Opinion
F084277
08-02-2023
Estate of MARGO M. TRESSLER, Deceased. v. ALLISON BETTENCOURT, Objector and Respondent. JOHN X. BETTENCOURT et al., Petitioners and Appellants,
Coleman & Horowitt and Robert K. Ashley for Petitioners and Appellants. Richard B. Barron for Objector and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Tulare County. No. VPR050902 Bret D. Hillman, Judge.
Coleman & Horowitt and Robert K. Ashley for Petitioners and Appellants.
Richard B. Barron for Objector and Respondent.
OPINION
FRANSON, Acting P. J.
INTRODUCTION
Appellants John X. Bettencourt (John) and Justin W. Bettencourt (Justin) (sometimes collectively referred to as "appellants") are the children of respondent Allison Bettencourt (Allison) and the grandchildren of Margo Tressler (Margo) and Earnest Tressler (Ernie). Allison is Margo and Ernie's daughter and only child.
For purposes of clarity and convenience, we refer to the parties and various family members by their first names. No disrespect is intended.
Following Ernie's death in 2015, Margo created The Margo M. Tressler Revocable Trust dated November 10, 2016 (original Trust) which provided that John and Justin would be Margo's sole Trust beneficiaries. After Margo suffered a stroke in 2018, she amended the original Trust several times culminating in the Second Amendment and Restatement of the Margo M. Tressler Revocable Living Trust (second amended/restated Trust) by which John and Justin were excluded from sharing in Trust estate assets upon Margo's death. The second amended/restated Trust provided that Allison would inherit all Trust estate assets upon Margo's passing. In addition, Margo changed the beneficiary designations on two of her accounts and replaced John and Justin as her designated beneficiaries with Allison.
Margo passed away on July 25, 2021. Thereafter, John and Justin petitioned the Tulare County Superior Court, sitting in probate, for an order declaring all amendments to the original Trust invalid and for related relief. In their amended petition, appellants alleged Margo was the victim of undue influence and financial elder abuse.
The probate court denied appellant's amended petition in its entirety. John and Justin appeal the probate court's ruling (subject ruling).
We affirm the subject ruling in its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are derived from witness testimony and documents admitted into evidence at trial.
John and Justin had a very close relationship with their grandparents Margo and Ernie. Ernie was a father figure, and Margo a mother figure, to them. Justin was particularly close to his grandparents, having lived with them during portions of his early childhood and later, during his adolescence. In or about 2008, when Justin was a freshman in high school, he returned to live with his grandparents' full time. With Allison's consent, Margo and Ernie obtained legal guardianship of Justin to enable him to finish high school in Visalia where Ernie and Margo lived. Justin entered military service in 2011, transitioned to the reserves in 2014, and served in that capacity through 2018. After Justin completed active duty and transitioned to the reserves, he continued to live with Margo and Ernie. John lived with his mother, Allison, through the age of 18.
Ernie passed away on December 31, 2015. Prior to his death, Ernie discussed forming a trust for Margo and him with Attorney Thomas Hornburg. However, Ernie passed away before a trust could be established. Later the following year, Margo engaged Attorney Hornburg to help her with her estate planning and the original Trust was formed. Margo executed the original Trust along with a pour-over will directing that all of her estate be transferred to the trustee of the original Trust. Justin was named executor of the will and successor trustee of the original Trust. John was nominated to serve in those same capacities in the event Justin was unable or unwilling to so serve.
The original Trust provided, in part:
"Section 3.04. After the death of the Trustor [i.e., Margo] and payment of the expenses of her last illness and funeral, the entire remaining Trust Estate shall be distributed by the Trustee as follows:
"a. Fifty Percent (50%) to JUSTIN W. BETTENCOURT, or his issue by right of representation.
"b. Fifty Percent (50%) to JOHN X. BETTENCOURT, or his issue by right of representation.
"c. Any and all outstanding loans owed to Trustor or this Trust by JUSTIN W. BETTENCOURT or JOHN X. BETTENCOURT shall be forgiven at the time of this distribution.
"d. I specifically make no provision for my child, ALLISON M. BETTENCOURT, as she has been previously provided for outside of this Trust."
As to the last quoted provision, Allison had received $180,000 from Margo and Ernie in or about June 2015 to purchase and operate a business in Idaho. She paid $170,000 toward the purchase of the business but, for reasons not entirely clear from the record, did not end up obtaining the business. She never recovered her investment. As a condition of obtaining the money, Allison testified she had to sign over her interest in the "Big Oak Valley" house (the Penn Valley house) to John. The property was originally purchased by Margo and Ernie so that Allison and her children could live there beginning in 1998. By the time Allison transferred her interest in the property to John some years later, John was already on title to the house and owned the remaining two-thirds interest in the property.
The Big Oak Valley house was sometimes referred to by family members as the Penn Valley house or the Grass Valley house. John testified it was located in Smartsville, California, which is in Penn Valley between Marysville and Grass Valley.
Allison testified she communicated only with Margo concerning the $180,000, and the conditions for her receipt of the money. Margo told her the rest of Margo and Ernie's money "was going to be split with the boys," i.e., John and Justin.
Prior to the events at issue, Allison was unemployed, living with friends in Idaho, and receiving permanent disability benefits from the Social Security Administration of $1,500 per month. In October 2017, Allison came home from Idaho to visit Margo. She intended to visit for a couple of weeks and initially stayed with Margo and Justin at Margo's home in Visalia. Justin's girlfriend (and eventual wife), Julie, was "in and out" and was "pretty much, staying there too."
However, Allison testified she became concerned "about how [Margo] was being treated and talked to and things[, and] that [she, Allison,] decided to stay." Her concerns were that Margo "wasn't being heard and that there was things that she would have done differently." Allison moved into a rental home in Tipton California. She testified her decision to move was prompted by Justin creating tension in the house and telling Allison to "leave and move out." Margo and Allison agreed Allison would move out and Margo agreed to help Allison with her rent.
On or about March 29, 2018, Margo suffered a stroke after coming home from the gym. Margo called Allison and Allison could tell that Margo was slurring her words. Allison left her rental house, drove to be with Margo, and ended up taking Margo to the hospital. Margo was admitted to the hospital on March 30, 2018, and Allison signed the various registration/admission forms presented to her by the hospital.
Allison knew that Margo had a previous Advanced Health Care Directive appointing Justin as her agent for health care decisions stemming from a surgical procedure Margo had in 2014. However, she did not think the healthcare directive was still operative. Justin made Allison aware (and reminded Margo) that he continued to be Margo's agent for healthcare purposes. Allison testified Margo seemed unaware that the healthcare directive continued to be in effect and "both assumed that after the [2014] procedure was done" the healthcare directive "was no longer valid." Allison demanded that the "power of attorney" be dissolved-possibly referring to the healthcare directive.She testified that Margo asked her to have it dissolved.
The operative portion of the healthcare directive was denominated "POWER OF ATTORNEY FOR HEALTH CARE."
Justin was also Margo's attorney-in-fact under a Uniform Statutory Form Power of Attorney (POA) which was executed on the same day as the original Trust in 2016. The POA nominated John as a successor attorney-in-fact in the event Justin was unable or unwilling to serve in that capacity.
Margo stayed in the hospital for several days and was transferred to a rehabilitation center. She was released from the rehabilitation hospital on April 18, 2018, and afterwards continued rehabilitation therapy on an outpatient basis.
Allison cared for her mother after she was released from the hospital but would time her visits to avoid interactions with Justin and Julie, arriving in the morning after Justin and Julie had left for work, caring for Margo the remainder of the day, and leaving before Justin and Julie returned sometime between 6:00 p.m. and 10:00 p.m. Allison would take Margo to all of her therapy sessions four to five days each week and to all of her doctor appointments. When asked if there were other things she did with her mother in the three months after Margo's release from the hospital, Allison testified they would go shopping at the mall (with Margo using a wheelchair); go out to lunch; go to the park to feed the ducks; go for drives; go to see their horses; go grocery shopping; and she would take Margo to appointments with Margo's attorneys.
Justin and Julie moved out of Margo's house in July 2018, following an incident where Justin was unable to gain entry into the Visalia home. He testified he was locked out and had to "push through" the front door. Allison testified Justin kicked the door in. Both Allison and Justin filed for restraining orders against each other and, according to Justin, he moved out because he did not want to risk violating any such order.
At some point thereafter, Allison moved back into Margo's Visalia house. Her boyfriend, Brian Suttles (Brian), moved in with Allison and Margo shortly after the restraining orders were in place. Brian had known the family since he was a child because his grandparents were friends with Margo and Ernie. He helped Allison take care of Margo, explaining that Allison needed the help due to her disability. Brian spent a lot of time with Margo and the two would talk day and night. He called her "Mom" and made her breakfast nearly every morning.
At the time of trial, Brian and Allison were no longer in a relationship. Brian testified their relationship was coming to an end near the end of Margo's life. They stopped living together "maybe a month" after Margo died. Margo apparently knew the relationship was coming to an end but, according to Brian, she wanted him to stay until she passed. He testified "that was the biggest reason [he] stayed."
Select Events
Certain events are alleged as particularly relevant to appellants' claims of undue influence and financial elder abuse. We discuss those below and in further detail in the discussion section of this opinion.
A. 2018 Transaction to Assist Brian Suttles
On or about April 24, 2018, Allison had given Margo a payroll check payable to Brian, and endorsed by him, for $16,000. She then took Margo to the Wells Fargo Bank, signed Margo's name for her, and deposited the check into Margo's account. Allison testified Margo then instructed Allison to write a check to herself for cash on Margo's account for $15,000. At the time, Allison was not Margo's agent-in-fact pursuant to a power of attorney. Brian testified he needed the money to buy a horse from a serviceman living in Texas who was soon to be deployed to Germany. Brian said he did not have a bank account because of "IRS affairs" and needed the money quickly. He testified that, upon learning of the opportunity, Margo suggested Brian release the payroll check to her and she would give him the money.
There is no evidence to suggest Brian's $16,000 payroll check did not clear the bank.
B. Wells Fargo Events in 2018
In June 2018, Allison drove Margo to Wells Fargo to add Allison's name to a joint account Margo held with Justin (Margo's agent-in-fact at the time). Allison testified Margo wanted Allison to be added to the account because Margo had difficulty writing her name as a result of the stroke, and Allison was paying Margo's bills by signing Margo's name on outgoing checks. According to Allison, the bank recommended they open a new account for this purpose and the money from Margo's joint account with Justin was transferred to the new account.
There is no evidence in the record on appeal that the money transferred was not Margo's money, or that it was money deposited into the account by Justin.
Allison testified that they learned a few days later that the original Wells Fargo account had been overdrawn due to some outstanding checks that were cashed after the account funds were transferred to the new account. Allison and Margo returned to the bank a few days later to resolve the issue. Justin, who had been alerted to the situation, "stormed in, went over to the desk [Allison and Margo] were sitting at, threw down the binder and his [POA] and took over." Allison testified Margo "was upset with Wells Fargo for the way . . . the situation was handled." Once Justin arrived, the bank would not talk with Margo and "would only deal with Justin." As a result, Margo decided to pull her money out of Wells Fargo. Once the last check against the account had cleared, Margo opened a new joint account with Bank of the Sierra in Margo and Allison's name.
Allison testified another reason for the decision to change banks was the fact that Justin had transferred $105,000 from one of Margo's investment accounts into his joint account with Margo and had withdrawn the money within 24 hours. Brian testified that when Margo learned of the withdrawal of $105,000 from her account, Margo got upset. She told Brian she wanted Justin prosecuted for the withdrawal.
C. Margo's 2018 Meetings With Attorney Hornburg, 2018 Changes to Estate Plan, and Related Events
1. June 2018 Changes to Estate Plan
Allison testified that, in June 2018, she drove Margo to an appointment with her attorney, Thomas Hornburg, because Margo wanted to make changes to the original Trust. Hornburg testified he met with Margo but kept Allison out of their meeting because Allison "was being very emotional and forceful." During their conference, Margo discussed Justin and John. He was told that John never visits Margo and that Justin was in the Army in Monterey. Hornburg testified, "what I recall is that she wanted to change her estate plan so that the home was going to Allison because she thought Allison was the only one there taking care of her after she got out of the hospital but that the boys would get the remainder of the trust assets .... I think the trust was primarily the house and maybe a couple of loans and small accounts. But I think the rest of it was all in qualified accounts, 403Bs and IRAs [(hereafter qualified accounts)], and that they would still be the beneficiaries of those." Allison testified that Margo had told her that "it was only fair to give [Allison] the house. Justin had the new house [which Margo had helped Justin to purchase]. [And,] John had [Allison's] old house."
A week later, Allison drove Margo to Attorney Hornburg's office to sign documents. Hornburg and his paralegal, Robert Nix, who was a notary for the amended trust, and a witness for Margo's will, met with Margo alone. Hornburg testified Margo was "frustrated and upset with Justin and John, [and] how they had been handling things." Margo also discussed the event that had occurred at Wells Fargo with Justin and the POA. Hornburg asked Margo if she wanted the POA modified at that time but Margo declined.
2. Justin and Allison Seek Restraining Orders
Nearly a month later, on July 13, 2018, Allison's attorney, Ryan Sullivan, contacted Attorney Hornburg to request copies of Margo's POA and healthcare directive. Attorney Sullivan was representing Allison in connection with her and Justin's respective requests for a restraining order. Margo authorized Hornburg to share the documents with Sullivan and "expressed exacerbation that things ha[d] devolved this far and wondered how her daughter was going to pay for an attorney since she didn't have any money."
On July 13, 2018, Margo signed a declaration indicating, among other things, (1) she did not request, and did not need, protection from Allison; (2) she wanted Allison to be able to come to her house and continue caring for her "as she ha[d] done for the last several months to [Margo's] satisfaction"; (3) Allison "never harassed, attacked, struck, threatened, assaulted, hit, followed, stalked, molested, destroyed property, disturb[ed the] peace, kept [her] under surveillance, impersonated, or blocked [her] movements, in any manner"; (4) Justin's inclusion of Margo as a protected person was done without Margo's consent or knowledge; and (5) Justin does not reside with Margo "and ha[d] no authority to request restraining orders on [her] behalf." The superior court terminated "[a]ll orders as to Margo" and the "cross TRO's as to all parties." By stipulation, Allison and Justin were ordered to not contact each other and to not harass, attack, threaten, et cetera, each other.
"TRO" is a common acronym for temporary restraining order.
3. Margo Changes Her POA and Appoints Allison Her Attorney-in-Fact
On July 31, 2018, Margo met again with Attorney Hornburg. Allison was again kept out of the room. Hornburg testified he and Margo "talked about changing her power of attorney from Justin to Allison. [He] asked her basically why she wanted to do that. And she indicated that there had been a fight between Justin and Allison and indicated that Justin had kicked in the door out of frustration, and she indicated that he may have PTSD and acted concerned about him and wanted to change that to Allison." He testified his memorandum of that same day reads, "Margo seemed scared of Justin and said he has PTSD." Hornburg "quizzed Margo and wanted to make sure the changes she instructed [him] to do to the [POA] [were] her own and of her own volition. [Margo] laughed and said they [were], that they [were] because Justin [was] out of control. So we [were] to remove him and replace him with Allison and send a letter to Justin telling him his POA ha[d] been revoked.' "
Paralegal Robert Nix prepared the new POA and had it executed and notarized the same day, July 31, 2018. According to Nix, Allison said she did not want the POA to go into effect unless Margo became incapacitated (i.e., a springing POA). Nix explained the difference between "a regular [POA] and a springing [POA]" to Margo. He offered to prepare for Margo a springing POA but she declined, said she wanted to sign the POA that had already been prepared, and "preferred to have the [POA] that became effective immediately."
4. August 2018 Changes to Beneficiary Designations
On August 2, 2018, Margo and Allison called the financial institutions that held Margo's qualified accounts to change her beneficiary designations. Allison testified that she made the call at Margo's instruction; that the two of them spoke to the company representatives over the speakerphone; that Margo requested Allison help her complete the paperwork that changed the beneficiary designations from John and Justin to Allison; that Margo actually signed the change of beneficiary forms to accomplish the change; and that Allison included a copy of her POA with the forms that were sent to the companies in order to enable them to legally speak with her about Margo's accounts. Her testimony in this regard was uncontradicted.
5. August 2018 Changes to Estate Plan
On August 22, 2018, Margo again met with Attorney Hornburg. Again, Allison was not present in the room. Margo advised Hornburg she "is giving everything to Allison." Moreover, she no longer wanted to mention the loans to Justin and John. (Up to that point, the Trust provided that those loans would be forgiven.) She wanted Allison appointed first successor trustee. Margo told Hornburg "this is all her own wishes, and . that she ha[d]n't seen Justin in some time and is very frustrated with [John and Justin] and how they have been behaving. Therefore, she wanted to make the changes." Two days later, Margo met with Hornburg to sign the amended estate plan documents. Again, Allison was kept out of the room. Reading from his notes, Hornburg testified, "Margo seemed upbeat." At the meeting, Margo signed her "FIRST AMENDMENT AND RESTATEMENT OF THE MARGO M. TRESSLER REVOCABLE LIVING TRUST" (first amended/restated Trust) and related estate planning documents.
Margo later commented to Attorney Steven Williams who prepared Margo's second amended/restated Trust that she wanted the loans repaid. Allison was not present when the comment was made.
D. In 2019, Allison Used Her Retirement Account to Purchase a Recreational Vehicle for Margo
In 2019, Allison discovered money she had in a retirement account from a previous employment. She withdrew the money ($91,340.51) and used the large majority of it (approximately $70,000) to purchase a recreational vehicle (RV). Margo's name was on the title. Allison bought the RV for Margo so she could take her places. Brian testified that Margo enjoyed the trips and that they took Margo on approximately seven RV trips before Margo could no longer get into the coach.
John testified he was concerned by the presence of the RV and other vehicles/boats in Margo's driveway. He assumed the RV was purchased with Margo's money and was concerned "[b]ecause [he] felt that there would be no need at that point ... in Margo's life for her to be investing and purchasing and getting new things, and at that time with no income from [Allison], there's only one way that those possessions can be appearing." Documentary evidence supported, and the probate court credited, Allison's testimony that the RV was purchased with Allison's own money.
E. 2019 and 2020 Loans to Brian Suttles
In May 2019, Margo loaned Brian $5,000 to help him purchase a boat. The loan was repaid when Brian sold the boat for $14,700 in 2020, and Brian gave the entire sale proceeds to Margo and then secured another loan of approximately $30,000 from Margo to purchase another boat for $43,000. Brian paid the majority of the loan back to Margo during her lifetime. The remaining balance was paid off when Allison accepted $10,000 and a horse from Brian. Both Allison and Brian testified that the loan agreement was solely between Margo and Brian. Allison did not know in advance that Brian was going to ask for the loan and did not encourage it. To the contrary, Allison protested because Margo would pay penalties for withdrawing the money. Margo responded, "That's all right. He don't have to pay the penalties. Get him the money."
F. 2021 Changes to Estate Plan
On January 7, 2021, Margo met with Attorney Steven Williams to make minor changes to her estate plan. Allison did not participate in the meeting. When asked at trial what changes Margo wanted to make, Attorney Williams testified, "There was a lot of time spent with regard to items of personal property. .[Margo] knew she wanted the entire estate to go to her daughter but wasn't sure what an alternate beneficiary would be should her daughter predecease her, and I believe it was an issue of successor trustees." Williams testified Margo did not want either Justin or John to be successor trustees due to "[d]isharmony within the family. If something were to happen to Allison and she became incapacitated, for instance, she didn't want the boys to have control over her daughter's finances and estate."
Attorney Williams asked Margo about making a gift to John and Justin. Margo stated she wanted everything to go to her daughter. Williams asked her if there was "anybody else [she] want[ed] to give something to" and Margo replied, "No." She told Williams that "should something happen to Allison, she wanted [her estate] to go to some sort of charity, but she hadn't given enough thought to at least be able to express a particular charity." Margo said she would get back to Williams and Williams later followed up with her on the issue.
On July 21, 2021, Margo met with Attorney Williams to sign a new will and the second amended/restated Trust. The new will provided, among other things, "I have specifically omitted to make any provision in this will for any issue of Allison M. Bettencourt. I intend that they shall not take any part of my estate passing under this will." The second amended/restated Trust provided, in part: "The settlor is intentionally not providing for the children of Allison M. Bettencourt or their issue in this instrument. The settlor intends that her children and their issue shall not take any part of the trust estate passing under this instrument, under any circumstances, such as pursuant to contingent beneficiary provisions or due to disclaimers by other beneficiaries. They and their issue shall be deemed to have predeceased the settlor." Thus, Allison continued to be the sole beneficiary under the 2021 estate plan amendments as she was under the 2018 estate plan amendments. The second amended/restated Trust provided that, if Allison predeceased Margo, her entire estate would go to the Puppy Rescue Mission located in Celine, Texas.
DISCUSSION
I. APPELLANTS' CONTENTIONS
Appellants contend the probate court erred in ruling on appellant's amended petition (1) "by not shifting the burden to [Allison] to rebut the presumption of undue influence based on [Allison's] participation in drafting change of beneficiary designations"; (2) "by finding [Allison] did not exercise undue influence over [Margo] in procuring two amendments to [Margo's] trust and . . . Durable Power of Attorney"; (3) by "finding [Allison] did not commit financial elder abuse against [Margo] by writing checks and forging [Margo's] name on checks, opening bank accounts, transferring funds from [Margo's] bank account into new accounts in she [ sic ] was co-title owner, utilizing [Margo's] funds for large personal purchases via 'loans', and for changing beneficiary designations for her own benefit with her authority as Agent in fact"; and (4)"by utilizing [a] clear and convincing evidence standard of proof in ruling [a]ppellants failed to demonstrate undue influence." For reasons discussed below, we conclude appellants' contentions are without merit.
II. APPELLANTS DO NOT CHALLENGE MARGO'S TESTAMENTARY CAPACITY
Initially, we note appellants make no contention on appeal that Margo lacked testamentary capacity in effectuating changes to her estate plan. Appellant's counsel abandoned the argument during trial.
Nonetheless, the probate court discussed the issue because it believed it was "also relevant to the [appellants'] claims of undue influence." The court discussed the great weight of evidence that tended to prove Margo had testamentary capacity including, without limitation, testimony of Margo's doctor, Thomas Daglish, to the effect that Margo "did not suffer significant cognitive deficits from her stroke, and that the Lacunar stroke she had suffered rarely caused such deficits"; that Margo had no difficulty answering his questions and no signs of memory impairment after the stroke; that she was mentally competent to execute a power of attorney; and that she "had the capacity to understand both her assets and her heirs." The court further credited the testimony of Margo's occupational therapist, Monica Bolton, who "testified that she assesses cognitive function as part of her job" and that after more than "fifty therapy sessions .., held over the course of several months," Margo's "cognitive function was not impaired and she did not appear to be a victim of elder abuse either." The probate court also credited the testimony of the attorneys (Hornburg and Williams) who worked for Margo following her stroke and prepared her various estate planning documents. In the subject ruling, the court noted both attorneys testified Margo was "mentally competent, she knew what she wanted, she knew who her heirs were, and how she wanted her property handled in her Trusts."
Although the probate court acknowledged "[a] few witnesses testified that [Margo] was foggy, or not herself," it determined "there was no competent evidence of lack of capacity, either to make a will, a power of attorney, or to understand a trust in accordance with the standards discussed in California Probate Code section 6100.5 or ... section 811."
All subsequent statutory references are to the Probate Code unless otherwise noted.
III. THE PROBATE COURT DID NOT ERR BY NOT APPLYING A PRESUMPTION OF UNDUE INFLUENCE
Appellants contend the probate court "erred by not applying the presumption of undue influence and shifting the burden to [Allison] to rebut the presumption" (boldface and capitalization omitted). We disagree.
A. Undue Influence, Generally
The term "undue influence" is defined in the Probate Code as follows:" 'Undue influence' has the same meaning as defined in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the Legislature that this section supplement the common law meaning of undue influence without superseding or interfering with the operation of that law." (§ 86.) In Rice v. Clark (2002) 28 Cal.4th 89 (Rice), the Court defined "undue influence" as "pressure brought to bear directly on the testamentary act, sufficient to overcome the testator's free will, amounting in effect to coercion destroying the testator's free agency." (Id. at p. 96.)
Welfare and Institutions Code section 15610.70 supplements the common law definition of the term "undue influence," as follows:
"(a) 'Undue influence' means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. In determining whether a result was produced by undue influence, all of the following shall be considered: [¶] (1) The vulnerability of the victim.. [¶] (2) The influencer's apparent authority.. [¶] (3) The actions or tactics used by the influencer...[¶] . [¶], [and] (4) The equity of the result."
Subdivision (b) of said statute provides, "Evidence of an inequitable result, without more, is not sufficient to prove undue influence." (Welf. &Inst. Code, § 15610.70, subd. (b).)
"A person challenging the validity of a trust instrument on the grounds that the trustor lacked capacity to execute the document or did so under the undue influence of another carries the heavy burden of proving such allegations." (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 529, 545 (Doolittle).)" '[T]he party contesting a testamentary disposition bears the burden of proving undue influence' and '[u]ndue influence must be proven by clear and convincing evidence.'" (Ibid., italics added; see also § 8252.)
However, under the common law," 'a presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.'" (Bernardv. Foley (2006) 39 Cal.4th 794, 800 (Bernard); Rice, supra, 28 Cal.4th at p. 97.) Once a sufficient showing of these three factors has been made, the burden then shifts to the proponent of the challenged testamentary instrument to rebut the presumption. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 862-863 (Gelonese).) "This burden requires that the proponent produce proof by a preponderance of the evidence that the [testamentary instrument] was not induced by his [or her] undue influence." (Id. at p. 863.)
In their amended petition, appellants also alleged that a presumption of fraud and undue influence arose under section 21380, subdivision (a)(3), which allowed for a statutory presumption of fraud of undue influence for certain donative transfers to a care custodian. On appeal, however, appellants make no such argument. As a result, the argument is deemed waived. (Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 853 ["When an appellant fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived."].) Moreover, it does not appear that section 21380 would aid appellants. Subject to exceptions not relevant here, section 21380 does not apply to "a donative transfer to a person who is related by blood or affinity, within the fourth degree, to the transferor or is the cohabitant of the transferor...." (§ 21382, subd. (a).)
Appellants bore the burden of making a sufficient showing of the three factors that give rise to a presumption of undue influence. (Bernard, supra, 39 Cal.4th at p. 800 [presumption "arises upon the challenger's showing"]; Gelonese, supra, 36 Cal.App.3d at p. 862 [will contestants bore burden of demonstrating undue influence and "burden would initially be satisfied if they were able to prove the three elements alluded to above"].) It was appellants' burden to establish each of the above mentioned three factors by a preponderance of the evidence. (Gelonese, supra, at p. 862; Estate of Clegg (1978) 87 Cal.App.3d 594, 602.)
B. Appellants Failed to Establish Proof Sufficient to Give Rise to a Presumption of Undue Influence
1. Standard of Review
The parties generally agree that a probate court's factual findings are reviewed for substantial evidence. However, counsel for Allison adds that when there is a "failure of the contestant to prove an essential element, the trial judge's findings can only be reversed if uncontradicted evidence established that finding[,]" citing Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 466 (Sonic).
Appellants did not file a reply brief on appeal.
As stated in Sonic," '[w]e generally apply the familiar substantial evidence test when the sufficiency of the evidence is at issue on appeal. Under this test," 'we are bound by the established rules of appellate review that all factual matters will be viewed most favorably to the prevailing party [citations] and in support of the judgment.... "In brief, the appellate court ordinarily looks only at the evidence supporting the successful party, and disregards the contrary showing." [Citation.] All conflicts, therefore, must be resolved in favor of the respondent.'" '" (Sonic, supra, 196 Cal.App.4th at p. 465, italics omitted.)
However,"' [i]n the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment.'" (Sonic, supra, 196 Cal.App.4th at p. 465.)" '[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Id. at p. 466, italics added.)
2. The Probate Court Did Not Err By Not Applying a Presumption of Undue Influence in Connection with Any Trust Amendments
The subject ruling addressed whether a presumption of undue influence should apply with respect to the amendments to the Trust. The probate court ruled "[t]he evidence presented by the [appellants] falls far below the standard established for proof of a presumption of undue influence. The evidence showed that [Allison] drove [Margo] to the lawyers' offices. The lawyers both said they did not meet with [Allison] and that [Allison] did not direct [Margo] as to what to say in regard to the amendments to her Trust. As all three elements must be present for the presumption of undue influence to arise, [appellants'] failure to demonstrate that [Allison] 'actively participated in procuring the instrument's preparation or execution' is fatal to their claim of a presumption of undue influence."
With regard to the "active participation" factor, appellants contend the probate court ignored the evidence that Allison participated in the preparation of distributive instruments. In this regard, appellants contend (1) Allison prepared and drafted beneficiary designations for Margo's qualified accounts in August 2018, "utilizing her power as Agent in Fact"; (2) Allison demanded Margo's POA and healthcare directive be dissolved; (3) Allison made outbursts in front of medical and legal professionals; (4) Allison wrote on Margo's estate planning documents; and (5) "[a]t no point prior to [Allison] utilizing her authority as [Margo's] agent and drafting the change of beneficiary forms for the qualified accounts, had [Margo] indicated any intent to make such changes" and had, in fact, made contrary representations to her attorney.
None of the above contentions, even if true, would show active participation in the drafting, preparation, or procuring execution of any of the Trust amendments at issue. Whether Allison was involved in preparing, drafting, or obtaining execution of beneficiary designations for non-Trust assets (i.e., Margo's qualified accounts) has no bearing on whether Allison was similarly involved with respect to Trust amendments. Rather, the uncontradicted evidence is that Margo met privately with each of her attorneys and advised them of the changes she wanted to her estate plan. The attorneys quizzed Margo to ensure that she was acting of her own volition and that she understood what she was doing and were satisfied on both scores. Notably, Margo provided her attorneys with plausible and logical reasons for the changes she wanted made.
Similarly, Allison's demand that Margo's healthcare directive be dissolved (or, similarly, that the POA be dissolved) does not reflect any such involvement. Nor do any "outbursts" at the hospital or at the attorneys' offices. Appellants do not provide any cogent argument to explain how these contentions may relate to the active participation in the drafting, preparation, or procuring execution of any of the Trust Amendments at issue.
The evidence that Allison demanded the POA in favor of Justin be dissolved appears to have been directed to the healthcare directive. (See fn. 3, ante.) The evidence does not compel a finding that Allison's demands were directed toward the Uniform Statutory Form Power of Attorney of Margo M. Tressler in place at the time.
With regard to the contention that Allison wrote on Margo's estate planning documents, appellants do not cite to, nor have we found, any evidence that any such writing was that of Allison. More to the point, there is no evidence that the attorneys substantively reviewed any such notations or utilized them in drafting amendments to the Trust. In fact, Attorney Hornburg stated that he "saw [the] documents had scribbles all over them" but that he did not review or pay any attention to them. He was merely frustrated that he had to redo the original documents.
Attorney Hornburg did notice, however, the word "void" was written on the healthcare directive.
Finally, we disagree with the contention that "[a]t no point prior to [Allison] utilizing her authority as [Margo's] agent and drafting the change of beneficiary forms for the qualified accounts, had [Margo] indicated any intent to make such changes . . ." Allison testified that Margo had been discussing the changes with her for nearly a month prior to the changes having been made and the probate court may well have credited that testimony.
The evidence does not compel a finding that Allison actively participated in procuring the preparation or execution of any of the amendments to the original Trust.
3. The Probate Court Did Not Err By Not Applying a Presumption of Undue Influence in Connection with the Beneficiary Designations
Our review of the amended petition reveals that appellants made no allegations concerning the changes made to Margo's beneficiary designations on qualified accounts, did not challenge those beneficiary designations, and sought no relief in connection with the qualified accounts. Rather, appellants only sought to invalidate amendments to the original Trust, the POA, and (arguably) the healthcare directive; to remove Allison as Trustee; and for a damages award against Allison. Thus, it is uncertain whether appellants are contending the probate court should have applied a presumption of undue influence for the purpose of potentially invalidating the beneficiary designations themselves. However, we need not resolve the question. We conclude the record on appeal does not support application of a presumption of undue influence as to the beneficiary designations.
Again, to establish a presumption of undue influence, it was appellant's burden to demonstrate by a preponderance of the evidence each of the following facts:" '(1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.'" (Bernard, supra, 39 Cal.4th at p. 800; Rice, supra, 28 Cal.4th at p. 97.) In her respondent's brief, Allison contends, among other things, that "there was no proof of an undue benefit to Allison." Appellants chose not to address this issue in their opening brief and did not file a reply brief to challenge Allison's contention. We conclude Allison's contention has merit.
"For the trier of fact to decide what influence was 'undue' clearly entails a qualitative assessment of the relationship between the decedent and the beneficiary .." (Estate of Sarabia (1990) 221 Cal.App.3d 599, 607.) "If the trier of fact is empowered to check for 'unnatural' provisions of the [testamentary instrument] as an indicator of undue influence [citation], it follows as a matter of simple corresponding logic that the trier is empowered to decide what would constitute natural provisions. To determine if the beneficiary's profit is 'undue' the trier must necessarily decide what profit would be 'due.' These determinations cannot be made in an evidentiary vacuum. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent's testamentary disposition. [Citation.] That evidence may include dispositional provisions in previous [testamentary instruments] executed by the decedent [citation], or past expressions of the decedent's testamentary intentions. [Citation.] It may also encompass a showing of the extent to which the proponent would benefit in the absence of the challenged [testamentary instrument]." (Ibid.)
It is clear from the subject ruling that the probate court did not find Allison was unduly benefitted by the amendments to the Trust or by changes in Margo's designated beneficiaries for her qualified accounts. The court wrote: "In looking at the evidence as a whole, the court sees an evolving estate plan, consistent with the care Margo ... was receiving, her concerns about her daughter's disability and limited future economic prospects, her previous generosity to her grandsons, and their absence from her life. The court does not find this was the result of planned isolation. One grandson lived and worked in Northern California in the home his [grandparents] had given him. The other grandson was given money to purchase a home in Visalia, as Margo . . . told him she wanted relatives in the area, but he sold it fairly quickly and relocated to Tennessee. [Justin, John,] and [Allison] took what they could from Ernie and Margo . . . throughout their lives. Both sides benefited financially from this association."
To the extent one might argue that the court's subject ruling did not contain an express finding that Allison did not unduly benefit from the Trust amendments or the changes to Margo's beneficiary designations, it is appropriate to apply the doctrine of implied findings." 'Under the doctrine of implied findings, the reviewing court must infer, following a bench trial, that the trial court impliedly made every factual finding necessary to support its decision. Securing a statement of decision [as was done here] is the first step in avoiding the doctrine of implied findings, but is not always enough: The appellant also must bring ambiguities and omissions in the factual findings of the statement of decision to the trial court's attention [which was not done here]. If the appellant fails to do so, the reviewing court will infer the trial court made every implied factual finding necessary to uphold its decision, even on issues not addressed in the statement of decision. The question then becomes whether substantial evidence supports the implied factual findings.'" (State Bar of California v. Statile (2008) 168 Cal.App.4th 650, 673.)
Counsel for Allison requested a statement of decision in his posttrial brief to the court. The record on appeal does not demonstrate that either party sought an express finding on the question of whether Allison was unduly benefitted by any changes to her estate plan.
As discussed in Sonic, when the trier of fact determines that a party with the burden of proof fails to meet that burden, the substantial evidence test takes on a different gloss. In such cases," 'the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law.'" (Sonic, supra, 196 Cal.App.4th at p. 466.)
Here, the evidence does not compel a finding in favor of appellants on the question of whether Allison was unduly benefitted by changes to Margo's estate plan. Allison, as Margo's only child, was a natural object of Margo's bounty. Although appellants contend Allison was disinherited by Margo, the facts demonstrate that Allison was omitted from Margo's original Trust only because Margo and Ernie had already provided for Allison during her lifetime. There was no evidence that Margo had lost affection for Allison or that Margo did not wish to provide for her daughter.
Evidence was admitted which showed that Allison returned to Visalia to visit her mother and decided to stay on out of concern for Margo. When Margo suffered her stroke, it was Allison that brought her to the hospital and then cared for her for the next several years-helping her with her activities of daily living, ensuring that she attended her ongoing medical appointments and rehabilitation therapy, and hiring help to assist in the process.
Allison was there for her mother during her final years. She contributed greatly to Margo's quality of life in those remaining years, taking her on numerous trips in the RV that Allison had purchased with her own funds and which depleted Allison's available funds substantially; encouraged her to remain socially active; and provided her with companionship. There is nothing unnatural about the growing bond of a mother and daughter under such circumstances. Their bonds naturally strengthened during that time whereas John and Justin's presence in Margo's life was scant and decreased over the last few years of Margo's life.
Evidence was produced to demonstrate that Margo was saddened and frustrated by John and Justin's treatment of their mother. Evidence also tended to show that Margo did not appreciate Justin's assertion of control over certain aspects of Margo's finances- whether that be Justin's interference with Margo's dealings with Wells Fargo bank or his withdrawal of monies from Margo's account(s). There was evidence that Justin and John gave Margo an ultimatum and forced her to choose between her grandsons, who had increasingly absented themselves from her life, and her only daughter, who had come to her aid in a time of need. Margo's increasing desire to provide for her daughter who was permanently disabled and whose financial prospects were dim, was evidenced in private conversations Margo had with her attorneys.
Finally, Margo was described by third parties as being "fiercely independent," "independent-minded," and an "independent decision maker as far as her own personal decisions," even after having suffered her stroke. By her attorneys' accounts, Margo was of sound mind, was acting of her own volition in making changes to her estate plan, and ultimately decided she wanted everything to go to Allison.
Under the above circumstances, we cannot say, as a matter of law, that Allison was unduly benefited by any of the changes to Margo's estate plan. The trial court did not err by not applying a presumption of undue influence in this matter.
IV. THE PROBATE COURT DID NOT ERR IN HOLDING APPELLANTS TO A CLEAR AND CONVINCING STANDARD OF PROOF FOR THEIR CLAIMS OF UNDUE INFLUENCE
Appellants' contention the probate court erred by holding appellants to a clear and convincing standard of proof to prove their claims of undue influence is premised primarily on their contention that the court should have applied a presumption of undue influence. Absent such a presumption, the standard of proof is clear and convincing evidence. (Doolittle, supra, 241 Cal.App.4th at p. 545.) Because we have concluded the court did not err by not applying a presumption of undue influence, we likewise conclude the court did not err in holding appellants to a clear and convincing standard for their claims of undue influence.
Appellants also contend the probate court erred in holding them to a clear and convincing standard of proof in proving their claims of financial elder abuse. The record does not support appellants' contention. Rather, the court was responding to appellants' claim in their posttrial brief that Allison "should be disqualified as a beneficiary under . [section] 259" which does require a clear and convincing showing. (§ 259 ["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 . financial abuse of the decedent, who was an elder or dependent adult.."].)
The subject ruling reads, in relevant part: "The evidence presented also does not support the [appellants'] contention that the disqualification provision of . section 259 is applicable to [Allison]. There was evidence that [Margo's] stroke had made it difficult for her to write and pay bills, and that she sought assistance with these tasks. But there was no clear and convincing evidence that [Margo] was unable to manage her financial affairs .."
Nothing in the subject ruling suggests the probate court applied a clear and convincing standard of proof in otherwise evaluating appellant's financial elder abuse claims. We conclude the court did not err in this regard.
V. THE EVIDENCE DOES NOT COMPEL A FINDING OF UNDUE INFLUENCE
Having determined that no presumption of undue influence applied, it was appellants' burden to demonstrate by clear and convincing evidence that Margo was subject to undue influence. (Doolittle, supra, 241 Cal.App.4th at p. 545.) The court determined appellants did not carry their burden. Consequently, appellants must demonstrate on appeal that the uncontroverted evidence compels such a finding as a matter of law. (Sonic, supra, 196 Cal.App.4th at p. 466.) It does not.
Subdivision (a) of Welfare and Institutions Code section 15610.70 provides, in part:" 'Undue influence' means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity." (Welf &Inst. Code, § 15610.70, subd. (a).) "In an action to set aside a [testamentary instrument] of a deceased person on the ground of undue influence, it is necessary to show that the influence was such as, in effect, to destroy the testator's free agency and substitute for his [or her] own another person's will." (Estate of Arnold(1940) 16 Cal.2d 573, 577 (Arnold).) As mentioned, this showing must be made by clear and convincing evidence. (Doolittle, supra, 241 Cal.App.4th at p. 545.)
Moreover, "[e]vidence must be produced that pressure was brought to bear directly upon the testamentary act. [Citation.] Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the [testamentary instrument], and must amount to coercion destroying free agency on the part of the testator. [Citation.] It is further held that mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient." (Arnold, supra, 16 Cal.2d at p. 577; Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182 (Hagan).)" 'The unbroken rule in this state is that courts must refuse to set aside the solemnly executed [testamentary instrument] of a deceased person upon the ground of undue influence unless there be proof of "a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made." '" (Arnold, at p. 577; Hagan, at p. 182.)"' "Before a testamentary document will be overthrown because of the exercise of undue influence, the proven circumstances must be inconsistent with voluntary action on the part of the testator." '" (Hagan, at p. 182.)
Appellants argue that the probate court “ignored substantial evidence of undue influence” (boldface and capitalization omitted) in arriving at its determination. However, there is no indication in the subject ruling, nor in citations contained in appellant's brief, that the court refused to consider any of the evidence admitted during trial. That the court did not find in favor of appellants does not mean the court ignored evidence.
Appellants contend the considerations set forth in Welfare and Institutions Code section 15610.70, subdivision (a) demonstrate that Allison exercised undue influence in her dealings with Margo. Those considerations include "(1) The vulnerability of the victim.... [¶] (2) The influencer's apparent authority.... [¶] (3) The actions or tactics used by the influencer.. [¶] . [¶] (4) The equity of the result." (Welf. &Inst. Code, § 15610.70, subd. (a).)
Appellants argue Margo was a vulnerable person as a result of her stroke, noting she "received extensive rehabilitation therapy," "suffered from cognitive deficits during the summer of 2018" and "poor memory," was depressed, and made suicidal comments. They contend Margo was a vulnerable person "based on her age, dependence on others for transportation and care, and cognitive deficits stemming from her stroke."
On the issue of apparent authority, appellants note that Allison provided or arranged for Margo's transportation to her medical appointments, attorney visits, and bank visits; "accessed and controlled [Margo's] finances upon becoming attorney-in-fact on July 31, 2018"; and was "solely responsible for [Margo's] care, transportation, and finances."
With regard to Allison's actions and tactics, appellants contend Allison "largely controlled Margo's daily life" after Margo suffered a stroke; made "self-serving financial decisions and changes to beneficiary designations"; and put herself in position to "inherit a significant amount of money upon [Margo's] death." They contend Allison "attempt[ed] to control meetings" with Margo's attorney; steered Margo from Attorney Hornburg to Attorney Williams; made a $10,500 withdrawal from Margo and Allison's joint account; and made "verbal outbursts" at the hospital and at Hornburg's office.
Finally, as to the alleged inequity of the changes made to Margo's estate plan, appellants contend Allison took control of Margo's finances "and claimed she was [Margo], utilizing [Margo's] funds as her own"; that Allison" 'loaned' money to herself and her boyfriend ... through undocumented loans"; and that Margo's "transfers" are unnatural given that she was already given her "inheritance" during Margo's lifetime, was "disinherited" in the original Trust, the comments made to Attorney Homburg, and "the methods which [Allison] used to procure the transfers."
Appellants present a completely one-sided presentation of the facts. They attempt to support many of those facts with reference to matters outside the record on appeal or without any citation at all. (Appellants cite to many exhibits that are not in the record on appeal.) Appellants also stretch the interpretation of facts." 'A party who challenges the sufficiency of the evidence to support a particular finding must summarize the evidence on that point, favorable and unfavorable, and show how and why it is insufficient. [Citation.]' [Citation.] Where a party presents only facts and inferences favorable to his or her position, 'the contention that the findings are not supported by substantial evidence may be deemed waived.'" (Schmidlin v. City of Palo Alto (2007) 157 Cal.App.4th 728, 738.)
Although Margo had certain vulnerabilities as a result of her stroke, the evidence demonstrated she was an independent person; the changes she made to her estate plan were of her own volition; she understood the changes she was making; and she had logical reasons for making those changes. Her doctor, caregiver, and attorneys testified she did not exhibit mental deficiencies that would impact her ability to make such changes. Although Allison had a certain level of apparent authority over Margo, the evidence demonstrated she did not abuse that authority, did not coerce any of the changes Margo made to her estate plan, acted in accordance with Margo's wishes, and even attempted to avoid certain authorities over Margo. With regard to the equity of the result, we have already expressed our opinion that the evidence does not compel a finding that Allison was unduly benefited by the changes made to Margo's estate plan.
In summary, the evidence does not compel a finding that Margo was subjected to"' "a pressure which overpowered the mind and bore down the volition of the testator at the very time the [testamentary instruments were] made". '" (Arnold, supra, 16 Cal.2d at p. 577; Hagan, supra, 41 Cal.App.4th at p. 182.)
VI. THE EVIDENCE DOES NOT COMPEL A FINDING OF FINANCIAL ELDER ABUSE
Welfare and Institutions Code section 15610.30 provides, in relevant part:
"(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following:
"(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
"(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
"(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 15610.70.
"(b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult." (Welf &Inst. Code, § 15610.30, subds. (a), (b).)
Here, although there is evidence of financial transactions that occurred during Margo's last several years of her life following her stroke, the transactions were all done either by Margo or with Margo's blessing. Appellants contend Allison and Brian's testimony in this regard was self-serving. However, the probate court was entitled to credit that testimony. The evidence does not compel a finding any funds were taken, obtained, etc. for a wrongful use, with intent to defraud, or by undue influence. Nor does the evidence compel a finding that Margo was harmed by any of the transactions complained of by appellants.
We conclude the probate court did not err in determining appellants did not satisfy their burden of proving financial elder abuse by a preponderance of the evidence.
DISPOSITION
The "Ruling on Petition to Determine Ownership, Directing Transfer of the Trust Assets, for Removal of Trustee and for an Accounting" (i.e., the subject ruling) is affirmed in its entirety. Respondent Allison Bettencourt is entitled to an award of costs on appeal.
WE CONCUR: PENA, J. SNAUFFER, J.