Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo County, Super. Ct. No. PR040209, Roger Picquet, Judge.
John F. Hodges; Conley W. Anderson and Glen R. Lewis for Objector and Appellant.
Neil S. Tardiff; Goodson & Wachtel, Kenneth G. Petrulis; Ronca & Kennedy and John A. Ronca for Petitioner and Respondent.
GILBERT, P.J.
Barbara Treise and Dennis Vaca appeal a judgment and an amended judgment determining title to real and personal property owned by decedent J. Carl Treise, and imposing $209,842 double damages for wrongful taking of personal property, among other things. (Prob. Code, §§ 850 & 859.) We affirm.
All further statutory references are to the Probate Code unless stated otherwise.
FACTS AND PROCEDURAL HISTORY
J. Carl Treise ("Carl") was a self-taught engineer who designed and manufactured high-speed film processing equipment for motion pictures. He married Rose Treise and they had three daughters, Sandra, Shelby, and Kim, and a son, Thomas. Carl later divorced Rose. He married Barbara Treise in 1987.
We shall refer to Treise family members by their first names not from disrespect, but to ease the reader's task.
In 1979, Carl acquired approximately 60 acres of real property in Santa Margarita popularly known as the "Second Chance Ranch." A 40-acre portion of the property containing a residence and improvements fell into one geographical taxing area, and an unimproved 20-acre portion of the property known as "the Meadows" fell into another. The San Luis Obispo County Tax Assessor issued Assessor Parcel Number ("APN") 070-351-024 to the improved portion of the real property and APN 070-351-020 to the Meadows portion of the real property. Although two assessor parcel numbers existed, the real property was not legally subdivided and was but one legal parcel. After their marriage, Carl and Barbara resided in the ranch residence.
In 1991, Carl and his neighbor, Dutch Sawyer, formally and legally adjusted the lot line of the Meadows to allow Sawyer access to his property. Following the lot line adjustment, the Meadows maintained the minimum 20 acres required for subdivision.
Carl believed that the ranch consisted of two parcels of real property that he could sell or devise separately. He informed his daughters that he might sell the Meadows if necessary to obtain funds. Carl also stated that he intended to devise all or a portion of the ranch to his children at his death.
By all accounts, Carl was a strong-willed man who was sometimes stubborn. Barbara described him as: "He could get things in his mind at times and convince himself. He would get adamant about how things were sometimes, even when they were not."
In 1993, Carl and Barbara decided to borrow funds from CenFed Bank to improve the ranch residence. They executed a promissory note for $135,000 in favor of the bank, and a deed of trust to secure the obligation. The bank required, or so Barbara and Carl believed, that Carl place Barbara on the real property title as security for the loan. Carl then executed a grant deed in favor of "J. Carl Treise and Barbara K. Treise, Husband Wife as JOINT TENANTS." The joint tenancy grant deed stated that its sole purpose was to add a spouse to the title. It also referenced only the APN of the improved portion of the ranch. The deed of trust in favor of CenFed Bank also referenced only that APN.
Carl later informed daughter Kim that he persuaded CenFed Bank not to encumber the Meadows as security for the $135,000 obligation. Many years later, Barbara stated to step-daughter Shelby that she "never knew how [Carl] talked [CenFed Bank] into that, but . . . your Dad was a charmer." Barbara, a former real estate salesperson, testified at trial that CenFed Bank permitted only the 40-acre portion of the ranch to secure the obligation, but that she "didn't think it was a true allowable thing."
Following recording of the joint tenancy grant deed, the San Luis Obispo County Tax Assessor continued to characterize the Meadows as Carl's sole and separate property, and sent him a separate property tax bill therefor.
In 2001, Carl met with realtor Linda Jensen and discussed selling a portion of, or the entirety of the ranch. Jensen researched county records and learned that the ranch was an indivisible parcel. When she so informed Carl, he "was very adamant that he had two parcels." Carl stated that he had obtained a certificate of compliance from the county to subdivide the Meadows from the improved portion of the ranch. Jensen testified: "There was no question whatsoever. . . . [He stated that he] did everything [he] had to do and it's done, it's completed." Barbara informed Jensen that Carl had inquired about subdividing the Meadows, but he did not follow through with San Luis Obispo County planning procedures, including payment of fees.
Carl may have confused the Dutch Sawyer lot line adjustment procedures with an application to subdivide the ranch.
In 2002, Carl's health deteriorated. He underwent heart bypass surgery and suffered a recovery period fraught with complications. Carl also suffered from "Sundowner's Syndrome," a form of dementia, and he required intensive nursing care. Barbara sought financial and legal advice regarding Carl's eligibility for Medi-Cal and his placement in a skilled nursing facility. Barbara prepared a handwritten list of Carl's assets for a financial advisor, stating that Carl owned approximately 40 acres with a residence, subject to a mortgage, and approximately 20 acres of unimproved land as his separate property.
Carl died on August 14, 2002, at age 84. Following his death, Barbara consulted with an attorney and then filed and recorded an affidavit of death of joint tenant. In a conversation with Shelby, Barbara stated that she was "sure" that Carl wanted his family to inherit the Meadows, but that he did not legally subdivide the parcel. Barbara then stated that she inherited all of Carl's property because he had no will. Barbara also informed Kim that an attorney had investigated and determined that Carl had conveyed a joint tenancy interest in the entire parcel because the parcel was not legally subdivided. Barbara later testified that Carl had stated to her that she would inherit the entire ranch property at his death.
Following Carl's death, Barbara required assistance with ranch maintenance. She also had no income other than social security payments. Dennis Vaca, a backhoe operator, assisted Barbara with maintenance, weed control, and fencing. In the spring of 2003, Barbara and Vaca agreed that she would transfer an undivided one-third interest in the ranch to him in exchange for $250,000, his assistance in building a modular home for her on the Meadows, and subdivision of the ranch into three parcels. In September, 2003, they jointly applied for and received a $250,000 loan from Washington Mutual Bank. The ranch property secured the obligation. In April, 2004, Barbara and Vaca entered into a written purchase and sale agreement setting forth most, but not all, terms of their agreement.
Vaca prepared the ranch site for a modular home, and began laying utilities for the site. He paid the mortgage payments, the real property taxes, and out-of-pocket costs. Vaca and his horses also moved onto the ranch property. Barbara and Vaca used the $250,000 loan proceeds to satisfy the existing CenFed loan, build a modular home, and subdivide the parcel, among other things.
Barbara transferred title to Carl's vintage Corvette automobile to herself after his death. She testified that she did not inventory and distribute his personal property, which she described as "voluminous," because she believed the adult children would bicker regarding distribution. Barbara also refused to allow Kim and her attorney to inspect and inventory Carl's personal property. Barbara's attorney wrote Kim's attorney and stated that Barbara would treat any attempt to enter the ranch "as a trespass."
On July 20, 2004, Kim filed a petition for letters of administration, with will annexed, to administer Carl's estate. She also filed a petition to cancel the joint tenancy deed and the Vaca grant deed, and to determine the title to Carl's real and personal property, among other things. Kim asserted that Carl mistakenly believed that he owned two separate parcels and that he intended to convey to Barbara an interest in only the improved portion of the ranch.
Following a court trial, the probate court appointed Kim as administrator of the estate, with will annexed. It also granted her petition to cancel the joint tenancy and Vaca deeds, and the affidavit of joint tenant. The trial court found that Carl mistakenly believed that the ranch consisted of two separate parcels, and that Barbara in bad faith took advantage of that belief. The probate court found that Barbara violated her fiduciary duty toward Carl, and that Vaca was not a bona fide purchaser of the ranch. The probate court also decided that Barbara wrongfully withheld Carl's personal property and it assessed double damages against her pursuant to section 859. It ordered that Vaca receive reasonable compensation for the net value of his improvements, less rental value and other enumerated charges.
The parties stipulated that they would litigate the issue whether Carl had a valid will or whether he died intestate in a later proceeding.
Following entry of judgment, the probate court received Kim's evidence of a $104,921 inventory and appraisal of Carl's personal property. On March 23, 2005, it then amended the judgment to include $209,842 ($104,921 doubled) money damages. Over Barbara and Dennis's objections as to timeliness, the trial court also granted Kim's motion for $7,380 costs.
Barbara and Vaca appeal and contend that: 1) the probate court erred by rescinding the joint tenancy deed rather than reforming it; 2) the probate court erred by applying the evidentiary standard of preponderance of the evidence; 3) the probate count improperly imposed section 859 damages; 4) the probate court did not have jurisdiction to amend the judgment because a notice of appeal had been filed; and 5) the probate court erred by granting Kim's motion for costs because her motion was untimely.
DISCUSSION
I.
Barbara and Vaca assert that the probate court erred by rescinding the joint tenancy deed, rather than reforming it to reflect Carl's intent to transfer only the 40-acre improved portion of the property to Barbara. (Tyler v. Larson (1951) 106 Cal.App.2d 317, 319 [equity will reform a voluntary conveyance where by mistake of law or fact a larger estate than intended was conveyed].) Barbara and Vaca argue that the probate court may have reasoned in error that a reformation would violate the Subdivision Map Act (Gov. Code, § 66410 et seq.).
For several reasons, the probate court did not err by rescinding the joint tenancy deed.
First, Barbara and Vaca did not request the probate court to reform the deed. Barbara informed Carl's children that the entire property was hers because Carl did not legally subdivide the ranch. Barbara and Vaca took the position at trial that Barbara was entitled to the entire property as the surviving joint tenant. Having lost, they cannot now claim that the probate court should have reformed the joint tenancy deed to convey Barbara an interest in only the 40 improved acres.
Second, the probate court expressly found that Barbara violated her fiduciary duties to Carl, within the meaning of Family Code section 721. In re Marriage of Delaney (2003) 111 Cal.App.4th 991, involved similar circumstances. There, a wife unduly influenced her husband to convey a joint tenancy interest to her in his real property. In a later dissolution proceeding, the family law court set aside the joint tenancy deed because the wife did not establish that the conveyance was not the product of undue influence pursuant to Family Code section 721. (Id., at p. 994.) The reviewing court affirmed.
Here the probate court rescinded the joint tenancy deed reasoning that Barbara violated her fiduciary duties to Carl: It stated in its ruling that "Carl had an erroneous and misguided belief that the 60 acres consisted of two separate lots. . . . Barbara knew of Carl's belief and that it was legally incorrect. . . . Barbara had a duty not to take fiscal advantage of Carl. . . . Although it was apparent that Carl was intractable in his belief . . . Barbara had an obligation not to take intentional or unintentional advantage."
II.
Barbara and Vaca argue that the probate court erred by applying the evidentiary standard of preponderance of the evidence to Kim's action for rescission of the joint tenancy deed. They rely upon the well-settled rule that proof of a mistaken deed must be by clear and convincing evidence. (Evid. Code, §662; Liodas v. Sahadi (1977) 19 Cal.3d 278, 287 [higher standard of proof regarding rescission of written instrument due to reluctance of courts "to tamper with such documents"]; Anderson v. Associated Inv. Co. (1963) 219 Cal.App.2d 206, 211 ["The presumption is that a deed is what it purports to be and one who seeks to overcome such presumption has the burden of producing clear and convincing proof."].)
The probate court did not allow Kim to prove her petition by an incorrect standard of proof. The presumption of Evidence Code section 662 that the legal owner of property is presumed to be the owner of full beneficial title absent proof by clear and convincing evidence, does not apply where it conflicts with the presumption of undue influence arising from the confidential relationship between spouses. (Fam. Code, § 721; In re Marriage of Haines (1995) 33 Cal.App.4th 277, 302.) "[T]he public policy of the state, as enunciated by statute and case law interpretation, demands that where there is a conflict between the common law presumption in favor of title as codified in [Evidence Code] section 662 and the presumption that a husband and wife must deal fairly with each other, application of section 662 is improper." (Id., at p. 287 [wife proved by a preponderance of evidence that her quitclaim deed to husband was the result of his undue influence].)
In re Marriage of Delaney, supra, (2003) 111 Cal.App.4th 991, applied the reasoning of In re Marriage of Haines, supra, 33 Cal.App.4th 277, 302, to circumstances similar to those here. In Delaney, the family law court found that a wife had used undue influence to secure a joint tenancy in husband's real property. The reviewing court concluded that the presumption of record title and its concomitant requirement of proof by clear and convincing evidence do not apply in interspousal transactions where the fiduciary duties of Family Code section 721 pertain. (Delaney, supra at pp. 997-998.) Here the probate court properly concluded that Kim established her action for rescission by a preponderance of the evidence.
III.
Barbara contends that the probate court improperly imposed $209,842 damages against her, pursuant to section 859. She asserts that section 859 is a penal statute that we construe strictly and review independently. (Cf. Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1291 [independent review of punitive damages award in civil rights claim]; Callahan v. Chatsworth Park, Inc. (1962) 204 Cal.App.2d 597, 607 [mechanics lien forfeiture statute strictly construed and proof thereunder should be by clear and convincing evidence].) Barbara argues that her actions were not in bad faith, pointing out that she did not attempt to sell the Corvette automobile or other personal property owned by Carl.
Section 859 provides that "[i]f a court finds that a person has in bad faith wrongfully taken, concealed, or disposed of property belonging to the estate of a decedent . . . the person shall be liable for twice the value of the property recovered by an action under this part. The remedy provided for in this section shall be in addition to any other remedies available in law to a . . . personal representative." Section 859 is the successor statute to former section 116, and is a remedial, not penal, statute. (Jahns v. Nolting (1866) 29 Cal. 507, 512.) Indeed, section 859 plainly states that its "remedy" "shall be in addition to any other remedies available."
Moreover, there is reasonable and credible evidence that Barbara wrongfully took or concealed Carl's personal property. (Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44 Cal.App.4th 1160, 1203 [test of sufficient evidence].) Barbara transferred title to the Corvette automobile to herself, refused to allow the children access to the ranch to inventory the property, and admitted during her testimony that more personal property existed than she had summarized in a list. The probate court weighed the evidence and assessed witness credibility and determined that damages were proper pursuant to section 859.
IV.
Barbara and Vaca assert that the probate court did not have jurisdiction to amend the judgment to include a specific amount of damages because they already had filed a notice of appeal. (California State Auto. Assn. Inter-Ins. Bureau v. Jackson (1973) 9 Cal.3d 859, 862, fn. 3.) They also claim that they had no opportunity to present evidence to counter Kim's appraisal evidence.
After the probate court entered judgment on October 18, 2006, Barbara and Vaca filed a timely notice of appeal. Thereafter, upon Kim's filing of an appraisal of Carl's personal property, the probate court amended the judgment to replace "damages against Barbara Treise in an amount equal to twice the value of the personal property and the value of the Corvette automobile" with "$209,842."
Generally, the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or "upon the matters embraced therein or affected thereby." (Code Civ. Proc. § 916, subd. (a).) The trial court may proceed, however, "upon any other matter embraced in the action and not affected by the judgment or order." (Ibid.) In determining whether a proceeding is embraced in or affected by an appeal, we consider the appeal and its possible outcomes compared to the post-judgment proceeding and its possible results. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.) If the post-judgment proceedings or order influences the effectiveness of the appeal, the post-judgment proceedings are stayed. (Ibid.) If not, the post-judgment proceedings are permitted. (Ibid.)
Here the probate court possessed jurisdiction to amend the judgment to enter the amount of personal damages in place of "an amount equal to twice the value of the personal property and the value of the Corvette [automobile]." The amended judgment maintains the parties' rights in the same condition; it merely replaces a specific dollar amount for the unstated amount of damages awarded. (Varian Medical Systems, Inc. v. Delfino, supra, 35 Cal.4th 180, 198.) Barbara's liability had been adjudicated and the amended judgment does not affect any remedy she may have on appeal. (Id., at p. 199 [depriving trial court of fundamental jurisdiction ensures appealing party has remedy on appeal]; United States Liab. Ins. Co. v. Haidinger-Hayes, Inc. (1970) 1 Cal.3d 586, 599 [trial court properly reserved jurisdiction to include further damages].)
Moreover, Barbara and Vaca had an opportunity to file written argument and present evidence regarding the value of the personal property. On March 8, 2006, Kim filed an inventory and appraisal with the court and circulated it to all parties. Barbara and Vaca did not submit countering appraisals, and on March 23, 2006, the probate court signed an amended judgment. Carl's personal property and Corvette automobile remained in Barbara's possession during that period. Indeed, Barbara had objected to Kim's proposed inventory of the personal property earlier, threatening them with a trespass action. The trial court had jurisdiction to enter an amended judgment for $209,842.
V.
Barbara and Vaca contend that Kim's cost bill is not timely because she filed it four months following the original judgment. They contend that the trial court erred by denying their motions to tax costs.
The trial court did not err. (M. C. & D. Capital Corp. v. Gilmaker (1988) 204 Cal.App.3d 671, 678-679 [cost bill timely where filed following amended judgment].) Moreover, the probate court has discretion to award fees and costs beyond the time limits imposed in "ordinary civil litigation." (Hollaway v. Edwards (1998) 68 Cal.App.4th 94, 99 ["We are loath to circumscribe the probate court's discretion by importing California Rules of Court, rule 870.2's strict time limits."].)
The judgment is affirmed. Respondent to recover costs on appeal.
We concur: YEGAN, J., PERREN, J.