James Gerald LeBloch Plaintiff and Appellant. Hickson Kipnis & Barnes and Howard A. Kipnis and Steven J. Barnes, for Respondents and Defendants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. RIC 1200838) APPEAL from a judgment of the Superior Court of Riverside County, David E. Gregory, Commissioner. Affirmed. James Gerald LeBloch Plaintiff and Appellant. Hickson Kipnis & Barnes and Howard A. Kipnis and Steven J. Barnes, for Respondents and Defendants.
Larry Nolte appeals a judgment in favor of defendants Robert Nolte and Loru Nolte following an order granting defendants' motion for summary judgment in which the court concluded Larry did not have standing to assert a cause of action for elder abuse on behalf of his deceased mother. Specifically, the court concluded Larry had not established he had standing as the successor in interest to his mother's estate because he had not established the existence of a triable issue of fact regarding whether Loru, who was the successor before Larry under the operative trust, legally predeceased his mother by committing financial elder abuse.
Hereafter, we refer to these individuals and other members of the Nolte family by their first names to avoid confusion. --------
On appeal, Larry argues he did establish standing to assert the cause of action because Robert's actions could be imputed to Loru under a theory of conspiracy or aiding and abetting. Alternatively, Larry asks us to remand the matter, instructing the trial court to grant him leave to amend his complaint to add a count for conspiracy to commit elder abuse. We conclude the trial court did not err in determining Larry did not have standing, decline Larry's request to remand the matter, and affirm the judgment.
Defendants also filed a motion to award sanctions for a frivolous appeal, which we address herein as well. We conclude the appeal is not frivolous and deny the motion.
FACTUAL AND PROCEDURAL BACKGROUND
Marjorie ("Marge") Brenner and Arthur Nolte had three children together—Larry Nolte, Robert Nolte and Jeanne Schauwecker. Arthur died in 2001 and left his entire estate to Marge. Marge retained Patricia Galligan to represent her in the settlement of Arthur's estate and Ms. Galligan recommended Marge make annual gifts to her children in order to reduce the size of the estate and avoid tax liability. Following this advice, Marge gifted $10,000 to each of her children and each of their spouses in 2001, and continued thereafter to make additional annual gifts to at least Robert and Loru through 2009. In each instance, Marge made the gifts via checks that she personally signed.
Following Arthur's death, Marge lived independently but Robert took primary responsibility for her care, often with Loru's help. Larry and Jeanne frequently argued with Marge and, as a result, Jeanne and Marge did not speak for long periods of time. During one such argument, Marge decided to amend her trust to leave specific gifts to Larry and Jeanne, and the remainder of the estate to Robert. Marge had several private meetings and conversations with Ms. Galligan regarding her desired changes in the late summer and early fall of 2002, ultimately executing an amendment to the trust in October 2002. The following month, at Ms. Galligan's suggestion, Marge obtained a letter from her physician, Dr. Richard Lam, stating she was competent to modify her estate plan. Loru had no involvement whatsoever in any of Marge's estate planning, never discussed any of Marge's estate planning decisions with her, and never met or spoke with Ms. Galligan.
In June 2004, Marge was experiencing mild to moderate cognitive impairment due to dementia. Dr. Lam prescribed dementia medication for her and by July 2005, she was no longer suffering from any cognitive impairment. Thereafter, her dementia remained stable until mid-2007.
Marge died in July 2010, a couple of months after Robert moved her to a skilled nursing facility. At some point prior—the record is not clear as to when—Marge had named Robert as her agent for making health care and financial decisions on her behalf. Under the terms of Marge's trust, as amended in 2002, Larry and Jeanne received specific cash gifts and the remaining residuary was distributed to Robert. The trust also specified the remaining residuary was to be distributed to Loru if Robert predeceased Marge and then to Larry if both Robert and Loru predeceased Marge. As Robert was alive at the time of Marge's death, Loru did not receive any inheritance herself from Marge's trust or estate.
Larry did not contest the trust within the specified time period but, after the expiration of the time to contest the trust, sued Robert and Loru. The operative complaint for the purposes of this appeal asserts a single cause of action for elder abuse of Marge as defined in Welfare and Institutions Code sections 15610.57, 15610.30 and 15610.43.
After discovery, Robert and Loru filed a motion for summary judgment arguing Larry did not have standing to bring a claim for elder abuse because he had not established a triable issue of fact as to whether Loru, who was the successor in interest before him under Marge's trust, predeceased Marge. Larry opposed, raising only a single argument in his two-page opposition: that Robert and Loru legally predeceased Marge because they committed financial elder abuse by accepting annual gifts from Marge in 2005 through 2009, during which time Marge was incapable of making financial decisions. In support of his opposition, Larry lodged letters from Dr. Lam and another physician, written in 2004, concerning Marge's mental state, which Robert and Loru objected to as unauthenticated. Larry did not assert standing as an intestate heir or interested person.
After hearing argument, the court granted Robert and Loru's evidentiary objections and refused to consider the letters, noting the letters would not have altered its decision on the motion for summary judgment in any event. The court then granted summary judgment, concluding Larry did not have standing because he had not presented sufficient evidence to establish a triable issue of fact as to whether Loru committed acts of elder abuse. After denying a motion for reconsideration regarding the admissibility of the two physician letters, the court entered judgment in favor of Robert and Loru.
I. Standard of Review and General Appellate Principles
The court properly grants summary judgment when the moving party establishes it is entitled to the entry of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant may do so by establishing the plaintiff does not have standing as a matter of law to bring the asserted claims. (Lickter v. Lickter (2010) 189 Cal.App.4th 712, 736 (Lickter).
We review an order granting a motion for summary judgment de novo. (Jones v. Wachovia Bank (2014) 230 Cal.App.4th 935, 945.) However, we need not consider arguments or theories not advanced in the trial court. (DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666, 676 (DiCola).)
As with any civil appeal, we presume the court's ruling is correct and supported by sufficient evidence and indulge all presumptions and inferences necessary to support the ruling. (Steele v. Youthful Offender Parole Bd. (2008) 162 Cal.App.4th 1241, 1251.) The appellant has the burden to provide an adequate record to overcome this presumption of correctness and show prejudicial error. (See Aguilar v. Avis Rent A Car System, Inc. (1999) 21 Cal.4th 121, 132.) In doing so, the appellant must provide citations to the factual record and must support each point by argument and authority where available. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C); City of Lincoln v. Barringer (2002) 102 Cal.App.4th 1211, 1239.) Our review is limited to those issues the appellant has adequately raised and briefed. (Bains v. Moores (2009) 172 Cal.App.4th 445, 455.)
II. Legal Principles Governing Standing to Assert Elder Abuse
In order to assert a cause of action for elder abuse claim under Welfare & Institutions Code section 15600, et seq. on behalf of a deceased individual, the plaintiff must have standing under Welfare & Institutions Code section 15657.3, subdivision (d). (Lickter, supra, 189 Cal.App.4th at pp. 722-23.) Welfare & Institutions Code section 15657.3, subdivision (d) confers standing on the personal representative of the decedent or—if the personal representative does not exist or is alleged to have committed the abuse—an intestate heir, the decedent's successor in interest, or an interested person as defined in section 48 of the Probate Code. (Lickter, at pp. 722-23.)
Relevant here, a defendant may assert standing as a successor in interest if he or she establishes each individual that would be the successor in interest to the estate before the plaintiff predeceased the decedent in accordance with Probate Code section 259. (Lickter, supra, 189 Cal.App.4th at p. 735.) In order to do so, Probate Code section 259 requires a showing of each of the following: (1) the individual is liable for physical abuse, neglect or financial abuse by clear and convincing evidence; (2) the individual acted in bad faith; (3) the individual acted recklessly, oppressively, fraudulently or maliciously; and (4) at all times from when the act occurred until the decedent's death, the decedent was substantially unable to manage her financial resources or to resist the fraud or undue influence. (Probate Code, § 259, subd. (a); Lickter, at p. 735.) Where the plaintiff seeks to establish standing in this manner at the summary judgment phase, he or she must establish there is at least a triable issue of fact as to whether each relevant individual meets the requirements of Probate Code section 259. (Lickter, at p. 735.)
On appeal, Larry argues the court erred by ignoring the conspiratorial conduct of Robert and Loru and that Robert's actions were attributable to Loru as a co-conspirator for the purpose of determining whether Loru met the requirements of Probate Code section 259. This argument is neither appropriate on appeal nor persuasive.
First, Larry waived this argument. Larry did not present this argument to the trial court, and instead argued below that Robert and Loru were both liable for financial abuse against Marge for accepting gifts while Marge's mental capacity was impaired. At most, Larry's opposition to Robert and Loru's motion for summary judgment stated the operative complaint alleged Robert and Loru were agents of each other. This is not enough to preserve the argument for appeal. Larry's opposition to the motion for summary judgment does not reference a conspiracy or aiding and abetting theory, nor does it present any facts or evidence tending to establish Robert and Loru were acting in concert or aiding and abetting one another. Larry also did not present any such evidence or argument during oral argument before the trial court. As such, Larry waived this argument and we need not consider it on appeal. (See, e.g., DiCola, supra, 158 Cal.App.4th at p. 676.)
Regardless, even if we consider this theory, Larry has not presented any evidence indicating the existence of a conspiracy between Robert and Loru. On appeal, Larry points only to allegations in the complaint alleging the existence of a conspiracy. (See Cal. Rules of Court, rule 8.204(a)(1)(C); Lickter, supra, 189 Cal.App.4th at p. 737.) As noted above, Larry also did not present any evidence of conspiracy to the trial court, pointing only to an allegation in his complaint that Robert and Loru were agents of one another. Mere allegations from the complaint, alone, do not create a triable issue of fact. (Frank & Freedus v. Allstate Insurance Co. (1996) 45 Cal. App. 4th 461, 475.) Therefore, Larry has not established a triable issue of fact as to whether Loru meets the requirements of Probate Code section 259 because he has not presented any evidence indicating the existence of a conspiracy in the first instance.
Moreover, even if Robert's actions were somehow attributable to Loru, Larry has still failed to present evidence indicating a triable issue of fact as to whether Loru meets the requirements of Probate Code section 259. First, Larry fails to cite any facts in the record or make any arguments regarding Robert's conduct, and we therefore have no basis on which to find a triable issue of fact exists as to whether Robert committed financial abuse. (See Cal. Rules of Court, rule 8.204(a)(1)(B), (C).) Thus, even if we impute Robert's actions to Loru, Larry has not presented a triable issue of fact as to whether Loru committed financial abuse as a result. Second, Larry fails to cite any evidence or make any argument indicating Marge was substantially unable to manage her financial resources or to resist the alleged fraud or undue influence as required by Probate Code Section 259. (Ibid.) In particular, Larry does not dispute the trial court's evidentiary ruling excluding the two physician letters concerning Marge's mental health. Finally, as the trial court recognized, the uncontested evidence presented by Robert and Loru indicates there was no financial abuse. Marge amended the trust in 2002, before Larry even alleged her mental capacity was impaired, and gave the annual gifts under the advice of estate planning counsel. Thus, even if we consider Larry's arguments on appeal, and even if Robert's actions are somehow attributable to Loru—which Larry has not established—Larry still fails to establish a triable issue of fact exists as to whether Loru meets the requirements of Probate Code section 259. (See Prob. Code, § 259, subd. (a); Lickter, supra, 189 Cal.App.4th at p. 735.)
As Larry is the successor in interest to the estate only if both Robert and Loru are deemed to predecease Marge, and Larry has not established a triable issue of fact as to whether Loru predeceased Marge, Larry does not have standing under Welfare & Institutions Code section 15657.3 to assert a claim for elder abuse on behalf of Marge. (See Lickter, supra, 189 Cal.App.4th at p. 739.) The trial court did not err in granting summary judgment and subsequently entering judgment on behalf of the defendants.
Finally, in the event we conclude the complaint does not clearly raise an issue of conspiracy or aiding and abetting, Larry requests we remand the matter with instructions to grant him leave to amend his complaint to add a claim for conspiracy to commit elder abuse. We do not make such a conclusion, nor would it be relevant to the issue on appeal to do so. As discussed above, Larry has presented no evidence of a conspiracy, and, even if we consider a conspiracy theory, Larry still has not established a triable issue of fact as to whether Loru committed financial abuse against Marge, on her own or as a co-conspirator. Larry had an opportunity to develop the necessary factual record through discovery under the operative complaint but failed to do so. Further, Larry waived this request by not making it to the trial court. (See, e.g., DiCola, supra, 158 Cal.App.4th at p. 676.) Therefore, we decline to remand the matter as Larry requests.
IV. Motion for Sanctions
Respondents also filed a motion for sanctions for a frivolous appeal pursuant to Civil Procedure section 907 and California Rules of Court, rule 8.276. Respondents argue the appeal totally and completely lacks merit and that it was, instead, prosecuted for the purposes of harassment and delay.
Sanctions may be imposed for a frivolous appeal if it meets either the subjective or objective test set forth in In re Flaherty (1982) 31 Cal.3d 637, 649-650 (Flaherty). Under this test, an appeal is frivolous "when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." (Id. at p. 650.) At the same time, the appellant has a right to present any arguable issues on appeal, even those that are extremely unlikely to prevail, and we must be careful not to chill the appellant's right to do so. (Ibid.)
Here, the appeal does not meet either of the Flaherty tests. Although we have serious concerns regarding the appellant's failure to raise the issue presented on appeal below or to provide any citations to the factual record supporting his arguments, we do not conclude his argument indisputably has no merit, or that the appeal was brought solely to harass or delay judgment. As such, we deny the motion for sanctions.
The judgment is affirmed. The motion for sanctions is denied. Defendants are awarded costs on appeal.
O'ROURKE, J. WE CONCUR: HALLER, Acting P. J. AARON, J.