Filed 2/4/13 Lancaster v. Pickett CA4/1
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COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
LINDA LANCASTER, as Trustee
etc.,
Plaintiff and Appellant,
v.
CHARLES PICKETT,
Defendant and Respondent.
D060855
(Super. Ct.
No.
37-2009-00151777-PR-TR-CTL)
APPEAL from
a judgment of the Superior Court
of
County, Jay M. Bloom, Judge.
Affirmed.
In December
2006 and May 2007, Betty Clemens executed amendments to the Coyle and Betty
Clemens Trust (the Trust) that gave Charles Pickett, Betty's companion and
caregiver, a 6 percent remainder interest in her trust and the home they
shared. After Betty's death in April
2009, petitioner Linda Lancaster, in her capacity as successor trustee of the
Trust, filed a petition to invalidate these amendments. After a lengthy trial, the court issued a
statement of decision denying the petition.
Lancaster moved for a new
trial and the court denied the motion and filed a modified statement of
decision. Lancaster
timely appealed. On appeal, Lancaster
appears to contend (1) the evidence cannot support the judgment, (2) the court
applied the incorrect legal standard to determine whether to invalidate the
amendments, and (3) the court abused its discretion by denying the new trial
motion.
I
FACTUAL
AND PROCEDURAL BACKGROUND
A. The Facts
In early
1989, Betty and her husband (Coyle) established the Trust. They had no children. Betty was both physically and mentally abused
by Coyle, who dominated their relationship and exercised total control over
their finances. Except for the time
Betty worked, more than 20 years in San Diego
County's Comptroller Department,
Coyle kept her largely isolated in their home for most of her adult life. Coyle's control over their finances caused
them to live like paupers and, except for occasional camping trips or
motorcycle rides, Betty did not travel.
When Coyle
became seriously ill for the last time, Mr. Rheinbold (a next door neighbor
designated a cotrustee of the Trust in March 2002) began assisting the
Clemenses with their affairs. After
Coyle died in May 2003, Betty became unstable and was placed in a mental
hospital. The hospital indicated it
could not release her unless she went either to a nursing home (which Betty did
not want) or arranged for in-home care, Betty's preference. When Rheingold asked Betty if there was
anyone she wanted to provide her with in-home care, she immediately identified
Pickett, so Rheingold hired him to provide Betty with in-home care.
Pickett
began living at the home in June 2003, providing Betty in-home care, and her
mental stability and quality of life immediately began dramatically to
improve. During the next several years,
Betty began caring for her personal appearance, socialized independently and
received "gentlemen callers."
She began controlling her own money and took an interest in both meeting
new people Pickett introduced to her and in the outside world. To Betty's delight, Pickett also helped her
to start travelling by accompanying her on trips to Atlanta, New York City,
Hawaii, and other places, which opened up a new world for her.
Pickett
also integrated Betty into his extended family, and the younger members of
Pickett's extended family loved Betty and treated her like their
grandmother. Pickett made sure Betty
never spent another holiday alone, and Betty loved belonging to Pickett's
family. Betty's vibrant relationship
with Pickett and his family contrasted with Betty's relationship with her blood
relatives. Other than an occasional
phone call from a sister, Betty had virtually no contact with her blood
relatives, even with those who lived near her.
In 2006,
Betty discussed with her attorney preparation of an amendment to the Trust that
would give to Pickett a 6 percent remainder interest in the Trust. Her attorney believed she had the requisite
capacity to understand what she was doing.
Pickett was not present when Betty and the attorney discussed the
amendment or when Betty signed the amendment.
In May
2007, Betty and her attorney discussed preparation of a further amendment to
the Trust that would give the home to Pickett.
Pickett was not present during those discussions. The attorney, although satisfied Betty was
competent to make this disposition, expressed his concern that this would mean
Betty's sister and other relations would not get the home, but Betty told the
attorney she thought her relations were sufficiently comfortable and she wanted
to leave the home to Pickett.
name="_ftnref2" title="">[2] Betty later signed the amendment leaving the
home to Pickett.
Pickett did
not discuss with Betty receiving the home or the remainder interest before she
signed the amendments, and did not learn she had made him a beneficiary of the
Trust until sometime after the amendments had been signed. In mid-April 2009, Betty died.
B. The Lawsuit and Judgment
In January
2010, Lancaster, allegedly in her capacity as successor trustee of the Trust,
filed a petition to invalidate the Trust amendments benefitting Pickett. The petition alleged the amendments were
invalid under Probate Code
name="_ftnref3" title="">[3]
section 21350 because Pickett was a caretaker of Betty within the meaning of
section 21350 to whom transfers are prohibited, and the transfers did not
qualify for the exemptions from section 21350 specified under section 21351
because there was no certificate of independent review validating the transfers
as required by section 21351, subdivision (b).
Pickett opposed the petition.
After a
lengthy bench trial, at which Pickett
called numerous witnesses (including himself) and introduced numerous exhibits
supporting his contention that the transfer was valid under the provisions of
21351, subdivision (d), the court ruled in Pickett's favor. The court issued a tentative statement of
decision finding Pickett had shown, by clear and convincing evidence, that the
Trust amendments were not the product of undue influence. After Lancaster filed objections to the
tentative statement of decision, the court issued its Statement of Decision
finding in favor of Pickett.
The court's
Statement of Decision noted undue influence exists when the influence
effectively overcomes the trustor's free agency, substituting the will of
another for the will of the trustor, and procures the testamentary
disposition. The court noted that, when
evaluating the issue of undue influence, a court examines (1) the existence of
a confidential relationship between the trustor and the beneficiary of the
grant, (2) active participation by the beneficiary in preparing the
testamentary document, and (3) whether the testamentary document unduly
benefitted the person allegedly exercising undue influence. The court also noted the trustor's mental
condition is a relevant consideration.
The court
found, based on the testimony of numerous witnesses, that Betty was competent,
she knew she was benefitting Pickett, and that she intended and wanted to leave
the property to Pickett. The court also
found, from the testimony of the witnesses, that Betty exercised her own
judgment as to her financial affairs (and was sufficiently strong to resist the
importuning of others as to her finances and her testamentary desires), and
that as "between [Betty and Pickett], she had the stronger
personality," and therefore Pickett was not "the type of person who
would control Betty." The court
also noted the amendments were prepared without Pickett's participation, and on
most occasions Pickett was excluded from the attorney's office when financial
matters were discussed. Finally,
addressing whether the Trust amendments "unduly benefitted the person allegedly
exercising undue influence," the court found (based on testimony from
numerous witnesses) Betty and Pickett had a good relationship, Betty was
effectively estranged from her blood relatives, and therefore it "cannot
be said [Pickett] unduly benefitted" because she bestowed on Pickett a
bequest of a portion of her estate.
C. The New Trial Motion
Lancaster
moved for a new trial. Her principal
argument was that the court relied heavily on Betty's mental capacity in
finding there was not undue influence, and there was newly discovered evidence
(in the form of testimony from her treating doctor and from an expert who would
testify) that Betty continued to suffer from mental disabilities that made her
susceptible to undue influence and impaired her ability to understand the
nature and consequences of signing the amendments. Pickett opposed the motion, asserting this
showing was inadequate to demonstrate the evidence qualified as "newly
discovered," or that the evidence would likely have caused a different
result.
The court
issued a modified Statement of Decision to respond to the issues raised in the
motion for new trial but otherwise denied the new trial motion. The court stated that "on more than one
occasion the court asked [Lancaster] if there was an issue of competence and
the court was advised this was not an issue." Because Lancaster had expressly abandoned
that claim, and because the proposed evidence was readily available before and
during trial, the court denied the new trial motion.
III
ANALYSIS
A. The Improper Consideration of Pickett's Testimony
Claim
Lancaster
appears to assert the trial court's judgment must be reversed because, when
it assessed whether Pickett showed by
Trust amendments were not the product of undue influence, it included
consideration of Pickett's testimony.
Lancaster, citing language from Bernard
v. Foley (2006) 39 Cal.4th 794 (Bernard),
asserts this was reversible error.
name="_ftnref4" title="">[4]
Section 21350
et seq. sets forth certain limitations on
transfers by testamentary instrument. Among the categories of persons presumptively
excluded as valid recipients of such donative transfers is "[a] care
custodian of a dependent adult who is the transferor" (§ 21350,
subd. (a)(6)). The parties stipulated
Pickett fit that description.
Section
21351 sets forth several exceptions to section 21350, the relevant provision of
which is subdivision (d), which states the prohibition of section 21350 does
not apply if "[t]he court determines, upon clear and convincing evidence,
but not based solely upon the testimony of any person described in subdivision
(a) of Section 21350 [i.e., any prohibited transferee], that the transfer was
not the product of fraud, menace, duress, or undue influence." Thus, after
it is determined that a person is presumptively prohibited under section 21350
from receiving a transfer, "section 21351 creates a rebuttable presumption
that the transfer was the product of fraud, duress, menace, or undue
influence. A person who is prohibited
from receiving a transfer under section
21350 may still inherit,
if [he or she] . . . successfully rebuts the section 21351
presumption (§ 21351, subd. (d))."
(Estate of Shinkle (2002) 97
Cal.App.4th 990, 1003, disapproved on other grounds by Bernard, supra, 39 Cal.4th at p. 816, fn. 14.)
As applied
here, the statutory presumption states the exemption applies if the court
finds, by clear and convincing evidence "not based solely on [Pickett's] testimony," that the amendments were not
the product of undue influence. Although
the plain statutory language precludes the transferee from relying
satisfy his burden of supplying clear and convincing evidence of the absence of
undue influence, it neither categorically disqualifies the transferee from
testifying nor precludes the court from considering the transferee's testimony
when assessing whether the transfer was not the product of undue influence. Instead, the plain statutory language merely
enjoins the court, as trier of fact, from relying solely on the testimony of the prohibited transferee to find the
transfer was not the product of undue influence. In the instant case it is clear the court did
not rely solely on Pickett's testimony, but instead considered the evidence of
numerous witnesses to conclude Pickett had satisfied his evidentiary burden.
Lancaster
quotes language from Bernard, supra,
39 Cal.4th at page 800 as holding consideration of Pickett's testimony must be
entirely excluded from consideration
by the court, and therefore any
reliance on Pickett's testimony is reversible error. The court in Bernard did lift language from Estate
of Shinkle, in which the Shinkle
court observed section 21351, subdivision (d), "places the burden on the
donee to establish by clear and convincing evidence, excluding the donee's own testimony, that the transfer was not the
product of . . . undue influence." (Estate
of Shinkle, at p. 1003, italics added.)
However, this quotation by the Bernard
court was dicta, because Bernard
expressly noted the parties were not challenging whether there was substantial
evidence to rebut the statutory presumption (Bernard, supra, 39 Cal.4th at p. 815), and therefore
proper role the transferee's testimony might play in the evidentiary calculus
under section 21351, subdivision (d).
More importantly, the Shinkle
court's observation Bernard
quoted--section 21351, subdivision (d), placed the burden on the donee to
establish "by clear and convincing evidence, excluding the donee's own testimony, that the transfer was not the
product of . . . undue influence" (Estate of Shinkle, at p. 1003, italics added)--was based on the
subdivision (d). However, after
amended section 21351, subdivision (d), to (among other things)
"excluding" and replace it
with "but not based solely upon."
(See Stats. 2002, ch. 412 (S.B. 1575), § 1, p. 2006.) The language on which Lancaster relies to
contend consideration of Pickett's testimony was error has been superseded by
language that permits consideration of Pickett's testimony, and therefore her
claim of error is without merit.
The court
here did find, by clear and convincing evidence not based solely on Pickett's
testimony, that the Trust amendments were not the product of undue influence.
remaining claims (to the extent she attempts to reargue the sufficiency of the
evidence to support the judgment
name="_ftnref6" title="">[6])
must be deemed abandoned (see fn. 1, ante)
and therefore do not further examine them.
B. The Improper Consideration of Betty's Mental
Competence Claim
Lancaster
appears to assert that the sole issue was whether Pickett had rebutted the
presumption of undue influence but the trial court erred by relying on an
incorrect test of whether Betty was mentally competent, and then finding she
was competent without expert medical evidence.
The various
iterations of the Statement of Decision demonstrate Lancaster's first claim is
meritless. The court specifically and
repeatedly acknowledged the issue was whether Pickett had shown, by clear and
convincing evidence, the amendments were not the product of undue
influence. Although the court certainly
mental competence or condition, whether a testator's
"mental and physical condition was such as to permit a subversion
of his [or her] freedom of will" is a proper evidentiary consideration in
assessing the issue of undue influence.
(Estate of Lingenfelter (1952)
38 Cal.2d 571, 585.)
Lancaster's
second claim is also meritless. Although
the parties chose not to introduce
expert testimony concerning Betty's mental competence, numerous percipient
witnesses (including her attorney, who specifically probed into Betty's
capacity and concluded she had the requisite capacity to understand what she
was doing) testified she was mentally competent, which is sufficient evidence
to support the finding she was competent.
(See, e.g., Pfingst v. Goetting (1950) 96 Cal.App.2d 293,
308.)
C. The New Trial Motion
Lancaster
asserts the trial court abused its discretion by denying her motion for new
trial. She argues there was no
indication the court was interested in Betty's mental competence or condition
until after the court issued its tentative Statement of Decision, and therefore
Lancaster was not on notice of the need to proffer expert medical evidence
concerning Betty's mental condition until after trial. Accordingly, she asserts the proposed new
evidence (from Betty's treating physician and from an expert) was newly
discovered evidence warranting a new trial, and it was an abuse of discretion
to deny her motion for new trial.
court may grant a new trial
motion
the moving party has shown the evidence is newly discovered, the party used reasonable diligence in
the evidence, and the evidence is material to the party's case. (Code Civ. Proc., § 657, subd. (4).) We review for abuse of discretion the denial
of a new trial motion based on newly discovered evidence. (Sherman
v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1160-1161.)
The
order denying the motion for new trial was not an abuse of discretion. First, the central issue before the court was
whether Pickett exercised undue influence over Betty, and Lancaster was
"on notice" that Betty's mental condition during the relevant period
was germane to that question even before trial commenced. The record shows Lancaster, in opposing a
pretrial motion in limine filed by Pickett that sought to exclude certain
hearsay statements made by Betty's psychiatrist concerning her mental state,
argued Betty's "mental state is clearly in issue because there is a
continuing issue in this proceeding whether [Pickett] exercised undue influence
over [Betty]" and her mental condition was relevant to "whether she
was susceptible to being influenced."
Lancaster's claim that she was somehow surprised Betty's mental state
would be germane is meritless.
Second,
contrary to Lancaster's argument below and on appeal, the proffered evidence
was not newly discovered. Indeed, the
proffered new evidence included a declaration from a psychiatrist (Dr. Palica)
who had twice seen Betty and had also reviewed her treatment records. However, during trial, Lancaster
well as to provide foundation for Betty's medical records), but the subpoena
was withdrawn by Lancaster as
expensive." A
trial court could reasonably conclude that neither Palica nor the records were
"newly discovered" within the meaning of Code of Civil Procedure
section 657, subdivision 4. Under these
circumstances, the court did not abuse its discretion by denying Lancaster's
motion for a new trial.
DISPOSITION
The
judgment is affirmed. Pickett is
entitled to costs on appeal.
McDONALD, J.
WE CONCUR:
BENKE, Acting P. J.
IRION, J.
name="_ftn1" title="">[1] We provide a truncated discussion of the facts because
Lancaster's opening brief ignored a fundamental rule of appellate practice
obligating her to completely and fairly summarize the evidence
judgment. (Brockey v. Moore (2003) 107 Cal.App.4th 86, 96-97.) Instead, Lancaster's opening brief consists
of a jumbled factual recitation devoted almost entirely to facts that would
undermine the trial court's findings, with no attempt to summarize those facts
supporting the trial court's findings.
This failure to discuss evidence supporting the court's findings and
judgment excuses us from any need to address any contention rooted in the
sufficiency of the evidence, and we therefore deem those contentions
abandoned. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881;
135 Cal.App.4th 21, 50.)
name="_ftn2" title="">[2] Betty's sister learned of this bequest around the time of
the amendment and tried to talk Betty out of it, but Betty remained firm that
she wished Pickett to have the home.
Betty also told a social worker, during a conversation at which Pickett
was not present, that she was happy about giving the home to Pickett.
