Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. PRO-116118
Dondero, J.
Appellant Linda N. Lowney, an attorney licensed by the California State Bar, appeals the trial court’s order granting the motion for summary judgment/adjudication brought by respondents Elisabeth and Anne Bergsaker, finding her purported marriage to Thor A. Tollefsen (decedent) to be invalid. We affirm and have submitted a copy of our opinion to the California State Bar to determine if a disciplinary investigation of appellant is warranted.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
At all relevant times in this case, appellant was, and continues to be, an attorney whose law practice includes estate planning, family law, divorces and unlawful detainer actions. The decedent was an elderly person in poor health, suffering from cancer, using a walker and a wheelchair; and, when he slept at home, he used a hospital bed. In July of 2002, decedent came to appellant’s law office and asked her to prepare a living trust so that his estate would avoid probate. Appellant drafted and, on July 30, 2002, decedent executed the Thor Tollefsen Family Revocable Trust (Trust). The Trust names decedent’s sister as the beneficiary, with his nieces (respondents in this appeal) as the beneficiaries should his sister not survive him for 90 days. Respondents, who reside in Norway, are named as successor trustees. The Trust includes a $10,000 gift to each of the two children of decedent’s neighbors. A pour-over will executed by decedent on the same day was witnessed by appellant.
In the ensuing years, appellant and decedent maintained a social relationship. On March 20, 2005, decedent gave appellant a check for $10,000 for “being a good friend.” While she asked another attorney if it was permissible for her to accept the check, appellant represented to the attorney that decedent was her “boyfriend.” She did not tell the attorney that decedent was a client. She cashed the check and put the proceeds in a certificate of deposit.
On March 23, 2005, decedent executed an amendment to the trust prepared by appellant, deleting the gifts to his neighbors’ children, bequeathing his Volvo to his housekeeper, deleting a section providing assistance to his former wife, and nominating appellant and the housekeeper to assist respondents in settling the trust after his death.
In May 2005, appellant accepted another check from decedent for $9,000 or $9,900. The record is inconsistent as to the exact amount.
On August 10, 2005, at decedent’s request, his sister and respondents executed a letter stating that they “have no objections to Thor Tollefsen’s suggestion that his Franklin Funds ought to be transferred to his attorney, Linda N. Lowney.”
On November 5, 2005, decedent executed a second amendment to the trust, again drafted by appellant. The amendment deleted the gift of the Volvo and removed the recommendation that respondents secure the housekeeper’s assistance after his death. It also reallocated distribution of the trust’s assets amongst respondents and their relatives.
On January 20, 2006, the San Francisco County Clerk accepted a “License and Certificate of Confidential Marriage” between decedent and appellant. The document indicates that the marriage was solemnized by a deputy marriage commissioner on January 19, 2006. The certificate states that both parties were residing at 18 Seacliff Drive in Daly City, and includes an affidavit signed by decedent and appellant stating that they had “been living together as husband and wife.”
Decedent died on January 28, 2007.
On February 5, 2007, appellant filed a spousal property petition alleging that she is the surviving spouse of decedent. She also filed a petition to remove respondents as cotrustees and to appoint her as successor trustee. That same day, the trial court granted her requests for an order shortening time and an order freezing decedent’s accounts.
On March 21, 2007, respondents filed an objection to the spousal property petition. They alleged decedent had hired appellant to draft his estate plan in 2002, and that in 2005 she caused him to modify his plan by misrepresenting potential future tax consequences to the Trust in an attempt to direct future business to herself. They further alleged that appellant, while acting as decedent’s attorney, induced him to give her access to his Franklin Fund account, which was then valued at approximately $350,000. Respondents also asserted that appellant’s “confidential” marriage was void from its inception as she never lived with decedent. They further claimed appellant had failed to advise decedent of the legal consequences of marriage, including failing to advise him that in order to maintain his estate plan the Trust would have to be amended to state his intent to exclude appellant as a beneficiary.
Probate Code section 21611 provides: “The spouse shall not receive a share of the estate under Section 21610 [ante] if any of the following is established:
On April 30, 2007, the trial court filed its order denying appellant’s spousal property petition without prejudice. She was ordered to produce documentation, records, and files relating to the Trust.
On May 8, 2007, the trial court filed its order denying appellant’s petition to remove respondents as cotrustees of the Trust, and awarded $2,750 in sanctions against her in favor of respondents.
On May 11, 2007, appellant filed a first amended spousal property petition. Attached to the petition is a claim for breach of fiduciary duty, alleging that she qualifies as an omitted spouse under Probate Code section 21600 et seq., and that respondents had “breached their fiduciary duty to [her] to keep [her] informed” concerning the Trust’s assets.
Probate Code section 21610 provides: “Except as provided in Section 21611, [supra], if a decedent fails to provide in a testamentary instrument for the decedent’s surviving spouse who married the decedent after the execution of all of the decedent’s testamentary instruments, the omitted spouse shall receive a share in the decedent’s estate, consisting of the following property in said estate:
On July 23, 2007, respondents filed an objection to the amended petition. They alleged again that the purported marriage between appellant and decedent was void.
On March 11, 2008, respondents served a motion for summary judgment/ adjudication. Appellant served her opposition on May 30, 2008.
On June 18, 2008, the trial court denied respondents’ motion on the ground that there were disputed material facts as to whether the marriage was valid.
On June 20, 2008, respondents filed a motion to set aside the trial court’s ruling.
On August 6, 2008, the trial court granted respondents’ motion to set aside the ruling and granted their motion for summary judgment/adjudication.
Judgment was entered in favor of respondents on November 4, 2008. This appeal followed.
DISCUSSION
I. Standard of Review
We review the granting of a summary judgment motion de novo. (Jeld-Wen, Inc. v. Superior Court (2005) 131 Cal.App.4th 853, 860; Knowles v. Superior Court (2004) 118 Cal.App.4th 1290, 1295.) We consider all the admissible evidence the parties offered in connection with the motion and the “uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)
“In performing an independent review of the granting of summary judgment, we conduct the same procedure employed by the trial court. We examine (1) the pleadings to determine the elements of the claim, (2) the motion to determine if it establishes facts justifying judgment in the moving party’s favor, and (3) the opposition—assuming movant has met its initial burden—to ‘decide whether the opposing party has demonstrated the existence of a triable, material fact issue. [Citation.]’ [Citations.] We need not defer to the trial court and are not bound by the reasons in its summary judgment ruling; we review the ruling of the trial court, not its rationale.” (Oakland Raiders v. National Football League (2005) 131 Cal.App.4th 621, 630.)
II. The Motion for Summary Judgment
“A ‘party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he [or she] is entitled to judgment as a matter of law.’ [Citation.] A defendant satisfies this burden by showing ‘ “one or more elements of” the “cause of action” in question “cannot be established,” or that “there is a complete defense” ’ to that cause of action. [Citation.] If the defendant meets his or her initial burden, ‘the opposing party is then subjected to a burden of production of his [or her] own to make a prima facie showing of the existence of a triable issue of material fact.’ [Citation.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 737; Code Civ. Proc., § 437c, subd. (o)(1).)
As noted above, the gravamen of appellant’s petition and claim for breach of fiduciary duty is that she was lawfully married to decedent and therefore qualifies for a share of the Trust’s assets as an omitted spouse. Respondents contended that the purported marriage was invalid. Thus, this appeal turns on the validity of the alleged marriage.
Respondents’ motion included a statement of 10 undisputed material facts. Among these facts, respondents asserted that decedent and appellant had not lived in the same house or held themselves out as man and wife at any time prior to the date of their marriage, nor had they ever obtained a license to marry pursuant to Family Code section 300. Respondents also asserted that no witnesses were present at the purported marriage.
All further statutory references are to the Family Code unless otherwise specified.
In her opposition, appellant did not dispute any of the 10 facts set forth by respondents. Instead, she submitted a statement of 13 “facts,” including the fact that “61% of all marriages in San Diego County in 1992 and 1993 were confidential. The popularity of confidential marriages was due in part to the pre-marital blood test required for public marriages but not for confidential ones.” Five of her other “facts” relate to the legislative history of Assembly Bill No. 1102, adopted in 2006, which amended certain provisions of the confidential marriage statutes.
III. Statutory Provisions Regarding Marriage
California law permits two different types of marriage: A traditional “public” marriage and the less common “confidential” marriage. In general, to have a valid marriage in California, the mandatory provisions of part 1 of division 3 of the Family Code, entitled “Validity of Marriage” (commencing with § 300), must be met, “except” as provided in part 4 of division 3, the statutes pertaining to “confidential” marriages. Section 300 provides: “Marriage is a personal relation arising out of a civil contract between a man and a woman, to which the consent of the parties capable of making that contract is necessary. Consent alone does not constitute marriage. Consent must be followed by the issuance of a license and solemnization as authorized by this division, except as provided by Section 425 and Part 4 (commencing with Section 500).” (Italics added.) Section 500 provides, in relevant part: “When an unmarried man and an unmarried woman, not minors, have been living together as husband and wife, they maybe married pursuant to this chapter by a person authorized to solemnize a marriage... without the necessity of first obtaining health certificates.” (Italics added.) Section 511, subdivision (a), provides that a recorded confidential marriage certification is not open to the public for inspection.
Section 425 pertains to licenses and certificates of declaration of marriage for unrecorded marriages.
It is well established that “The state has a vital interest in the institution of marriage and plenary power to fix the conditions under which the marital status may be created or terminated. [Citation.] The regulation of marriage is solely within the province of the Legislature.” (Estate of DePasse (2002) 97 Cal.App.4th 92, 99 (DePasse).) Sections 300 and 306 list a number of requirements for a valid public marriage in California. (DePasse, supra, at p. 106.) These requirements include issuance of a license, solemnization, authentication by a witness, and return of the authenticated marriage license to the county recorder. Failure to comply with any of these requirements renders a marriage void. (See id. at p. 107 [failure to obtain marriage license rendered marriage invalid]; see also Lockyer v. City and County of San Francisco (2004) 33 Cal.4th 1055, 1116 (Lockyer) [same-sex marriages were “void and invalid” because Legislature made clear in section 300 that marriage is between a man and a woman].) In the present case, appellant concedes her marriage was not authenticated by a witness. Thus, the marriage does not qualify as a valid public marriage.
We disagree with appellant’s contention that the marriage is valid under DePasse, supra, because the presence of a witness is not required in a confidential marriage. The facts of DePasse did not involve a confidential marriage.
IV. “Confidential” Marriage and the Cohabitation Requirement
The primary purpose of the confidential marriage statutes is to “shield the parties and their children, if any, from the publicity of a marriage recorded in the ordinary manner, and thereby to encourage unmarried persons who have been living together as man and wife to legalize their relationship.” (Encinas v. Lowthian Freight Lines (1945) 69 Cal.App.2d 156, 163, italics added.) Interpreting the term “living together” to mean actually residing in the same dwelling is consistent with this statutory purpose. In the present case, it is undisputed that decedent and appellant did not live together at any time prior to their marriage.
Citing to Argonaut Ins. Co. v. Industrial Acc. Com. (1962) 204 Cal.App.2d 805 (Argonaut), appellant claims “a marriage cannot be declared void merely because of incorrect statements in the license application, even where those statements relate to certain statutory requirements necessary to enter into the marital relationship.” In Argonaut, an insurance company sought to annul a worker’s compensation award to the wife of a worker who died following a workplace altercation. The plaintiff contended that the parties were not legally married because they had given assumed names to the county clerk and the marriage license did not show their correct names. (Id. at p. 806.) The court determined that the marriage was not invalid because the Legislature had not “expressly declared void a marriage under a license which is erroneous due to the furnishing of incorrect or misleading information to a county clerk.” (Id. at p. 809.)
Neither Argonaut nor any of the other cases cited to by appellant concern the confidential marriage statutes or the cohabitation requirement. As such, they are not squarely on point. Moreover, her argument renders section 500 a nullity as it effectively writes the cohabitation requirement out of the statute. Such an interpretation would defeat the statute’s purpose: “Living in the same dwelling is the most significant characteristic of daily life that creates the impression that a couple is married. It is unmarried couples who have lived together and held themselves out as husband and wife, and any children of that relationship, who are most likely to be embarrassed and stigmatized by revealing in a nonconfidential marriage that they were not previously married, that their representations to others that they were married were a sham and that children born of that relationship were illegitimate. [S]ection 500 seeks to encourage this group to legalize their marriages with the inducement that the fact that they were not previously married will not be revealed.” (People v. Hassan (2008) 168 Cal.App.4th 1306, 1315 (Hassan).)
People v. Stokes (1886) 71 Cal. 263 [incorrect first name]; Johnson v. Alexander (1918) 39 Cal.App. 177 [lack of parental consent]; Vaughn v. Vaughn (1944) 62 Cal.App.2d 260 [same]; and People v. Lininger (1937) 22 Cal.App.2d 440 [license obtained in different county].
V. The Marriage is Void
Appellant claims the only grounds that render a marriage void are incest and bigamy, and that her marriage to decedent may not be attacked as void ab initio.
Under California law, marriages that are invalid, or that may be declared a nullity by a court, fall into two categories—void marriages and voidable marriages. (See § 2200 et seq.; Estate of Karau (1938) 26 Cal.App.2d 606, 607.) A void marriage is one that is invalid for all purposes from the moment of its inception, whether or not it has been so declared in a court of law. (Karau, supra, at p. 607.) It is treated as if it never existed and its invalidity may be shown collaterally in any proceeding where it becomes an issue, either before or after the death of one or both of the spouses. (Ibid.) On the other hand, a voidable marriage is valid for all purposes until a party entitled to assert its voidability timely raises the issue. (Id. at pp. 607–609; Estate of Gregorson (1911) 160 Cal. 21, 27–28.)
Sections 2200 and 2201 establish that a marriage is void if it is incestuous, bigamous, or polygamous. Section 2210 provides that a marriage is voidable if it is one in which a party lacked capacity to consent due to youth or unsoundness of mind, a party’s consent was obtained by fraud or force, either party was physically incapable of entering into a marriage state, or the husband or wife has a living spouse from a prior marriage who has been absent five years or more and was believed to be dead at the time of the subsequent marriage. None of these grounds have ever been relied upon by respondents as reasons to invalidate appellant’s marriage.
However, a marriage may be deemed invalid “for reasons other than those enumerated in sections 2200, 2201, and 2210.” (DePasse, supra, 97 Cal.App.4th 92, 106.) As noted above, sections 300 and 306 list a number of requirements for a valid marriage in California. These requirements include issuance of a license, solemnization, authentication, and return of the authenticated marriage license to the county recorder. (§§ 300, 306.) Our courts have determined that failure to comply with the requirements of sections 300 and 306 renders a marriage void. (See DePasse, supra, at p. 107; see also Lockyer, supra, 33 Cal.4th 1055, 1116.)
In Lockyer, supra, our Supreme Court held that the statutory opposite-sex requirement was a “substantive legislative limitation on the institution of marriage” that rendered same-sex marriages “invalid and void from the beginning” even though the county clerk had issued marriage licenses to these couples. (Lockyer, supra, 33 Cal.4th 1055, 1117.) Appellant attempts to distinguish Lockyer, arguing that premarital cohabitation is not a “limitation on the institution of marriage,” but is instead “the expression of a policy which includes the desire to protect the privacy and confidentiality of persons entering into a marriage and any children which they may have.” Her argument is not persuasive.
In particular, we are not impressed with appellant’s contention that “it can no longer be seriously argued that the California legislature is committed to the policy that the only persons who have the right to keep their marriage confidential are those who have lived ‘illicitly’ prior to marriage.” Should the Legislature determine that the cohabitation requirement is no longer a necessary prerequisite to a confidential marriage, it is free to amend the statutes to so state. In the meantime, couples who are not cohabitating remain free to marry under the public marriage provisions. Unlike appellant, we are not of the view that all couples have a constitutional right to obtain a confidential marriage.
In enacting section 500, the Legislature has explicitly stated that premarital cohabitation is a necessary condition before a couple may validly apply for a confidential marriage license. This requirement, in our view, is entirely consistent with the statute’s purpose and is therefore as much a “substantive legislative limitation on the institution of marriage” as the opposite-sex requirement was in the Lockyer case. Just as in Lockyer, “the governing authorities establish” that appellant’s purported confidential marriage to decedent is “void and of no legal effect from [its] inception.” (Lockyer, supra, 33 Cal.4th 1055, 1117.)
In sum, we have no difficulty in concluding that a confidential marriage license obtained based on a willful misrepresentation that the parties lived together renders the resulting marriage invalid from its inception. (See Hassan, supra, 168 Cal.App.4th 1306, 1312 [defendant convicted of violating Penal Code section 115 by reason of his having signed a confidential marriage license application, falsely attesting that he and his prospective bride “ ‘have been living together as husband and wife....’ [Citation.]”].)
Penal Code section 115, subdivision (a), provides: “Every person who knowingly procures or offers any false or forged instrument to be filed, registered, or recorded in any public office within this state, which instrument, if genuine, might be filed, registered, or recorded under any law of this state or of the United States, is guilty of a felony.”
VI. State Bar Referral
We find the circumstances of this case to be troubling. In particular, an inference may be drawn that appellant, a licensed attorney, knowingly made a false representation on a recorded instrument in an attempt to take advantage of a client in order to secure a portion of his estate for herself. This case also raises implications regarding the laws that pertain to the financial abuse of elders. Accordingly, we are forwarding a copy of this opinion to the California State Bar so that it may evaluate whether a disciplinary investigation of appellant is warranted.
Rules of Professional Conduct, rule 4-400 provides: “A member shall not induce a client to make a substantial gift, including a testamentary gift, to the member or to the member’s parent, child, sibling, or spouse, except where the client is related to the member.” Rule 3-300 provides that a member shall not “knowingly acquire an ownership, possessory, security, or other pecuniary interest adverse to a client” unless the acquisition is “fair and reasonable” and the client consents after being advised in writing that he or she may seek the advice of independent counsel. Rule 3-120(B)(2) provides that a member shall not “Employ coercion, intimidation, or undue influence in entering into sexual relations with a client....”
Welfare and Institutions Code section 15610.30, subdivision (a)(3), defines “financial abuse” of an elder to include when a party “Takes, secretes, appropriates, obtains, or retains … real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.” Civil Code section 1575, subdivision 1, defines “undue influence” to include “the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him....”
DISPOSITION
The judgment is affirmed.
We concur: Margulies, Acting P. J., Banke, J.
“(a) The decedent’s failure to provide for the spouse in the decedent’s testamentary instruments was intentional and that intention appears from the testamentary instruments.
“(b) The decedent provided for the spouse by transfer outside of the estate passing by the decedent’s testamentary instruments and the intention that the transfer be in lieu of a provision in said instruments is shown by statements of the decedent or from the amount of the transfer or by other evidence.
“(c) The spouse made a valid agreement waiving the right to share in the decedent’s estate.”
“(a) The one-half of the community property that belongs to the decedent under Section 100.
“(b) The one-half of the quasi-community property that belongs to the decedent under Section 101.
“(c) A share of the separate property of the decedent equal in value to that which the spouse would have received if the decedent had died without having executed a testamentary instrument, but in no event is the share to be more than one-half the value of the separate property in the estate.”