Opinion
H035884
12-27-2011
TERRY HALVERSON, Plaintiff and Appellant, v. CATHERINE M. VALLONE, et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. 1-05-PR 157375)
Terry Halverson appeals from the judgment against him on his petition, under Probate Code section 17200, to invalidate the amended Bernice I. Negri Revocable Trust, which was executed by his 96-year-old aunt Bernice Negri ("Negri") in 2004 following the death of her son Ronald Negri ("Ronald" or "Ron") and less than two months before her own death. The amended trust named her longtime friends Catherine Vallone and Ludd Dias as the co-trustees and beneficiaries.
We refer to Negri's sons Ronald and Peter, Jr. and her sister Jane Halverson by their first names to avoid confusion and not out of disrespect.
We take judicial notice of Halverson v. Vallone, No. H029947, and Halverson v. Vallone, No H032376. (Evid. Code, § 452, subd. (d); 459.) All further statutory references are to the Probate Code unless otherwise specified.
On appeal, Halverson raises a number of trial errors. After careful review, we affirm. A. Procedural History
On September 14, 2005, appellant Halverson filed a petition contesting the 2004 Trust and seeking other relief.
By opinion filed November 17, 2006, this court reversed the order dismissing Halverson's petition for lack of standing (No. H029947).
By opinion filed April 24, 2009, this court determined that the superior court should not have granted summary judgment in favor of respondents because triable issues of fact remained as to undue influence (No. H032376).
Respondents repeatedly refer to the doctrine of the law of the case. "Under the law of the case doctrine, when an appellate court ' "states in its opinion a principle or rule of law necessary to the decision, that principle or rule becomes the law of the case and must be adhered to throughout [the case's] subsequent progress, both in the lower court and upon subsequent appeal . . . ." ' (Kowis v. Howard (1992) 3 Cal.4th 888, 893 . . . .) . . . As its name suggests, the doctrine applies only to an appellate court's decision on a question of law; it does not apply to questions of fact. (Id. at pp. 234-239 . . . .)" (People v. Barragan (2004) 32 Cal.4th 236, 246.) In reviewing the court's grant of the motion for summary judgment, we determined, based upon the papers submitted, that the trial court erred in concluding that there was "no triable issue as to any material fact and that the moving party [was] entitled to a judgment as a matter of law." (Code Civ. Proc., § 437c, subd. (c); cf. Nally v. Grace Community Church (1988) 47 Cal.3d 278, 302 [appellate court "found only that plaintiffs had raised a triable issue of fact sufficient to defeat a summary judgment motion, and therefore did not determine liability [issue] as plaintiffs seem to imply"].) Our opinion in Halverson v. Vallone, No. H032376 did not limit the trial court from drawing inferences from, or resolving conflicts in, the evidence adduced at trial.
On April 5, 2010, Halverson filed a first amended petition to (1) invalidate the "purported first amendment and restatement of trust" on grounds, inter alia, decedent lacked capacity to execute the document, the amendment was procured through undue influence, and respondents were prohibited transferees under section 21350, (2) obtain an accounting of the trust assets from respondents, and (3) obtain an order requiring respondents to restore all assets to the trust and imposing a constructive trust.
A court trial began in May 2010. After Halverson completed his initial presentation of evidence, respondents moved for a judgment pursuant to Code of Civil Procedure section 631.8. The trial court denied the motion for judgment but it granted the motion as to some issues. (See Code Civ. Proc., § 631.8, subd. (b).) The trial court found that Halverson had not shown any procedural defect invalidating the amendment of Negri's trust, he had not overcome the presumption that Negri had the legal capacity to make decisions affecting her estate, and he had not established that respondents were statutorily prohibited transferees because they were "care custodians."
After the parties had rested, the court determined that a presumption of undue influence had arisen but the respondents had rebutted the presumption by a preponderance of the evidence.
It subsequently issued a statement of decision, which provided: "On May 21, 1990 Bernice Negri established the Bernice I. Negri Revocable Trust ("1990 Trust") which named Bernice Negri . . . as the settlor and original trustee and named her son Ronald Negri ("Ronald") as successor trustee. The 1990 Trust required the trustee, at [Negri's] death, to distribute and allocate the reminder [sic] of the trust estate to beneficiary Ronald, or to Jane Halverson (Bernice Negri's sister) if Ronald did not survive [Negri]. The 1990 Trust did not name Respondents or [appellant Halverson] as beneficiaries. [¶] Both Ronald and Jane Halverson predeceased Bernice Negri. Jane Halverson died in or around 1999. Ronald died on October 19, 2004. [Negri] executed an Amendment to her 1990 Trust on October 22, 2004, naming Respondents Catherine Vallone and Ludd Dias co-trustees and beneficiaries."
In the statement of decision, the trial court determined that the 2004 Trust Amendment was valid and respondents had no obligations to appellant Halverson regarding the trust assets. This conclusion was based on its determinations, among others, that the evidence was insufficient to prove that Negri lacked the legal capacity to execute the 2004 Trust documents, "respondents established by a preponderance of the evidence that they did not exercise undue influence over [Negri] in the making of the 2004 Amendment," and respondents were not "care custodians." B. Evidence
The evidence properly viewed (Estate of Gelonese (1974) 36 Cal.App.3d 854, 861) shows the following:
1. Halverson's Relationship to Negri
Immediately before her death in 2004, Halverson was Negri's closest living relative. Negri had two sons, a sister Jane, who never had any children, and a brother, who was Halverson's father. Halverson was an only child. Negri's sons, her sister Jane, and her brother predeceased her.
Halverson had lived in Minnesota his entire life. In 1957, Negri and her immediate family and her parents (Halverson's grandparents) moved from Minnesota to California, where they bought two homes across the street from each other in Mountain View.
Negri visited Minnesota in 1976 when Negri's brother (Halverson's father) was dying of cancer. According to Halverson, Negri visited Minnesota "nearly every summer or every other summer." Negri would stay with Halverson's mother who lived two miles away from Halverson and Halverson would see Negri almost every day.
Halverson visited Negri in California at three points between 1970 and the early 1990's. During his four-month army basic training at Ford Ord that began in January 1970, Halverson saw Negri on weekend leaves. In 1979, Halverson, his wife, and Halverson's mother celebrated Christmas with Negri. In about 1990 or 1991, when his twin daughters were about 10 years old, Halverson and his family came to California in an RV and stayed in it in front of Negri's house for nearly two weeks.
The 1990 Bernice I. Negri Revocable Trust and Negri's 1990 will did not name Halverson as a beneficiary. The two persons named in the original trust were Negri's son Ron and her sister Jane. Halverson acknowledged that, in 1990, Negri had the ability to make her own decisions concerning her estate, her belongings, and her finances.
In 1998, on the eighteenth birthdays of Halverson's twins, Negri was in Minnesota. Negri went with them and their grandmother to a casino. This visit was the last time that Halverson's wife, who at the time of trial had been married to Halverson for over 40 years and lived in Minnesota, saw Negri.
Negri's son Peter, Jr. died in 1999. Negri's sister Jane died soon thereafter. Halverson came out to California briefly in 2000, sometime after his aunt Jane had passed away, and saw Negri, who was still living in her own home.
Halverson and Negri did not see each other again. Negri did not visit Minnesota again after 2000. Halverson's own serious health problems prevented him from traveling to California again. He had his colon removed and a liver transplant. Halverson testified that he stayed in touch with Negri through cards, letters, and telephone calls, which occurred about once a month.
Around July 18, 2004, the date of Negri's birthday, Halverson spoke with Negri for the last time. He had experienced difficulty reaching her by telephone because "she had been moved from different care facilities." Halverson was able to make telephone contact with Negri but she seemed to be confused about who was calling. Negri's son Ron was able to explain to her who they were and that they were calling to wish her a happy birthday.
Halverson tried to call in August or September but was unable to reach Negri. He did not know that Ron was having health issues.
Negri's son Ron died on October 19, 2004.
Negri died on November 15, 2004.
Halverson later learned of the amendment of the trust. Halverson and Negri had "never actually discussed money or inheritance . . . ." She had never expressed that she was going to leave her estate to him. The family never discussed financial matters.
At the time of trial, appellant was 63 years old and he had retired two and a half years earlier.
2. Negri's Relationship to Catherine Vallone and Ludd Dias
Vallone and Dias were longtime, close friends of Negri. Dias testified that he first met Negri in about 1985 at the Mountain View Senior Center dances, which Negri was running at that time. Vallone also met Negri when she started going to those dances. When Dias became involved with Vallone, they all became good friends. For many years after Negri stopped driving, Dias picked Negri up and took her to the Tuesday dances. Over the years, Vallone and Dias socialized and talked over the phone regularly with Negri.
Their close relationships with Negri continued after she sold her house and lived in various locations, first in the Remington, an assisted living facility. Dias and Vallone visited her there and would occasionally go out to eat with Negri or take her on a drive. Dias continued to give Negri a ride to dances. They often talked with Negri by telephone. Vallone would sometimes take Negri out; Negri liked to visit card shops or walk around Macy's. Vallone had taken Negri to church and she had once taken Negri to an eye doctor.
After the Remington, Negri moved in with her hairdresser, Lourdes O'Grady. Negri had a separate caregiver. Dias no longer took Negri to the dances.
Vallone and Dias visited Negri at O'Grady's residence unannounced on New Year's Day. O'Grady was "a little upset" with them and, after O'Grady went to Negri's room, they decided to follow. They saw Negri was "kind of trembling" and repeatedly asking O'Grady if O'Grady was mad at her and O'Grady was "trying to powder her up . . . to keep the bruises from showing too much." When they spoke with Negri by herself, she seemed afraid to say anything. Dias said "Bernie, you're all bruised up" and Negri, who seemed upset, said she was "okay."
Dias suspected that O'Grady had abused Negri and, after the visit, Dias called Ron. The police responded to a report of suspected elder abuse and an officer spoke with O'Grady over the phone.
Ron immediately removed Negri from O'Grady's home and moved her into his San Jose mobile home. At this point in time, Negri used a walker and a caregiver during the day.
Ron subsequently moved Negri into a gated, one-bedroom apartment. She continued to have the same caregiver. Dias and Vallone visited Negri there and called her on the telephone. Negri's hearing devices sometimes did not work too well. But Negri had no problem expressing herself.
Eventually, Ron asked Dias and Vallone for help finding a care facility. Through the efforts of Dias, Vallone, and Negri's friend Ada Morando, two places were found and Ron checked them out. Ron chose Diamond Care.
3. Arrival at Diamond Care Home
Ron arranged for Negri to come to Diamond Care Home. Rosalie Bacal, the facility's owner and operator, was told by Ron that his mother had been abused by caregivers and he was desperate to move his mother. Bacal observed that Ron was "physically very handicapped" and "[h]e had to lug along an oxygen tank, he could hardly breathe, [and] he had a severe case of emphysema."
The Diamond Care Home admission agreement was dated September 21, 2004. The facility was licensed for six residents and Bacal knew all the residents. The facility offered full services for daily living, including grooming, bathing, home cooked meals, making appointments, including doctor appointments, taking residents to appointments, and calling responsible parties and doctors regarding any conditions or changes in status. It usually had three, and a minimum of two, attendants working 24 hours a day.
Bacal was required by the state to take a minimum of eight hours of continuing education classes each year and those classes addressed Alzheimer's and dementia. She had taken "hundreds of hours on elder care on just the mental evaluation points." At the time of her admission into Diamond Care Home, Negri was "very cognizant of what was going on in her life and in her environment." Bacal based that assessment on her conversations with Negri. Bacal found Negri to be "quite healthy for a 96-year-old lady." Negri's vision and hearing, however, were poor.
Bacal recalled that Dias and Vallone were "there almost every day, and they stayed for hours on end." When Bacal came into Negri's room, they were "always very friendly" and she observed "definite warmth and affection among the friends."
4. Ron's Death
When Ron became sick, but before he went into the hospital, he telephoned Vallone. He told her he was going into the hospital and asked her if she would take care of Negri's bills, pay the Diamond Care Home, and take care of Negri's needs while he was ill. Vallone said, "Of course." Mickey Brazil, Halverson's stepson, called Vallone and asked if she would be able to help Negri with paying her bills because he would not be able to come back and forth from the south. Neither of them made clear how she would do that.
Ron informed Bacal that he was sick and in the hospital. He instructed Bacal to contact Dias and Vallone if she needed anything for his mother.
Vallone and Dias brought Negri to visit Ron in the hospital. Around this time, Negri was using a wheelchair when they went out. Ron told Dias that Stan Grundy had his checkbook with some pre-signed checks and he instructed Dias to call Grundy, get the checkbook, and pay Diamond Care. As indicated, Ron died on October 19, 2004.
Sherri Cusimano was the funeral director and owner of a Mountain View funeral home that had been in business for 30 years. It had provided the funeral home services for Negri's extended family members, her husband, her parents, her son Peter, Jr., her sister Jane, and Ron's wife Fay and then Ron. Negri had been a personal friend of Cusimano's parents and Cusimano had lived next door to Negri's family as a child. Cusimano described Negri as a very feisty, energetic, independent, social, and very outspoken person.
When Ron died, Cusimano went to see Negri at the Diamond Care facility. Negri appeared coherent and knew who Cusimano was. They talked about Cusimano's parents and family. Negri was aware of Ron's death and Cusimano told her about the burial arrangements for him.
By the time Grundy turned over Negri's checkbook, containing checks presigned by Ron, and a key to a safe deposit box to Vallone, Ron had just died.
5. The 2004 Documents
After Ron died, Negri asked Vallone and Dias to get an attorney for her so she could update her will. Vallone learned that the attorney who had originally drafted Negri's trust was no longer practicing and other attorneys that she contacted were not immediately available. She eventually was referred to Marsden Blois.
Vallone called attorney Blois on the morning of October 21 and left a message that an elderly friend whose son had recently died had asked Vallone to find an attorney so the friend could change her trust and will. Vallone said the friend wanted Dias and her to be the trustees and beneficiaries.
Attorney Blois stated that Dias and Vallone came in later that day and told him that the friend was in a Mountain View care home and needed the attorney to come to her. He said he could do that but he first needed the original documents. Vallone told him that Negri was hard of hearing and was not able to easily talk on the phone.
Dias and Vallone brought Negri's will and trust papers, which had been retrieved from a safe deposit box, to attorney Blois's office and met with him. The old estate plan named Negri as the trustee and her son Ron as a successor trustee. Dias and Vallone repeated that Negri wished them to be co-trustees and beneficiaries. He asked them to write down their full names and telephone numbers but he did not consider them to be the clients. He said that he could produce some documents and go to see her the next day. He asked Dias to arrange for witnesses who knew Negri and Blois set a meeting time for the following day at the care home.
Dias asked Negri's good friends Ada Morando and Earl Watson and his wife to be witnesses at the meeting with attorney Blois the next day. They had known Negri for years and had met through dancing.
The next morning, Blois clarified through a telephone call to Vallone that both Negri's two sons and her sister Jane were deceased. Blois arrived at the meeting with documents that were completed and ready for execution, except for the healthcare power of attorney, which Negri still needed to complete. Blois was clear that he was not representing respondents and Negri was his only client. That was also respondents' understanding.
When attorney Blois arrived at the care home, he was taken into Negri's room and introduced to Negri and Morando. Vallone and Dias were also there. Blois sat down in a chair next to Negri. After Negri asked Blois to speak a little louder because she was hard of hearing, Blois brought his chair near to Negri, who was sitting in a chair, and faced her.
Blois confirmed that Negri wanted to make changes in the trust because her son Ron had died. When he asked her what she wanted to do, Negri said she wanted to make respondents co-trustees and pointed at them. Blois asked, "Who do you mean." Negri responded that she wanted "Ludd and Catherine." He then asked who she wanted as beneficiaries and Negri, said, "I want them, 50/50." He asked, "What about Ada, sitting here next to them?" Negri indicated that Morando was not a beneficiary.
Blois was there approximately an hour. Blois went over each document with Negri in detail. He showed her the amended trust, the new will, the power of attorney for asset management, and the power of attorney for health care. He recollected that her responses were generally along the lines of, "Yes, that's fine" or "That's what I want" or "I understand" or "Yes." Negri said she wanted Dias and Vallone to be her executors, to have power of attorney for asset management, and to have power of attorney for health care as well. Negri repeatedly told Blois that respondents were her close friends and she trusted them completely.
Blois discussed with Negri what she wanted to happen if one of the respondents died before she did. She laughed and said, "Not likely." Negri stated that if that happened, she wanted the half to go to their children.
During their discussion of the document changes, Dias, Vallone and Morando did not say anything to Negri or Blois. No one answered on her behalf and she did all her own talking. During the meeting, Negri was completely attentive to what was being said. Negri never "seemed to check out" or became inattentive. Blois found her to be "an interesting conversationalist," feisty, humorous, and lively.
Blois recalled that during their meeting, Negri complained that she did not like the food at the facility and, at some point, she said, "I don't like it here." Negri indicated she would like to go home but there was no discussion of Negri moving out. Blois recollected that the three friends responded by saying something like "well, honey, you have got to try it because you need some additional care, you can't live by yourself, and you can't afford to have a full-time caretaker at your home." He thought that Dias and Vallone were "very gentle, they were very sensitive with how they dealt with her when they differed with her" and they were "very attentive" to "what might upset her." Blois recalled that respondents were trying to get Negri to be patient and to see if she could adjust to the current facility.
Blois was "very alert" to the potential problem of an elderly person being susceptible to undue influence. Based on his "experience talking with a lot of elderly people about estate planning matters," he saw no evidence of undue influence and no evidence of lack of capacity. He asked her whether anyone had tried to influence or persuade her to make the changes. Negri answered "No" and indicated that she wanted the changes because of Ron's death. As far as Blois could see, the pressing need to get the documents executed was from Negri herself and not anyone else.
Blois had "fully intended to have [Dias and Vallone] leave before [Negri] signed" but "by the time the signing came, in [his] own judgment, [he] was convinced there was no undue influence; so [he] just didn't ask them to leave." He "did not feel that [Negri] was under duress or depression or grieving to the point where it interfered at all with what [they] were doing." During the meeting, Blois had no doubts that Negri "knew what she was doing, she was doing what she wanted, there was no undue influence, [and] she was competent."
Negri indicated that the documents "did what she wanted" and "she could sign them." Negri confirmed that the documents reflected her wishes. When it came time for signing, Blois assumed that Negri could not read anything. He handed each document to her and showed her where to sign.
Morando observed that Negri was alert and did not appear confused in any way during the meeting. Negri "knew what was happening."
Watson and his wife arrived too late to witness the signing of the documents. They stayed to visit with Negri, who seemed happy.
6. The Period after Execution of Documents
At some point, Bacal was "getting very nervous" about whether she would get paid. Vallone paid Bacal with one of Ron's checks, signing her name above his name as she was asked to do.
Vallone, Dias, and Morando visited Negri often at Diamond Care; at least one of them was there most days. Negri was unhappy and wanted to move out. She did not like the way she had been touched in the shower by a male caregiver, the noise or the food. Negri indicated that she would not want to go to Ron's stepsons. She was asked by Vallone, "Okay, you don't have any relatives anywhere that we could ask if you could go there?" Negri answered, "No." There was some discussion with Negri of having her move in with Vallone. Vallone was working on finding another caregiver.
7. Negri's Death
A couple of weeks before Negri died, someone at Diamond care called and asked Vallone to take Negri to the doctor. Vallone took her.
As stated, Negri died on November 15, 2004. Dias and Vallone were with Negri at the hospital when she died.
After Negri died, Dias and Vallone were involved in Negri's memorial service. They both went to Cusimano's funeral home and Vallone came "in a few times to make sure everything was correct . . . ." Cusimano found them to be very caring and thorough about making sure Negri's wishes were followed. They brought in pictures and personal mementos for the memorial service. They called the people in their dance group who had been very close to Negri and about 30 people came.
Blois did not call Negri's Minnesota relatives after Negri died. Blois was aware that Halverson had tried to call him several times after Negri died but Blois could not remember ever speaking to him. Blois acknowledged that a notice is supposed to go to beneficiaries and heirs after a revocable trust becomes irrevocable upon death but, by "oversight," he did not send any notice to the heirs.
Blois advised Dias and Vallone on Negri's trust for a number of months after Negri's death and then Blois encouraged them to get a litigation attorney. Another attorney had replaced him by mid-March 2005.
A year or two later, Dias and Vallone asked attorney Blois to help with their appointment as executors under will in this county after a judge in a Los Angeles County lawsuit ordered them to be appointed as executors. At the time of trial, he was still representing them on that probate matter.
8. Expert Testimony
Dr. James Spar was a full-time faculty member at UCLA with a specialty in geriatric psychiatry. Dr. Spar reviewed Negri's Kaiser Permanente medical records to evaluate her mental capacity and vulnerability to undue influence around October 22, 2004. A formal assessment of Negri's mental status done in March 2004 indicated that she was "mildly impaired" by dementia. He explained that dementia is a progressive disease but it was impossible to determine the extent of the progression by October 2004. It was Dr. Spar's opinion that, under the circumstances, Negri was "extremely vulnerable to undue influence, any kind of influence, especially as wielded by people upon whom she felt dependent[.]" But Dr. Spar did not have an opinion whether Negri lacked the capacity to execute documents because, in his opinion, that does not "reliably happen until someone is in severe stages of dementia" and he could not "say she was there." He had no opinion whether Negri had been taken advantage of in this case.
Catherine Bree Johnston testified that she was a doctor certified in geriatric and internal medicine and in palliative care and hospice medicine. She was a professor of medicine at UCSF and chief of its geriatrics education, the chief of the geriatrics clinic at the VA, and the head of a geriatric in-patient service at the VA. She quite frequently performed mental capacity assessments of patients. Dr. Johnston quite frequently assessed patients whom were suspected of being victims of undue influence and she had taught about and written on the subject.
Dr. Johnston reviewed a number of documents and spoke with Bacal and Blois. Both Blois and Bacal had described friendships involving joking and feisty, back-and-forth banter.
It appeared to Dr. Johnston that Negri had mild dementia. In her professional experience, people with that degree of dementia "typically retain the ability to execute" documents designating persons to make decisions on their behalf and persons to whom they want leave their estates. It seemed that "Negri had insight that she needed help with things like bill paying, so it seemed like she very much wanted to get things taken care of after the death of her son . . . ." Although Negri's hearing, vision, and cognitive impairments were red flags of possible undue influence, Dr. Johnston saw no other red flags or evidence of coercive or abusive behavior. It appeared that "Negri really loved" Vallone and Dias, their relationships were mutual and they were "dear friends" and "nobody was coercing her to do anything." In Dr. Johnston's opinion, Negri was not the victim of undue influence because Vallone and Dias had known her for years, long before she had dementia, and they had "done a lot of wonderful things for [Negri], with no evidence that they were ever going to be recipients of her will, because . . . everybody presumed Ron would outlive them all." It was clear to Dr. Johnston that Negri "understood the implications of the document she was executing, and was doing that of her free will." C. Burden of Proof to Rebut Presumption of Undue Influence
Appellant Halverson asserts the court used a preponderance of the evidence standard, instead of the proper clear and convincing standard, in determining whether respondents had rebutted the presumption of undue influence.
"[A] presumption of undue influence, shifting the burden of proof, arises upon the challenger's showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument's preparation or execution; and (3) the person would benefit unduly by the testamentary instrument. [Citations.]" (Rice v. Clark (2002) 28 Cal.4th 89, 97.) "It is for the trier of fact to determine whether the presumption will apply and whether the burden of rebutting it has been satisfied. [Citations.]" (Estate of Sarabia (1990) 221 Cal.App.3d 599, 605.)
In Bank of America Nat. Trust & Savings Ass'n v. Crawford (1945) 69 Cal.App.2d 697 (Bank of America), the case relied upon by Halverson below and now on appeal, an executor successfully recovered property conveyed by the deceased before his death on the ground that "the grantor was mentally incompetent to make the deed and that it had been procured by the undue influence" exercised by a business person with whom the decedent had a confidential relationship. (Id. at pp. 698, 701.) The defendant had contended, among other claims, that "the evidence conclusively proved that no undue influence was exerted to obtain the deed." (Id. at p. 701.) The appellate court stated in dictum that defendant had the burden of overcoming the presumption of undue influence by clear and convincing evidence, citing Hicks v. Reis (1943) 21 Cal.2d 654, 661 and Blank v. Coffin (1942) 20 Cal.2d 457, 461. Neither case addressed the burden of proof to overcome a rebuttable presumption of undue influence. (See Hicks v. Reis, supra, 21 Cal.2d 654, 659 [in action for damages arising from automobile accident, an issue was whether there was "any evidence, or inference from the evidence, to support the finding" that the car causing the accident had been used with the permission of appellant car owner]; Blank v. Coffin, supra, 20 Cal.2d 457 [reversal of directed verdict in an action for damages arising from automobile accident]; see also Evid. Code, § 600 [defining and distinguishing "presumption" and "inference"].)
In Bank of America, the specific burden of proof to rebut the presumption of undue influence was not at issue. (See Crail v. Blakely (1973) 8 Cal.3d 744, 750 [standard of proof is "for the edification and guidance of the trial court" and is "not intended as a standard for appellate review"]; see also Treadwell v. Nickel (1924) 194 Cal. 243, 260-261.)
In In re Marriage of Mathews (2005) 133 Cal.App.4th 624, 631, an appellate court observed: "Although some authority requires clear and convincing evidence to rebut the presumption [of undue influence] (Bank of America v. Crawford (1945) 69 Cal.App.2d 697, 701 . . . ), the weight of authority concludes the burden of rebutting the presumption of undue influence is by a preponderance of the evidence. (See Estate of Stephens (2002) 28 Cal.4th 665, 677 . . . ; Estate of Gelonese (1974) 36 Cal.App.3d 854, 863 . . . .)" In Estate of Gelonese, an appellate court explained: "The presumption of undue influence, when established, is a rebuttable presumption. [Citations.] . . . [¶] 'The effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact.' ([Evid. Code,] § 606.) Accordingly, when the contestant has shown by a preponderance of the evidence that the proponent of a will sustained a confidential relationship toward the testator, actively participated in procuring the execution of the will, and unduly profited thereby, a presumption of undue influence, i.e., the presumed fact, arises, and the burden then shifts to the proponent to prove that the will was not induced by his undue influence. [Citations.] This burden requires that the proponent produce proof by a preponderance of the evidence that the will was not induced by his undue influence. ([Evid. Code,] § 115; see Sierra Nat. Bank v. Brown, 18 Cal.App.3d 98, 105-106 . . . .)" (Estate of Gelonese, supra, 36 Cal.App.3d at pp. 862-863.) Estate of Gelonese was cited with approval in Estate of Stephens (2002) 28 Cal.4th 665, 677.)
We are aware of one early Supreme Court case indicating that a presumption of undue influence must be overcome by "clear and satisfactory proof." (In re Witt's Estate (1926) 198 Cal. 407, 419, 422.) But "[j]udicial expressions concerning the necessity of clear and satisfactory proof must be construed in the light of the fundamental rule that a preponderance of the evidence controls in civil cases. (Treadwell v. Nickel, 194 Cal. 243 . . . ; Edmonds v. Wilcox, 178 Cal. 222 . . . .)" (In re Janvier's Estate (1935) 7 Cal.App.2d 624, 626-627 [in a case involving presumption of undue influence, court did not err in instructing: " 'In civil cases, a preponderance of evidence is all that is required to prove any fact or overcome any presumption' "].)
We conclude that the trial correctly determined that respondents had the burden of overcoming the presumption of undue influence by a preponderance of the evidence.
For the first time in his reply brief, appellant Halverson also argues that the court misapplied the preponderance of the evidence standard and "never really shifted the burden [of proof] to Respondents, even though the court ruled they had the burden." "Obvious reasons of fairness militate against consideration of an issue raised initially in the reply brief of an appellant. [Citations.]" (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11.) " '[T]he rule is that points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. [Citations.]' [Citation.]" (People v. Smithey (1999) 20 Cal.4th 936, 1017, fn. 26.) In any case, the court expressly indicated, both orally and in its written statement of decision, that the burden had shifted to respondents to show that there had been no undue influence but respondents had proved by a preponderance of the evidence that they did not exercise undue influence over Negri. No error has been affirmatively shown. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564.) D. Legal Capacity and Civil Code Section 39
Appellant Halverson asserts that the trial court failed to consider the evidence that Negri could not manage her finances and, therefore, under Civil Code section 39, the burden was on respondents to rebut the presumption that Negri was of "unsound mind" and did not have the legal capacity to execute the trust amendment. He maintains that respondents failed to rebut that presumption.
Civil Code section 39 provides: "(a) A conveyance or other contract of a person of unsound mind, but not entirely without understanding, made before the incapacity of the person has been judicially determined, is subject to rescission, as provided in Chapter 2 (commencing with Section 1688) of Title 5 of Part 2 of Division 3. [¶] (b) A rebuttable presumption affecting the burden of proof that a person is of unsound mind shall exist for purposes of this section if the person is substantially unable to manage his or her own financial resources or resist fraud or undue influence. . . ." The rebuttable presumption applies "for purposes of this section," which relates to rescission of contracts and conveyances. Appellant has cited no cases showing that the rebuttable presumption created by this section applies to revocable trusts or wills executed as part of an estate plan.
After a contract has been rescinded in accordance with the statutory procedure (Civ. Code, § 1691), "any party to the contract may seek relief based upon such rescission . . ." (Civ. Code, § 1692). (See Runyan v. Pacific Air Industries, Inc. (1970) 2 Cal.3d 304, 311-314.) This case does not involve an action to obtain relief based upon party-effected rescission.
Subdivision (b) of Civil Code section 39 was added in 1995. (Stats. 1995, ch. 842, § 1, p. 6407.) The same bill added section 810, which provides that a person with a mental disorder may still be capable of executing wills or trusts. (Stats. 1995, ch. 842, § 2, p. 6407.) Legislative committee reports and analyses indicated that it was the position of the California Medical Association (CMA), a co-sponsor of the bill, that a diagnosed mental disorder does not necessarily render someone mentally incapable of making competent decisions. (See e.g. Sen. Third Reading, Analysis of Sen. Bill No. 730 (1995-1996 Reg. Sess.) as amended Aug. 31, 1995, p. 3 ["According to the CMA, the fact that a person is diagnosed with a specific disease or disorder does nothing to describe the ability of that person to make competent decisions"]; Assem. Com. on Judiciary, Analysis of Sen. Bill No. 730 (1995-1996 Reg. Sess.) as amended July 6, 1995, p. 6 [same]; Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 730 (1995-1996 Reg. Sess.) as amended July 6, 1995, p. 9 ["According to the California Medical Association (CMA), a co-sponsor of this bill, modern scientific research demonstrates that the mere fact that a patient falls into a particular diagnostic category may not be, in and of itself, a sufficient basis for determining the patient is incompetent to make decisions regarding particular acts. As an example, CMA cites the case of a patient diagnosed with Alzheimer's Disease, or some other mental disorder in an early state. The patient may be quite able to make a wide variety of decisions, regardless of the disorder."].)
In 1996, the Legislature enacted section 811 (Stats.1996, ch. 178, § 3, pp. 1389-1390), which makes clear that "[t]he mere diagnosis of a mental or physical disorder shall not be sufficient in and of itself to support a determination that a person is of unsound mind or lacks the capacity to do a certain act." (§ 811, subd. (d).) Section 811 requires that any determination that a person lacks capacity to make a decision or do a certain act, including executing wills or trusts, be supported by evidence of a deficit in some mental function correlated to "the decision or acts in question." (§ 811, subd. (a).) It lists relevant mental functions (ibid.)and provides that "[a] deficit in the mental functions listed above may be considered only if the deficit, by itself or in combination with one or more other mental function deficits, significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question." (§ 811, subd. (b).)
The mental functions are: "(1) Alertness and attention, including, but not limited to, the following: [¶] (A) Level of arousal or consciousness. [¶] (B) Orientation to time, place, person, and situation. [¶] (C) Ability to attend and concentrate. [¶]
(2) Information processing, including, but not limited to, the following: [¶] (A) Shortand longterm memory, including immediate recall. [¶] (B) Ability to understand or communicate with others, either verbally or otherwise. [¶] (C) Recognition of familiar objects and familiar persons. [¶] (D) Ability to understand and appreciate quantities. [¶] (E) Ability to reason using abstract concepts. [¶] (F) Ability to plan, organize, and carry out actions in one's own rational selfinterest. [¶] (G) Ability to reason logically. [¶]
(3) Thought processes. Deficits in these functions may be demonstrated by the presence of the following: [¶] (A) Severely disorganized thinking. [¶] (B) Hallucinations. [¶] (C) Delusions. [¶] (D) Uncontrollable, repetitive, or intrusive thoughts. [¶] (4) Ability to modulate mood and affect. Deficits in this ability may be demonstrated by the presence of a pervasive and persistent or recurrent state of euphoria, anger, anxiety, fear, panic, depression, hopelessness or despair, helplessness, apathy or indifference, that is inappropriate in degree to the individual's circumstances." (§ 811, subd. (a).)
Since its amendment in 1998 (Stats. 1998, ch. 581, § 19, p. 3875), section 810 has provided: "The Legislature finds and declares the following: [¶] (a) For purposes of this part [Legal Mental Capacity], there shall exist a rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions. [¶] (b) A person who has a mental or physical disorder may still be capable of . . . executing wills or trusts, and performing other actions. [¶] (c) A judicial determination that a person is totally without understanding, or is of unsound mind, or suffers from one or more mental deficits so substantial that, under the circumstances, the person should be deemed to lack the legal capacity to perform a specific act, should be based on evidence of a deficit in one or more of the person's mental functions rather than on a diagnosis of a person's mental or physical disorder." (Italics added.)
Section 6100.5 specifically addresses lack of mental competence to make a will. It states in pertinent part: "An individual is not mentally competent to make a will if at the time of making the will . . . the following is true: [¶] (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will." (§ 6100.5, subd. (a).)
An appellate court recently held: "When determining whether a trustor had capacity to execute a trust amendment that, in its content and complexity, closely resembles a will or codicil, we believe it is appropriate to look to section 6100.5 to determine when a person's mental deficits are sufficient to allow a court to conclude that the person lacks the ability 'to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.' (§ 811, subd. (b).) In other words, while section 6100.5 is not directly applicable to determine competency to make or amend a trust, it is made applicable through section 811 to trusts or trust amendments that are analogous to wills or codicils." (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 731.)
Insofar as appellant Halverson may be claiming that Negri lacked capacity because she had forgotten that she had sold her house or had forgotten his family at the time the trust was executed, the court below implicitly found those facts not proven and was not persuaded that the evidence as a whole established that Negri lacked legal capacity. We are not in the position to reweigh the evidence.
Civil Code section 39 did not apply to the court's determination whether Negri had the legal capacity to execute the 2004 documents. In fact, there was a rebuttable presumption that she did have legal capacity to execute the documents. (§ 810.) The court as the trier of fact was sole judge of the credibility and weight of the evidence. (In re Teel's Estate (1945) 25 Cal.2d 520, 526.) Error has not been shown. E. Rebuttal of the Presumption of Undue Influence
Appellant asserts that the trial court based its determination that respondents had rebutted the presumption of undue influence on "mistakenly applied legal principals [sic]." He claims that "the trial court mistakenly concluded that undue influence could only arise out of (i) pressure that (ii) was applied at the exact time when the testamentary instruments were executed." He maintains that "it was not correct for the trial court to find that there was no undue influence because it did not see pressure exerted at the time the Amended Trust was signed." These statements inaccurately describe the comments and decision of the court.
Rather, the court implicitly determined that the presumption of undue influence applied and explicitly stated that the burden shifted to respondents to show there was no undue influence. As to the definition of "undue influence," the trial court merely paraphrased Rice v. Clark (2002) 28 Cal.4th 89, which stated: "Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator's free will, amounting in effect to coercion destroying the testator's free agency. [Citations.]" (Id. at p. 96.)
Undue influence is "influence used directly to procure the will" that destroys free agency on the part of the testator. (In re Arnold's Estate (1940) 16 Cal.2d 573, 577.) The same principles apply to a revocable trust executed as part of an estate plan. (See Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182.) "Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough . . . ." (In re Arnold's Estate, supra, 16 Cal.2d at p. 577.) The court correctly understood that undue influence had to overcome Negri's free will and directly affect the amendment of the trust.
Here, appellant challenges the court's legal analysis, not the sufficiency of the evidence. The record does not demonstrate any misapplication of the law. F. Determination that Respondents are Not "Care Custodians"
The trial court found that "[r]espondents did not provide health services or social services to elders or dependent adults in general, nor to [Negri] in particular, and were not care custodians within the meaning of" Welfare and Institutions Code section 15610.17. Appellant Halverson contends that this finding was erroneous.
1. Statutory Disqualification of "Care Custodians"
Section 21350 specifies seven categories of persons who are presumptively barred from receiving a donative transfer from a dependent adult. One category of disqualified donees is "[a] care custodian of a dependent adult who is the transferor." (§ 21350, subd. (a)(6).) "The term 'care custodian' has the meaning as set forth in Section 15610.17 of the Welfare and Institutions Code." (§ 21350, subd. (c).)
Section 21350, subdivision (a), provides: "Except as provided in Section 21351, no provision, or provisions, of any instrument shall be valid to make any donative transfer to any of the following: . . . [¶] (6) A care custodian of a dependent adult who is the transferor. [¶] (7) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, a person who is described in paragraph (6)." For purposes of section 21350, "the term 'dependent adult' has the meaning as set forth in Section 15610.23 of the Welfare and Institutions Code and also includes those persons who (1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23, if they were between the ages of 18 and 64." (§ 21350, subd. (c).) It is not disputed that Negri was a "dependent adult" within the meaning of this statutory scheme.
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"Welfare and Institutions Code section 15610.17 . . . is part of the Elder Abuse and Dependent Adult Civil Protection Act of 1994 (Elder Abuse Act). (Stats.1994, ch. 594, § 3, pp. 2934-2935.)" (Bernard v. Foley (2006) 39 Cal.4th 794, 813.) It defines "care custodian" to mean "an administrator or an employee of any of the . . . public or private facilities or agencies, or persons providing care or services for elders or dependent adults, including members of the support staff and maintenance staff" as specified. (Welf. & Inst. Code, § 15610.17.) As relevant here, "care custodian" includes any "person providing health services or social services to elders or dependent adults." (Welf. & Inst. Code, § 15610.17, subd. (y).) "[W]hen an unrelated person renders substantial, ongoing health services to a dependent adult, that person may be a care custodian for purposes of the statutory scheme at issue, notwithstanding that the service relationship between the individuals arose out of a preexisting personal friendship rather than a professional or occupational connection." (Bernard v. Foley, supra, 39 Cal.4th at p. 797.)
"Once it is determined that a person is prohibited under section 21350 from receiving a transfer, 'section 21351 creates a rebuttable presumption that the transfer was the product of fraud, duress, menace, or undue influence. A person who is prohibited from receiving a transfer under section 21350 may still inherit, if [he or she] successfully rebuts the section 21351 presumption (§ 21351, subd. (d)). In order to rebut the presumption, the transferee must present clear and convincing evidence, which does not include his or her own testimony, that the transfer was not the product of fraud, duress, menace, or undue influence. (§ 21351, subd. (d).)' [Citation.]" (Id. at p. 800.)
2. Substantial Evidence Supports Finding
Appellant recites all the evidence that he believes demonstrated that respondents were "care custodians." He overlooks the well established tenets of the substantial evidence rule. (See Crawford v. Southern Pac. Co. (1935) 3 Cal.2d 427, 429.)
In Bernard v. Foley, supra, 39 Cal.4th 794, the decedent resided at the home shared by two of her longtime friends, who were boyfriend and girlfriend, for two months before she died. (Id. at p. 798.) The two jointly cared for decedent during her final illness. (Ibid.) Although "[n]either had been named as a beneficiary in earlier versions of the Trust," three days before her death, the decedent executed an amendment to her trust under which the two friends "each became a 50 percent residuary beneficiary." (Ibid.)
During the period when she resided with her friends, the decedent was "incapable of caring for herself" and dependent on them "for her daily needs." (Id. at p. 805.) "Foley did decedent's grocery shopping, prepared some meals for her and occasionally attended to her personal needs, including helping to change the diapers she wore. Foley also made decedent's bed and assisted her with bathing. He applied topical medications to decedent's body, sometimes with Erman's assistance. Additionally, Foley went through decedent's mail for her and, for the last six weeks of decedent's life, handled all her financial and investment affairs, including her bank accounts." (Ibid.) "Erman prepared meals for decedent, spent every day with her, assisted her in getting to and from the bathroom, helped her into bed, fixed her hair, cleaned her bedroom and did her laundry. Erman washed decedent's face and hands on days when the visiting hospice nurses were not present to bathe her. She administered oral medications to decedent, including liquid morphine to assist decedent when she was having difficulty breathing, dosages of antidepressant drugs, anxiety medication and codeine cough syrup. She helped decedent apply ointments to a rash that had developed in her intimate areas. Erman also cared for decedent's wounds, applying salves and antibiotics to sores on her legs and thereafter bandaging those areas. Devices for monitoring decedent's breathing were placed in decedent's and Erman's bedrooms so that Erman could monitor decedent's breathing." (Ibid.)
In upholding the appellate court's conclusion that the two friends were "care custodians," the Supreme Court concluded that "the record reflects that both Foley and Erman provided substantial, ongoing health services to decedent while, at the end of her life, she was residing in their home and that it was during this period that decedent amended her trust to include the donative transfers at issue." (Ibid.) It concluded that their "services [were] 'a far cry from the level of care provided by the longtime friends in Davidson,' where the assistance offered consisted of cooking, gardening, driving the decedent to the doctor, running errands, grocery shopping, purchasing clothing or medications and assisting her with banking (see Davidson, supra, 113 Cal.App.4th at p. 1050 . . .)." (Id. at p. 806; see Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1050 ["the kinds of errands, chores, and household tasks performed . . . on Davidson's behalf simply cannot be equated with the provision of 'health services and social services' specified by the subject statutes as constituting custodial care"], disapproved by Bernard v. Foley, supra, 39 Cal.4th at p. 816, fn. 14, "to the extent [it] interpreted section 21350 as allowing for a preexisting personal friendship exception"].)
Respondents' actions on behalf of Negri certainly did not approach the level of care provided in Foley or even the level of care in Davidson. At the time the trust amendment and will were executed, Negri was residing in a care facility that provided full services for daily living. Respondents had never been paid or live-in caregivers for Negri. The evidence did not show that they were providing substantial, ongoing health services or social services on or before October 22, 2004. Their many acts of support and friendship over the years did not make them "care custodians." Substantial evidence supports the court's finding that respondents were not "care custodians" of Negri. G. Motion for Sanctions
Respondents filed a motion for sanctions against appellant Halverson for filing a frivolous appeal, citing Code of Civil Procedure section 907 and former rule 26(a) of the California Rules of Court. We conclude that sanctions are not warranted. (See In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651; see also Cal. Rules of Court, rule 8.276.)
DISPOSITION
The judgment is affirmed. Appellant shall bear costs on appeal.
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ELIA, J.
WE CONCUR; ____________
RUSHING, P.J.
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PREMO, J.