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Ray v. Van Avery

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2012
No. A132707 (Cal. Ct. App. Jan. 31, 2012)

Opinion


JACQUELINE RAY, v. HEIDI VAN AVERY, A132707 California Court of Appeals, First District, Fifth Division January 31, 2012

NOT TO BE PUBLISHED

Humboldt County Super. Ct. No. DR100188

Jones, P.J.

After Lucille Bladt (the decedent or Lucille) died, her daughter-in-law, Jacqueline Ray, sued the decedent’s granddaughter, Heidi Van Avery, for elder abuse. The trial court sustained Van Avery’s demurrer to the operative second amended complaint with leave to amend. Among other things, the court concluded Ray did not have standing to pursue an elder abuse claim pursuant to Lickter v. Lickter (2010) 189 Cal.App.4th 712. Ray did not amend the second amended complaint and the court dismissed the action with prejudice.

On appeal, Ray contends the court erred by sustaining the demurrer to the second amended complaint with leave to amend because she “pleaded sufficient facts to achieve standing” under Welfare and Institutions Code section 15657.3, which identifies individuals eligible to bring elder abuse claims on behalf of a decedent. We affirm.

We rule on Ray’s unopposed request for judicial notice as follows: we grant judicial notice of documents filed in the trial court (Request 1, Clerk’s Transcript pp. 1-25) but we deny the request for judicial notice of selected portions of legislative history of Welfare and Institutions Code section 15657.3 as irrelevant (Requests 2 through 7).

FACTUAL AND PROCEDURAL BACKGROUND

For purposes of our review, we assume the allegations in Ray’s second amended complaint are true and give the complaint a reasonable interpretation. (See Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 320.)

In 2008, the decedent created a revocable trust leaving the bulk of her estate to her four grandchildren, including Avery, and a life estate in a mobile home to Ray. In late March 2009, the decedent named Van Avery as successor trustee of the trust, executor of her will, and agent on her health care directive. She also gave Van Avery power of attorney and nominated her as conservator if necessary.

The decedent later amended the revocable trust. Neither the original trust nor the amended trust are part of the appellate record.

On July 1, 2009, Ray filed a petition for conservatorship on behalf of the decedent. The petition named Ray as the decedent’s conservator. Two weeks later, Van Avery filed her own petition for conservatorship; Van Avery alleged the decedent had “severe memory deficits” and was “vulnerable to manipulation.” In late July 2009, the court appointed Van Avery as the decedent’s conservator. The court determined the decedent’s residence needed to be changed to “prevent irreparable harm” and ordered the decedent to be moved to “[a]n assisted living facility.” About a month later, Van Avery moved the decedent from her home in Eureka to an assisted living facility close to Van Avery’s home in Sacramento. In late September 2009, the court denied Ray’s ex parte application for an order returning the decedent to her residence in Eureka. A few days later, Lucille died in the assisted living facility.

In March 2010, Ray sued Van Avery for elder abuse, claiming Van Avery intentionally isolated the decedent “from her friends and family, neglect[ed] her true needs, with resulting physical harm and mental suffering” under Welfare and Institutions Code section 15610.07. Ray further alleged Van Avery was “guilty of bad faith, recklessness, oppression, and malice, so as to justify the imposition of punitive damages” and to disqualify Van Avery as trustee pursuant to Probate Code section 259, subdivision (c). The court sustained Van Avery’s demurrer to the complaint with leave to amend, concluding it failed to state a cause of action as a matter of law. Ray filed a first amended complaint and Van Avery again demurred. Ray then filed a second amended complaint.

Unless otherwise noted, all further statutory references are to the Probate Code.

In the operative second amended complaint, Ray alleged - as she did in the original and first amended complaints - that Van Avery “engaged in reckless neglect by moving Lucille” to the assisted living facility “against her will.” Ray further alleged Van Avery’s acts and omissions “resulted in physical harm and mental suffering to Lucille within the meaning of Welfare and Institutions Code [section] 15610.07.” As she did in her original complaint, plaintiff sought punitive damages and an order removing Van Avery as trustee. Ray claimed she was “an interested person” under Welfare and Institutions Code section 15657.3, subdivision (d)(1)(C) because “through a subtrust, she has a present vested conditional life estate interest in real property” and because her “life estate interest may be benefited by this proceeding.” She alleged she “may be benefited” if the court removed Van Avery as trustee because a “successor trustee may not have personal animus against her that will cause him or her to be unreasonably motivated to attempt to terminate plaintiff’s conditional life estate.”

The court sustained Van Avery’s demurrer to the second amended complaint with leave to amend, concluding, among other things, that plaintiff did “not have standing to pursue this action for damages for elder abuse.” According to the court, Welfare and Institutions Code section 15657.3, subdivision (d)(1) provides that the right to commence an action for elder abuse after the elder has died passes to the personal representative of the decedent, and to other categories of people, including an “‘interested person’” pursuant to section 48. Relying on Lickter, supra, 189 Cal.App.4th 712, the court determined Ray was not an “‘interested person’” under section 48 because she did not have an interest that could be “‘impaired, defeated, or benefited by prosecution of an elder abuse claim.’” The court determined the second amended complaint did not allege “how removal of [Van Avery] as trustee of the trust and beneficiary of the remainder interest in [Ray’s] life estate under the trust benefits [Ray] within the meaning of... section 48.” The court granted Ray leave to file a third amended complaint but she did not and the court dismissed the action with prejudice.

DISCUSSION

Standard of Review

On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) We give the complaint a reasonable interpretation, “treat[ing] the demurrer as admitting all material facts properly pleaded, ” but do not “assume the truth of contentions, deductions or conclusions of law.” (Aubry, supra, at p. 967; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)

Although the record does not contain a judgment of dismissal, we treat the order dismissing the action as an appealable judgment. (See Melton v. Boustred (2010) 183 Cal.App.4th 521, 528.)

Ray Does Not Have Standing as an “Interested Person” under Welfare and Institutions Code Section 15657.3, Subdivision (d)(1)(C) or Section 48

Welfare and Institutions Code section 15657.3 governs “who may pursue a cause of action for elder abuse that survives the elder’s death.” (Lickter, supra, 189 Cal.App.4th at p. 722.) As relevant here, Welfare and Institutions Code section 15657.3, subdivision (d)(1)(C) provides in relevant part, “Subject to paragraph (2) and subdivision (e), after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent. If there is no personal representative, the right to commence or maintain an action shall pass to any of the following, if the requirements of Section 377.32 of the Code of Civil Procedure are met: [¶] An interested person, as defined in Section 48 of the Probate Code, as limited in this subparagraph. As used in this subparagraph, ‘an interested person’ does not include a creditor or a person who has a claim against the estate and who is not an heir or beneficiary of the decedent’s estate.”

Welfare and Institutions Code section 15657.3, subdivision (d)(2) provides: “If the personal representative refuses to commence or maintain an action or if the personal representative’s family or an affiliate... is alleged to have committed abuse of the elder... the persons described in subparagraphs (A), (B), and (C) of paragraph (1) shall have standing to commence or maintain an action for elder abuse.” Subdivision (e) addresses the situation where “two or more persons... claim to have standing to commence or maintain an action for elder abuse....” Code of Civil Procedure section 377.32 provides that “[t]he person who seeks to commence an action or proceeding... as the decedent’s successor in interest under this article, shall execute and file an affidavit or a declaration under penalty of perjury under the laws of this state” stating various facts.

Section 48 defines an “interested person” as an “heir, devisee, child, spouse, creditor, beneficiary, and any other person having a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding.” (§ 48, subd. (a)(1).) A trust beneficiary is not necessarily an “interested person” under section 48. (Lickter, supra, 189 Cal.App.4th at pp. 725, 728.) Under section 48, subdivision (a)(1), a “‘beneficiary’ must have ‘a property right in or claim against a trust estate or the estate of a decedent which may be affected by the proceeding’ in order to be an ‘interested person’ with respect to that proceeding.” (Lickter, supra, at p. 728; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2011) § 2:31.15, pp. 2-16, 2-17 [an “‘interested person’ must have property interest o[r] claim against trust estate that may be affected by the elder abuse proceeding”].) Section 48, subdivision (b) provides that “[t]he meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.”

Lickter is instructive. There, plaintiff grandchildren claimed they had standing to bring an elder abuse action against various family members under Welfare and Institutions Code section 15657.3, subdivision (d)(1)(C). (Lickter, supra, 189 Cal.App.4th at p. 716.) The trial court granted summary judgment for the defendants and the plaintiffs appealed, contending they were interested persons under section 48, subdivision (a)(1) because they were beneficiaries of the decedent’s estate and had received specific bequests from the decedent. (Id. at pp. 718, 725.)

The Lickter court rejected this argument. It explained that an “‘heir’ is not necessarily an ‘interested person’ for purposes of instituting or participating in a particular proceeding in a probate case. The question, rather, is whether the person-whether an heir, devisee, beneficiary, or other person-has an interest of some sort that may be impaired, defeated, or benefited by the proceeding at issue. [Citation.]” (Lickter, supra, 189 Cal.App.4th at p. 728.) It held that to pursue an elder abuse action as a “‘beneficiary’ of the elder’s trust, the beneficiary must have ‘a property right in or claim against [the] trust estate... which may be affected by’ the elder abuse action.” (Ibid.) The court explained that although the plaintiffs were beneficiaries of the trust because they had a “present, vested interest in receiving $10,000 from the trust” and therefore a “‘property right in or claim against [the] trust estate, ’” their property right or claim against the estate was not “one ‘which m[ight] be affected by’ [the] elder abuse action. [Citation.] Since there were sufficient trust assets to pay each plaintiff the $10,000 to which he was entitled under the trust instrument, regardless of whether any recovery was had in this action, [the] plaintiffs’ claims against the trust estate were not, and could not be, ‘affected by’ the action.” (Id. at p. 729.)

The appellate court also rejected the plaintiffs’ argument that the court had discretion to find standing under section 48, subdivision (b) to “further the public policy in favor of encouraging people to report elder abuse and file elder abuse lawsuits.” (Lickter, supra, 189 Cal.App.4th at p. 730.) It concluded section 48, subdivision (b) did not provide “an independent basis for determining who is an ‘interested person’ separate and apart from the definition of that term” in section 48, subdivision (a). As the court explained, section 48, subdivision (b) “merely recognizes that whether a ‘particular person’ will qualify as an ‘interested person’ under... subdivision (a) of... section 48 ‘may vary from time to time’ depending on ‘the particular purposes of, and matter involved in, any proceeding.’ [Citation.] Thus, for example, an ‘heir’ may be an ‘interested person’ for purposes of one proceeding (because he has an interest that may be affected by that proceeding), but not another (because he does not have an interest that may be affected by that proceeding). In short, we do not read subdivision (b) of... section 48 as allowing a court to characterize a person as ‘interested’ in a particular proceeding even though that person does not have a ‘property right in or claim against a trust estate or the estate of a decedent which may be affected by th[at] proceeding.’” [Citation.] (Lickter, supra, at p. 732.)

In her opening brief, Ray contends she is an “interested person” within the meaning of section 48, subdivision (a)(1) notwithstanding Lickter because the operative complaint alleged she has a “present vested conditional life state under [the] trust, and that her life estate may be benefited by the elder abuse proceeding.” In her reply brief, Ray explains that “it is the relationship of trustee and conditional beneficiary that is a ‘fact’ that creates the possibility that [her] property interest ‘may’ be affected by the underlying action for elder abuse, ” apparently because she seeks the removal of Van Avery as trustee. Ray’s argument seems to be premised on the idea that if Van Avery is removed as trustee, she will benefit because Van Avery will no longer be in the position of terminating her life estate at some unspecified future date.

Ray does not argue she has a “claim” against the estate, perhaps because California courts have long recognized that “[t]he word ‘claim’ in the Probate Code ‘only has reference to such debts or demands against the decedent as might have been enforced against him in his lifetime by personal actions for the recovery of money, ...” (Newberger v. Rifkind (1972) 28 Cal.App.3d 1070, 1077; see also Borba Farms, Inc. v. Acheson (1988) 197 Cal.App.3d 597, 602.)

We are not persuaded. The second amended complaint alleges Van Avery “has great personal animosity” toward Ray and a “view toward terminating [Ray’s] conditional life estate at the earliest opportunity....” That Van Avery has an alleged “view” is no more than unsupported speculation. The operative complaint, however, does not allege what Van Avery has done - or might do - to terminate Ray’s life estate. Neither speculation about what Van Avery might do in the future nor suspicions about her intentions as trustee demonstrate how Ray’s life estate might be affected by the elder abuse proceeding. From what we can discern from the record, Ray enjoys a life estate in the mobile home. The complaint makes no allegations to support the conclusion that removing Van Avery as trustee would change the status quo. In addition, Ray’s conclusory allegation that she had standing as an “interested person” does not overcome Van Avery’s challenge. As noted above, we do not “assume the truth of contentions, deductions or conclusions of law.” (Aubry, supra, 2 Cal.4th at p. 967.) Like the trial court, we conclude Ray’s allegation that she has a life estate in trust property was not sufficient to establish standing as an interested person under section 48, subdivision (a)(1) because it was not a property interest that “could have been ‘affected by’” the elder abuse action. (Lickter, supra, 189 Cal.App.4th at p. 729.)

Ray relies heavily on Estate of Lowrie (2004) 118 Cal.App.4th 220 (Lowrie) to support her argument that we should interpret “interested person” in section 48 broadly. Lowrie, however, does not assist her. The Lickter court discussed Lowrie at length and concluded: “while the decision in Lowrie certainly supported a liberal reading of former subdivision (d) of Welfare and Institutions Code section 15657.3, it is significant that in the wake of Lowrie, the Legislature amended the statute to its present form with the apparent intent of codifying Lowrie. [Citation.] Effectively, the appellate court in Lowrie recognized that Lynelle should have standing to pursue her elder abuse claims against Sheldon because she was an ‘interested person’ with respect to those claims in that she would become the person entitled to succeed to the estate (and thereby the proceeds of the elder abuse claims) if she prevailed on her claims. By expressly incorporating the definition of ‘interested person’ from... section 48 into the amended version of subdivision (d) of Welfare and Institutions Code section 15657.3, the Legislature codified this result and reasoning. There is nothing in the Legislature’s codification of Lowrie, however, to suggest the Legislature intended to sweep even more broadly and grant standing to pursue an elder abuse action to someone who, contrary to the terms of... section 48, has no ‘property right in or claim against a trust estate or the estate of a decedent which may be affected by th[at] proceeding.’ [Citation.]” (Lickter, supra, 189 Cal.App.4th at p. 732.)

For the first time in her reply brief, Ray contends “[t]his is a proper case for the court to exercise it[s] discretion under... section 48(b), ” which provides that “[t]he meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.” According to Ray, Van Avery committed elder abuse and Ray “is the only person interested enough in [the decedent] and the unjust fate she suffered to bring suit on her behalf.” There are several problems with this argument. First, Ray did not raise this argument in the trial court or in her opening brief. As a result, the issue is forfeited. (Hepner v. Franchise Tax Bd. (1997) 52 Cal.App.4th 1475, 1486; Holmes v. Petrovich Development Co., LLC (2011) 191 Cal.App.4th 1047, 1064, fn. 2.) Second, she does not cite any cases to support her argument. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of... citation to authority allows this court to treat the contentions as waived”].)

Having concluded Ray does not have standing under Welfare and Institutions Code section 15657.3, subdivision (d)(1)(C) to pursue an elder abuse action against Van Avery, we need not address Ray’s argument that the second amended complaint states a claim for elder abuse.

DISPOSITION

The judgment is affirmed. Ray is ordered to pay costs on appeal.

We concur: Simons, J., Needham, J.


Summaries of

Ray v. Van Avery

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE
Jan 31, 2012
No. A132707 (Cal. Ct. App. Jan. 31, 2012)
Case details for

Ray v. Van Avery

Case Details

Full title:JACQUELINE RAY, Plaintiff and Appellant, v. HEIDI VAN AVERY, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FIVE

Date published: Jan 31, 2012

Citations

No. A132707 (Cal. Ct. App. Jan. 31, 2012)