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Estate of Lazelle

California Court of Appeals, Fifth District
Sep 10, 2008
No. F053210 (Cal. Ct. App. Sep. 10, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Kern County No. S-1500-PB-54138. Louie L. Vega, Judge.

Law Office of Larry L. Fields, Larry L. Fields and David A. Evers for Petitioner and Appellant.

Clifford & Brown and John R. Szewczyk for Claimants and Respondents.


OPINION

Wiseman, J.

PROCEDURAL HISTORY

On December 23, 2004, Kern County resident Willis Warrant Lazelle (Lazelle) signed a handwritten, witnessed will leaving all of his properties, assets, and belongings to respondents “Mary Lou Lee and/or Ray Hacker” (Hacker and Lee). Shortly afterward, on December 26, 2004, Lazelle died of prostate cancer. Ray Hacker (Hacker) on April 25, 2005, signed a written disclaimer of any interest he might have had under the will.

Hacker filed a petition for probate of will and for letters of administration with will annexed. Later, Lazelle’s grandnephew, appellant Gary Keffer (Keffer), filed a contest and grounds of opposition to probate of the purported will of his great uncle. (Prob. Code, §§ 8004, 8250 et seq.) Keffer alleged that Lazelle lacked testamentary capacity when he allegedly executed the document, that Lazelle did not execute the document in the manner and form required by law, and that Lee and Hacker exercised undue influence over Lazelle in the creation of the will.

On January 19, 2007, Keffer filed a trial brief in superior court alleging that the will was invalid because it was not properly witnessed and because it was procured by undue influence. Hacker and Lee (the administrator and beneficiary under Lazelle’s will) filed a motion in limine to preclude Keffer’s introduction and examination of previously undisclosed witnesses and documents.

On the same date, Hacker and Lee filed a trial brief asserting that Lazelle’s will was valid, legal, and duly signed and witnessed. In addition, they filed an answer to the will contest and grounds of opposition to probate. In their answer, they admitted certain allegations of the petition, denied other allegations, and alleged one affirmative defense. On January 24, 2007, Keffer filed a motion to reconsider the preclusion of witnesses and documents.

On March 2, 2007, the court conducted a contested hearing. Commissioner Louie Vega later filed a detailed minute order and formal order denying Keffer’s will contest and granting Hacker’s petition for probate of will.

On May 17, 2007, the court filed an order for probate that appointed Hacker as administrator with will annexed, with full authority under the Independent Administration of Estates Act (Act). On the same date, the court filed and issued letters appointing Hacker as special administrator of Lazelle’s estate with limited authority under the Act..

On June 13, 2007, Keffer filed a timely notice of appeal from the May 17, 2007, order for probate.

On June 11, 2007, Keffer filed a timely notice of appeal from an order entered on “05/09/2007.” However, a review of the record does not reveal any order or document bearing such an entry date.

FACTUAL HISTORY

Decedent Lazelle was born in Idaho Falls, Idaho, on November 13, 1921, and moved to Havalia, California, at the age of five. He was born into a large family. He had two older sisters, an older brother, and a younger sister. The two older sisters and one older brother had married by the time Lazelle was born; he had a niece and nephew who were born about the same time as Lazelle. Since Lazelle came along later in his parents’ lives, he did not really know his brothers and sisters well as a child. Lazelle’s mother died when he was five years old, and his father could not handle rearing Lazelle and his older sister Beatrice “Bea” Hill. Lazelle’s uncle and aunt (his mother’s brother and sister-in-law) took Lazelle into their home. Other family members took Bea into their home, but she eventually returned to her father. Lazelle and Bea’s father married again but Lazelle never returned to his birth family. The uncle and aunt eventually adopted Lazelle and raised him in California where he had minimal contact with the rest of his birth family. Lazelle’s adoptive parents had no other children.

Lazelle worked as a self-employed accountant. He was active in the Junior Miss and Salvation Army programs in Kern County and was very active in Kiwanis International, serving as secretary and lieutenant governor at the county level. Lee was a retired grammar school teacher.

Hacker was the longtime manager of the Save Mart Supermarket at Olive Drive and Roberts Lane in Bakersfield. He first met Lazelle at a Kiwanis meeting 15 to 17 years prior to the January 2007 contested hearing. During the last five years of Lazelle’s life, Hacker would meet with Lazelle on an almost-weekly basis. Hacker knew both Lazelle and Lee and, during the first 10 years of their acquaintance, believed they were husband and wife. Hacker said they were “inseparable” and had a close and loving relationship. In 2002 or 2003, Hacker went to Lazelle’s home to set up a facsimile machine. It was then that he realized that Lazelle and Lee were not husband and wife and did not live in the same home. About four or five months before Lazelle died, Lazelle’s home flooded and he stayed at Lee’s home. According to Hacker, that was the first time in the 14 or 15 years of his acquaintance with Lazelle that Lazelle and Lee resided under the same roof. Hacker also said neither Lazelle nor Lee ever spoke to him about the nature of their relationship.

Hacker was scheduled to have dinner with Lazelle on December 24, 2004, but Lazelle called and said he did not feel well. Hacker and his wife, Shelley, took dinner to Lee’s home on December 23. Lazelle initially refused to eat but Lee and Shelley persuaded him to do so. He ate dinner and talked with the Hackers and Lee about the holidays and his poor health. Hacker described Lazelle as “very weak” and said he had “labored breathing.” When the meal was done, Hacker asked Lazelle if there was anything he needed. Lazelle hesitated for a little while and then told Hacker, “‘I need to take care of some things.’” Lazelle elaborated, “‘I need to do something with my property.’” Lazelle eventually said he wanted to write a will. Neither the Hackers nor Lee had mentioned anything about a will up to that point.

Hacker asked Lazelle what he wanted to do; Lazelle had Shelley write his wishes down on paper. Hacker explained: “And that was basically to leave it to Mary Lou. And then he put my name on it, and I had to ask him why. And, basically, it was his words and how he wanted me to help Mary Lou. And so that he wanted my wife and I to understand the only reason that I was any part of it was … to help Mary Lou.” After Shelley wrote down Lazelle’s wording, Lazelle signed the paper and asked the Hackers and Lee to sign as witnesses. Hacker, Lee, and Shelley Hacker then signed the paper, which read:

“Dec. 23, 2004

“I Willis Lazelle of sound mind will all my properties, assets and belongings to Mary Lou Lee and/or Ray Hacker.

“Signed Witnessed

“Willis Lazelle Shelley Hacker

“Ray Hacker

“Mary Lou Lee”

Hacker said he observed Lazelle affix his signature to the document. Hacker explained, “It took him quite a while to do it. It … was very labored for him to sign that. It just took him a while. He was very meticulous about it, very slow.” Lazelle told Hacker he wanted Hacker to help Lee with his property. Lazelle said he was afraid that Lee would go into a deep depression. Hacker understood that Lazelle was not giving him any portion of his property, even though Hacker’s name was written in the document. According to Hacker, Lazelle intended that Hacker assist Lee with her receipt and handling of the property. After everyone signed the document, the telephone rang in Lee’s home and Hacker said it was the hospital calling. Lee became “a little shook up” and went to the bathroom. Hacker explained that Lee was going to take Lazelle to the hospital. Lazelle walked to the car on his own with the Hackers escorting him. While doing so, Lazelle handed Hacker two blank, signed checks and said, “‘Here. If you need to take care of anything, take care of it.’” Sometime later, Hacker learned that Lazelle had approximately $55,000 in his checking account. Hacker paid some of Lazelle’s bills.

Hacker later said that he and Lazelle spoke several times about Lazelle’s estate plan approximately three years before Lazelle died. Hacker suggested that Lazelle give his property to charity and Lazelle replied, “I should.” Hacker also spoke to Lazelle about whether Lazelle had a will. Lazelle said he did not have a will and acknowledged that it was something he should do.

Hacker had no idea of the severity of Lazelle’s condition when Lazelle gave him the two checks, although he eventually understood that Lazelle was entrusting him with the money to handle his estate. He paid about $20,000 in mortgage payments, back taxes, funeral expenses from his own pocket, and also for damages caused by a tree that fell on the roof of Lazelle’s home. Hacker ultimately cashed one of Lazelle’s checks to reimburse himself for those expenses. At the time of the January 22, 2007, hearing, Hacker was still owed funds for certain monies he paid on behalf of Lazelle’s estate.

Hacker first contacted an attorney regarding the estate about one month after Lazelle died. Around that same time, Hacker went to Lazelle’s office and disposed of old papers relating to Lazelle’s bookkeeping clients, but retained boxes of papers relating to Lazelle himself. Some of the boxes contained Lazelle’s tax records, but Hacker never found another will among the papers. Hacker participated in Lazelle’s funeral arrangements, but did not contact any of Lazelle’s relatives. He said his role was to assist Lee with whatever she needed, and he would have made calls had Lee asked him to do so.

Lee testified that her full name was Mary Louise Lee. Lee first met Lazelle in the mid-1950’s at a church square dance. They started as friends, the friendship developed into a more serious relationship, and then they became lovers. Lee said they loved each other and traveled together during their 48-year relationship. Their trips included attending beauty pageants in Rohnert Park, participating in Kiwanis national and international conventions, a three-week Canadian trip with Lee’s widowed mother, a 1972 Iowa trip for the wedding of Lee’s nephew, and several trips to Tucson, Arizona, to spend Christmas with her sister.

In the last 25 years of their relationship, Lee and Lazelle established a daily pattern. She went to his house for breakfast and he came to her house for dinner. Lee and Lazelle discussed marriage early in their relationship but not in the last year of his life.

Lee said Lazelle was engaged in many charitable activities during their relationship. He was active in the Salvation Army for 30 years and chaired the boards that governed the Army’s Corps and the ARC, a rehabilitation center for alcoholics and drug addicts. Lazelle and Lee attended the Army’s Kettle Dinner shortly before his death and the couple rang bells at Trader Joe’s that Christmas season. Lazelle was also active in Kiwanis, where he chaired the Junior Miss Program, and was the acting sponsor from his club until his death. Lee said Lazelle regularly went to his office during the workweek.

Lee said she and Lazelle were always together on holidays and would visit with her family on Thanksgiving and Christmas. Her extended family accepted Lazelle “like he was a husband to me.” Lazelle was “part of the family” and would exchange gifts with her sister, brother-in-law, mother, nieces, and nephews. Lee said she and Lazelle would frequently visit her mother until she passed away in 2000.

To Lee’s knowledge, Lazelle never married and had no children. Lee said he always sent Christmas cards and wrote notes to his relatives. Lazelle and Lee did take trips to visit his relatives but, aside from those trips and holiday messages, she was unaware of any contact between Lazelle and his extended family. Lee remembered that the last Bakersfield visit by one of Lazelle’s relatives (Joe Byers, the son of Lazelle’s sister, Wilma) occurred about five years before Lazelle died. Prior to that, Lazelle’s two sisters visited him in Bakersfield in the late 1950’s or early 1960’s. Lee said those sisters were deceased at the time of the January 22, 2007, hearing.

Later in her testimony, Lee said Lazelle attended alone the funerals of his older sister, Frances Keffer, and his brother, Max Warrant. Lee said both she and Lazelle attended the funeral of his sister, Bea, in San Bernardino. Lee also said Lazelle would take out-of-state trips to see relatives over the years. When Lee was working, she would not go on vacations with him.

Lee said Lazelle suffered from prostate cancer and received regular shots to slow the spread of the disease. Lazelle was “a little bit hard headed at times” and would not change his mind once he made it up. She acknowledged that Lazelle lived in her home for the last six months of his life. He progressively became more ill and Lee insisted that he stay so she could take care of him. In spite of his illness, he still went to work each day and remained active in community activities.

Lee said Lazelle was very shy when they first met. She believed he lacked confidence and she tried to build his self-esteem by making suggestions rather than criticizing him, by giving him clothing to dress a little better, and by encouraging him to speak up in groups. Lee said she loved Lazelle “dearly” but they did not live together except for a short period at the end of his life. She explained that they were “two free spirits” and each liked to do things his or her own way. She said they loved each other but also appreciated their own independence. When asked about Lazelle’s expressions of affection, Lee said: “[W]e always held hands. When … we got in the car, he opened his side of the car door and I slid in and sat in the middle of the seat and was right next to him. We hugged each other. We loved each other. We had sex together. We spent many, many hours riding on the same motorcycle exploring Kern County. He opened the car door for me always. He was always considerate and loving. When he went home every night, we had a hug and he’d always whisper ‘I love you.’”

Lee said Lazelle was so ill on December 22 that she insisted he go to the doctor. On December 23, she noticed that one of Lazelle’s legs was very swollen, the skin was tight, and he thought it might be a clot. He limped when he walked, had labored breathing, and said he just could not make it to work that day. Lee called the doctor’s office and drove Lazelle to the physician’s office. The couple was supposed to spend Christmas Eve with the Hackers but Lee did not believe Lazelle was well enough to do so. Lee was depressed because she knew Lazelle had prostate cancer that was spreading.

Lee described the events that occurred at the dinner she and Lazelle shared with the Hackers on December 23. As the Hackers prepared to leave, Ray Hacker asked Lazelle if there was anything he could do for him. Lazelle told Hacker he should “write something down in the equivalent of a will or … what would be done with his property. Willis knew that he was very sick.” Lee said Lazelle’s statement caught her by surprise. When Lee asked whether this was something Lazelle wanted to do, he answered in the affirmative. Lee said Lazelle dictated the statement and Shelley Hacker wrote it down because Lee’s hands “were shaking too much.” According to Lee, Lazelle never mentioned anything about his estate or about dying. Lazelle signed the document and the Hackers and Lee also signed it. Lee said that during their relationship she and Lazelle had discussed several times his making a will; however, Lazelle would not do so because he did not want to acknowledge that someday he was going to die.

Lee said Lazelle was sitting at the table when he signed the document. His arm was resting on the table and he signed the paper “very, very slow and deliberately.” Later in her testimony, Lee said Lazelle rested his entire arm on the table and signed the document “[v]ery slow and labored.”

Lee went to the emergency admitting desk and did Lazelle’s paperwork. A hospital staff member questioned Lee because she was not Lazelle’s blood relative. Lee explained that Lazelle had no blood relatives in town and that she and Lazelle looked after each other. At the staff member’s request, Lee signed the documents. She also signed a number of papers between December 23 and 26, 2004. These included an admission form, emergency information and consent to treatment, and patient rights and responsibilities forms. She did not recall Lazelle signing anything at the hospital. She said she could have signed his name on certain documents and admitted there are times when her hand gets “shaky.” Later in her testimony, Lee said Lazelle did not sign anything at the hospital while she was present.

After completing the paperwork, Lee went to the back room of the emergency area and saw Lazelle. She stayed with him until 11:00 a.m. the following morning, December 24. At that time, the hospital assigned Lazelle to a room. Lee left for two hours to keep an appointment, went home and freshened up, went back to the hospital, and then stayed there until 9:00 p.m. She returned at 9:00 a.m. on Christmas Day, stayed with him until he fell asleep at mid-day, went to get a bite to eat, and returned and stayed until 9:00 p.m. on Christmas evening. She then returned to her own home. At 8:00 a.m. on December 26, the doctor called and said Lazelle’s kidneys were failing. Lee stayed with Lazelle until he passed away. After his passing, Lee stayed with the Hackers for several days then returned to her own home, where other friends stayed with her.

Lee said she gave information about Lazelle to Shelley Hacker so she could write his obituary. Lee did not give any information about Lazelle’s relatives and did not read the obituary until it appeared in the newspaper. Lazelle’s service was held January 4, 2005, the Tuesday after New Year’s Day. Lee could not remember when she contacted Lazelle’s relatives after his death. She had no addresses for them. Lee did contact his niece Ellen, in Victorville, after seeing a Christmas card with a telephone number on it. She also contacted Lazelle’s nephew, David. This occurred about two weeks after Lazelle died. Lee explained, “I contacted them because they were the two that I knew the most that I had met several times.” When asked why she did not contact relatives before Lazelle’s service, Lee said, “[H]is death and everything was right around the holiday. I didn’t want to disturb people’s holiday plans. And my state of reasoning was in a state of confusion.”

Shelley Hacker testified about the dinner she and her husband shared with Lazelle and Lee shortly before Lazelle’s death. As the evening wound down, Shelley said that her husband asked Lazelle whether there was anything he could do for him. Lazelle responded, “‘Ray, I need you to help Mary Lou take care of my things. And take care of anything that needs to be.’” Hacker asked, “‘Well, what do you want to do, Willis?’” Lazelle replied, “‘Well, let’s just write this down.’” Shelley said there were pens on the table but no paper. Lee brought some paper and Shelley, who was seated next to Lazelle, said, “‘Shall I write this?’” Lazelle said, “‘Yes, … just write it.’” Shelley said Lazelle dictated the document and she then understood he was drafting his will. She took down his dictation word-for-word and read it back to him. Shelley asked about the “and/or” language and Lazelle explained, “‘I need Ray to help Mary Lou. Mary Lou knows what I want.… Ray, I need you to help her.’” After Shelley took down Lazelle’s dictation, there was no further discussion. Lazelle then leaned his left arm down on one side and “took forever” in signing the document with his right hand. Shelley, Ray, and Lee then signed the document in that order. According to Shelley, no one told Lazelle to make a will or what to do with his property.

Shelley said she and Ray visited Lazelle at the hospital and he died the day after Christmas. According to Shelley, Lee took care of everything after Lazelle’s death but Lee was a “basket case.”

Several members of Lazelle’s family testified. David Hill stated that he was Lazelle’s nephew, the son of Lazelle’s sister, Bea. David recalled that Lazelle and Lee attended his mother’s funeral in 2002. David received about “[h]alf a dozen, maybe more, maybe less” Christmas cards from Lazelle. He remembered visiting Lazelle in Bakersfield once when David was very young. David testified that Lee called him about Lazelle’s death within a few days of his funeral. David said he knew Lee well, that she and Lazelle always traveled together, and he never saw them apart. David considered them to be “boyfriend and girlfriend for many, many years. [I]t was always a question why they had never married.”

Ellen Warner was Lazelle’s niece, the daughter of Lazelle’s sister, Bea. Ellen said Lazelle would visit her mother at least twice a year, and she had met Lee many times. Ellen said she and Lazelle exchanged Christmas cards, but she had “[v]ery few” telephone conversations with him. On January 1 or 2, 2004, Lee called Ellen and told her that Lazelle had died from prostate cancer. When Ellen said she did not know he had been sick, Lee indicated even she did not know that he had been that sick. Lee told Ellen, “‘Willis and I didn’t have that type of relationship.… We’ve never been intimate and we’ve never slept together … because he respected me too much.’” She considered Lazelle and Lee to be good friends, and described Lazelle as a very private person.

Craig Keffer testified that he was the 84-year-old son of Lazelle’s oldest sister, Frances Keffer. Craig said they kept in touch each year by telephone or by Christmas cards. Lee called Craig mid-morning on March 10, 2005, and told him that Lazelle had died on December 26. She explained that she needed the names and addresses of Lazelle’s nieces and nephews for notification purposes. According to Craig, Lee said there was no will but everything went to her.

Sig Keffer said she had been married to Craig Keffer for 52 years and knew Lazelle as her husband’s uncle. She last saw Lazelle in 2002 at their Aunt Pauline’s 90th birthday party in Utah. Sig said she visited with Lazelle between five and seven times and that her husband spoke with him about once a year in the last 10 years of Lazelle’s life. She considered Lazelle and Lee to be close friends but did not know the nature of their relationship. Sig confirmed that Lee called their home on March 10, 2005, to tell them that Lazelle had diabetes and passed away in the hospital on December 26. When asked why she waited so long to call, Lee said she needed to get names of all of the living relatives to inform them of Lazelle’s death. When Craig asked whether Lazelle had a will, Lee replied, “‘No, he did not. But everything’s mine.’”

Manuel Gonzales testified that he had been a document examiner engaged in handwriting and signature comparisons for almost 28 years. Gonzales examined the purported signature of Lazelle on the December 23, 2004, will and compared it with four known signatures of Lazelle. Citing conscious movement, poor line quality, pen lifts, and tremor, Gonzales concluded that the person who signed the will was “probably not the writer” of the exemplars. Gonzales also acknowledged that conscious movement can distort an individual’s regular signature and that slow writing can change the fundamental characteristics of a signature.

Ruling of the trial court

On April 20, 2007, the Honorable Louie L. Vega, then Superior Court Commissioner, denied Keffer’s petition for letters of administration and granted Hacker’s petition for probate of will and for letters of administration. The court stated:

“Now, turning to whether the executed document was witnessed as required by [Probate Code] Section 6110, the Court makes the following findings. The Court finds that the use of a virgule … in the proposed disposition of [Lazelle’s] estate ‘to Mary Lou Lee and/or Ray Hacker[,]’ renders the designation of Hacker a nullity ab initio. (Emphasis added.) The effect of using a virgule between the words ‘and’ and ‘or’ in documents has been reviewed in civil and criminal forums.… See, e.g., United States v. Almazan-Becerra 456 F.3d 949, 954 (9th Cir. 2006) (where the court reversed a conviction, inter alia, because of ‘the sloppy ambiguity caused by the virgule .…’). See also Danco, Inc. v. Commerce Bank, et al. (1996) 290 N.J.Super. 211.… Cf. Joffe v. United California Bank (1983) 141 Cal.App.3d 541, 553. (‘A hyphen between two words compounds or connects the words: ‘to hyphen’ means ‘to connect (as two words or the parts of a word) with a hyphen.’)

“Also, as testified to by those present when the proffered will was signed by [Lazelle], it was intended only that Lee receive his estate and that Hacker would administer the will. Moreover, Hacker has disclaimed any interest in [Lazelle’s] estate. Thus, Hacker is not entitled, nor was it intended by [Lazelle], that he receive any part of [Lazelle’s] estate. Therefore, because of the term ‘and/or’ contains a virgule that nullifies whatever comes after it as far as the Court is concerned, the Court hereby strikes Hacker’s name from the testamentary portion of the will. Accordingly, he is deemed a proper witness to the will’s execution, along with [Shelley] Hacker.

“Regarding the issue of undue influence, some basic findings are made at the outset. [Lazelle] and Lee had a long-term relationship that spanned nearly 50 years. Although they maintained separate homes until the final months of [Lazelle’s] life, when they lived together while Lee cared for him, they enjoyed regular meals together daily. They attended and participated in several service club activities where they gave the appearance that they were in a committed relationship, if not actually married. Moreover, they visited [Lazelle’s] distant relatives together, including funerals.… Christmas cards and other correspondence were sent out regularly where mention of Lee was routinely included by [Lazelle].… Lee is not someone who just showed up shortly before [Lazelle] passed away. She was with him until the end, which after nearly 50 years, is remarkable in [itself]. Therefore, it is not extraordinary that [Lazelle] would choose to leave his estate to someone he cared for and shared his life with rather than with relatives who rarely, if ever, took time to visit or call him.

“Further, there was no evidence that Lee did anything more than witness the will’s preparation and sign as a witness after it was signed by [Lazelle]. Regarding whether Lee and [Lazelle] had a fiduciary relationship, none is found by the Court, although they did spend significant time together for nearly 50 years.”

DISCUSSION

I. Exclusion of the two nurses’ testimony

Keffer contends that the trial court erroneously precluded the testimony of two nurses who were on duty at the time of Lazelle’s admission to Bakersfield Memorial Hospital.

On January 22, 2007, Hacker and Lee filed a motion in limine to preclude the introduction of previously undisclosed witnesses and documents. The next day, Keffer’s counsel advised the court he planned to call nurses Kim Widger and Chandra Williams to testify. Their names were referenced in Lazelle’s records from Bakersfield Memorial Hospital. Counsel further advised that the prospective witnesses could testify to Lazelle’s signature on specific pages of the records. Counsel explained: “These particular witnesses will be testifying as to how the name Willis Lazelle was generated on that particular record, in other words, to present evidence to the court that that is, in fact, his signature.” Hacker and Lee’s counsel objected on the ground the witnesses were not designated in any form of discovery leading to the January 23, 2007, hearing. He also objected that the records had not been authenticated, were hearsay, and lacked relevance.

The court asked Hacker and Lee’s counsel whether the medical records would meet the business-records exception to the hearsay rule. Counsel explained that the records first had to be authenticated before the prospective witnesses could take the stand. In reply, Keffer’s counsel maintained that the records had been produced to Hacker and Lee, and the nurses’ names, although difficult to read, were contained in the records. Keffer’s counsel also stated that he advised Hacker and Lee’s counsel a year earlier that the hospital documents would be used by Keffer’s expert document examiner. Counsel said, “it’s certainly no surprise to him [Hacker and Lee’s counsel] that we would have to call these witnesses to verify that they are the ones that acquired the signatures from [Lazelle].” Hacker and Lee’s counsel asserted that Keffer’s counsel should have “identified the witnesses, his intent with regard to the witness[es], and what he was going to do.” Keffer’s counsel maintained he did not know the full names of the witnesses at the time Keffer answered Hacker and Lee’s interrogatories.

The trial court asked Keffer’s counsel when he determined that the two nurses were going to be necessary witnesses. Counsel could not say exactly when and acknowledged he did not directly locate the two nurses. The court observed the case was set for trial in July 2006 and asked, “These witnesses are going to lay the foundation for how these signatures were procured on these medical records?” Keffer’s counsel responded, “Yes. Nothing else.” Hacker and Lee’s counsel pointed out that he depended upon the interrogatories to determine the identity of witnesses and the “circumstances of those witnesses.”

After further discussion, the court commented, “This should have been a pretrial motion so that we wouldn’t have gotten into the second day of trial to deal with this issue. It’s either an in limine motion or a 402 hearing on admissibility….” Hacker and Lee’s counsel pointed out that Keffer executed special interrogatory set number one on April 13, 2006. This set asked Keffer to “identify each and every witness who has knowledge of these facts and circumstances and identify all documents.” However, Keffer did not identify the two nurses at that time. Keffer’s counsel maintained he did not have the witnesses identified at the time they produced that discovery.

Keffer’s counsel acknowledged he had the name of the document examiner at that point in time but not the first names, addresses, and telephone numbers of the nurses. According to Keffer’s counsel, the examiner was deposed and said he did not know the source of the staff signatures on the hospital documents. The court questioned whether the examiner had relied on the nurse witnesses to verify the known signatures. Keffer’s counsel responded, “The expert just compares the signature. He doesn’t validate whether a signature is known or not. So he doesn’t consider where the signature came from because it’s up to us to establish that it’s known.” The court then precluded testimony from the two prospective witnesses.

Keffer filed a written motion to reconsider the decision to not allow the two nurses to testify. He pointed out that his answers to interrogatories specified he had not completed his investigation of the facts relating to the action and he had not completed discovery or trial preparation. Keffer also pointed out that Hacker and Lee propounded no follow-up interrogatories after Keffer served his answers to interrogatories on May 30, 2006.

The “rules of practice applicable to civil actions,” including discovery proceedings and proceedings under Title 3a (commencing with § 391) of part 2 of the Code of Civil Procedure, govern proceedings under the Probate Code. All issues of fact joined in probate proceedings shall be tried in conformity with the “rules of practice in civil actions.” (Prob. Code, § 1000; Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 987.) One of the principal purposes of civil discovery is to do away with the sporting theory of litigation, i.e., surprise at trial. (Thoren v. Johnston & Washer (1972) 29 Cal.App.3d 270, 274.)

A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions: (1) Absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful. A responding party need only provide information that is available at the time answers to interrogatories are prepared. Under California law, there is no duty to update or amend the answers. (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1327-1328.) Hacker and Lee do not point to a willful failure to comply with a court order.

Evidence Code section 354 states:

“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that:

“(a) The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means;

“(b) The rulings of the court made compliance with subdivision (a) futile; or

“(c) The evidence was sought by questions asked during cross-examination or recross-examination.”

The exclusion of the testimony of nurses Widger and Williams was not prejudicial to Keffer. He sought to question the prospective witnesses regarding their recollection that Lazelle himself signed certain hospital forms. At trial, document examiner Gonzales said his views about the signature on the will remained unchanged from the time of his deposition. Although the court excluded three documents bearing Lazelle’s signature and those of the nurses, Gonzales still concluded that the person who signed the will was “probably not the writer” of the remaining exemplars he examined. In addition, the testimony of the two nurses would not necessarily have impeached Lee’s credibility since she could not recall Lazelle signing anything at the hospital. Lee later qualified her statement by saying Lazelle did not sign anything at the hospital while she was present. As a result, even if nurses Widger and Williams had testified that Lazelle signed certain Bakersfield Memorial Hospital forms, that testimony would not have contradicted or undermined the thrust of Lee’s testimony.

We conclude that the exclusion of the testimony of nurses Widger and Williams did not result in a miscarriage of justice, and reversal for evidentiary error is not required.

II. Admissibility of Lazelle’s medical records

Keffer next contends the trial court erroneously excluded Lazelle’s medical records pursuant to Evidence Code section 1561.

On January 25, 2007, Keffer sought the admission of exhibit Nos. 10, 11, and 12. Exhibit No. 10 is a Bakersfield Memorial Hospital consent form to transfusion of blood and/or blood products. Exhibit No. 11 is a signature page from a hospital financial responsibility form. Exhibit No. 12 is a hospital emergency information and consent-to-treatment form. Each document bore the signed name of Willis Lazelle. Keffer proffered the documents to show that Lazelle signed them, contrary to Lee’s testimony at the hearing. Hacker and Lee’s counsel objected to the exhibits on the grounds of hearsay, lack of foundation, and lack of authentication. In response, Keffer’s counsel maintained that an affidavit accompanying the proffered exhibits was a sufficient basis for admission of the records under the Evidence Code. Hacker and Lee’s counsel argued that the affidavit did not comply with Evidence Code section 1561, the governing statute. In turn, Keffer’s counsel maintained that the affidavit satisfied the requirements of Evidence Code section 1562. Keffer’s counsel further offered immediately to swear an affidavit before the court that the proffered documents were Lazelle’s medical records, observing, “it’s no prejudice to counsel since the records have been sitting in the court’s possession ever since they were submitted.” The court ultimately sustained Hacker and Lee’s objection regarding noncompliance with Evidence Code section 1561 and excluded the exhibits.

Evidence Code section 1560 states:

“(b) [W]hen a subpoena duces tecum is served upon the custodian of records or other qualified witness of a business in an action in which the business is neither a party nor the place where any cause of action is alleged to have arisen, and the subpoena requires the production of all or any part of the records of the business, it is sufficient compliance therewith if the custodian or other qualified witness delivers by mail or otherwise a true, legible, and durable copy of all of the records described in the subpoena to the clerk of the court or to another person described in subdivision (d) of Section 2026.010 of the Code of Civil Procedure, together with the affidavit described in Section 1561, within one of the following time periods: [¶] … [¶]

“(2) In any civil action, within 15 days after the receipt of the subpoena.

“(3) Within the time agreed upon by the party who served the subpoena and the custodian or other qualified witness.

“(c) The copy of the records shall be separately enclosed in an inner envelope or wrapper, sealed, with the title and number of the action, name of witness, and date of subpoena clearly inscribed thereon; the sealed envelope or wrapper shall then be enclosed in an outer envelope or wrapper, sealed, and directed as follows:

“(1) If the subpoena directs attendance in court, to the clerk of the court. [¶] … [¶]

“(d) Unless the parties to the proceeding otherwise agree … the copy of the records shall remain sealed and shall be opened only at the time of trial, deposition, or other hearing, upon the direction of the judge … conducting the proceeding, in the presence of all parties who have appeared in person or by counsel at the trial .…

(e) As an alternative to the procedures described in subdivisions (b), (c), and (d), the subpoenaing party in a civil action may direct the witness to make the records available for inspection or copying by the party’s attorney or the attorney’s representative, … at the witness’ business address under reasonable conditions during normal business hours.… It shall be the responsibility of the attorney’s representative to deliver any copy of the records as directed in the subpoena.…”

Evidence Code section 1561 provides:

“(a) The record shall be accompanied by the affidavit of the custodian or other qualified witness, stating in substance each of the following:

“(1) The affiant is the duly authorized custodian of the records or other qualified witness and has authority to certify the records.

“(2) The copy is a true copy of all the records described in the subpoena duces tecum, or pursuant to subdivision (e) of Section 1560 the records were delivered to the attorney … for copying at the custodian’s or witness’ place of business, as the case may be.

“(3) The records were prepared by the personnel of the business in the ordinary course of business at or near the time of the act, condition, or event.

“(4) The identity of the records.

“(5) A description of the mode of preparation of the records. [¶] … [¶]

“(c) Where the records described in the subpoena were delivered to the attorney or his or her representative … for copying at the custodian’s or witness’ place of business, in addition to the affidavit required by subdivision (a), the records shall be accompanied by an affidavit by the attorney or his or her representative … stating that the copy is a true copy of all the records delivered to the attorney or his or her representative … for copying.”

Evidence Code section 1562 states: “If the original records would be admissible in evidence if the custodian or other qualified witness had been present and testified to the matters stated in the affidavit, and if the requirements of Section 1271 have been met, the copy of the records is admissible in evidence. The affidavit is admissible as evidence of the matters stated therein pursuant to Section 1561 and the matters so stated are presumed true.…”

The proffered exhibits were accompanied by the affidavit of Michael Bowen Hobbs, Custodian of Records at Bakersfield Memorial Hospital. Hobbs’s affidavit, dated December 1, 2005, averred that he was the authorized custodian of medical records at the hospital; that he had the authority to certify the records; that the records attached to his affidavit were true copies of the medical records “described in the authorization”; and that the records were prepared by hospital personnel acting in the ordinary course of business at or near the time of the act, condition, or event. However, the affidavit did not set forth the identity of the records or a description of the mode of preparation of the records. (Evid. Code, § 1561, subd. (a)(4), (5).) In addition, the record on appeal does not specify (1) the contents of the subpoena duces tecum or authorization document; (2) whether the custodian submitted copies of the records to the clerk of the court under seal or whether an attorney or attorney’s representative delivered the copies as directed by the subpoena or authorization; and (3) whether the records described in the subpoena/authorization were delivered to the attorney or attorney’s representative for copying, requiring an additional affidavit under Evidence Code section 1561, subdivision (c).

Even assuming full compliance with sections 1560 and 1561, the proponent of business records must also comply with the requirements of Evidence Code section 1271. (Taggart v. Super Seer Corp. (1995) 33 Cal.App.4th 1697, 1707.) It provides:

“Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:

“(a) The writing was made in the regular course of a business;

“(b) The writing was made at or near the time of the act, condition, or event;

“(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and

“(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271.)

Here, custodian Hobbs’s affidavit satisfied the requirements of Evidence Code section 1271, subdivisions (a) and (b). However, his affidavit did not address the identity of the documents, their mode of preparation, the sources of information, and the method and time of preparation. (Evid. Code, § 1271, subds. (c), (d).) Absent evidence of the sources of information for the records or evidence that the records were trustworthy, the proffered exhibits could not be admitted as business records. (Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 720.) The trial court properly excluded exhibit Nos. 10, 11, and 12.

III. Applicable burden of proof

Keffer contends the will was not witnessed by two disinterested witnesses and, consequently, there is a presumption the will was procured by fraud or undue influence. He asserts that the superior court failed to shift the burden of proof in accordance with the presumption.

The paramount rule in the construction of wills is that a will is to be construed according to the intention of the testator, and this intention must be given effect as far as possible. In reviewing a trial court’s construction of a will, we are free to interpret independently the instrument as a matter of law unless the trial court’s interpretation turned upon the credibility of extrinsic evidence or required resolution of a conflict in the evidence. The possibility that conflicting inferences can be drawn from uncontroverted evidence does not relieve the appellate court of its duty to interpret the instrument independently. However, when the issue turns upon the credibility of extrinsic evidence or requires resolution of a conflict in that evidence, the trial court’s determination is binding. (Estate of Verdisson (1992) 4 Cal.App.4th 1127, 1135-1136.)

We begin with some basic ground rules. Probate Code section 6112 states:

“(a) Any person generally competent to be a witness may act as a witness to a will.

“(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.

“(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.

“(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.”

Further, if the witness fails to meet the burden of overcoming the presumption, and the devise to that witness is not inconsistent with and can be separated from the remainder of the will, only the devise to the witness fails and not the entire will. (Cal. Law Revision Com. com., 53 West’s Ann. Prob. Code (1991 ed.) foll. § 6112, pp. 273-274.)

Keffer mounts a number of challenges to the superior court’s ruling. He attacks (1) the court’s interpretation and discussion of the virgule, a diagonal mark used to separate the alternatives in the will, i.e., “Mary Lou Lee and/or Ray Hacker”; (2) the sufficiency of the testimony about Lazelle’s intent in giving “all my properties, assets and belongings to Mary Lou Lee and/or Ray Hacker”; and (3) the court’s treatment of Hacker as a disinterested witness based on his execution of a post-mortem disclaimer.

We need not address these subsidiary points because overriding principles of California probate law come into play here, and we review only the trial court’s ruling and not its reasoning. (Taggart v. Super Seer Corp., supra, 33 Cal.App.4th at p. 1708.) First, even if we were to assume that Hacker is an interested witness, his signature on the will does not render the document or provisions of the document invalid. (Prob. Code, § 6112, subd. (b).) Second, under section 6112, a witness may take under the will if the witness satisfies the burden of proving that the devise was not procured by duress, menace, fraud, or undue influence. In the Factual History of this opinion, we have summarized in detail much of the testimonial evidence considered by the superior court. It amply demonstrates that any devise to “Mary Lou Lee and/or Ray Hacker” was the decision and intent of Lazelle and was not procured by duress, menace, fraud, or undue influence. Third, the presumption of section 6112 only applies to a specific devise to the interested witness and not to the entire will. As a result, even if Hacker were an interested witness and he failed to meet the burden of overcoming the statutory presumption, only the devise made to him would fail and not the entire will. (Estate of Lee (1964) 225 Cal.App.2d 578, 580.)

We conclude that the superior court properly applied the correct burden of proof and reversal is not warranted.

DISPOSITION

The May 17, 2007, order for probate is affirmed. Costs on appeal are awarded to Hacker and Lee.

WE CONCUR: Vartabedian, Acting P.J., Gomes, J.


Summaries of

Estate of Lazelle

California Court of Appeals, Fifth District
Sep 10, 2008
No. F053210 (Cal. Ct. App. Sep. 10, 2008)
Case details for

Estate of Lazelle

Case Details

Full title:Estate of WILLIS W. LAZELLE, Deceased. GARY KEFFER, Contestant and…

Court:California Court of Appeals, Fifth District

Date published: Sep 10, 2008

Citations

No. F053210 (Cal. Ct. App. Sep. 10, 2008)