Opinion
E064019
05-09-2017
Estate of WAYNE CHEWNING, Deceased. EDITH WARREN, as Administratrix, Petitioner and Appellant, v. BUNNI AMBURGEY, as Executrix, etc., Objector and Appellant.
Martin & McCormick, John D. Martin and Kathy J. McCormick; Law Offices of Keith S. Walker and Keith S. Walker, for Petitioner and Appellant. Harbin & McCarron and Michael L. Parker for Objector and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. MCP1200677) OPINION APPEAL from the Superior Court of Riverside County. Craig G. Riemer, Judge. Affirmed as modified, remanded for further proceedings. Martin & McCormick, John D. Martin and Kathy J. McCormick; Law Offices of Keith S. Walker and Keith S. Walker, for Petitioner and Appellant. Harbin & McCarron and Michael L. Parker for Objector and Appellant.
Following the death of Wayne Chewning (decedent), objector and appellant Bunni Amburgey, as Executrix of the Estate of Lisa Tanya DeSutter, stepdaughter of decedent (stepdaughter) and Patricia Werner, daughter of decedent (Patricia), obtained $116,049 from decedent's account at Bank of America after submitting a declaration under Probate Code section 13101. Prior to his death, stepdaughter withdrew $212,300.44 from a bank account in the name of decedent and his wife (stepdaughter's mother) and used the money to purchase a home in Canyon Lake, California. Petitioner and appellant Edith Warren, as Administratrix of decedent's estate (Edith), filed two petitions. On December 17, 2012, she sought to examine stepdaughter and Patricia regarding the wrongful taking, concealing or disposing of decedent's $116,049 via the section 13101 declaration (2012 petition). On July 31, 2013, Edith sought to determine title to the Canyon Lake home (2013 petition). Following trial on the two petitions, the court found in favor of Edith on the 2012 petition, ordering stepdaughter and Patricia to pay treble damages. Regarding the 2013 petition, the court found in favor of stepdaughter, awarding her costs.
Stepdaughter died on July 1, 2015. On February 25, 2016, this court granted the motion to substitute Bunni Amburgey, as executrix of stepdaughter's estate, in place of stepdaughter in this appeal. For clarity purposes, we will continue to refer to appellant and objector as "stepdaughter" instead of Bunni Amburgey. We will, in the interest of clarity, sometimes refer to the parties by their first names. We mean no disrespect.
All further statutory references are to the Probate Code.
Both stepdaughter and Edith appeal. In stepdaughter's appeal, we are asked to determine whether the trial court erred in finding fraud and in awarding treble damages. In Edith's appeal, we are asked to determine whether the trial court erred in calculating the damages awarded on the 2012 petition and in finding in favor of stepdaughter on the 2013 petition.
I. PROCEDURAL BACKGROUND AND FACTS
The basic background facts are undisputed. Decedent Wayne Chewning was born in 1918 and later fathered two girls, Edith and Patricia. Edith was born in 1940 to decedent and Bertha Miller. Patricia was born in 1948 to decedent and his then wife, Polly. While Edith and Patricia are half sisters, stepdaughter has no biological relationship with decedent and she is not one of his heirs. Rather, stepdaughter was born in 1943 to William and Agnes Nelson (Agnes). Decedent married Agnes in 1954, when stepdaughter was 11 years old, and there is no evidence that decedent ever adopted her.
The record is unclear as to whether Edith's parents (decedent and Bertha Miller) were married. Moreover, Bertha had another daughter who was older than Edith. Her name was Nelle-Irene. There is no evidence that decedent fathered Nelle-Irene.
After getting married, decedent and Agnes (sometimes collectively referred to as the Chewnings) lived in Illinois. During their marriage, decedent was employed by Alton Box Board, but Agnes never earned any wages. Stepdaughter lived with the Chewnings until she graduated from high school in 1961. She viewed both of the Chewnings as her parents, caring for them through their final days. Edith had no contact with decedent after she was eight years old. She wanted to contact decedent upon her graduation from high school; however, she was told that decedent had died in a bar room fight.
In the late 1970s or early 1980s, the Chewnings moved to Arizona, where they bought a residence in Lake Havasu City, which they held in joint tenancy. While the Chewnings were living in Arizona, stepdaughter learned that decedent had a daughter named Patricia. In about 2004, the Chewnings sold the Lake Havasu City property and moved to California to be close to stepdaughter. Eventually, all three moved to Riverside County. While the Chewnings lived in California, stepdaughter provided friendship, emotional support, and practical assistance for them, including running errands, taking them to doctor appointments and various places as needed, and taking them into her home. Periodically, the Chewnings would bestow generous gifts upon stepdaughter; specifically, in the 1980s they gave her a car; in 2007 they gave her $10,000 for a trip to Hawaii; and in 2008 they gave her $130,000 towards the purchase of a house in Lake Elsinore, which she owned until March 2013.
In about 2010, Agnes and decedent opened a bank account (# . . . 76969) (the Account). On September 7, 2010, Agnes called stepdaughter and asked her to take the Chewnings to the bank. When stepdaughter arrived at their home, decedent told Agnes to go by herself. At the bank, Agnes signed a beneficiary document naming stepdaughter as the beneficiary of the Account. By 2012, the health of the Chewnings had significantly declined, each being hospitalized for periods of time. By early 2012, Agnes had been diagnosed with Alzheimer's Disease and decedent had been diagnosed with dementia. During this time, stepdaughter assisted Agnes with banking and writing checks to pay their bills. On March 30, 2012, Agnes executed a durable power of attorney for financial management, authorizing stepdaughter to act for her. That same day, stepdaughter signed an addendum to the signature card for the Account. On April 16, 2012, stepdaughter drove Agnes to the bank and they closed the Account, withdrawing the balance of $212,300.44 and giving it to stepdaughter.
On May 29, 2012, Agnes died intestate. Following her death, stepdaughter was not allowed to write any checks on the Chewning account. On June 21, 2012, decedent passed away intestate. At the time of his death, he had roughly $116,000 in a bank account.
Approximately a "week or two" after decedent's death, Patricia informed stepdaughter of the possibility of decedent having two other daughters (Edith and Edith's older half sister, Nelle-Irene) and that she (Patricia) had been searching for them for 10 years, but had come to a dead end. Patricia told stepdaughter that she (Patricia) had a birth certificate for Edith. Stepdaughter conducted no inquiry to follow up on this information, choosing not to believe it. Stepdaughter consulted several lawyers for the purpose of finding out what she needed to do to access the funds held in the Chewning names, which the bank had frozen. Eventually she retained Attorney Amy Nett to prepare a section 13101 declaration stating that stepdaughter and Patricia were the only heirs. The declaration was executed in August 2012. Using the declaration, stepdaughter removed all the funds in decedent's bank account, giving $50,000 to Patricia and retaining $66,049 for herself.
In September 2012, Edith found out about decedent's death from Patricia. Patricia informed stepdaughter that she (Patricia) had found Edith. On December 7, 2012, Edith sought and was issued Letters of Administration with respect to decedent's estate. On December 17, 2012, Edith filed the 2012 petition under section 8870, subdivision (a), to examine stepdaughter and Patricia with respect to the presentation of the section 13101 declaration to the bank where decedent's account was held, and the subsequent payment of funds to them. The petition alleged that the monies were "fraudulently secured" and that both stepdaughter and Patricia were liable under section 13111 "for restitution to the decedent's estate of three times the fair market value of the property." (§ 13111, subd. (b).) Patricia voluntarily returned to the estate the $50,000.00 she had received, but stepdaughter did not.
On December 28, 2012, stepdaughter used the $212,300.44 she had previously removed from the Account to purchase a home in Canyon Lake. On July 31, 2013, Edith filed the 2013 petition to determine title to the Canyon Lake property, arguing that it should belong to the estate, given the source of the funds. On October 29, 2013, upon order of the court, stepdaughter returned the $66,049 she had taken from decedent's bank account.
Both petitions were tried jointly to the court without a jury on January 7 and 8, 2014. Posttrial, Edith was allowed to amend the 2012 petition to add herself individually pursuant to section 13110. Following posttrial briefing, the court issued its tentative decision on July 7, 2014. It denied Edith's claims to the $212,300.44 and for constructive trust on the Canyon Lake property, but granted her claims against stepdaughter and Patricia in the 2012 petition, awarding treble damages to the estate only. The court found the section 13101 declaration was fraudulent; Edith, personally, was not entitled to any relief under section 13110 because (1) she does not hold a superior position to Patricia and (2) the requirements of section 13112, subdivision (a), were met; and the estate is entitled to treble damages, less the property or compensation restored. The court found that stepdaughter was liable for $132,098 (3 times $66,049, less $66,049) and Patricia was liable for $100,000 (3 times $50,000.00, less $50,000.00). Judgment was dated May 15, 2015, entered "nunc pro tunc to October 16, 2014."
II. DISCUSSION
Stepdaughter contends: (1) the trial court based its fraud determination on either an incorrect legal conclusion in an attorney prepared affidavit (she, as a lay person, believed she was an heir of her mother and entitled to proceeds), or on a negligence-based theory of failure to fully investigate; (2) the evidence was insufficient to support a finding of fraud based on her negligent failure to investigate the existence of another heir, or her failure to understand that she was not an heir; and (3) the trial court erred in awarding treble damages because there was no evidence that such award was necessary to protect the estate, as required by the statute.
Edith challenges the trial court's calculation of treble damages, along with its decision to award such damages only to her in her role as administrator of decedent's estate, and not to her individually as a "person having a superior right" under section 13110. Furthermore, Edith contends the trial court's finding that the transfer of $212,300.44 to stepdaughter was the result of a mutual gift from Agnes and decedent is not supported by substantial evidence.
A. Applicable Law.
Sections 13100 and 13101 provide that in estates valued under $150,000, a successor of decedent may receive or transfer certain property of the decedent's estate, without probate, through an affidavit procedure. Section 13101 specifies what information must be included in the affidavit. As relevant to this case, section 13101 mandates that the declarant attest that he or she "is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent's interest in the described property," and that "[n]o other person has a superior right to the interest of the decedent in the described property." (§ 13101, subds. (a)(8), (9).) When this procedure is utilized, if the affidavit contains false or fraudulent information regarding the identification of the decedent's heirs, a person having a superior right may challenge the distribution of the decedent's property by personally initiating an action pursuant to section 13110 (superior right action). Also, if proceedings for the administration of the decedent's estate are commenced, decedent's estate may initiate an action pursuant to section 13111 (estate action).
Section 13101, in relevant part, provides: "(a) To collect money . . . an affidavit or a declaration under penalty of perjury under the laws of this state shall be furnished to the holder of the decedent's property stating all of the following: [¶] (1) The decedent's name. [¶] (2) The date and place of the decedent's death. [¶] (3) 'At least 40 days have elapsed since the death of the decedent, as shown in a certified copy of the decedent's death certificate attached to this affidavit or declaration.' [¶] (4) . . . [¶] (A) 'No proceeding is now being or has been conducted in California for administration of the decedent's estate.' [¶] . . . [¶] (5) 'The current gross fair market value of the decedent's real and personal property in California, excluding the property described in Section 13050 of the California Probate Code, does not exceed one hundred fifty thousand dollars ($150,000).' [¶] (6) A description of the property of the decedent that is to be paid, transferred, or delivered to the affiant or declarant. [¶] (7) The name of the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the described property. [¶] (8) . . . [¶] (A) 'The affiant or declarant is the successor of the decedent (as defined in Section 13006 of the California Probate Code) to the decedent's interest in the described property.' [¶] . . . [¶] (9) 'No other person has a superior right to the interest of the decedent in the described property.' [¶] "(10) 'The affiant or declarant requests that the described property be paid, delivered, or transferred to the affiant or declarant.' [¶] (11) 'The affiant or declarant affirms or declares under penalty of perjury under the laws of the State of California that the foregoing is true and correct.'" (§ 13101, subd. (a).)
In an estate action to recover decedent's property, the liability of the person who wrongfully obtained the property is governed by section 13111. If there is no fraud, the person must return the property if he or she remains in possession of it; otherwise, he or she is liable for the fair market value of the property, plus any net income received and interest earned. (§ 13111, subds. (a)(1), (2).) If there is fraud, the person must return the property and/or fair market value, and pay restitution of treble damages; liability for treble damages is limited, however, to the amount necessary to protect the interests of the heirs, devises, and creditors of the decedent. (§ 13111, subd. (b), former subd. (d).)
Former section 13111, in relevant part, provided: "(a) Subject to the provisions of this section, if proceedings for the administration of the decedent's estate are commenced in this state . . . each person to whom . . . transfer of the decedent's property is made under this chapter is liable for: [¶] (1) The restitution of the property to the estate if the person still has the property . . . . [¶] (2) The restitution to the estate of the fair market value of the property if the person no longer has the property . . . . [¶] (b) Subject to subdivision (c) and subject to any additional liability the person has under Sections 13109 to 13112, inclusive, if the person fraudulently secured the . . . transfer of the decedent's property under this chapter, the person is liable under this section for restitution to the decedent's estate of three times the fair market value of the property. . . . [¶] (c) The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110. [¶] (d) An action to enforce the liability under this section may be brought only by the personal representative of the estate of the decedent. In an action to enforce the liability under this section, the court's judgment may enforce the liability only to the extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent. . . ." (§ 13111; Stats. 1991, ch. 1055, § 40).)
In a superior right action, the liability of the person who wrongfully obtained the property is governed by section 13110, which provides for return of the decedent's property (actual property if in possession, otherwise fair market value, plus net income received and interest earned) and treble damages if the person fraudulently obtained the property. (§ 13110.) However, recovery under section 13110 is available only "to the extent provided in Section 13112." (§ 13110, subd. (a).) Thus, someone who is wrongfully in possession of decedent's property is not liable under section 13110 if "proceedings for the administration of the decedent's estate are commenced in this state, and the person satisfies the requirements of section 13111." (§ 13112, subd. (a).) In other words, recovery in an estate action under section 13111 forecloses any recovery in a superior right action under section 13110.
Section 13110, in relevant part, provides: "(a) Except as provided in subdivision (b), each person to whom . . . transfer of the decedent's property is made under this chapter is personally liable to the extent provided in Section 13112 to any person having a superior right by testate or intestate succession from the decedent. [¶] (b) In addition to any other liability the person has under this section and Sections 13109, 13111, and 13112, any person who fraudulently secures the . . . transfer of the decedent's property under this chapter is liable to the person having such a superior right for three times the fair market value of the property. . . . [¶] (c) An action to impose liability under this section is forever barred three years after the affidavit or declaration is presented under this chapter to the holder of the decedent's property, or three years after the discovery of the fraud, which is later. The three-year period specified in this subdivision is not tolled for any reason."
Section 13112, subdivision (a), in relevant part, provides: "A person to whom payment, delivery, or transfer of the decedent's property has been made under this chapter is not liable under Section . . . 13110 if proceedings for the administration of the decedent's estate are commenced in this state, and the person satisfies the requirements of Section 13111."
B. The Trial Court's Finding that Stepdaughter Acted Fraudulently Is Supported by Substantial Evidence.
Stepdaughter contends the evidence is insufficient to support a finding of fraud. It is not.
"In reviewing the sufficiency of evidence on appeal, we resolve all conflicts in favor of the prevailing party and we indulge all legitimate and reasonable inferences to uphold the verdict if possible. 'It is an elementary, but often overlooked principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. . . .' [Citation.]" (Ortega v. Pajaro Valley Unified School Dist. (1998) 64 Cal.App.4th 1023, 1043.) Our review is not limited to appraising "'isolated bits of evidence selected by the [appellant].'" (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) We are required to accept all evidence that supports the successful party, disregard the contrary evidence, and draw all reasonable inferences to uphold the verdict. (Minelian v. Manzella (1989) 215 Cal.App.3d 457, 463.) Thus, it is not our role to reweigh the evidence, redetermine the credibility of the witnesses, or resolve conflicts in the testimony, and we will not disturb the judgment if there is evidence to support it. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766; see Leff v. Gunter (1983) 33 Cal.3d 508, 518.) Credibility is an issue of fact for the finder of fact to resolve (Johnson v. Pratt & Whitney Canada, Inc. (1994) 28 Cal.App.4th 613, 622), and the testimony of a single witness, even that of a party, is sufficient to provide substantial evidence to support a finding of fact (In re Marriage of Mix (1975) 14 Cal.3d 604, 614). "The ultimate test is whether it is reasonable for a trier of fact to make the ruling in question in light of the whole record." (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 652.)
Pursuant to section 13101, stepdaughter submitted a declaration to obtain the sum of $116, 049 in decedent's account at Bank of America. According to the declaration, stepdaughter declared, under penalty of perjury, that "[n]o other person has a right to the interest of the decedent in the described property." However, Edith, as one of decedent's daughters, has "a right to the interest of the decedent in the described property." Thus, the statement in the declaration is false.
The next question is whether stepdaughter "fraudulently secured" decedent's property. According to section 13111, a person is liable for treble damages only if he or she "fraudulently secured" decedent's property. (§ 13111, subd. (b).) The evidence shows that both stepdaughter and Patricia were aware of Edith's existence. Patricia possessed Edith's birth certificate and informed stepdaughter of its existence. When questioned, stepdaughter acknowledged Patricia's disclosure about Edith and the birth certificate. Stepdaughter further acknowledged that she chose not to believe Patricia's disclosure. Given these facts, the trial court concluded that stepdaughter misrepresented the state of decedent's successors in order to "fraudulently secure[]" decedent's property. (§ 13111, subd. (b).) Substantial evidence supports the trial court's conclusion.
Notwithstanding the facts, stepdaughter contends that she should not be held liable for fraud because she did not know that Agnes's share of the bank funds passed to decedent upon Agnes's death, and thus, she (stepdaughter) was not an heir. Moreover, she claims the statement in the declaration that no other persons have a right to decedent's property is a legal conclusion (not a factual statement) beyond her competency as a lay person. Stepdaughter's assertions are contradicted by the evidence introduced at trial: Stepdaughter had worked as a legal secretary, held a paralegal certificate, and was a real estate broker. Her legal background would have exposed her to the meaning of the phrase "under penalty of perjury." Her creation of the power of attorney in March 2012 demonstrated her familiarity with legal documents. She prepared such legal document for her mother and then attempted to use it to withdraw all of the funds ($212,300.44) in the Account. After decedent's death, when Bank of America froze decedent's account, stepdaughter consulted six attorneys for the purpose of finding out what action to take to unfreeze them. Eventually, she found an attorney, Amy Nett, who drafted the declaration that was presented to the bank.
When stepdaughter was unable to withdraw the money using the power of attorney, she left the bank and later returned with Agnes. Together they successfully removed all the funds in the Account.
Edith attempted to introduce the testimony of Don Ford, the first attorney whom stepdaughter consulted; however, the trial court found there to be an attorney-client relationship between Ford and both stepdaughter and Patricia. We disagree with the court's finding. Nothing in the record supports a finding of an attorney-client relationship between Ford and Patricia. Patricia never retained Ford to act as her attorney, nor did Ford have any communications with her. (Butler v. State Bar (1986) 42 Cal.3d 323, 329 ["The attorney's duty to communicate with a client includes the duty to communicate to persons who reasonably believe they are clients to the attorney's knowledge . . . ."].) Thus, when stepdaughter disclosed Ford's communications with her to Patricia, who then conveyed the same to Edith, the attorney-client privilege between stepdaughter and Ford was waived. (Evid. Code, §§ 912, subd. (a), 954.) It appears that Ford would have testified that he urged stepdaughter to hire an investigator to discern whether there were any other heirs.
Turning to the declaration itself, we note its careful wording. It identifies both Agnes and decedent as being decedents even though she had predeceased him by three weeks. Stepdaughter and Patricia are each identified as being a "[d]aughter of the decedent." Because the declaration refers to both Agnes and decedent as being decedents, it is unclear which decedent is being referenced as the parent of stepdaughter, and thus, the declaration is technically truthful about identifying the intestate heirs of decedents. However, the declaration also provides that "[n]o other person has a right to the interest of the decedent in the described property." As noted above, this statement is false.
While stepdaughter claims ignorance of the law on intestate succession, we are not persuaded by her attempt to hide behind the cloak of lay person ignorance. Her legal background and current occupation belie her claim. More importantly, she knew that a child of decedent had an interest in his property through her contact with Patricia. Patricia informed stepdaughter about Edith and the birth certificate identifying decedent as Edith's father. As one of decedent's children, Edith possessed the same interest in his property as Patricia. Despite this knowledge, stepdaughter attested, under penalty of perjury, that "[n]o other person has a right to the interest of the decedent in the described property." By signing the declaration under penalty of perjury, stepdaughter conveyed that she understood "'the grave responsibility [she] has assumed with respect to the truth[].' [Citation.]" (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609; Code Civ. Proc. § 2015.5.)
"Whenever, under any law of this state or under any rule, regulation, order or requirement made pursuant to the law of this state, any matter is required or permitted to be supported, evidenced, established, or proved by the . . . declaration . . . or affidavit, in writing of the person making the same (other than a deposition, or an oath of office, or an oath required to be taken before a specified official other than a notary public), such matter may with like force and effect be supported, evidenced, established or proved by the . . . declaration . . . in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California." (Code Civ. Proc., § 2015.5.)
Given stepdaughter's knowledge of Edith's birth certificate, her (stepdaughter's) numerous consultations with different attorneys, and the dubious language in the declaration, there is substantial evidence showing that she "fraudulently secured" decedent's property. (§ 13111, subd. (b).)
The trial court also concluded that Patricia fraudulently secured decedent's property. We are troubled by this conclusion. The only evidence of Patricia's role in this fraud is her signature on the declaration that was created as a result of stepdaughter's sole control of decedent's estate and all communication with the attorneys (see fn. 11, ante) and Patricia. If, say, stepdaughter misrepresented to Patricia her actions regarding her search for Edith and any communication from the attorneys she consulted, Patricia's signature on the declaration could well have been the result of stepdaughter's fraudulent representations to her (Patricia). The facts that Patricia was willing to return the property she had received to the estate upon demand without the need for judicial intervention, and that she had a right to that property and more as an heir, strongly suggest a lack of the requisite intent to deceive. Nonetheless, the standard of review binds our hands. Patricia's signature on the declaration provides substantial evidence to support the trial court's conclusion that both stepdaughter and Patricia "fraudulently secured" decedent's property.
Likewise, we reject stepdaughter's argument that she should not be held liable for her ignorance of the need to "disclose that someone may have existed from Patricia's unconfirmed belief that she had two sisters." To begin with, we reject this claim because her premise of "unconfirmed belief" fails, given the existence of Edith's birth certificate. Moreover, we disagree with her claim that the trial court based its fraud determination on a "negligence-based theory of failure to fully investigate." The trial court clearly stated that its finding was based on the evidence that stepdaughter knew that decedent had another daughter, Edith, but chose not to initiate an investigation into Edith's existence. The trial court simply did not find stepdaughter's testimony to be credible.
Moreover, her complaint that she should not be held responsible in fraud for negligently failing to investigate the existence of Edith fails on the evidence presented. At the trial level she offered no explanation as to why she did not search for Edith other than her decision to choose not to believe Edith existed. Despite the fact that stepdaughter consulted several attorneys, she would have the court believe that not one of those attorneys broached the subject of hiring an heir chaser, and thus she was merely negligent by failing to search for Edith. However, stepdaughter's actions upon Edith's presentation of herself and her right to decedent's estate rebut stepdaughter's claim of innocence due to ignorance or negligence. When presented with Edith's rightful claim to decedent's estate, stepdaughter refused to return the money she had taken until she was ordered to do so by the trial court. C. The Trial Court Acted Within Its Discretion in Finding Liability for Treble Damages, But Erred with Respect to Their Calculation.
Pursuant to section 13111, subdivision (b), it is within the trial court's discretion to award treble damages. Here, the court ordered stepdaughter and Patricia to pay treble the property they received, reduced by the amounts they had returned to the estate. Stepdaughter received and returned the amount of $66,049, and Patricia received and returned the amount of $50,000. On that basis, the court ordered treble damages against stepdaughter in the amount of $132.098 (($66,049 x 3) - $66,049) and against Patricia in the amount of $100,000 (($50,000 x 3) - $50,000).
We reject Edith's contention that section 13111 mandates the award of treble damages. She analogizes section 13111 to section 859 which, in relevant part, provides: "If a court finds that a person has in bad faith wrongfully taken . . . property belonging to . . . the estate of a decedent . . . the person shall be liable for twice the value of the property recovered by an action under this part." (§ 859, italics added.) While the language in section 859 is mandatory, such is not the case in section 13111, subd. (b) ("if the person fraudulently secured the . . . transfer of the decedent's property under this chapter, the person is liable under this section for restitution to the decedent's estate of three times the fair market value of the property.") (Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724 [if the language in the statute is clear, we must follow its plain meaning unless a literal interpretation would result in absurd consequences not intended by the Legislature].)
1. The award of treble damages should not have been reduced by the property restored to the estate.
Edith contends the trial court erred in reducing the treble damage award by the amounts returned to the estate. She argues that treble damage award should have been $198,147 ($66,049 x 3), not $132,098 (($66,049 x 3) - $66,049), as to stepdaughter and $150,000 ($50,000 x 3), not $100,000 (($50,000 x 3) - $50,000), as to Patricia. We agree.
Section 13111, subdivision (c), provides: "The property and amount required to be restored to the estate under this section shall be reduced by any property or amount paid by the person to satisfy a liability under Section 13109 or 13110." We interpret the words "property or amount required to be restored to the estate" in this subdivision as referring to subdivision (a) of section 13111, which requires the person who wrongfully obtained property from an estate to return such property to the estate. Section 13111 anticipates the estate bringing the action. However, if an heir or creditor also brings an action under section 13109 or 13110, and the person who wrongfully obtained the property returns it to the heir or creditor, then the estate's right to recover the same property is reduced by the property returned to the heir or creditor. In contrast, the same right to reduction does not apply to an award of treble damages under subdivision (b) of section 13111. Therefore, the order of treble damages against stepdaughter should be $198,147 ($66,049 x 3), and the award of treble damages against Patricia should be $150,000 ($50,000 x 3), subject to the limitation discussed below.
Once again, we are troubled with the outcome of this case as to Patricia. Not only are the circumstances under which Patricia signed the declaration unclear, but we are mindful that Patricia is an heir of decedent, with the same right to inherit as Edith. Under section 13110, Patricia would not be liable to Edith because Edith does not have a superior right to that of Patricia's, and vice versa. (§ 13110, subd. (a).) Patricia and Edith, the only two intestate heirs of decedent, share equal rights to the estate. Thus, Patricia remains entitled to 50 percent of the estate's assets. --------
2. The liability for treble damages is limited to the amount necessary to protect the interests of decedent's heirs and creditors.
Stepdaughter contends the trial court erred in ordering treble damages because all of the money ($116,049) was returned to the estate, and former subdivision (d) of section 13111 limits the amount of the statutory penalty to the "extent necessary to protect the interests of the heirs, devisees, and creditors of the decedent." (Italics added.)
Focusing on the phrase highlighted by stepdaughter, we conclude that this language does not bar treble damages. Instead, it limits the extent to which Edith, as administrator of decedent's estate, may enforce the treble damages penalty. In other words, the estate does not simply get a check for treble damages from stepdaughter or Patricia. Rather, each is required to pay a sum (up to treble damages) based upon proof of the expenses incurred by the estate to "protect the interests of the heirs, devisees, and creditors of the decedent." (§ 13111, subd. (d).) For example, because Patricia voluntarily returned the property she received, without the need for continued litigation, we anticipate that the estate incurred de minimis damages to recover that property. However, because stepdaughter continued her fraudulent claim to decedent's property, the estate was forced to pursue legal action through this appeal. The costs and fees associated with this action, if paid by the estate, reduced the heirs' interests in the estate. In order to protect those interests, the judgment awarding treble damages is available. Therefore, the estate is entitled to the statutory penalty (treble damages), but only to the extent it provides proof of the expenses incurred to protect the interests of the heirs (and creditors, if any). We will remand the matter to allow the trial court to make such determination based upon proof.
3. The trial court did not err in awarding damages to Edith, as administrator of the estate, and not to her individually.
Edith contends the trial court erred in awarding damages to her in her role as administrator of decedent's estate, and not to her individually as a "person having a superior right" under section 13110. (§ 13110, subd. (a).) We disagree.
As we previously noted, the applicable statutes provide for two types of actions against a person who has wrongfully obtained a decedent's property, namely a superior right action (§ 13110) and an estate action (§ 13111). However, recovery under section 13110 is available only "to the extent provided in Section 13112." (§ 13110, subd. (a).) Thus, someone who is wrongfully in possession of decedent's property is not liable under section 13110 if he or she satisfied his or her liability under section 13111. (§ 13112, subd. (a) ["proceedings for the administration of decedent's estate are commenced in this state, and the person satisfies the requirements of section 13111"].) That is precisely the case before this court: Edith obtained Letters of Administration, opened decedent's estate, and had the estate file an action to recover the property wrongfully distributed. Later, the trial court allowed her to amend the petition to include a superior right claim on her behalf, individually. While the relevant statutes provide for more than one action (superior right and estate), they do not provide for more than one recovery. Neither Edith nor the estate is entitled to double recovery. (§§ 13111, subd. (c); 13112, subd. (a).) C. The Trial Court Correctly Found that Agnes Did Not Require Decedent's Written Consent to Give Community Property ($212,300.44) to Stepdaughter.
Edith contends the trial court's finding that the transfer of $212,300.44 to stepdaughter was the result of a mutual gift from Agnes and decedent is not supported by substantial evidence. We disagree.
Because stepdaughter was the prevailing party on this issue, we review the evidence in a light most favorable to her. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 787.) The evidence shows that $212,300.44 was taken from the Account that originated in 2010 with the knowledge of both Agnes and decedent, and that named stepdaughter as the beneficiary. Periodically, the Chewnings bestowed generous gifts upon stepdaughter. Specifically, in the 1980s they gave her a car; in 2007 they gave her $10,000 for a trip to Hawaii; and in 2008 they gave her $130,000 towards the purchase of a house on Kansas Street in Lake Elsinore. This evidence sufficiently supports the trial court's finding that the $212,300.44 was a mutual gift.
In challenging the trial court's finding, Edith points out that on April 16, 2012, Agnes never asked to go to the bank to remove the funds. Rather, stepdaughter picked up Agnes and took her to the bank because she (stepdaughter) was unable to remove the funds without Agnes's presence. Edith also notes that stepdaughter downloaded the Durable Power of Attorney for Financial Management form and had Agnes sign it, and that decedent was not capable of participating in any decision making on either March 30, 2012, or April 16, 2012. Moreover, Edith asserts that the "'uncontroverted evidence' recited by the [trial court] is based on the [trial court's] conflating of events that occurred on September 7, 2010, with the events that occurred two (2) years later on April 16, 2012."
Edith's challenges ask us to reweigh the evidence or redetermine the credibility of the witnesses. That is not our role. We will not disturb the judgment if there is evidence to support it, and the evidence here supports the trial court's judgment.
III. DISPOSITION
The treble damages as to stepdaughter should be $198,147 ($66,049 x 3) and the treble damages as to Patricia should be $150,000 ($50,000 x 3). The matter is remanded for the trial court to determine what amount of treble damages, as to both stepdaughter and Patricia, individually, is "necessary to protect the interests of the heirs, devisees, and creditors of the decedent" (§ 13111, former subd. (d)), for inclusion in the judgment. In all other respect the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J. We concur: MILLER
J. SLOUGH
J.