Opinion
E066569
07-20-2017
WILLIAM HENRY CUMMING, Individually and as Personal Representative, etc., Plaintiff and Respondent, v. STEVEN ROBERTSON CUMMING, Defendant and Appellant.
Steven Robertson Cumming, in pro. per., for Defendant and Appellant. The Law Offices of Edward B. Fischel and Earl L. Roberts for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (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 Plaintiff and Respondent.
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, that the evidence was insufficient to justify the decision, and that the judgment is contrary to law.
Because all of the parties in this case have the same surname, we will refer to them by their first names for simplicity. No disrespect is intended.
We conclude that Steven has not met his burden to demonstrate prejudicial error. Accordingly, 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.
William's name is omitted from the caption, but the supplemental petition names him as a petitioner.
By separate order filed June 16, 2017, we have taken judicial notice of the initiation of probate proceedings on October 18, 2016, respecting the will of Janet Anne Cumming (Super. Ct. San Bernardino County, 2016, No. PROPS1601037). (Evid. Code, § 452, subd. (d).)
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. It also deemed him to have predeceased Lois and found that he was not entitled to "take further" under the will, the trust, or by intestate succession. 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.
The statement of decision does not state when Janet became cotrustee.
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 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.)" (Fn. omitted.) 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.
PROBATE CODE SECTION 259As noted above, 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 found that he acted recklessly and in bad faith. The court deemed him to have predeceased Lois and determined that Steven was to take nothing further from the estate. Steven raises two claims pertaining to this ruling: that the evidence was insufficient to support the trial court's factual findings and that the trial court erred as a matter of law in disinheriting him pursuant to Probate Code section 259.
The statement of decision contains these determinations. The judgment states only that Steven is deemed to have predeceased Lois.
We did not address this issue in our original opinion in this case because we did not view it as having been raised in Steven's opening brief. Upon consideration of the petition for rehearing and the answer to the petition, we concluded that the issue was adequately raised. We granted rehearing, and we now address the issue based on arguments made in the petition for rehearing and in the answer.
Probate Code section 259 (hereafter section 259) provides, in pertinent part:
"(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.
"[¶] . . . [¶]
"(c) Any person found liable under subdivision (a) . . . shall not (1) receive any property, damages, or costs that are awarded to the decedent's estate in an action described in subdivision (a) . . . whether that person's entitlement is under a will, a trust, or the laws of intestacy . . . .
"(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."
Steven Has Not Met His Burden with Respect to His Claim of Insufficiency of the Evidence.
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.
Bickel v. City of Piedmont, supra, 16 Cal.4th 1040, was superseded by statute on an unrelated point, as stated in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 100.
The Ruling Is Erroneous as a Matter of Law.
Section 259, subdivision (a), provides that a person may be deemed to have predeceased a decedent "to the extent provided in subdivision (c)" under specified circumstances. Subdivision (c) provides that a person who has been found liable for elder abuse as described in subdivision (a) may not receive "any property, damages or costs that are awarded to the decedent's estate in an action described in subdivision (a)" (italics added), i.e., an action in which it was proven by clear and convincing evidence that the person is liable for physical abuse, neglect or financial abuse of a decedent who was an elder or dependent adult, and the person was found to have acted in bad faith and to have been reckless, oppressive, fraudulent, or malicious in the commission of any of those acts.
In Estate of Dito (2011) 198 Cal.App.4th 791 (Dito), the court addressed the apparent assumption of the parties and the trial court in that case that under section 259, "a person found liable for elder abuse is deemed to have predeceased the decedent for purposes of any entitlement to property, interests, and benefits the abuser would otherwise receive by reason of the decedent's death." (Dito, at p. 803.) The court held that section 259 does not give a court the authority to disinherit an abusive beneficiary entirely. Rather, by prohibiting the abuser from taking a share of "property, damages, or costs" that were awarded to the decedent's estate in an action for elder abuse, section 259 merely "restricts the value of the estate to which the abuser's percentage share is applied and prevents that person from benefiting from his or her own wrongful conduct." (Dito, at pp. 803-804.) If the award of damages for the beneficiary's abuse of the decedent exceeds the amount the beneficiary would have inherited but for the damage award, this will effectively disinherit the abuser entirely, but section 259 does not, by its express terms, authorize an order prohibiting the beneficiary from obtaining his or her share of the estate to the extent that it exceeds any property, damages or costs awarded to the estate as a result of the beneficiary's abusive conduct. (Dito, at pp. 803-804.) We agree with this analysis.
Here, although the trial court found that Steven was liable for physical abuse or neglect of his mother and found that he acted recklessly and in bad faith with respect to his care of his mother, it did not award damages to the estate based on Steven's physical abuse or neglect. Further, the court expressly found insufficient evidence of financial elder abuse. Because there was no award to the estate based on Steven's physical abuse or neglect, section 259, subdivisions (a) and (c) do not apply. The court did surcharge Steven $386,272 for the misappropriation of trust assets, and that amount will, of course, be credited to the other beneficiaries. (Chatard v. Oveross (2009) 179 Cal.App.4th 1098, 1104-1105.) The record on appeal does not show whether Steven would be entitled to any amount in excess of $386,272. As William points out in his opposition to the request for judicial notice, the statement of decision states only that the estate was "in excess of $1 million." William contends that because the record does not show the actual amount of the trust assets, Steven cannot show that he would be entitled to any amount over and above the amount of the surcharge and, therefore, has not met his burden of demonstrating that he was prejudiced by the court's erroneous application of section 259. William also contends that Steven's failure to include a reporter's transcript in the record on appeal precludes him from doing so.
Section 259, subdivision (e), provides: "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 record in this case does not show that such damages were awarded to the estate in any other proceeding.
William does not concede that it was erroneous.
William is correct that an appellant must show prejudice to prevail on appeal. (Code Civ. Proc., § 475; see, generally, Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2016) ¶ 8:288 et seq., pp. 8-203, 8-211 to 8-214.) In order to prevail on appeal, moreover, an appellant must provide the court with a record that affirmatively shows both error and prejudice. (Foust v. San Jose Construction Co., Inc. (2011) 198 Cal.App.4th 181, 186-187; Maria P. v. Riles, supra, 43 Cal.3d at pp. 1295-1296.) Here, the record on appeal does not establish the value of the trust assets or of any other assets Lois may have possessed in which Steven would otherwise be entitled to share. Consequently, we cannot determine whether the error was prejudicial, in light of the surcharge. Accordingly, Steven has not met his burden on appeal.
"The court must, in every stage of an action, disregard any error, improper ruling, instruction, or defect, in the pleadings or proceedings which, in the opinion of said court, does not affect the substantial rights of the parties. No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown." (Code Civ. Proc., § 475.) --------
DISPOSITION
The judgment is affirmed. Respondent is awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: MILLER
J. SLOUGH
J.