Opinion
NOT TO BE PUBLISHED
Alameda County Super. Ct. No. RP 06297449
Haerle, J.
I. INTRODUCTION
This appeal involves a contest between two of decedent’s nine children over whether one of them, respondent, was entitled to receive, per a deed executed by decedent several years before his death, title to real property owned by him in Oakland. Appellant, per several petitions filed by her, asserted that respondent was not so entitled because she exercised undue influence to induce the decedent to deed the property to her. The probate court disagreed; we affirm its judgment.
II. FACTUAL AND PROCEDURAL BACKGROUND
Decedent George Marbley died on October 30, 2006, of lung cancer. Before his death, he resided in his home at 1145 62nd Avenue in Oakland, Alameda County. On May 24, 2005, decedent executed a deed of that property to respondent Carolyn; the deed was recorded on June 7, 2006.
Hereafter, only the first names of the three key parties will be used; no disrespect is intended.
Shortly after George’s death, his daughter Sharon filed, in pro per, a petition for appointment as a special administrator of his estate. That petition was supported by supportive declarations filed by four of Sharon’s eight sisters and brothers. The petition was granted and Sharon appointed administrator, but not until over a year later, i.e., on November 27, 2007.
On, apparently, December 18, 2007, Sharon filed, again in pro per, a Petition to Determine Succession to Real Property. Respondent filed an opposition to this petition on January 4, 2008, along with a petition to remove Sharon as administrator. According to respondent’s briefs to us and the probate court, the trial court denied this petition on January 30, 2008. Appellant’s briefs to us do not dispute that assertion.
The original of this first petition does not appear in either parties’ appendix, but is referenced in one of respondent’s first filings on January 4, 2008. An “Amended I” petition with the same title was filed by appellant on January 28, 2008.
All further dates noted are in 2008.
On January 28, appellant filed an amended Petition to Determine Succession and, on January 31, a Petition to Determine Title to Real Estate (the latter filed pursuant to Probate Code section 850—hereafter, section 850), and a supporting declaration.
On February 29, respondent filed an Objection to Petition to Determine Title to Real Property.
On March 5, appellant filed a declaration alleging elder abuse and wrongful taking from George’s estate as well as four declarations by siblings of the parties suggesting that their father’s signature on the grant deed submitted by respondent Carolyn appeared to contain a “shaking motion” and thus arguing that the grant deed of the property to respondent “is questionable.”
On March 24, respondent filed a Petition to Strike the Inventory and Appraisal previously filed by appellant.
On June 11, a court trial was held on all of the petitions just noted. The court heard testimony from both of the named parties and from several of their siblings, the latter all testifying in support of appellant’s positions. At that trial, appellant Sharon represented herself, examining and cross-examining several of her siblings, including respondent Carolyn. At the conclusion of the hearing, the court verbally denied all of appellant’s various petitions, and granted respondent Carolyn’s petitions to (1) strike the inventory and appraisal filed by appellant Sharon and (2) remove appellant as administrator. An order to this effect was filed on July 7.
Appellant filed a timely notice of appeal on September 4.
III. DISCUSSION
As appellant Sharon’s briefs make clear, the only issue being appealed from is the trial court’s denial of appellant’s petition, brought under section 850, to declare that title to the Oakland real property that was formerly George’s residence does not belong to respondent Carolyn. That position was—and still is on appeal—based on the premise that, as caregiver to their father during his dying days, respondent Carolyn occupied a confidential position with him, and abused that position by influencing him to deed the property to her.
That being the issue before us, the first question debated by the parties is our standard of review. Citing Estate of Young (2008) 160 Cal.App.4th 62, 75 (Young), appellant appears to suggest that our standard of review is de novo. We disagree. The single paragraph of the Young opinion quoted by appellant in support of this argument relates only to those cases involving “the meaning of statutory phrases” in section 850; that is not this case at all. Further passages from Young make clear when, as here, the outcome of the trial below involved issues such as the credibility of the witnesses (here, entirely the children of George), including the one child who was caring for George up until his death and who was deeded the real property by him several years prior thereto, the substantial evidence standard of review obtains. Thus, the Young court held: “As the trial court in this matter aptly observed, Young [the decedent] was no longer present to give her version of the events, so the trial court had to evaluate the evidence as given by the remaining participants, to aid in interpreting the documents. In general, in reviewing a judgment based upon a statement of decision following a bench trial, ‘any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. [Citations.]’ [Citation.] In a substantial evidence challenge to a judgment, the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]’ [Citation.] We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment. [Citation.] [¶] The usual definitions of substantial evidence apply: it is ‘evidence... “of ponderable legal significance,... reasonable in nature, credible, and of solid value.” ’ [Citation.] In determining its existence, we look at the entire record on appeal rather than simply considering the evidence cited by a party. [Citation.] ‘The ultimate determination is whether a reasonable trier of fact could have found for the respondent based on the whole record. [Citation.] While substantial evidence may consist of inferences, such inferences must be “a product of logic and reason” and “must rest on the evidence” [citation]; inferences that are the result of mere speculation or conjecture cannot support a finding [citations].’ [Citation.]” (Young, supra, at pp. 75-76.)
These principles clearly apply here. The half-day trial before the probate court was, most unfortunately, conducted on behalf of appellant by herself acting in pro per. The result is a rather difficult-to-digest reporter’s transcript consisting entirely of the testimony of seven of the nine children of George, including mainly appellant Sharon and respondent Carolyn. The other five were all called by appellant and, for the most part, simply testified (four of the five without any cross-examination) that they knew their father was sick with cancer in 2005 and 2006, that he was living in his home for the most part and being cared for by respondent Carolyn (who was living with him at the time), and that they were unaware of the fact that, in 2005, George had deeded the property to respondent and recorded that deed in 2006. One of the sibling witnesses testified that his father was, in 2005, able to handle “some” of his affairs and accounts, whereas another testified that he was not and a third that she was not sure. The remainder of the direct examination of those siblings related to issues not before us, i.e., the handling by George and respondent of various of the former’s bank accounts, etc.
Indeed, appellant appears to admit as much on page 2 of her opening brief, where she states that one of the issues before this court is whether she “presented sufficient evidence of a confidential and/or care giver relationship between decedent and Respondent such that the burden of proof shifted to Respondent.”
The only witness testifying directly to the key issue (as far as this appeal is concerned) of the deeding of the real property to respondent and the recording of that deed was respondent herself. Under examination by her sister, respondent testified only briefly regarding her father’s action in deeding the property over to her in 2005. She testified that she was present at the hospital her father was then in, along with, apparently, either a notary public or an attorney helping him when he executed the deed of the property to her. She also testified, regarding that deed, that the property was given to her “as a gift.” The only other testimony adduced from respondent—or from anyone else for that matter—regarding the real property concerned the fact that George held a deed to the property dating back to 1997, when he purchased it.
Under examination by her own counsel, respondent Carolyn testified that she had nothing to do with the preparation of the 2005 grant deed and in fact had no knowledge of the deed prior to May 24, 2005, the date of its execution at the hospital.
The remainder of the examination of respondent Carolyn by both her counsel and her sister, appellant Sharon, dealt with various banking transactions, issues not relevant to this appeal. Finally, the direct examination of appellant Sharon by respondent’s counsel concerned similarly irrelevant issues, i.e., appellant’s inventory and appraisal of the estate qua administrator (a document subsequently stricken by the probate court) and respondent’s petition to remove her as administrator (a petition later granted by the court).
Shortly stated, this evidence simply does not show any exercise of undue influence by respondent on her father. More importantly under the applicable standard of review, it does not show a lack of substantial evidence supporting the trial court’s order denying appellant’s section 850 petition to divest respondent of title to the relevant real property.
First of all, a duly executed grant deed is presumed to have been delivered on the date it bears. (See Civ. Code, § 1055; 12 Witkin, Summary of Cal. Law (10th ed. 2005) § 295, p. 352; 20th Century Plumbing Co. v. Sfregola (1981) 126 Cal.App.3d 851, 853.) Recordation is prima facie evidence of delivery. (See Evid. Code, § 1600; 12 Witkin, Summary of Cal. Law, supra,at § 295, p. 352.)
Of course, a gift of real property, even though accomplished by a recorded deed, is voidable if procured by undue influence. (See 12 Witkin, Summary of Cal. Law, supra, at § 260, p. 316.) Many decades ago, a panel of the Second District addressed this issue in a context directly relevant here, the giving of a gift deed of real property by a father to his son. In Goldman v. Goldman (1953) 116 Cal.App.2d 227 (Goldman), the appellate court reversed a trial court judgment quieting title in Los Angeles County property to the widow of the decedent who had, prior to his death, transferred that property to his son. The appellate court held that the lower court’s judgment—and the bases for it—were inconsistent with prior California precedent on the issue of inter vivos gifts of property from a parent to a child. Those precedents, the court stated, established “the rule that in cases of gifts inter vivos the natural influence which obtains in close intimate relations, as of a father and son who are in business together, is an undue influence and that gifts made by virtue of such influence will be set aside unless the party benefited can show affirmatively that the donor was placed in a position that would enable him to form an absolutely free and unfettered judgment. Such is undoubtedly a wholesome doctrine, calculated to intercept the avaricious. However, there is no evidence in this record which shows that the grantor was at any time hindered from exercising his own free will or from making his own decisions with reference to the disposition of his property. He had but recently been engaged in conducting a commercial house. Neither the malady from which he suffered nor his subsequent confinement to the hospital appeared to impair his power for making decisions. Everything that he did affecting his property interests was initiated in his own mind. No statements were made to him by [the son] that were calculated to divert his mind from its normal course; no promises, no threats, no bargains were proposed by his son for the purpose of gaining an advantage. The only circumstances suggested that might indicate [the father held the son] in special esteem were: (1) they collaborated in a business together; (2) the son served his father after the latter succumbed to his malignancy, and gave the father comfort in the sunset of life. Such loyalty is no more than natural. Acts done by a child in service to his parent while the latter is suffering an affliction, do not in and of themselves give rise to an inference that undue influence or fraud has been imposed upon the parent to induce a gift of property. But in order to effect the annulment of such a gift, the court must be convinced that the conveyance to the child was not the voluntary act of the donor. [Citation.] The mere parent-child relationship is not sufficient to raise a presumption of fraud or undue influence. [Citation.] To raise such a presumption, the relationship must be coupled with proof of activity in procuring the conveyance of property. [Citation.]” (Goldman, supra, at p. 237, emphasis added); see also Church of Merciful Saviour v. Volunteers of America, Inc. (1960) 184 Cal.App.2d 851, 861; Tuttle v. Bessey (1955) 137 Cal.App.2d 725, 728; Camperi v. Chiechi (1955) 134 Cal.App.2d 485, 504-505 (Camperi); Estate of DeMont (1955) 132 Cal.App.2d 720, 724; Burke v. Burke (1954) 127 Cal.App.2d 534, 542-544.)
Appellant argues that, because George and Carolyn were father and daughter, a rebuttable presumption of a confidential relationship arose in the present case. She cites in support of this contention our Supreme Court’s opinion in Estate of Stephens (2002) 28 Cal.4th 665, 677 (Stephens), where the court stated: “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. [Citing Goldman.] The child’s burden of proof is by a preponderance of the evidence.”
The problem with appellant’s reliance on this standard is that there is nothing in the record before us, or any evidence presented to the trial court, that established—or hinted for that matter—that respondent ever gave, or was even called upon to give, “advice in business matters” to her father. Absent such a connection, the mere fact of a parent-child relationship does not mean that a confidential relationship existed between the two so as to invoke the presumption of undue influence established by Civil Code section 1575. (See, e.g., Goldman, supra, 116 Cal.App.2d at p. 237; Townsend v. Wingler (1952) 114 Cal.App.2d 64, 67; Jorgensen v. Dahlstrom (1942) 53 Cal.App.2d 322, 334; Best v. Paul (1929) 101 Cal.App. 497, 499.) As a leading secondary authority has stated: “There is no confidential relationship between a parent and child in the absence of proof of trust, confidence, and reliance by one on the other.” (3 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 8:56, p. 130.)
But, here, appellant presented no evidence establishing the existence of such a relationship between George and Carolyn. As our Supreme Court observed in Stephens: “ ‘It is perfectly natural for a parent to be more bountiful to one of his children who has assumed the greatest burden of care and lavished the highest degree of solicitude upon him.’ ” (Stephens, supra, 28 Cal.4th at p. 678, quoting Camperi, supra, 134 Cal.App.2d at p. 505.) Exactly that situation seems to have been the case here.
In any event, whether or not there was a confidential relationship between George and respondent Carolyn, appellant was still required to carry the burden of proof concerning the exercise of undue influence. “[M]ere proof of a confidential relation is not of itself sufficient to establish undue influence or to cast the burden of negativing undue influence upon the party alleged to have exercised it. Proof of such relation must be coupled with proof that the one in whom confidence was reposed actively participated in the transaction and that by the transaction [she] obtained a gift from or advantage over the other.” (Estate of Kreher (1951) 107 Cal.App.2d 831, 838-839.)
We agree with the implicit conclusion of the trial court, in both its verbal ruling on June 11 and in its order of July 7, that there was no such proof here. Put another way, and returning to our standard of review, there was clearly substantial evidence in the record that no undue influence was exercised by Carolyn over her father with regard to the gift deed to the Oakland property. As noted above, the only testimony by Carolyn regarding her knowledge of the deed made out to her in 2005 was that (1) she had no “knowledge of this deed prior to May 24th, 2005,” (2) and had nothing to do with its preparation, (3) that her father signed the deed at the hospital in front of herself and a notary public, and (4) that the house was deeded to her by her father “as a gift.” Further, none of the other witnesses called by appellant presented any evidence of any of the factors necessary to establish undue influence, other than the facts that, in 2005 and thereafter, George was suffering from cancer and was under medication for that disease and respondent was living in the home with him at the time. As regards George’s capacity for handling any of his own affairs in 2005, as noted above three of the siblings offered somewhat different opinions.
Indeed, appellant’s in pro perquestioning of respondent sister regarding the 2005 deed was limited to a few general questions. The remainder of appellant’s examination of respondent concerned (1) George’s 1997 deed to the property, the relevance of which was never established because of objections sustained by the court, and (2) George’s bank accounts, a subject not relevant to this appeal.
Such was the sum and substance of the evidence produced regarding respondent’s participation in the execution of the deed to the property in question. We agree with the trial court that it was insufficient to establish undue influence.
IV. DISPOSITION
The order appealed from is affirmed.
We concur: Kline, P.J., Richman, J.