Opinion
NOT TO BE PUBLISHED
Napa County Super. Ct. No. 2644813
Pollak, J.
In 2002, Florence Mathison changed the estate plan reflected in her testamentary trust, which had previously provided for equal distributions to her six children from her two marriages. The amended trust largely excluded two of the three children from the first marriage, her daughter Debbie McIntosh and her son Larry Gardner. In March 2008, noting her delight that she and Debbie had reconciled she again revised the trust so that the estate would be divided equally among the six children. In June 2008, Tim Mathison, one of Florence’s children from her second marriage, reminded Florence of her previous bad feelings towards Debbie and, without the knowledge of any of the other siblings, took Florence (then 88 years of age) to a new attorney to once again revise her estate plan. Florence again amended the testamentary trust to leave lesser amounts to Debbie and Larry with the remainder to be divided equally among the other four siblings. Upon Florence’s death in July 2008, Debbie and Larry (respondents) challenged the trust as amended in June 2008 on the ground that it was the product of undue influence. They also alleged a cause of action for financial abuse of an elder.
Because many of the family members involved in this case share surnames, for clarity and without disrespect this opinion refers to them by first name.
The trial court found that Tim had unduly influenced Florence to procure the amended trust and found true the allegation of elder abuse. The court invalidated the June 2008 version of the trust and under the elder abuse statute awarded Debbie and Larry attorney fees.
Tim and the two other Mathison siblings appeal, arguing that there is insufficient evidence to support the finding of undue influence and that attorney fees were erroneously awarded under the recently amended version of the Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) (the Elder Abuse Act) that was not in effect when the operative events occurred.
We conclude that the trial court’s findings are supported by substantial evidence of undue influence. However, the trial court incorrectly applied the newer version of the elder abuse statute retroactively, and there was no evidence of conduct that violated the previous version of the statute. Therefore, we shall affirm the trial court’s order invalidating the June trust but reverse the order awarding attorney fees under the Elder Abuse Act.
Background
Viewing the evidence most favorably in support of the trial court’s findings (Estate of Mann (1986) 184 Cal.App.3d 593, 602-603), there was substantial evidence of the following facts at trial.
Florence and Debbie’s father, Eugene Garner, had three children: Larry, James and Debbie. After Florence and Eugene divorced, Florence married Vernon Mathison and had three more children: Garry, Tim, and Terry. As youths, the Garner children and the Mathison children basically had a good relationship. In the 1980s and 1990s, Debbie had a “good relationship” with her mother.
In 1989, after Vernon died, Florence executed a will that essentially divided her property equally among the six children and named Debbie as executrix.
Starting in the early 1990s, Florence lived with her mother, Letha, on property in St. Helena. The property consisted of six acres of vineyard, a two-story house where Letha lived, and a guest cottage where Florence lived. Debbie lived nearby. In 2000, Florence created the Florence Mathison 2000 Revocable Trust with herself as trustee, Tim and Terry as successor co-trustees, and Gary as an alternate co-trustee. This trust also provided in substance that on Florence’s death her property be divided equally among the six children.
A “Community Property Trust Agreement” (hereafter referred to as the Letha Trust) had been created in 1981 by Letha and her husband, Florence’s father. Letha originally was the trustee of this trust. Debbie and Larry were named successor trustees to Letha and at some point while Letha was still living became the co-trustees. Debbie learned of her role as trustee in 2001 when Florence showed her the trust document and explained that the estate had not been partitioned on the death of Florence’s father as required under the trust. Debbie and Larry hired an attorney to effect the partition. No one in the family opposed Debbie and Larry acting as successor trustees.
It is unclear from the record when Letha resigned or was removed from her position as trustee.
Gary and Terry managed the vineyard on the St. Helena property. When Debbie and Larry became trustees of the Letha Trust, they asked Gary and Terry for records regarding the vineyard operation. Debbie testified that “Terry provided some information, ” that Gary produced no information, and that the two “were upset. They didn’t like having someone look into their finances.”
Sometime in 2001, Debbie and Larry filed petitions to place Letha in conservatorship and to be designated as her agent for making health care decisions. Debbie believed that Letha’s needs were becoming such that Florence was struggling to meet them. Debbie testified that the health care petition was filed “to provide nursing for my grandmother full time. She was uncontrollable at different points and we needed nursing care.” Larry testified that in 2000 and 2001, Letha’s health was poor and, although she could understand “most everything that somebody would say, ” she could not speak at all. She occasionally wandered away from the property and on one occasion fell and broke her hip. Debbie felt that Florence “was making some poor decisions” with regard to Letha’s care. Gary, Terry and Tim opposed the conservatorship petitions. Debbie testified that “they were constantly telling my mother that we were gonna sell the property, we were going to kick her off. And there was never any intention of that.” The two petitions were granted, but the record does not contain the relevant orders or reflect who was designated as the conservator or the agent for health care decisions.
The appendix does not contain copies of these petitions and the testimony at trial is vague as to when the petitions were filed.
According to Tim, Florence told him that she believed Debbie and Larry had ulterior motives for having Letha conserved. Tim “believed that Debbie wanted to take over the property and kick [Florence] off and start a winery, ” although Debbie never told him that she intended to remove Florence from the property. He based his belief on a blank form for requesting a zoning variance that Florence found at her house. Tim did not agree with the action to have Letha conserved and inquired with Adult Protective Services about the possibility of pursuing criminal charges against Debbie and Larry for filing false charges of elder abuse. At about the same time, Debbie told Tim that she believed Letha was not receiving her fair share of the proceeds from the grapes that were being grown on her property and sold by Gary and Terry. Larry testified that he and Debbie never discussed putting a winery on the property and that, as far as he knew, Debbie had never applied for a variance to do so.
Florence told Debbie that she did not want to cede responsibility for caring for her mother and Debbie believed Florence was unhappy with the decision to appoint a conservator. Although Debbie told her mother that she needed help, Florence was not persuaded and the disagreement caused tension between the two women.
In December 2001, Florence filed a petition to remove Debbie and Larry as trustees of the Letha Trust. The petition alleged that “[t]he primary concern of the trust is the care of Letha Samuels, who is 98 years of age, ” and that Florence disagreed with Debbie and Larry about how best to address that concern. It alleged that Debbie and Larry had used the trust property as security for a $100,000 line of credit, and that they were planning to develop a winery on the property. The petition was resolved by a settlement agreement that appointed Jim Nord, a neutral third party, as successor trustee.
In December 2002, Florence executed a restatement of the Florence Mathison 2000 Revocable Trust, which previously had provided for equal distribution among her six children. As amended, on her death Debbie and Larry would receive $5,000 each, James would receive $25,000, and the substantial remainder of the estate would be divided equally between Terry, Tim and Gary.
According to Debbie, the tension between Florence and herself lasted approximately one year, from the time that she and Larry filed for the conservatorship until 2003, when Letha was moved to a rest home. Letha died at the age of 100 on March 14, 2003. After Letha’s death, Debbie saw Florence “four or five times a week” and “helped her out, cleaning, buying groceries, bringing her over for dinner and holiday time.” They spoke on the phone almost daily. Florence sent Debbie birthday and holiday cards. The two women continued to have an amicable relationship.
In February 2008, Florence asked Debbie to take her to see Carol Sobczak, an attorney. On March 26, 2008, Florence executed the Second Restatement of the Florence Mathison Revocable Trust (hereafter referred to as the March trust), prepared by Sobczak, under which on Florence’s death the estate was to be divided equally between the six children. Debbie testified that around this time Florence was “excited, happy” about her estate planning. “She wanted me to take her to James’ house the following week, and so... she called James, told him she was coming and we went down and she took a copy of it.... And she sat in front of him on the floor, talked to him, told him what she wanted him to do as a trustee. [¶]... [¶] We were there for probably two to three hours, talking. She was very happy, she finally got it the way she wanted, she said.” A short time later, Florence called Debbie and asked her “to come over and sit with her while Gary read the document.” Debbie remembered that “Gary was telling my mother that he didn’t really like the document.”
At the same time, Florence executed a new will containing a pour-over provision to the March trust.
Sobczak testified that “it is my policy when a client comes in to see me if there’s a third party with the client, especially if it’s a child or relative or caregiver, I insist on meeting the client alone before allowing the other person into the room. But I really can’t recall if Debbie was there for any or all or part of the meeting.” She also testified that if a child or other third party insisted on sitting in on a meeting she “ended up not representing the client, ” and that she did not recall such an event in this case.
Florence told Sobczak “words to the [effect] of let bygones [be] bygones, I want to forget the past, I want all my children treated equally, I think that’s the fairest and best thing.” Florence requested that for her durable power of attorney, she wanted Debbie, then Terry, then Gary named. She also wanted Debbie to be named first for her advanced health care directive.
In April or May 2008, Gary told Tim that Florence had amended her trust to provide for equal division of the estate among the children. Thereafter, Tim discussed with Florence his belief that Debbie was not trustworthy, had ulterior motives in conserving Letha, and would seek to sell the St. Helena property and remove Florence from the property, or possibly attempt to appoint a conservator for Florence as she had done for Letha.
Approximately five weeks before she died, under circumstances described below, Florence again restated her trust to return to an unequal distribution of assets upon her death. Under a restatement of the trust dated June 11, 2008 (the June trust) Debbie was to receive a cash payment of $90,000, Larry was to receive $20,000, and the sizable remainder of the estate was to be divided equally among Tim and the other brothers. According to Tim, Florence told him that she changed the estate plan because she “could forgive but not forget.” He believed she was referring to the petitions that were filed in 2001 concerning Letha. Based on his conversations with Florence, Tim believed that she “still held some bitterness of what had happened and her concerns of what was going to happen.” However, Tim acknowledged that Florence was “overjoyed that Debbie was around more in her life in 2007/2008.”
At the same time Florence executed a new will containing a pour-over provision to the June trust.
The circumstances surrounding the execution of the June restatement of the Florence Mathison 2000 Trust are these: On April 25, 2008, unbeknownst to any of the other siblings, Tim drove Florence to the bank. On the drive, they discussed her estate plan. Tim told Florence that he did not believe that she needed to consult an attorney to amend her estate plan and believed that she should not consult an attorney because “it costs a lot of money.” At the bank, Tim wrote out the following note: “I Florence Mathison make the following amendments to my will. Gary Mathison will be in charge of all medical decisions for me and be listed as power of attorney. The ranch where [I] reside on Sage Canyon will be divided equally to (4) children, James Gardner, Gary Mathison, Tim Mathison and Terry Mathison. Larry Gardner will receive cash in the amount of $10,000. And Debbie Gardner [sic] will receive cash in the amount of $100,000.” Tim testified that this language was dictated to him by Florence. However, he acknowledged that he suggested that Florence leave Debbie $100,000 in cash because he believed that amount would be sufficient to discourage Debbie from challenging the validity of the amended trust, as there was a no-contest clause in the trust. At his deposition Tim agreed that he did not want Debbie to challenge the terms of the trust because if she succeeded he would receive less money. At trial he denied that this was his motivation for keeping the June restatement a secret. Florence signed the document at the bank, and it was witnessed by two bank tellers.
On May 1, 2008, Tim took Florence to see Rosie McNichol, an attorney who had represented Tim’s mother-in-law. Tim paid McNichol’s fee for drafting the restatement of the trust and the new will that were executed on June 11, 2008. Tim testified that Florence asked him to keep the May 1 visit and the new revisions secret.
McNichol’s notes of the initial phone call with Tim that preceded her meeting with Florence say, “Gave Tim Mathison my name, talked to him regarding his mother. Thinks his sister is acting with undue influence and has gotten mom to change her trust in daughter’s favor. Daughter was out of the picture and disinherited for five years; now she goes for lunch every day with mom and has taken mom to her own lawyer to do amendments. Mom tells Tim she doesn’t want to talk about the trust. Also says that she is overjoyed that her daughter is back and taking care of mom. He wanted a conservatorship but mom doesn’t seem that out of it much of the time. However, can be very forgetful. Suggested that son call [Adult Protective Services] and explain the situation. Also warned him that trying to get conservatorship may backfire and he could lose, mom would be angry with him and disinherit him the same way she did with the daughter when the daughter brought an action. However, daughter sounds sneaky and unreliable. Told him we don’t do conservatorships.”
McNichol testified that on April 8, 2008, Tim asked about conservatorship for Florence. When McNichol met with Florence, Florence brought only the 2002 trust document and the purported amendment handwritten by Tim at the bank, but did not bring the March 2008 instrument even though McNichol had asked her to bring any earlier estate plans. McNichol testified that Florence told her she wanted the new plan sent to Tim and Gary and did not want Debbie or Debbie’s lawyer to know about it. McNichol’s notes from the meeting with Florence state: “Debbie would have a $100,000 but I think that’s too much. For Larry, put 10k but I think that’s not enough (but Tim reminded me that Larry was given property plus money from my folks).” The notes also state, “Tim thinks that I should put 100k to keep Debbie from fighting but I want to put less.”
The record also reflects that in the spring of 2008, Florence began exhibiting signs of dementia. On April 10, 2008, Florence told Debbie that “she had the sheriff come out, she had seen people on her patio, picking fruit, lights coming through her place and she was scared. And she said that she had a gun, and so she was just beside herself. She was scared and the police had a report done, ... which said it might be a 5150 case.... [¶] [W]e would be watching television and she said oh, turn on the television and we were watching it. And then she heard music, the music she said was coming from a neighbor’s house and they were trying out for a band. And she would ask me if I could hear it, which I couldn’t.... [¶] [O]ne night she called me and she said that Gary was there and she said there’s someone in my walls, there’s three guys in my walls, and she was rapping her cane when Gary got there.... [¶] Q... [¶] A She called me one night and Bill and I went over and we ended up bringing her home that night. She was scared and she had us look in the attic for people she heard, and we looked in the attic and there was nothing there.” In early May, Florence showed Debbie a dress that had holes in the arms. Florence told Debbie that she, Florence, had cut the holes, but that she did not know why and asked Debbie to throw it away.
Sometime in April of that year, Larry arrived at Florence’s house and found that she had turned on a heating stove in the living room. Her coat was on the stove and she had her forehead resting on the coat. “She was sitting in a chair and I thought she had passed away. I woke her up....” Around the same time, Florence showed Larry the dress with holes in it.
Debbie testified that in the months before Florence’s death on July 17, 2008, “[s]he was very forgetful. She couldn’t remember, she’d say something and... then ask you a question again. She couldn’t remember who—if someone walked in the room there were times when she didn’t recognize them. [¶] Q... [¶] A There was one [instance] where she was laying on the living room floor, James walked in and she didn’t know him, she said, for a period of time. And then she recognized him.”
Dr. Robert Egan, a neurologist, examined Florence on July 2, 2008. Debbie brought her to see Dr. Egan because she was complaining of headaches. Dr. Egan concluded that Florence was “suffering from fairly significant dementia” caused by “a combination of Alzheimer’s disease and vascular stroke.” Dr. Egan believed that the police report from April 10, 2008, in which Florence reported seeing people in the orchard and on her porch, was consistent with visual hallucinations and possibly suggested underlying dementia.
He agreed that Florence “would be easily distractable without a precise or full memory of current facts, ” and that “she would have a far better recall of events, say, five or 10 years in the past.” He also agreed that “[i]f one of her children repeatedly reminded Florence Mathison of events from the past, say from 2001 of some alleged bad acts of another child and repeated those kinds of comments to the mother again and again, [it would] be likely that [Florence] would be able to repeat those kinds of things when asked.” He agreed that if one of her children “were to reinforce those kinds of feelings and bring up past events, alleged bad act[s] of another child, that could have a very significant effect” on Florence and could cause her “to be confused about what her own true intentions and desires were.”
On October 22, 2008, Debbie and Larry filed a petition to invalidate the June trust and for a declaration that the March trust was the operative instrument. An amended petition was filed on August 10, 2009. The amended petition alleges that Florence lacked the capacity to execute a valid amendment in June 2008, that the June trust was procured by undue influence and by mistake, that Gary and Tim tortiously interfered with Debbie and Larry’s right to inherit, and that Tim and Gary committed elder abuse.
After a 10-day bench trial, the court issued a statement of decision. The court found that Florence had the legal capacity to make the June trust and that Gary did not exert undue influence. However, the court further found that “[i]t’s very clear... that Tim unduly influenced his mother for her to undo the Trust she had just prepared March 26, 2008” and that “[t]he finding of undue influence effectively rescinds the June 11th, 2008 Trust.” The court declared the June trust to be void and the March trust to be the operative document. The court also found that elder abuse by Tim was established and accordingly Tim was ordered to pay attorney fees and costs under Welfare and Institutions Code section 15657, subdivision (a). Judgment was entered on November 10, 2009, and respondents timely appealed. An amended judgment, which included costs of $24,000 and attorney fees of $326,558, was entered on March 3, 2010. Tim separately timely appealed from this judgment on March 18, 2010. The parties stipulated to consolidation of the two appeals.
The court also found that the cause of action for mistake was not supported by the evidence, that “[t]he... cause of action that respondents tortuously [sic] interfered with petitioners’ right to inherit also has not been established, since the June 11th, 2008 Trust will be rescinded, and therefore petitioners’ right to inherit has not been interfered. There are no damages.”
The court also declared Florence’s June 11, 2008 will to be void and her prior will of March 26, 2008, to be her “true and operative Will.”
Discussion
Undue Influence
Tim argues that there is no substantial evidence to support the trial court’s finding that the June trust was the result of undue influence. “On appeal, ... ‘ “[t]he rules of evidence, the weight to be accorded to the evidence, and the province of a reviewing court, are the same in a will contest as in any other civil case.... The rule as to our province is: ‘In reviewing the evidence... all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary... principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court.’ (Italics added.)...” ’ [Citation.] ‘[A]ll of the evidence must be examined, but it is not weighed. All of the evidence most favorable to the respondent must be accepted as true, and that unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.’ ” (Estate of Mann, supra, 184 Cal.App.3d at pp. 602-603.)
“ ‘Undue influence is established when it is shown that the testamentary disposition was brought about by undue pressure, argument, entreaty or other coercive acts that destroyed the testator’s freedom of choice so that it fairly can be said that he was not a free agent when he made his will [citation]; undue influence can be established by circumstantial evidence so long as the evidence raises more than a mere suspicion that undue influence was used; the circumstances proven must be inconsistent with the claim that the will was the spontaneous act of the testator.’ [Citation.] Clear and convincing proof is required. [Citation.] Undue influence will not be inferred from ‘slight evidence.’ ” (Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 334.)
“Although a person challenging the testamentary instrument ordinarily bears the burden of proving undue influence ([Prob. Code, ] § 8252), ... 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.” (Rice v. Clark (2002) 28 Cal.4th 89, 96-97.)
Confidential relationship
The statement of decision states that “Tim, by his own admission, was in a confidential relationship with Florence.” While the fact that Tim was Florence’s son by itself is insufficient to establish a confidential relationship necessary to demonstrate undue influence, it does provide “some evidence of a fiduciary relationship.” (Estate of Jamison (1953) 41 Cal.2d 1, 10.) In Jamison, the court held that “While there is evidence that respondent and his father had been estranged, there is also evidence that after his father became ill and for several months thereafter he had conscientiously visited his father. The decedent thought he was a good son and liked him, discussed his affairs with him and gave him papers dealing with finances to examine. From the father and son relationship and that evidence it could be inferred that a confidential relationship existed.” (Ibid.)
In Estate of Gelonese (1974) 36 Cal.App.3d 854, 857, one of decedent’s five children challenged the validity of a will that divided the bulk of the estate into three equal shares between three of the children: Robert, Lena, and Peter, and gave the remaining two children only $100 each. The court held that there was sufficient evidence of a confidential relationship between decedent, Robert and Lena based on evidence that “[f]ollowing her last hospitalization... and until her death, decedent was cared for by Lena, Robert and Robert’s wife. There was ample evidence that decedent discussed her business affairs, including the dispositions to be made under her will, with Robert and Lena.” (Id. at p. 865.)
Here, there was evidence that Florence was in poor health and suffered from dementia at the time Tim took her to see McNichol. Tim testified that he and Florence were “very close, ” and that she confided in him, turned to him for counsel, that they “talked about a lot of things, ” and that Florence relied on him and his brothers for advice. He testified that around this time he and Gary had to help Florence write checks. This evidence was sufficient to support the finding that there was a confidential relationship between Florence and Tim.
Undue profit
The statement of decision does not discuss the element of undue profit but merely concludes that the element was present. Tim cites Estate of Sarabia (1990) 221 Cal.App.3d 599 for the proposition that “[t]he mere fact that a beneficiary takes even substantially more under the trust than without it does not by itself establish ‘undue’ profit sufficient to shift the burden.” What Sarabia holds, however, is that the trier of fact must consider the terms of the challenged will in context, considering all of the relevant information. “If the trier of fact is empowered to check for ‘unnatural’ provisions of the will as an indicator of undue influence [citation], it follows as a matter of simple corresponding logic that the trier is empowered to decide what would constitute natural provisions. To determine if the beneficiary’s profit is ‘undue’ the trier must necessarily decide what profit would be ‘due.’ These determinations cannot be made in an evidentiary vacuum. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent’s testamentary disposition. [Citation.] That evidence may include dispositional provisions in previous wills executed by the decedent [citation], or past expressions of the decedent’s testamentary intentions. [Citation.] It may also encompass a showing of the extent to which the proponent would benefit in the absence of the challenged will.” (Id. at p. 605.) In Estate of Garibaldi (1961) 57 Cal.2d 108, 110, 113, the court held that there was sufficient evidence of an unnatural distribution where a will executed four months before the testator’s death left $7,000 to five of her children and the remainder of her estate, valued at $700,000, to the other three children, where she had previously expressed a desire that her children receive equal shares of the estate.
The record reveals substantial evidence to support the trial court’s conclusion that Tim unduly profited from the June trust. The estate was valued at $1.7 million. With Debbie and Larry receiving only $110,000 total, the value of the portion to be divided among Tim and the remaining siblings was substantially larger than if the estate were divided equally among the six siblings, as provided in the estate plan Florence had prepared less than three months earlier, as well as in the 1989 will and the 2000 trust. The trial court was entitled to find that Florence’s intent was to provide for equal distribution and that the June Trust provided for an “unnatural” distribution under which Tim received an undue benefit.
Procurement
The trial court found that Tim actively participated in the procurement of the June 2008 documents. Tim argues that this finding is not supported by the record, relying on Estate of Mann, supra, 184 Cal.App.3d at page 608. In that case, the person alleged to have exerted undue influence “urged [decedent] to make a will ‘if she was so inclined, ’ took her to an attorney for this purpose, and was present at the execution of the will.” The court noted that there was no evidence that the beneficiary of the challenged will urged the decedent to make any particular disposition, and that the challenger also urged her to make a will. The court then noted that “ ‘[T]he mere fact of the beneficiary procuring an attorney to prepare the will is not sufficient “activity” to bring the presumption into play...; or selection of attorney and accompanying testator to his office...; or mere presence in the attorney’s outer office;... or presence at the execution of the will...; or presence during the giving of instructions for the will and at its execution....’ ” (Ibid.)
Here, there was evidence that Tim did far more than procure an attorney for Florence and accompany her to the attorney’s office. Upon learning of the March trust, Tim made numerous disparaging remarks about Debbie to Florence, reminding his mother of the actions taken by Debbie in 2001-2002, telling Florence that Debbie could not be trusted and had ulterior motives for what she had done. The trial court noted that there was evidence that Tim not only chose McNichol, but spoke to her at length about the situation before taking Florence to meet with her, and paid her fee. Tim wrote out a draft of the proposed amendment to the trust that Florence signed at the bank and brought with her to the meeting with McNichol. Finally, there was evidence that it was Tim’s suggestion that Florence leave Debbie $100,000 “to keep her from fighting.” In short, there was ample evidence that Tim took an active role in procuring the June amendment.
Tim argues that his involvement in drafting the note at the bank cannot be considered for the purposes of determining his involvement in procuring a different instrument, the June trust. However, the evidence suggests that the note written at the bank was a step in the sequence of events leading directly to the execution of the June trust.
Rebuttal
Tim argues that even if the trial court properly found that a presumption of undue influence had been established, he rebutted the presumption by showing that the June trust was the product of Florence’s free will. Tim cites to evidence that Florence had two private meetings with McNichol in which she directed McNichol to provide for a $90,000 distribution to Debbie and a $20,000 distribution to Larry, and evidence of “a history of discord between Florence and Debbie and Larry.” He points out that “it was admitted that Florence ‘essentially disinherited’ them in 2002.” He asserts that this evidence “precludes a substantial evidence finding of circumstances ‘inconsistent with voluntary action.’ ”
The cases Tim cites in support of his argument stand only for the unremarkable proposition that the trial court’s finding on undue influence will be upheld if supported by substantial evidence. (See Camperi v. Chiechi (1955) 134 Cal.App.2d 485, 503 [“The question of undue influence was one of fact and there was abundant evidence that the testament was the product of [testator’s] uncontrolled will. The trial judge having reasonably found the evidence to weigh more heavily in Anna’s favor, his finding may not be disturbed on appeal.”]; O’Neill v. Dennis (1952) 109 Cal.App.2d 210, 214 [“The function of this court is to determine if there is any evidence of a substantial character either direct or circumstantial which tends to support the judgment, and if there is, we may not overthrow it.”].) “[T]he question of whether the presumption of undue influence has been rebutted is a question for the trier of fact and a reviewing court will not reverse if there is sufficient evidence to support a finding.” (Sinclair v. Weber (1958) 166 Cal.App.2d 452, 464.)
None of the evidence emphasized by Tim negates the substantial evidence cited by the trial court in support of its finding that Tim unduly influenced his mother. Referring specifically to evidence that “Tim’s influence over his mother was substantial”; that Florence relied on Tim for advice; that Tim discussed with Florence the ulterior motives he attributed to Debbie and told her that Debbie wanted Florence removed from the property in order to build a winery; that he discussed with Florence changing the March trust, selected and contacted McNichol before Florence had met her, telling her that Debbie was “again up to no good”; that he took Florence to see McNichol without the knowledge of the other siblings; that he suggested the amounts to specify for Debbie and Larry; and that Florence was suffering from dementia at the time, the court concluded that “Tim has not met his burden of proving that the June Trust was not procured by undue influence.” There is no basis for this court to overturn the trial court’s findings and conclusion.
Elder abuse
The trial court found that Tim committed financial elder abuse under Welfare and Institutions Code section 15610.30, subdivision (b) by unduly influencing Florence in the procurement of the June trust. Based on that finding, the trial court awarded attorney fees to Debbie and Larry.
Further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Section 15657.5, subdivision (a) provides in pertinent part: “Where it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30... the court shall award to the plaintiff reasonable attorney’s fees and costs.”
The Elder Abuse Act was added to the Welfare and Institutions Code in 1982. “ ‘In 1982, the Legislature recognized “that dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect such persons.” [Citation.]’ It adopted measures designed to encourage the reporting of such abuse and neglect. (§ 15601 et seq.) Subsequent amendment refined the 1982 enactment, but the focus remained on reporting abuse and using law enforcement to combat it [Citation.].... [¶] In the 1991 amendments..., the focus shifted to private, civil enforcement of laws against elder abuse and neglect. ‘[T]he Legislature declared that “infirm elderly persons and dependent adults are a disadvantaged class, that cases of abuse of these persons are seldom prosecuted as criminal matters, and few civil cases are brought in connection with this abuse due to problems of proof, court delays, and the lack of incentives to prosecute these suits.” (§ 15600, subd. (h), added by Stats. 1991, ch. 774, § 2.) It stated the legislative intent to “enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Id., subd. (j).)’ ” (Delaney v. Baker (1999) 20 Cal.4th 23, 33.)
In 1994, the Legislature amended the Elder Abuse Act to add “fiduciary abuse” as a form of protected elder abuse. The new provision, section 15610.30, initially defined fiduciary abuse as follows: “ ‘Fiduciary abuse’ means a situation in which any person who has the care or custody of, or who stands in a position of trust to, an elder or a dependent adult, takes, secretes, or appropriates their money or property, to any use or purposes not in the due and lawful execution of his or her trust.” (Stats. 1994, ch. 594, § 3.) Section 15610.30 was amended at various times. In 1998, the term “fiduciary abuse” was replaced by the term “financial abuse, ” indicating that the proscriptions in the statute applied not only to fiduciaries. (Stats. 1998, ch. 946.) In 2008, when the relevant events in this case occurred, section 15610.30 provided that: “(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following: [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” (Stats. 2008, ch. 475, § 1, italics added.)
The committee analysis for the bill states: “This bill deletes ‘fiduciary’ abuse and substitutes ‘financial abuse’ throughout the relevant sections. Fiduciary is generally understood to involve some type of trustee relationship, in this case with an elder or dependent adult. Financial is much broader in that it is not limited by the relationship of the ‘abuser’ with the victim.” (Sen. Com. on Health and Human Services, Analysis of Sen. Bill No. 2199 (1997-1998 Reg. Sess.) as introduced April 1, 1998.)
In 2008, effective January 1, 2009, the Legislature added a new subdivision (a)(3) to section 15610.30. That subdivision provides that financial abuse of an elder may also occur when a person “[t]akes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code.” (Italics added.) The same amendment also added subdivision (c) to the statute, providing: “For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.” (Stats. 2008, ch. 475, § 1, italics added.)
Civil Code section 1575 provides that “Undue influence consists: [¶] 1. In 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; [¶] 2. In taking an unfair advantage of another’s weakness of mind; or, [¶] 3. In taking a grossly oppressive and unfair advantage of another’s necessities or distress.”
As noted, the 2008 amendments did not become effective until January 2009. Although there is no dispute that the relevant events occurred before these amendments took effect, the trial court quoted the later version of the statute and found “that the acts of unduly influencing the procurement of the June 11, 2008 Trust and Will constitute[] financial abuse.” On this basis, the court found that Tim was liable for attorney fees under section 15657, subdivision (a), reasoning that “It is clear that Tim’s conduct constitutes financial abuse under the current version of... section 15610.30. And while it’s unclear whether the current version of the statute applies to conduct preceding the 2008 amendments, the court finds that Tim’s conduct constitutes financial abuse, even under the former statutes’ definition of financial abuse. The court has found no authority limiting the meaning of ‘property’ under former section 15610.30 to only tangible property, as opposed to non-tangible property rights such as the right to testamentary bequests.”
Tim argues that the amendments that were not in effect when Florence executed the June documents added a new form of elder abuse not previously prohibited by the statute. Respondents, on the other hand, argue that the amendment merely “clarified” that exerting undue influence to affect the disposition of an elder person’s estate constitutes financial abuse. While the trial court correctly observed that there are no cases limiting the term “property” in this context, there are also no cases that address whether unduly influencing an elder person to modify the disposition of that person’s property after death was prohibited by the elder abuse act prior to the 2008 amendments.
Few cases interpret the financial abuse provision of the elder abuse law, and those that do provide little guidance on this issue. In Zimmer v. Nawabi (E.D.Cal. 2008) 566 F.Supp.2d 1025, the court found that a mortgage broker that persuaded an elderly woman to refinance her home on terms inferior to those of her existing mortgage committed financial abuse. Teselle v. McLoughlin (2009) 173 Cal.App.4th 156 held that summary judgment had erroneously been granted to defendants on a cause of action for financial elder abuse alleging that the defendants had secreted, appropriated or retained property to which an elder person was entitled by inducing the elder to transfer the property while concealing certain material facts from the elder. In Wood v. Jamison (2008) 167 Cal.App.4th 156, 165, the court held that an attorney and another man committed financial elder abuse when they colluded to persuade the elder to make an investment in the second man’s nightclub.
Section 15600, as it read prior to the adoption of the 2008 amendments (and continues to read), contains legislative findings and declarations of the intent underlying the elder abuse statute. The section states in part that “The Legislature recognizes that elders and dependent adults may be subjected to abuse, neglect, or abandonment and that this state has a responsibility to protect these persons.” (Stats. 1994. ch. 594, § 1.) The legislative history of the 2008 amendments to section 15610.30 indicates that the amendments would “add to the definition of financial abuse the taking, secreting, appropriating, obtaining, or retaining, or assisting in the taking, secreting, appropriating, obtaining, or retaining, of real or personal property of an elder or dependent adult by undue influence, as defined.” (As amended by Stats. 2008, ch. 475, § 1, No. 9 West’s Cal. Legis. Serv. ch. 475.) The Senate Judiciary Committee report states that existing law provided that “financial abuse of an elder...consists of taking their property for a wrongful use or with the intent to defraud” and that the amendment “would add undue influence as a third basis for financial abuse of an elder.... Proponents believe that this is necessary because elders are often exploited through undue influence and under circumstances where the statutory elements necessary for financial abuse (taking for wrongful use, intent to defraud) are lacking.... [¶] For example, an elder may be pressured by a family member to change the terms of a will....” (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 1140 (2007-2008 Reg. Sess.) p. 5, italics added.)
This history makes clear what is suggested by the prior language of the statute and by the text of the 2008 amendments. While the elder abuse statute was initially directed to physical abuse and neglect of elders and then to conduct that deprived the elder himself or herself of property to which the elder was entitled, the 2008 amendment for the first time imposed liability for unduly influencing an elder’s disposition of property, including testamentary disposition. The trial court’s finding, for which there is substantial evidence, is that Tim exerted undue influence over Florence to persuade her to change the terms of her trust affecting the disposition of her property after death. There is no suggestion that Tim took or secreted from Florence any of her property or the use of any of her property during her lifetime. He did not “take, secrete, appropriate, obtain, or retain” her property, as alone proscribed prior to 2009.
A 2009 article written by one of the drafters of the bill that amended section 15610.30 confirms the “groundbreaking expansion” of rights embodied in the amendments: “Since 1991 the legal definition of financial abuse had required an elder to prove his or her property was taken for wrongful use or with the intent to defraud. In many instances, however, a perpetrator does not exploit an elder through overt fraud, but rather by unduly influencing the elder’s decisions. In such cases, proving the defendant had the requisite intent can be difficult. But SB 1140 revised the definition by adding undue influence as a basis for proving financial abuse.” (Steven Riess, Combating Financial Abuse of Elders (August 2009) California Lawyer, at p. 19.)
Indeed, the original petition filed by respondents in 2008 did not include a cause of action for elder abuse. That cause of action was not added until the amended petition was filed in 2009.
Since unduly influencing Florence to change her will and trust was not a form of elder abuse prohibited by the statute at the time Tim induced Florence to make those changes, the attorney fee award may be affirmed only if the amendments can be applied retroactively. The framework for determining when a newly enacted statute may be applied retroactively was set forth by our Supreme Court in Aetna Casualty & Surety Co. v. Industrial Acci. Com. (1947) 30 Cal.2d 388. The court explained, “procedural changes ‘operate on existing causes of action and defenses, and it is a misnomer to designate them as having retrospective effect.’ [Citations.] In other words, procedural statutes may become operative only when and if the procedure or remedy is invoked, and if the trial postdates the enactment, the statute operates in the future regardless of the time of occurrence of the events giving rise to the cause of action. [Citation.] In such cases the statutory changes are said to apply not because they constitute an exception to the general rule of statutory construction, but because they are not in fact retrospective. There is then no problem as to whether the Legislature intended the changes to operate retroactively. [¶] This reasoning, however, assumes a clear-cut distinction between purely ‘procedural’ and purely ‘substantive’ legislation. In truth, the distinction relates not so much to the form of the statute as to its effects. If substantial changes are made, even in a statute which might ordinarily be classified as procedural, the operation on existing rights would be retroactive because the legal effects of past events would be changed, and the statute will be construed to operate only in futuro unless the legislative intent to the contrary clearly appears.” (Id. at p. 394.)
In Das v. Bank of America (2010) 186 Cal.App.4th 727, 736, the court held that the portion of the 2008 amendment to section 15610.30 that added the phrase and “the person or entity knew or should have known that this conduct is likely to be harmful to the elder” (italics omitted) “constitutes a material change in the statutory definition of financial abuse.” The court cited to a treatise on elder abuse law that “ ‘[t]he financial abuse statute, as amended in 2008, presents an essentially new statute’ ” (ibid.), and concluded that “[a]s the 2008 amendments to the statutory scheme were substantive, rather than procedural, and the Legislature did not state that the amendments were retroactive in effect, ” the new provisions could not be applied to conduct that had occurred prior to the effective date of the amended statute. (Id. at pp. 736-737.)
Respondents rely on ARA Living Centers−Pacific, Inc. v. Superior Court (1993) 18 Cal.App.4th 1556 for the proposition that the amendments at issue are procedural. In that case, the court evaluated whether section 15657, which was enacted in 1991 and provides for recovery of attorney fees in cases where physical abuse of an elder is proved, could be applied retroactively. The court held that the attorney fee provision was procedural and could be applied to a cause of action that accrued prior to the enactment of the provision. Respondents attempt to characterize section 15610.30 as an attorney fee provision because “section 1510.30 was amended to specify that a type of undue influence that was always unlawful under the common law (unduly influencing an elder to change her trust to benefit the influencer) was now a basis for attorneys’ fees under section 15657.5(a).”
Section 15657.5, subdivision (a) provided in 2008 as it does now, for an award of attorney fees where financial abuse of an elder is proven. Therefore, respondents’ analogy to ARA Living Centers is misplaced. The 2008 amendments did not add an attorney fee provision for conduct that previously constituted a violation of the statute, as was the situation in ARA Living Centers. Rather, the 2008 amendments added undue influence as a means by which elder abuse is deemed to occur, bringing conduct that was not previously proscribed by the statute within its scope.
Respondents also argue that the amendment is merely an attorney fee provision and therefore procedural because unduly influencing an elder to change testamentary documents has long been prohibited. However, the cases cited in support of this argument are cases challenging the validity of a testamentary disposition. While undue influence has long been a basis for invalidating a testamentary document, it does not follow that such conduct was always actionable as financial elder abuse, or that the 2008 amendments to the elder abuse statute are merely procedural. The Elder Abuse Act provides far more than an attorney fee provision. The law was enacted “to protect elders by providing enhanced remedies which encourage private, civil enforcement of laws against elder abuse and neglect.” (Negrete v. Fid. & Guar. Life Ins. Co. (C.D. Cal. 2006) 444 F.Supp.2d 998, 1001.) Indeed, the statute opens with the declaration that “it is the intent of the Legislature in enacting this chapter to provide that adult protective services agencies, local long-term care ombudsman programs, and local law enforcement agencies shall receive referrals or complaints from public or private agencies, from any mandated reporter..., or from any other source having reasonable cause to know that the welfare of an elder or dependent adult is endangered, and shall take any actions considered necessary to protect the elder or dependent adult and correct the situation and ensure the individual’s safety.” (§ 15600, subd. (i).)
The 2008 amendments to the elder abuse statute, which became effective in 2009, were substantive. Since the amendments contain no indication that they were intended to apply to past conduct, they cannot be applied retroactively to Tim’s actions in 2008, before the amendments took effect. There being no other basis for an award of attorney fees, the award of such fees must be stricken from the judgment.
Disposition
The judgment is affirmed in part and reversed in part. The order deeming the June instruments void and the March instruments to be the operative instruments is affirmed. The order for attorney fees under section 15610.30 and 15657.5, subdivision (a) is reversed. The parties shall bear their respective costs on appeal.
We concur: McGuiness, P. J., Jenkins, J.