WEINKAUF v. FLOREZ
<script src="http://www.google-analytics.com/urchin.js" type="text/javascript"> </script> <script type="text/javascript"> _uacct = "UA-1698443-1"; urchinTracker(); </script> <html ><br /> <head><br /> <title>WEINKAUF v</title><br /> </head><br /> <body><br /> <div><br /> <br/> <br /> <br/><b<br /> >WEINKAUF v. FLOREZ</b><br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/>Filed 7/22/10<br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/><b<br /> >CERTIFIED FOR PUBLICATION</b><br /> <br/> <br /> <br/>IN<br /> THE COURT OF APPEAL OF THE STATE OF CALIFORNIA<br /> <br/> <br /> <br/>FIRST<br /> APPELLATE DISTRICT<br /> <br/> <br /> <br/>DIVISION<br /> TWO<br /> <br/> <br /> <br/> <br /> <table class=MsoNormalTable border=0 cellspacing=0 cellpadding=0<br /> ><br /> <tr ><br /> <td width=319 valign=top ><br /> <br/>Estate of GRANT WILLIAM HASTIE,<br /> Deceased.<br /> </td><br /> <td width=319 valign=top ><br /> <br/> <br /> </td><br /> </tr><br /> <tr ><br /> <td width=319 valign=top ><br /> <br/> <br /> <br/>STEVEN A.<br /> WEINKAUF,<br /> <br/> Petitioner and Respondent,<br /> <br/>v.<br /> <br/>TIMOTHY<br /> FLOREZ,<br /> <br/> Objector and Appellant.<br /> </td><br /> <td width=319 valign=top ><br /> <br/> <br /> <br/> <br /> <br/> <br /> <br/> A127069<br /> <br/> <br /> <br/> (Alameda<br /> County<br /> <br/> Super. Ct.<br /> No. HG07358052)<br /> </td><br /> </tr><br /> </table><br /> <br/> <br /> <br/><b >I. INTRODUCTION</b><br /> <br/> Timothy<br /> Florez appeals from the probate court's determination, following a trial, that<br /> two donative transfers of real property by the decedent were invalid. Appellant contends this action by the<br /> administrator is barred by the statute of<br /> limitations. We disagree and hence<br /> affirm.<br /> <br/><b >II. FACTUAL AND PROCEDURAL BACKGROUND</b><br /> <br/> Grant<br /> William Hastie died on July 6, 2006,<br /> at the age of 88. Hastie was the owner<br /> and resident of real property commonly known as 3712<br /> Anza Way, San Leandro, California<br /> (the Anza Property). Hastie was survived<br /> by no spouse, no issue, no parents or issue of parents, and no grandparents or<br /> issue of grandparents. The only two<br /> known heirs are James D. McCarty and David W. McCarty<br /> (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<br /> in poor health and was unable to take care of his personal and financial<br /> affairs. <br /> <br/> For<br /> decades there was a close relationship between decedent and defendant Bingham<br /> Liverman. Liverman had a real estate<br /> background including some probate matters. <br /> A fiduciary relationship developed when Hastie granted Liverman power of<br /> attorney in October 1999 and existed continuously at all times relevant to this<br /> action, up to and including the date of Hastie's death. Liverman paid Hastie's bills by writing<br /> checks on his behalf, and assisted Hastie in financial matters. Hastie paid Liverman $4,000 per year for his<br /> services. <br /> <br/> In<br /> 2000, Liverman drafted a Change in Beneficiary form, in his own handwriting,<br /> for execution by Hastie on May 6, 2000,<br /> naming Liverman and his daughter, Carmen Florez,[1]<br /> the beneficiaries of Hastie's $150,000 insurance annuity. <br /> <br/> In<br /> 2001, Liverman arranged for Carmen to become an in-home caregiver for<br /> Hastie. She worked in this capacity for<br /> Hastie from 2001 until two months before his death in 2006. For her services, she was paid $1,500 per<br /> month plus a lump sum payment of $90,000. <br /> <br /> <br/> In<br /> 2001, Liverman suggested that Hastie transfer an interest in the Anza Property<br /> to Liverman's granddaughter and Carmen's daughter, Jenny, by executing a joint<br /> tenancy grant deed in her favor. Hastie<br /> executed the deed on June 13, 2001. It was recorded on March 29, 2002. <br /> <br /> <br/> In<br /> 2006, Liverman suggested that Hastie, while in the hospital a few weeks prior<br /> to his death, transfer his remaining interest in the Anza Property to<br /> Liverman's grandson and Carmen's son, Timothy (appellant). Liverman drafted a quit claim deed from<br /> Hastie in favor of Timothy. Hastie<br /> executed the deed in June 2006. <br /> Appellant did not pay anything to Hastie in exchange for the interest in<br /> the Anza Property. <br /> <br/> In<br /> 2006, Liverman secured a second power of attorney from Hastie while Hastie was<br /> in the hospital just prior to his death. <br /> <br /> <br/> In<br /> 2006, Liverman wrote a letter to the McCartys immediately after Hastie's death,<br /> informing them that his relationship with Hastie was not charitable, but rather<br /> was that of a caretaker, legal guardian, a business matter, and in expectation<br /> of compensation. <br /> <br/> The<br /> McCartys hired George Weinkauf[2]<br /> as their attorney to bring any claims they might have as heirs of the estate. The McCartys nominated George's brother,<br /> Steven Weinkauf, also an attorney, to act as the administrator of Hastie's<br /> estate. On January 4, 2008, the court issued letters of<br /> administration to Steven as administrator. <br /> Steven has no other relationship to the decedent and he has no other<br /> role in this action. <br /> <br/> On<br /> August 29, 2007, Steven, as<br /> administrator, filed a complaint and, on May<br /> 9, 2008, a second amended complaint seeking, inter alia, a judicial<br /> determination that certain deeds to members of Liverman's family were<br /> invalid. The complaint named as<br /> defendants Liverman, Carmen, Jenny, and appellant. <br /> <br/> The<br /> administrator and appellant litigated cross motions for summary adjudication. The administrator's motion sought a<br /> determination pursuant to Probate Code section 21350[3]<br /> that (1) the donative transfer of the Anza Property to Jenny as evidenced by<br /> the grant deed dated June 13, 2001 (the 2001 grant deed), was invalid; (2) the<br /> donative transfer of the Anza Property to appellant as evidenced by the quit<br /> claim deed dated June 6, 2006 (the 2006 grant deed), was invalid; (3) the grant<br /> deed from Jenny transferring her interest in the Anza Property to appellant<br /> dated February 20, 2007, was invalid because it was based on the invalid 2001<br /> grant deed to Jenny; and (4) the deed of trust from appellant in favor of<br /> Liverman dated March 22, 2007, was invalid because it was based on the invalid<br /> deeds to appellant. <br /> <br/> Appellant's<br /> sole defense to the administrator's motion, and the sole basis for his own<br /> motion, was his assertion that the administrator's action was barred by the statute of limitations. <br /> <br/> After<br /> the hearing on the summary adjudication motions, the probate court declared the<br /> 2001 and 2006 deeds to be invalid. The<br /> court also declared the 2007 grant deed and the 2007 deed of trust invalid<br /> because they were based on the invalid 2001 and 2006 deeds. <br /> <br/> Following<br /> a court trial on October 26, 2009,<br /> the court ordered the return of assets, including the Anza Property, to the<br /> Estate and awarded judgment against Liverman in the amount of $150,000 for<br /> taking decedent's retirement annuity. <br /> The judgment was filed and entered on November 30, 2009. <br /> <br /> <br/> Appellant<br /> filed a timely notice of appeal on December 7, 2009.[4] <br /> <br/><b >III. DISCUSSION</b><br /> <br/>A.<i > Standard of Review</i><br /> <br/> â€