen's unequal
distribution as follows:
"Provisions Regarding Judy.
Trustor acknowledges that she has an account at Bank of America held in
joint tenancy (or similar) form of title with JUDY that will pass to JUDY
outside of this trust. In addition,
Trustor has given most of her jewelry to JUDY and has provided financial
assistance to JUDY over the years.
Because Trustor is not happy with JUDY's present legal actions relating
to JOHN III, Trustor is making no other provision for JUDY at this time."
On
December 1, 2008, Helen was diagnosed with liver cancer. On December 5 or 15, 2008, John called
Samsky. John expressed concern about the
Oregon will contest and asked whether they could "take any steps to try to
minimize the likelihood of litigation" in California. Samsky recommended that another lawyer speak
with Helen and examine her estate plan.
Samsky advised John to obtain a certificate of
Siple, an estate planning attorney who practiced with another firm.
John
then telephoned Siple to thank her in advance for providing a certificate of
independent review. On December 29,
2008, Siple met with Helen for an hour.
She reviewed Helen's will and trust.
She saw that Helen was gravely ill, but failed to inquire about Helen's
physical health or what medications she had taken before their meeting. Siple provided a certificate of independent
review stating that she did not believe Helen's estate plan was the product of
undue influence. John continued
telephoning Samsky regarding Helen's estate plan, the certificate of
independent review and title to Helen's accounts.
On
January 1, 2009, Judy asked the Ventura County Sheriff's Office (sheriff) to
check on Helen's welfare. A deputy
sheriff spoke with Helen outside Judy's presence. On January 3, 2009, Judy again asked the
sheriff to check on Helen's welfare, and she accompanied a deputy sheriff to
the Oxnard house. John told Judy to stay
outside. After Helen said that she would
talk to Judy if the men would step out because she was not dressed, John said,
"Mom, I'm going to let Judy see you."
When Helen saw Judy, she said, "You just had to go after the ranch,
didn't you" (John was Helen's only
source of information regarding the Oregon will contest.) Helen also told Judy that she was "not
up to visiting any more" when Judy suggested that her grandchildren visit
her.
John
never advised Judy that Helen was terminally ill, nor did he instruct anyone to
advise her of that fact. Helen died on
January 9, 2009, at the age of 76.
In
July 2009, John and Judy settled the Oregon will contest. The settlement provided that Pud's 2007 will
would be declared void and the estate would be controlled by the terms of his
prior will, with all assets to be distributed equally between John and
Judy. John also agreed that the estate
would pay $50,000 of Judy's legal fees.
In
July 2009, Judy filed a petition challenging Helen's 2008 will and trust. Her first amended petition states claims for
undue influence, financial abuse of an elder adult, fraud, duress, cancellation,
conversion, breach of fiduciary duty
and constructive trust.
Over
three days in October and November 2010, the trial court conducted a bench
trial. Several witnesses testified
regarding an August 4, 2008 letter that purportedly bore Helen's signature, and
was addressed to John's defense attorney in the Oregon will contest (August 4,
2008 letter). Among other things, that
letter expressed Helen's disappointment and shame about Judy's "bringing
false irrational accusations against her only brother." It challenged several statements in Judy's
complaint, and described an "ancient nostalgic accustomed tradition"
in the Lagomarsino's Italian family whereby the son or sons "always
received the inheritance of the family farm." The August 4, 2008 letter did not acknowledge
that Pud's 2002 will had left his entire estate, including his ranch, in equal
shares, to John and Judy.
At
trial, John admitted that he and Marilyn spoke and exchanged email messages
from July 8, 2008 through August 3, 2008, concerning the August 4, 2008
letter. According to John, Helen wanted
Marilyn to retype a draft of Helen's letter, and after Marilyn did so, she
emailed it to John, who printed it and gave it to Helen. She read it for 15 or 30 minutes and then
signed it. John and Marilyn both
testified that Marilyn only retyped Helen's draft, and reformatted it by
breaking it into paragraphs. Helen's
original draft was not produced at trial.
In his pretrial deposition, John had testified that Helen did not show
him the August 4, 2008 letter before she sent it; that she might have shown him
a draft, but that he did not review it; that he thought he read it but could
not remember whether it was typed or handwritten. He also denied that he participated in any
way in the preparation of the letter and said he thought Helen showed him the
final product after it was sent and that he probably read it.
A
forensic linguistics expert reviewed and compared the style of the August 4,
2008 letter with that of documents that were authored by Helen. He opined that Helen did not author the
August 4, 2008 letter.
Samsky,
the attorney who drafted Helen's 2008 trust, will and quitclaim deed, testified
that he believed those documents were not the product of undue influence. Several other witnesses, including Judy,
John, Marilyn, and Helen's brother, Joe Samples, testified about Helen's
physical condition and the extent of Helen's contact with friends and relatives
after July 2008.
After
both parties rested, the trial court announced and explained the basis for its
decision. It concluded that the
presumption of undue influence did not apply because John did not actively
participate in preparing Helen's estate plan.
(See Estate of Swetmann (2000)
85 Cal.App.4th 807, 821.)
The
trial court found, however, that Judy had established by a preponderance of the
evidence that the 2008 will and trust were the product of undue influence. It announced several related factual
findings, including that John was "very angry" with Judy for filing
the Oregon will contest and that he used pressure to coerce Helen, and overcame
her free will. It cited evidence that
beginning in July 2008, the telephone at the Oxnard house was answered only by
a machine; telephone calls were not returned; the formerly open, accessible
gate was padlocked; and Judy was forced to scale a wall to see Helen. When Judy did see her, Helen appeared
surprised, nervous and shaky. Quoting
the record, the court said Helen told Judy, "You need to leave. Your brother is going to be here at any
time." It cited John's testimony
regarding the January visit when Judy accompanied the sheriff to the Oxnard
residence; "I said, 'Mom I am going
to let Judy see you,'" which the court found was "strong evidence that
[he] was controlling" Helen.
The
trial court ruled in favor of Judy on the undue influence claim, granted her
petition, and declared that the 2008 trust, will, and quitclaim deed were
deemed void or voided. It ruled in favor
of John on the remaining claims in the petition, with the exception of the
claim of financial elder abuse, which Judy withdrew.
Judy
submitted a proposed statement of decision, to which John submitted
objections. The trial court modified and
executed the proposed statement, and filed it as the court's statement of
decision on December 30, 2010. It
included the court's specific finding that John was not a "credible
witness." The court further found
that John "had a confidential relationship with [Helen] and isolated her
from" Judy; that John used pressure to overcome Helen's free will and
coerced her and destroyed her free agency; that Helen's will and trust
providing solely for John was an unnatural disposition of Helen's estate; and
that the will, trust and quitclaim deed were invalid as a result of John's
undue influence. The court entered
judgment on December 30, 2018, and invalidated Helen's 2008 estate plan.
DISCUSSION
John
contends that there is not substantial evidence to support the trial court's
finding that John unduly influenced his mother's estate plan.
On
appeal, we evaluate the court's finding that John unduly influenced his
mother's estate plan under the highly deferential substantial evidence standard
of review. (In re Teel's Estate (1944) 25 Cal.2d 520, 526; 2 Cal. Trust and
Probate Litigation (Cont.Ed.Bar 2009) Appeals, § 23.34 [appellate court defers
to trial court's factual determinations where supported by any substantial
evidence, contradicted or not].) Under
this standard, we must affirm the court's finding even where "'. . . two
or more inferences can be reasonably deduced from the facts . . . .'" (In re
Teel's Estate, supra, at p.
526.) We "'consider all of the
evidence in the light most favorable to the prevailing party, giving it the benefit
of every reasonable inference, and resolving conflicts in support of the
[findings]. [Citations.]' [Citation.]
We may not reweigh the evidence and are bound by the trial court's
credibility determinations.
[Citations.] Moreover, findings
of fact are liberally construed to support the judgment. [Citation.]" (In re
Estate of Young (2008) 160 Cal.App.4th 62, 76.)
"Undue
influence consists in the exercise of acts or conduct by which the mind of the
testator is subjugated to the will of the person operating on it; some means
taken or employed which have the effect of overcoming the free agency of the
testator and constraining him to make a disposition of his property contrary to
and different from what he would have done had he been permitted to follow his
own inclination or judgment." (
480; see also Rice v Clark (2002) 28
Cal.4th 89, 96 [the undue influence principle recognized in
adoption of the Probate Code and is not codified in Probate Code section
6104].) "'Undue influence,'
obviously, is not something that can be seen, heard, smelt or felt; its
presence can only be established by proof of circumstances from which it may be
deduced." (Estate of Ferris (1960) 185 Cal.App.2d 731, 734.)
During oral
argument, counsel for John emphasized his claim that there is no evidence that
the circumstances of her 2008 estate plan were "inconsistent with
voluntary action" on her part. We
reject that claim, as well as the related claim that the "trial court
erroneously speculated that [he] isolated and controlled [Helen] such that her
free will was destroyed." The
presence or absence of undue influence is a question for the trier of fact, not
this court. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 867.)
The court's express
findings reflect its conclusion that the circumstances of Helen's 2008 estate
plan were inconsistent with voluntary action on her part. The court cited evidence of John's
confidential relationship with Helen and his isolation of her, including
evidence that 76-year-old Helen did not drive, and she lived with, and depended
on, John for transportation. It found
that John was very angry about the Oregon will contest; that he discussed it
with Helen; and that days after Judy filed that contest, John denied her access
to Helen by locking the gate to the Oxnard house. Helen seemed frightened of having John find
Judy there. The court further found that
Helen did not author the August 4, 2008, letter that described Judy's claims as
"false irrational accusations against her only brother."
Helen told Samsky that
she was angry that Judy had filed the Oregon will contest challenging John's
right to inherit Pud's ranch, and that there was a long-standing tradition in
the Lagomarsino family of the sons' inheriting the land or ranch. However, she also informed Samsky that she
might change her mind about disinheriting Judy.
Meanwhile, John continued to isolate Helen, failed to advise Judy that
Helen was dying, and urged Samsky to expedite the estate planning process. Before 2008, Helen had signed three wills in
which she gave equal shares of her property to John and Judy. Under Helen's expedited 2008 estate plan,
John would inherit nearly all of her property.
The court expressly found that John was not a credible witness. This court is bound by the trial court's
credibility determinations, and we may not reweigh the evidence. (In re Estate of Young, supra, 160 Cal.App.4th at p.
76.) Substantial evidence supports the
court's finding that Helen's estate plan was the product of John's undue
influence upon her.
DISPOSITION
The
judgment is affirmed. Respondent shall
recover costs on appeal.
NOT
TO BE PUBLISHED.
PERREN,
J.
We concur:
GILBERT, P.J.
YEGAN, J.
Glen
M. Reiser, Judge
Superior
Court County of Ventura
______________________________
Benedon
& Serlin, Gerald M. Serlin and Kelly R. Horwitz for Plaintiff and
Respondent.
Norman
Dowler and Richard M. Norman; Ferguson Case Orr Paterson, Wendy C. Lascher,
John A. Hribar and Joshua S. Hopstone for Defendant and Appellant.
name="_ftn1" title=""> [1] We recognize that John refers to the trial court's
determination of undue influence as a conclusion. Where, as here, the presumption of undue
influence does not apply, the question of undue influence is "'. . . one
of fact for the [fact finder's] determination.'" (Estate
of Lingenfelter (1952) 38 Cal.2d 571, 585.)
We thus use the proper term, finding, in addressing his contention.
