Opinion
B225870
12-07-2011
Estate of ELAINE JEANETTE CELESTIN DOMIO, Deceased. GEORGE BAXTER DOMIO, Petitioner and Respondent, v. ANTHONY A. DOMIO et al., Objectors and Appellants.
Morris & Associates, James G. Morris, Brandon C. Murphy and Bayleigh J. Pettigrew for Objectors and Appellants. Julian Eli Capata for Petitioner and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. BP097367)
APPEAL from a judgment of the Superior Court of Los Angeles County, Aviva K. Bobb and Michael I. Levanas, Judges. Affirmed.
Morris & Associates, James G. Morris, Brandon C. Murphy and Bayleigh J. Pettigrew for Objectors and Appellants.
Julian Eli Capata for Petitioner and Respondent.
INTRODUCTION
Appellants Anthony A. Domio and Oreyda Paramo appeal from a judgment setting aside gift deeds from the decedent, Elaine C. Domio, and awarding damages for elder abuse to respondent George Baxter Domio, administrator of the decedent's estate. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Elaine Domio (Domio) had four adult children who survived her, respondent George Baxter Domio (George), appellant Anthony A. Domio (Anthony), Curtis E. Domio (Curtis) and Karen M. Hardy (Karen).
On November 4, 1998, Domio signed a power of attorney appointing Anthony to be her attorney in fact. The power of attorney gave Anthony power over her real and personal property.
On February 16, 2003, Anthony signed, on behalf of Domio, a document which read: "I, Elaine Celestin Domio currently residing at 1027 W. 65th Street, in the city of Los Angeles hereby gives the above mentioned real property to my son, Anthony Aaron Domio who is currently caring for me and resides with me in my principal place of residence. [¶] I further give and grant to my son Anthony Aaron Domio permission to sign my name for me on this document and at the time the deed is prepared he may sign my name for me on the deed and he may proceed to transfer the real property mentioned above . . . into his name at any time with my blessing." This document was witnessed by Esther Salinas and Cynthia Clark.
On February 28, 2003, Anthony on behalf of Domio signed a gift deed transferring the West 65th Street property to himself. Paramo notarized the deed.
While Domio was in the hospital with a fever and bedsores, she signed a new power of attorney for financial management in favor of Karen on April 2, 2003. The new power of attorney was witnessed and notarized. On April 8, Anthony transferred the West 65th Street property to Paramo by gift deed.
Domio was transferred to a convalescent hospital. On April 12, Domio signed a letter revoking the power of attorney in favor of Karen. This letter was witnessed and notarized. At the same time, Domio signed a letter stating that she did not want to stay in the convalescent hospital the full time recommended. That letter was notarized as well. She signed another document stating that she was leaving the hospital against her physician's advice. Anthony took her back to her house.
Domio died on February 10, 2006. According to the autopsy report, she died of sepsis due to skin ulcers and multiple sclerosis, with arteriosclerotic cardiovascular disease and obesity as contributing factors. She was "found at her residence by paramedics in bed covered with feces and urine. She had ulcerations on her legs with numerous maggots in them. She was taken to the hospital and was pronounced dead shortly after admission." The deputy medical examiner opined that "[t]he manner of death is homicide" due to "caretaker neglect."
A felony complaint for arrest warrant was issued on June 20, 2006, alleging Anthony was guilty of elder abuse resulting in death in violation of Penal Code section 368, subdivision (b)(1). Anthony was arrested and subsequently released on bail.
George filed a petition for letters of administration on March 17, 2006. Anthony opposed the petition on the ground George was unsuitable for administering the estate and requesting that he be appointed administrator, and he filed his own petition for letters of administration.
A criminal case was filed against Anthony on April 26, 2007. By information filed on May 22, he was charged with murder (Pen. Code, § 187, subd. (a)) and elder abuse producing pain and suffering (id., § 368, subd. (b)(1)).
On February 11, 2008, George filed a petition under Probate Code section 850 for, inter alia, termination of the gift deeds based on misrepresentation and undue influence and for damages for elder abuse. Anthony and Paramo filed an objection to the petition.
Anthony was convicted of murder and elder abuse on May 16, 2008, following a jury trial.
A court trial of the instant case was held thereafter. No statement of decision was requested. The court set aside the two gift deeds transferring the West 65th Street property "based on undue influence on Elaine Domio and based on financial, physical and neglect elder abuse." The court granted consequential damages against Anthony and Paramo in the amount of a lien that had been placed on the property and awarded an equal amount of punitive damages. The court quieted title to the property in George's name. It awarded George double damages and attorney's fees and costs pursuant to Probate Code section 859.
While trial was held before Judge Aviva K. Bobb, who issued her ruling in the matter, the judgment was signed by Judge Michael I. Levanas.
DISCUSSION
Standard of Review
Where, as here, there is no statement of decision, the appellate court must assume the trial court found every fact necessary to support the judgment. (Noguchi v. Civil Service Com. (1986) 187 Cal.App.3d 1521, 1536; Golde v. Fox (1979) 98 Cal.App.3d 167, 174.) We will search the record only to determine whether the judgment is supported by substantial evidence. (Noguchi, supra, at p. 1536; Golde, supra, at p. 174.)
In applying the substantial evidence standard of review, we "'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 . . . .' [Citation.]" (Zagami, Inc. v. James A. Crone, Inc. (2008) 160 Cal.App.4th 1083, 1096.) The trial court, as trier of fact, has the duty to weigh and interpret the evidence and draw inferences therefrom. (In re Cheryl E. (1984) 161 Cal.App.3d 587, 598.) We do not reweigh the evidence or draw contrary inferences. (Ibid.) Evidence accepted by the trial court as true may not be rejected by the appellate court unless it is physically impossible or its falsity is obvious without resort to inference or deduction. (Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1293.)
Physical Abuse of Domio by Paramo
Appellants first contend there is no substantial evidence to support the trial court's finding that Paramo committed any physical abuse of Domio. This contention rests on the premise that the trial court found Paramo physically abused Domio. The portion of the judgment that they cite in support of the claim does not contain any such finding. It is merely the introductory paragraph, which reads: "Based on undue influence by Respondents on Elaine C. Domio and based on financial, physical and neglect elder abuse."
There is no statement of decision, and no specific finding that Paramo physically abused Domio. Because we presume the trial court made the necessary findings to support the judgment, and it was not necessary to the judgment that the court find that Paramo physically abused Domio, we need not make a determination as to whether substantial evidence supports such a finding.
Financial Abuse of Domio by Appellants
Appellants contend there is no evidence that they committed financial elder abuse of Domio. In support of their contention, they cite evidence that Domio voluntarily signed the gift deed giving her property to Anthony because he was taking care of her. The question before us, however, is whether there is any evidence, contradicted or uncontradicted, to support the conclusion the transfer of the property was the result of undue influence and physical and financial abuse. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874.)
1. Karen
Karen testified that she and her daughter moved into Domio's house to take care of her in 1996 after Domio, who had diabetes and high blood pressure, suffered several strokes and was unable to walk or care for herself. Karen had home health care workers come to the house to bathe Domio and to care for a wound that resulted from surgery. Karen also took care of paying the bills and used Domio's debit card to pay for Domio's expenses.
In late 1998 or early 1999, Anthony moved into the house when he was going through a dissolution of marriage. At the time, Anthony was working as a paramedic.
In late 1999 or early 2000, Karen came home from the market to find the police at the house. Anthony had called them and accused her of elder abuse and was asking that she be removed from the house. Karen moved out. Anthony changed the code on the lockbox on the front door so she could not get back in the house.
Karen did not return to the house until April 2003. Anthony was in Arizona, and Curtis was at the house. Domio was dirty and her hair was so matted it had to be cut in order to comb it. She had a fever and bedsores. She said it hurt her to move and she had not had a bowel movement in a couple of days. Karen called an ambulance, and Domio was taken to the hospital.
At the hospital, Domio told Karen that she wanted Anthony and Paramo and Paramo's children out of the house. Adult Protective Services was called, and Domio discussed the matter with a social worker. Also, while Domio was in the hospital, Domio signed a power of attorney for financial management in favor of Karen. A traveling notary came to the hospital, explained it to her and notarized it, and Domio kept a copy of it.
From the hospital, Domio went to Western Convalescent Hospital. Karen went there and Anthony showed her a form canceling out her power of attorney. Anthony then took Domio back home against the doctors' and nurses' advice; he said she wanted to go home. Domio did not say anything about either the form or her return home.
After Domio returned home, she told Karen over the phone, "I keep asking that boy for my deeds to my house. He won't show 'em to me. He won't give 'em to me." Sometimes when they spoke on the phone, Domio would whisper, explaining that she did not want anyone to hear her. Karen tried to see Domio but was unable to. If she went to the house and knocked on the door, no one answered.
2. George
George testified that he spoke to Domio about why Karen left the house. Domio said that Karen was fearful of coming back.
About the end of 2000 or early 2001, George was at Domio's house, helping Anthony install new carpeting. George began to question Anthony as to why he was moving Paramo and her son into the house. Anthony became enraged and used a chokehold on George, causing George to pass out. When George regained consciousness, his wife told him that Anthony had called the police regarding him.
After Paramo moved into the house, Domio told George that she could not talk to him because somebody would be listening to their conversation. She also told him, "I want that woman out of my house." When George told her that if Paramo left, Anthony might leave too, Domio said, "Well, let him go."
In January 2006, George made an appointment with Anthony to see Domio for her birthday. When he arrived, no one answered the door. He went to the backyard and spoke to her through the window. Domio said she did not understand why no one answered the door, since someone was in the house a few minutes before.
On February 10, 2006, George received a phone call telling him that Domio's cousin said Domio wanted to see all her children. He went to the house, saw Anthony in the kitchen and asked what was going on. Anthony "simply stated that she doesn't want to be changed." George went into Domio's room. Domio's eye were discolored and her speech was slurred. She said, "He's lying. . . . I never objected to him changing me."
George questioned Anthony, who accused Domio of lying. George said all that mattered was that Domio be changed. When he pulled back Domio's covers, he saw that her legs had feces on them and were full of sores. There were maggots and maggot casings on her. He asked if he could call 911 and have her taken to the hospital, and she agreed. Anthony told him, "You can't call 911. If they see this, I'm going to go to jail." George told him "that this wasn't about him." He went outside and called 911 despite Anthony's attempts to stop him.
George went to the hospital with Domio in the ambulance. Karen and Curtis joined him there, and then Anthony. After a doctor told them Domio had died, they discussed the need to make funeral arrangements. Anthony said, "First, I need to let you guys know that the house is no longer in Mom's name." A short time later, he said, "I did not kill my mom."
3. Curtis
Curtis testified that most of the times he went to Domio's house to visit, he was unable to get in; no one would answer the door. On one occasion when he was visiting, Anthony told him several times to be quiet. Curtis responded, "No. When it becomes your house, I'll be quiet. Until then, I have the right to speak just like you do." Anthony called the police to make him leave, but Domio told the police that Curtis did not have to leave. Curtis told Anthony, "You run everybody off. You're not going to run me off." Nevertheless, he left 30 minutes later because he felt unwelcomed.
Curtis further testified that Anthony was a large and imposing person. Curtis did not believe that Domio was strong enough, physically or mentally, to say "no" to him.
The foregoing evidence shows that Anthony kept Domio isolated to a large extent. He called the police on all three siblings to make them leave the house, and he physically attacked George when George questioned his actions. He changed the locks on the house and made it extremely difficult for his siblings to visit Domio. Since Domio could not take care of herself, she became dependent on Anthony for her care.
Anthony moved Paramo into Domio's house for a period of time against Domio's will. While she was in the house, Domio was afraid to speak to her other children because someone, inferably Anthony and/or Paramo, would listen to her conversations.
That Domio's will could be overborne by Anthony was evident from the execution and revocation of the power of attorney in favor of Karen. When Domio was in the hospital, she signed a power of attorney for financial management in favor of Karen. Once Domio was transferred to Western Convalescent Hospital and was under Anthony's influence, she signed a form canceling out Karen's power of attorney.
Another indicator that the transfer of her house to Anthony was against Domio's will was her complaint to Karen, after Domio returned home from the convalescent hospital, "I keep asking that boy for my deeds to my house. He won't show 'em to me. He won't give 'em to me."
In sum there is evidence that Anthony, assisted by Paramo, committed financial abuse of Domio by obtaining her house through the use of undue influence. (Welf. & Inst. Code, § 15610.30, subd. (a)(3); Civ. Code, § 1575.)
Appellants point to all the evidence in the record supporting their position that Domio voluntarily transferred the house to Anthony in appreciation for the care he provided for her. However, a determination as to whether substantial evidence supports the trial court's findings "does not require that the evidence appear to the appellate court to outweigh the contrary showing." (People v. Javier A. (1985) 38 Cal.3d 811, 819; Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 830-831.) We do not reweigh the evidence or accept as true evidence rejected as false by the trial court. (Watson v. Department of Rehabilitation, supra, 212 Cal.App.3d at p. 1293; In re Cheryl E., supra, 161 Cal.App.3d at p. 598.) So long as there is substantial evidence to support the judgment—and there is here—we must uphold it.
Validity of the Gift Deed to Anthony
Appellants contend the gift deed transferring Domio's property to Anthony was valid, because Domio directed him to sign her name to the gift deed in front of two witnesses. Additionally, the February 16, 2003 document giving Anthony permission to sign documents for Domio allowed him to sign the gift deed because it was consistent with the power of attorney Domio previously gave to Anthony, and it was consistent with the amanuensis rule.
Estate of Stephens (2002) 28 Cal.4th 665, on which appellants rely, states that "under the 'amanuensis' rule, which provides that where the signing of a grantor's name is done with the grantor's express authority, the person signing the grantor's name is not deemed an agent but is instead regarded as a mere instrument or amanuensis of the grantor, and that signature is deemed to be that of the grantor. [Citations.]" (Id. at pp. 670-671.) As respondent points out, however, Stephens goes beyond stating the rule and discusses whether the rule applies to a situation such as the one here.
"The Oxford English Dictionary (2d ed. 1989) defines 'amanuensis' as 'one who copies or writes from the dictation of another.' Pablo Neruda has penned: 'In the center of the earth I will push aside the emeralds so that I can see you—you like an amanuensis, with a pen of water, copying the green sprigs of plants.' (Neruda, 100 Love Sonnets (1986) 'In the Center of the Earth,' p. 211, 1st verse.)"
--------
Stephens points out that "'[a] power of attorney conferring authority to sell, exchange, transfer or convey real property for the benefit of the principal does not authorize a conveyance as a gift or without substantial consideration [citations]; and a conveyance without the scope of the power conferred is void.' [Citation.]" (Estate of Stephens, supra, 28 Cal.4th at p. 672.) Additionally, a gift made without authority cannot be ratified by the oral statements of the principal; the equal dignities rule requires ratification to be in writing. (Id. at pp. 672-673.)
Stephens notes that where the amanuensis is the beneficiary of the transfer, "[o]bvious concerns arise, namely, whether the transfer was the product of fraud, duress, or undue influence. Accordingly, if the amanuensis will directly benefit from the transfer of title, the validity of the transfer must be examined under a heightened level of judicial scrutiny.
"In an undue influence case, for example, '[w]here the relationship between the parties is that of parent and child and the parent relies on the child for advice in business matters, a gift inter vivos . . . which is without consideration and where the parent does not have independent advice, is presumed to be fraudulent and to have been made under undue influence.' [Citation.] The burden of proof then shifts to the child 'to show that the transaction was free from fraud and undue influence, and in all particulars fair.' [Citation.] Put differently, this presumption may be rebutted by 'evidence that the act in question had its genesis in the mind of the parent and that he was not goaded to a completion by any act of such child.' [Citation.]" (Estate of Stephens, supra, 28 Cal.4th at pp. 676-677.)
The court concluded that "[b]ecause unscrupulous parties could attempt to use the amanuensis rule to sidestep the protections contained in [the Civil and Probate Codes], we hold that the signing of a grantor's name by an interested amanuensis must be presumed invalid. In such a case, the interested amanuensis bears the burden to show that his or her signing of the grantor's name was a mechanical act in that the grantor intended to sign the document using the instrumentality of the amanuensis." (Estate of Stephens, supra, 28 Cal.4th at pp. 677-678, fn. omitted.)
In other words, neither the power of attorney nor the amanuensis rule automatically rendered the gift deed valid. The trial court was entitled to examine the circumstances surrounding the execution of the deed to determine whether "'the transaction was free from fraud and undue influence, and in all particulars fair,'" or whether Domio was "'goaded to a completion'" of the transaction by Anthony. (Estate of Stephens, supra, 28 Cal.4th at p. 677.)
Anthony acknowledges that the gift deed may be set aside if obtained by undue influence but contends there is no evidence of undue influence within the meaning of Civil Code section 1575. That section defines undue influence as "the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him;" "taking an unfair advantage of another's weakness of mind; or . . . taking a grossly oppressive and unfair advantage of another's necessities or distress."
In support of his contention, Anthony cites evidence that Domio was of sound mind and was able to communicate with her children and others by telephone. He also cites evidence that she told others she was giving the house to Anthony because he took care of her and that she was able to make her own decisions.
As previously stated, however, the question is not whether there was evidence of the lack of undue influence, but whether substantial evidence supports the trial court's finding that the gift deed was obtained through undue influence. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) And there was substantial evidence that Anthony took "a grossly oppressive and unfair advantage of [Domio's] necessities or distress" (Civ. Code, § 1575) to obtain the gift deed to her house.
Specifically, there was evidence Anthony kept his siblings away from Domio by physical intimidation, calling the police to have them removed from the property if they questioned his actions and changing the lock so that they could not get into the house to see Domio unless he let them in. Since Domio was not ambulatory, she became dependent on Anthony for her care and necessities of life. He was able to make decisions contrary to her wishes, such as moving Paramo and her son into the house and refusing to show Domio the deed to her house.
In other words, there is substantial evidence supporting the conclusion that the gift deed to Anthony was the result of undue influence. It was not a transaction originating with Domio but one forced upon her by Anthony. (Estate of Stephens, supra, 28 Cal.4th at pp. 676-677.)
Physical Abuse of Domio by Anthony
Anthony contends he is not liable for physical elder abuse of Domio. He does not dispute that the evidence supports a finding of physical elder abuse or neglect. Rather, he suggests that the conditions causing her death were her "personal choice," made "to forego the pain of being turned for cleaning."
In support of his contention, Anthony cites evidence that Domio was lucid and coherent, had access to the telephone, and made her own healthcare decisions. He also cites the testimony of his medical expert witness that Domio died as a result of her personal medical choices.
Again, the question before us is whether there is substantial evidence that Anthony was guilty of physical elder abuse. (Bowers v. Bernards, supra, 150 Cal.App.3d at pp. 873-874.) That there was evidence to support a contrary finding does not preclude us from upholding the judgment. (See In re Cheryl E., supra, 161 Cal.App.3d at p. 598.)
Most telling is George's testimony that when he went to the house to see Domio, she was in a filthy condition, with maggot-infested wounds. Anthony immediately told him, "she doesn't want to be changed." George went into Domio's room and she said, "He's lying. . . . I never objected to him changing me." When George said that he was going to call 911 to have Domio taken to the hospital, Domio agreed to go, but Anthony told him, "You can't call 911. If they see this, I'm going to go to jail." Anthony subsequently was convicted of elder abuse.
The foregoing indeed supports a finding that Anthony was responsible for Domio's condition, not Domio herself. Consequently, substantial evidence supports the judgment.
DISPOSITION
The judgment is affirmed.
JACKSON, J.
We concur:
PERLUSS, P.J.
ZELON, J.