Perez v. Lomeli

Filed 6/25/08 Perez v. Lomeli CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, William P. Barry, Judge. Affirmed.

J. Arthur Bernal for Defendants and Appellants.

Donna Bader and Sidney Mendlovitz for Plaintiffs and Respondents.

________________________

Fortino Perez owned the house where he and his wife had raised their family and where he had lived for about 40 years. Two months before his 90th birthday, he executed a grant deed conveying the house to his neighbor. Following Mr. Perezs death, his children learned about the deed and filed this action to cancel it, alleging the deed was obtained by undue influence and fraud. The children prevailed and the neighbor appeals. We affirm.

FACTS

A.

Mr. Perez (who was born in 1914) had two children, Felipe Perez and Adelina Soto (there may have been more children but they are not involved in this litigation). In 1966, Mr. Perez, his wife, and children moved into a Lynwood residence that Mr. Perez first rented, then purchased. Mr. Perez (who worked as a construction laborer until he retired in 1975) spoke only Spanish, and could not read or write in any language. In May 2002, about three years after his wife died, Mr. Perez executed a revocable trust in which Felipe and Adelina were named as the sole beneficiaries. Mr. Perez died in January 2005.

B.

Following Mrs. Perezs death in 1991, Adelina visited Mr. Perez nearly every day, cooked his meals, paid his bills, read his letters, shopped for him, and cleaned his house. In March 2003, Mr. Perez fell in his bedroom, injured his back, and could not get up. He was found about two days later and hospitalized for quite a while.

When Mr. Perez was released from the hospital, Felipe and his wife moved into Mr. Perezs house to care for him, intending to stay until he regained his strength but in fact remaining there until Mr. Perez died. During that time, Felipes wife cleaned and cooked for Mr. Perez, and Felipe took care of Mr. Perezs medications and took him to the doctor. Mr. Perezs physical and mental abilities deteriorated during these years, he stopped driving because his eyesight was failing, and he became incoherent when his blood sugar level dropped (he was diabetic). He became angry when he needed Felipes help to bathe, and angrier still at Felipes wife because she cooked only the low-salt foods recommended by Mr. Perezs doctor. He wandered to his neighbors houses, complaining that Felipe and his wife were not feeding him and asking for food (specifically, eggs, beans and tortillas). When Felipe learned about this, he told the neighbors that Mr. Perez was on a special diet and asked them not to feed him.

Mr. Perezs doctor, David Lantz, M.D., treated Mr. Perez from 1992 until his death in 2005. Mr. Perez had prostate problems, coronary artery disease, arterial fibrillation (he had a pacemaker), high blood pressure, a back injury, and diabetes. In August 2003, at Felipes request so that he would have something to show the neighbors, Dr. Lantz gave Felipe a letter stating that Mr. Perez had to have meals prepared strictly for diabetic dependent patients. According to Dr. Lantz, Mr. Perezs health deteriorated in the year or two preceding his death.

C.

Which brings us to the neighbors, defendants Roberto and Juana Lomeli, who moved into the neighborhood in May 1994. When Mr. Perez started visiting his neighbors in search of food, the Lomelis house was one of his favorite stops because the Lomelis ignored Felipes requests, telling him his father was going to pass on soon and should be able to eat whatever he wanted. Mr. Perez continued to visit the Lomelis and would return home raving about the carnitas and tamales they had fed him.

In February 2004, Mr. Lomeli took Mr. Perez to a notary public, Salvador Casillas, to discuss the preparation of a deed transferring Mr. Perezs house to the Lomelis. During that initial visit, Mr. Casillas told Mr. Perez not to do anything at that time because it was a big decision. Although Mr. Lomeli knew that Felipe and his wife lived with Mr. Perez, Mr. Lomeli never told Felipe or his wife that Mr. Perez wanted to give his house to the Lomelis.

In June 2004, Mr. Lomeli took Mr. Perez back to Mr. Casillass office, and they arrived to find a grant deed had already been prepared (along with an Affidavit of Transfer of Property Real Estate). Mr. Perez signed the deed and affidavit, and the documents were notarized by Soledad Cobian. No one read the documents to Mr. Perez before he signed them. Mr. Lomeli took the deed but did not record it until January 13, 2005, the day before Mr. Perez died.

D.

Felipe learned about the deed when, shortly after his fathers death, he received a notice of recordation. In February 2005, Felipe and Adelina filed this action to cancel the deed, alleging that it was the product of mistake, undue influence, and fraud. The Lomelis answered, discovery ensued, and the case was tried to the court in June 2006, which rendered judgment in favor of Felipe and Adelina, explaining among other things that:

By January 2004, Fortino Perez was extremely old, not in good health, illiterate in Spanish and English, and vulnerable to undue influence being placed upon him. . . . Roberto Lomeli inserted himself into the good graces of Mr. Perez. Whether or not Mr. Lomeli intended from the outset to take advantage of Mr. Perezs situation, he does appear to have taken unfair advantage of the situation. [] . . . [] The totality of the circumstances convinces the court that Mr. Perez was unduly influenced by the actions of Mr. Lomeli, and that Mr. Lomeli engaged in a course of conduct that was deliberately intended to deprive [the children] of their rights by fraud and deceit. Mr. Lomeli appreciated the scope of his misconduct, as evidenced by his moving away from the neighborhood, never telling Mr. Perezs family about what their father had done, and then recording the deed the day before Mr. Perez died, over six months after it was executed by Mr. Perez. . . . The Lomelis appeal.

DISCUSSION

We reject the Lomelis challenge to the sufficiency of the evidence supporting the trial courts findings and judgment. Our summary of the facts is based on the evidence presented at trial, and that evidence is more than sufficient to establish undue influence. (Whiteley v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678; Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-874; Webb v. Saunders (1947) 79 Cal.App.2d 863, 871; Odorizzi v. Bloomfield School Dist. (1966) 246 Cal.App.2d 123, 131-135; Laherty v. Connell (1944) 64 Cal.App.2d 355, 363; Beckmann v. Beckmann (1959) 174 Cal.App.2d 717, 720-722.)

As the trial court put it in its Statement of Decision, Mr. Lomeli had no obvious reason to befriend Mr. Perez. He only knew him after he moved into the neighborhood; he was substantially younger than Mr. Perez; he did not appear to share any interests with Mr. Perez; and he was not related to him by blood or marriage. What reason did Mr. Lomeli have to insert himself into the affairs of the Perez family -- some overpowering desire to provide a preferred diet for a virtual stranger -- simple charity, even after the family asked him to stop feeding their father because it was against the advice of their fathers doctor? Those possibilities are too great a stretch to be believable. The court concludes that the truth is more sinister. Mr. Lomeli saw an opportunity and took advantage of it. These credibility calls are binding on this appeal. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925.)

We agree with the trial court that the totality of the circumstances establishes that Mr. Perez was . . . unduly influenced by the deliberate actions of Mr. Lomeli intended to accomplish that effect. . . . The end result is the same.

Relying on Probate Code sections 21350 and 21351, Felipe and Adelina ask us to award them their attorneys fees and costs incurred on appeal.[1] The request is denied. Although subdivision (a)(6) of section 21350 provides that, subject to certain exceptions, no instrument shall be valid to make a donative transfer to a care custodian of a dependent adult who is the transferor, and although attorneys fees are recoverable with regard to a prohibited transfer if it was the product of fraud, menace, duress, or undue influence ( 21351, subd. (d)), the point is that Mr. Perez was under the care of his children, not the Lomelis, who were not care custodians within the meaning of this statutory scheme. (Bernard v. Foley (2006) 39 Cal.4th 794, 800; Estate of Odian (2006) 145 Cal.App.4th 152, 167.)

DISPOSITION

The judgment is affirmed. Felipe T. Perez and Adelina Soto are awarded their costs of appeal.

NOT TO BE PUBLISHED.

VOGEL, J.

We concur:

MALLANO, P.J.

NEIDORF, J.*

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*Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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[1] All section references are to the Probate Code.