Opinion
B296907
07-07-2020
Estate of WILLIAM GORDON CLINE, Deceased. JASMIN NERSESIAN, Petitioner and Appellant, v. RONALD AVELAR PINEDA, as Administrator, etc., Objector and Respondent.
Corey Evan Parker and Tania Williams, for Petitioner and Appellant. Frank O. Fox, for Objector and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. 17STPB05017) APPEAL from an order of the Superior Court of Los Angeles County, Barbara Johnson, Judge. Affirmed. Corey Evan Parker and Tania Williams, for Petitioner and Appellant. Frank O. Fox, for Objector and Respondent.
____________________
William Cline (decedent) died on April 10, 2017, leaving an estate worth approximately $500,000. Decedent's only living heir was his daughter, Doris Cline (Doris), whom decedent had adopted as an adult.
Respondent Ronald Pineda (Pineda), as Doris's nominee, filed a petition to administer the estate. Thereafter, appellant Jasmin Nersesian (Nersesian), decedent's longtime friend and caregiver, petitioned to probate a 2012 will that left decedent's entire estate to her. Pineda filed a will contest.
The will contest was tried to the court, which found that Nersesian was decedent's "care custodian" within the meaning of Probate Code sections 21380 and 21362, and that Nersesian had failed to rebut the statutory presumption that the donative transfers to Nersesian were the products of fraud or undue influence. The court therefore invalidated the will and transfers to Nersesian, and ordered that decedent's estate be distributed to Doris. Nersesian appealed.
All subsequent statutory references are to the Probate Code.
As we discuss, substantial evidence supported the probate court's findings that Nersesian was decedent's care custodian, and that she failed to rebut the statutory presumption of fraud and undue influence. We therefore affirm the probate court's order in full.
FACTUAL AND PROCEDURAL BACKGROUND
I.
Facts
A. Administrator's Evidence
1. Background
Decedent was born in February 1937 and died on April 10, 2017, at the age of 80 years. He was diagnosed with diabetes and osteoporosis sometime before 2006, and he suffered from dementia during the last two or three years of his life. He had difficulty walking, which became progressively worse as time went on, and he used a walker or a cane after heart surgery in 2012.
Decedent had a series of live-in caregivers from at least 2006 until his death, and he began receiving in-home nursing care after his 2012 heart surgery. He received hospice care at the end of his life.
Decedent never married, and he had no biological children. He met Doris Cline in El Salvador in 1979, when she was nine years old. From 1992 until 2012, decedent traveled to El Salvador two or three times a year to visit Doris and her mother, staying with them several months at a time. Doris also visited decedent in the United States about once a year from 2001 until 2012. Between 2000 and 2012, Doris and decedent spoke by phone about every two weeks.
Decedent adopted Doris in 2000, when she was 32 years old. In 2002, decedent showed Doris a copy of his will, which left everything to her. He told Doris he planned to leave her his whole estate because she was his only family.
2. Decedent's Relationship with Nersesian
Decedent met Nersesian in 2006, when he was 69 years old, and she was 43 years old. Nersesian was unemployed and was being supported by her brother. Decedent and Nersesian became friends. Beginning in about 2007, Nersesian drove decedent to the store once a week, went out to eat with him, and drove him to doctor's appointments.
After decedent's heart surgery in 2012, Nersesian came to decedent's home every Tuesday, Thursday, and Sunday. She took decedent shopping, helped him shower, drove him to doctor's appointments, helped him with his medication, and paid his bills. On several occasions, she took decedent to the hospital and signed his admission papers. She held power of attorney for decedent, hired new caregivers for him as necessary, and helped him with legal matters. She referred to herself in the presence of several witnesses as decedent's caregiver and said decedent was paying her for her caregiving services.
In 2012, decedent told several people in Nersesian's presence that Nersesian was his girlfriend and that he wanted to marry her. At about the same time, Nersesian told decedent that his daughter Doris had never showed him any love, affection, or care.
In May 2012, decedent signed a new will, drafted by Attorney Dennis Sanchez, which left decedent's entire estate to Nersesian. Nersesian helped decedent choose Sanchez, set up the appointment with Sanchez, and drove decedent to Sanchez's office. Nersesian and decedent met with Sanchez before the will was drafted, and Nersesian brought decedent to Sanchez's office to sign the will. Only Nersesian got a signed copy of the will.
After the will was executed, Nersesian came to Sanchez's office to pick up a life insurance change-of-beneficiary form. Nersesian returned the signed form, which made Nersesian the sole beneficiary of decedent's life insurance policy. Sanchez never met with decedent about the change.
Sometime in 2012, decedent added Nersesian's name to his checking account. Each month, Nersesian took $1,700 out of decedent's checking account to pay decedent's expenses. Nersesian also paid for some of her own expenses, including her car insurance, from the checking account, and she kept whatever was left of the $1,700 for herself.
Nersesian kept decedent's personal documents at her house and arranged to have decedent's bank statements sent to her brother's home in Temple City, rather than to decedent's home. She later had the statements sent to the home of her boyfriend, Robert Hernandez.
Nersesian and Hernandez dated on and off from 2007 until decedent's death in 2017.
One of decedent's caregivers, Natalie Garcia, testified that Nersesian took steps to cut decedent off from everyone he was close to and to keep him from speaking to his daughter. Garcia recalled that during one of decedent's hospitalizations, Nersesian removed decedent's phone and a large board with phone numbers written on it from decedent's bedroom. Garcia also said that if decedent became close to any of his caregivers, Nersesian fired them or reported them to the police.
In 2016, Nersesian told Garcia that decedent was estranged from his daughter and did not want to speak to her. Garcia subsequently asked decedent whether he was upset with his daughter; he said no, that he had not been able to get in touch with her and had been waiting for her to call him.
3. 2016 Elder Abuse Investigation
In 2016, the County received reports that Nersesian was abusing decedent. Jose Melendez, a county social worker, investigated the reports. Decedent told Melendez that Nersesian was his caregiver and helped him pay his bills. Decedent said he had not been able to communicate with his daughter since he met Nersesian, and he asked Melendez to call his daughter and try to find out why. Decedent did not speak negatively about his daughter or suggest his relationship with his daughter was strained. To the contrary, decedent showed Melendez a document indicating he was leaving his entire estate to his daughter. Melendez was able to get in touch with Doris, who sounded happy to hear from someone on behalf of decedent. Melendez tried many times to meet with Nersesian, but she made excuses why she could not meet him.
Melendez ultimately could not determine whether Nersesian was abusing decedent, but he referred the case to law enforcement.
4. Decedent's Death
Decedent began receiving hospice care in March of 2017. At around that time, decedent's caregiver, Garcia, and her husband, Ruben Fimbres, heard Nersesian say, "I [have] been waiting 11 years for this. . . . I have this coming, I deserve this." "This" referred to decedent's death. Nersesian also asked Garcia if she thought there was any possibility she could get some of the money from decedent's "big" account before he died; Garcia said she did not know.
In March or April 2017, Nersesian told the hospice supervisor, Glenda Harris, that she wanted decedent moved to her home or the home of her boyfriend, Robert Hernandez. Harris said decedent could not be moved if he wanted to stay in his home. Nersesian then asked if decedent would be moved if she called 911; Harris said that would happen only if it were medically necessary.
Shortly after her conversation with Harris, Nersesian called 911 and had decedent taken to the hospital. When decedent was discharged, Nersesian took him to Hernandez's home. Nersesian called decedent's caregiver, Garcia, and told her that decedent had died in the hospital; Garcia subsequently learned decedent was still alive, but that she was not permitted to see decedent because Nersesian had made an elder abuse allegation against her.
In April 2017, decedent's daughter Doris flew to Los Angeles from El Salvador and visited decedent briefly in Hernandez's home. Decedent told Doris he did not want to be in Hernandez's home and wanted Doris to take care of him. Hernandez ended the visit after about 20 minutes, but told Doris she could visit again the next day. When Doris tried to visit the following day, however, Hernandez and Nersesian would not let her into the house. Doris was not able to see decedent again before his death.
On April 5, 2017, five days before decedent died, Nersesian asked decedent's hospice supervisor, Glenda Harris, whether there would be an autopsy if decedent took too many sleeping pills, and whether Nersesian would be blamed for it. Harris was extremely concerned by Nersesian's question and called adult protective services.
When decedent died, he owned two pieces of real property, and he had about $1,700 in a checking account and about $108,000 in a savings account. Nersesian withdrew all the money from the checking account and attempted to access the money in the savings account by falsely attesting that decedent's estate was worth less than $150,000.
About a month before trial, Nersesian called Harris, the hospice supervisor, to ask whether Harris could change her documentation to say that Nersesian had expressed concern for decedent before he died. Harris said she could not do that because Nersesian had not said she was concerned about decedent.
B. Nersesian's Evidence
Nersesian testified that she was decedent's friend, not his caregiver. She said decedent liked to refer to her as his girlfriend, and he once asked her to marry him.
Decedent's friend, Donald Gunnells, testified that decedent spoke of Nersesian often. Decedent told Gunnells he hoped to marry Nersesian one day and planned to leave his estate to her.
Dennis Sanchez, the attorney who prepared decedent's 2012 will, testified that decedent had said he had an adopted daughter who had done something that displeased him. Decedent said he wanted to marry Nersesian, whom he referred to as his girlfriend.
Robert Hernandez, Nersesian's boyfriend, testified that decedent was adamant that Nersesian was his friend, not his caregiver. According to Hernandez, decedent was angry with his daughter Doris over an unpaid loan. Hernandez said decedent never asked him to call Doris, and when Doris tried to call decedent, decedent would refuse to answer the phone. Hernandez and Nersesian moved decedent to Hernandez's house because decedent's own home was a "bad environment" and decedent's caregivers "weren't good people." Hernandez did not let Doris visit decedent at his house because of "what she did."
II.
Probate Court Proceedings
In June 2017, Pineda, as Doris's nominee, filed a petition for letters of administration and requested to be appointed administrator of decedent's estate. The probate court granted the petition. Two days later, Nersesian filed a petition for letters testamentary, to probate the 2012 will, and to be appointed executor of decedent's estate. Pineda filed a will contest.
The probate court tried the probate petition and will contest over four days in December 2018. On February 5, 2019, the court issued an order denying the petition to probate the will and invalidating the bequests to Nersesian. The court found that decedent was a dependent adult and Nersesian was his statutory care custodian. Thus, a presumption arose under Probate Code section 21380 that the will and life insurance beneficiary designation were the products of fraud or undue influence. The court further concluded Nersesian had failed to rebut the presumption, noting that the exclusion of Doris from decedent's will was inconsistent with the generous financial support decedent had provided her during his lifetime, as well as with decedent's statement to social worker Jose Melendez that Doris would inherit his estate. The court thus ordered decedent's estate distributed to Doris, and ordered Nersesian to transfer to Doris any sums she had already received from decedent's estate.
The court served notice of entry of its order on February 5, 2019. Nersesian timely appealed.
The February 5, 2019 order is appealable pursuant to section 1303, as a "grant or refusal to grant" an order admitting a will to probate. (§ 1303, subd. (b); see also Code Civ. Proc., § 904.1, subd. (a)(10) [appeal may be taken from "an order made appealable by the Probate Code"].)
DISCUSSION
Nersesian attacks the probate court's finding as contrary to law and based on the court's "own personal biases and assumptions." She urges that the weight of the evidence presented at trial demonstrated she was not paid for assisting decedent, and neither decedent's will nor his life insurance beneficiary designation were the products of fraud or undue influence.
I.
Standard of Review
We review the trial court's legal conclusions de novo, and its factual findings for substantial evidence. (Newstart Real Estate Investment LLC v. Huang (2019) 37 Cal.App.5th 159, 163; Butler v. LeBouef (2016) 248 Cal.App.4th 198, 208, 211; Estate of Austin (2010) 188 Cal.App.4th 512, 520.)
Under the substantial evidence standard of review, " ' "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 [trier of fact]." ' " (In re Marriage of McManamy & Templeton (1993) 14 Cal.App.4th 607, 610.) " ' "We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor in accordance with the standard of review so long adhered to by this court." ' " (Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968.) "We do not reweigh the evidence, evaluate the credibility of witnesses, or resolve evidentiary conflicts. [Citation.] The judgment will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. [Citation]" (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; see Lenk, at p. 968 [" '[N]either conflicts in the evidence nor " 'testimony which is subject to justifiable suspicion . . . justif[ies] the reversal of a judgment, for it is the exclusive province of the [trier of fact] to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends.' " ' "].)
Although Nersesian acknowledges that different standards of review apply to the probate court's legal and factual findings, she suggests that a de novo standard applies to the court's conclusion that she was decedent's statutory "care custodian." She is mistaken. Although the meaning of a statute is subject to our de novo review, we review for substantial evidence the probate court's application of the law to disputed facts. (E.g., People v. The North River Ins. Co. (2017) 18 Cal.App.5th 863, 871; Butler v. LeBouef, supra, 248 Cal.App.4th at p. 208.) Thus, because the facts in this case are disputed, our review of the probate court's findings is for substantial evidence.
II.
The Probate Court's Findings Are
Supported by Substantial Evidence
A. Legal Principles
Section 21380 provides that an instrument making a donative transfer from a dependent adult to his or her "care custodian" is presumed to be the product of fraud or undue influence if the instrument was executed during the period in which the care custodian provided services to the dependent adult, or within 90 days before or after that period. (§ 21380, subd. (a)(3).) The presumption created by this section "is a presumption affecting the burden of proof," which may be rebutted "by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence." (Id., subd. (b).)
A donative transfer is not subject to section 21380 if the instrument "is reviewed by an independent attorney who counsels the transferor, out of the presence of any heir or proposed beneficiary, about the nature and consequences of the intended transfer, including the effect of the intended transfer on the transferor's heirs and on any beneficiary of a prior donative instrument, attempts to determine if the intended transfer is the result of fraud or undue influence," and signs and delivers to the transferor a certificate of independent review. (§ 21384.) It is undisputed that a certificate of independent review was not prepared in this case.
A "dependent adult" is a person who, at the time of executing the instrument at issue, was 65 years of age or older and either (1) "was unable to provide properly for his or her personal needs for physical health, food, clothing, or shelter," or (2) due to deficits in mental functions, "had difficulty managing his or her own financial resources or resisting fraud or undue influence." (§ 21366, subd. (a).)
A "care custodian" is a person who provides "health or social services" to a dependent adult, except that " 'care custodian' does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult's death, and (3) before the dependent adult was admitted to hospice care, if the dependent adult was admitted to hospice care." (§ 21362, subd. (a), italics added.) "Health and social services" are services provided to a dependent adult "because of the person's dependent condition, including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances." (§ 21362, subd. (b).)
If a donative transfer fails under this part, the instrument making the donative transfer "shall operate as if the beneficiary had predeceased the transferor without spouse, domestic partner, or issue." (§ 21386.)
B. Substantial Evidence Supported the Probate Court's Findings
Nersesian contends the probate court erred in finding she was a "care custodian" and that she failed to rebut the statutory presumption of fraud and undue influence. As we discuss, the claims are without merit.
1. Substantial Evidence Supported the Finding that Nersesian Was Decedent's "Care Custodian"
The undisputed evidence at trial established that decedent was a dependent adult within the meaning of section 21366, subdivision (a). For more than five years before he died, decedent suffered from diabetes, osteoporosis, and heart disease. He had difficulty walking, which became progressively worse as he aged, and he required the assistance of a full time caregiver to help him get in and out of the shower, maintain his home, shop for food, and pay his bills. His needs became especially acute during the last two or three years of his life when he was diagnosed with dementia. Decedent therefore met both prongs of section 21366, subdivision (a)—he was a person over the age of 65 who (1) "was unable to provide properly for his . . . personal needs for physical health, food, clothing, or shelter," and (2) due to deficits in mental functions, "had difficulty managing his . . . own financial resources or resisting fraud or undue influence."
The undisputed evidence also established that Nersesian provided decedent with "health and social services" within the meaning of section 21362, subdivision (b). As we have said, health and social services are services provided because of a person's dependent condition, "including, but not limited to, the administration of medicine, medical testing, wound care, assistance with hygiene, companionship, housekeeping, shopping, cooking, and assistance with finances." (§ 21362, subd. (b).) Here, Nersesian and others testified that she assisted decedent getting in and out of the shower, took him shopping, did his banking, organized his medication, and paid his bills. She also took him to doctor's visits and to the hospital, signed his hospital admission papers, and helped him with legal matters. These services indisputably were necessitated by decedent's "dependent condition" and are within the plain language of section 21362. (§ 21362, subd. (b).)
Notwithstanding the foregoing, Nersesian contends she was not decedent's "care custodian" because she was not paid for her services, and thus she was within the exception provided by section 21362, subdivision (a) for caregivers who have a personal relationship with a dependent adult and provide health and social services "without remuneration." In support, she urges that although she received money from decedent's checking account, to which she had access, "[t]here is no evidence that access to this joint bank account or transfers therefrom constituted remuneration in exchange for Ms. Nersesian's services."
Nersesian's claim is without merit. Several witnesses testified that Nersesian said decedent was paying her for her caregiving services, and Doris said decedent told her he was paying Nersesian for her services "in cash." It was undisputed, moreover, that Nersesian kept for herself some of the $1,700 she withdrew from decedent's checking account each month and paid for some of her expenses, including her car insurance, from that account. Although Nersesian insists this money was not "remuneration for 'her' services," the probate court was not required to so conclude. (See People v. Sanchez (2003) 113 Cal.App.4th 325, 330 ["It is the exclusive function of the trier of fact to assess the credibility of witnesses and draw reasonable inferences from the evidence."]; People v. Massie (2006) 142 Cal.App.4th 365, 368-369 [an inference "is a logical and reasonable conclusion to be drawn from the proof of preliminary facts. It is the province of the trier of fact to decide whether an inference should be drawn and the weight to be accorded the inference."].) To the contrary, the probate court reasonably could have concluded that the payments Nersesian received monthly from decedent were compensation for her caregiving services, and thus that Nersesian did not come within the statutory exception for caregivers who provide services without remuneration.
2. Substantial Evidence Supported the Probate Court's Finding That Nersesian Did Not Rebut the Presumption of Fraud and Undue Influence
Nersesian contends that even if the statutory presumption of fraud and undue influence arose, the trial court erred in finding she had not rebutted the presumption. In support, she highlights her own evidence—namely, Attorney Sanchez's testimony that decedent told Sanchez that he was upset with his daughter and did not feel pressured or coerced to make a new will; Donald Gunnells's testimony that decedent said he wished to leave his estate to Nersesian; and Nersesian's testimony that decedent "was the person to determine to execute the Final Will." On the basis of this "unrebutted" evidence, Nersesian contends the probate court's findings were "unfounded" and "based only on the Trial Judge's assumptions rather than evidence."
Nersesian urges that even if she did not establish the absence of fraud or undue influence by clear and convincing evidence, the probate court should have found she met her burden under the common law to show the absence of fraud or undue influence pursuant to the "regular burden of proof of preponderance of the evidence." We are not aware of any authority suggesting the probate court should have applied a preponderance standard to Nersesian's burden of proof, but in any event the quantum of proof required at trial is immaterial to our appellate review. "As our Supreme Court has explained, the ' "clear and convincing" ' standard was adopted 'for the edification and guidance of the trial court, and was not intended as a standard for appellate review.' [Citation.] The clear and convincing requirement in the trial court does not change the rule on appeal that we consider 'conflicting evidence in a light favorable to the judgment, with the presumption the trier of fact drew all reasonable inferences in support of the verdict.' [Citation.] The practical effect of this rule is that the quantum, or weight, of the evidence before the [trier of fact] is not a factor for appellate review." (Mazik v. Geico General Ins. Co. (2019) 35 Cal.App.5th 455, 462-463.)
Nersesian's framing of the issue both ignores the substantial evidence of fraud and undue influence presented by the estate's administrator, and misunderstands the scope of our appellate review. As we have said, as an appellate court, we do not reweigh the evidence, but rather consider whether the findings of the probate court were supported by substantial evidence. Thus, "the test on appeal is not whether substantial evidence supports a finding the appellant wishes the court had made but rather whether substantial evidence, contradicted or not, supports the conclusions the court did make." (Adoption of A.B. (2016) 2 Cal.App.5th 912, 925, italics added.) Stated differently, " 'the test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.' " (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) "If this 'substantial' evidence is present, . . . the judgment must be upheld." (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
Considering the trial record through the lens of our standard of review, we necessarily conclude that substantial evidence supported the trial court's finding that decedent's donative transfers to Nersesian were the products of fraud or undue influence. The evidence presented at trial established that when decedent met Nersesian in 2006, he was already dependent on caregivers to assist him with keeping house, grocery shopping, and personal care because he could no longer drive and had difficulty walking. Nersesian made herself indispensable to decedent by visiting frequently, taking him shopping, and accompanying him to restaurants. She provided him with additional care after his physical condition further deteriorated in 2012 following heart surgery. The evidence thus supported an inference that by the time decedent executed his will in May 2012, he had become extremely dependent on Nersesian to help him with many activities of daily living and with managing his finances and household.
The evidence presented at trial also supported an inference that decedent was especially vulnerable to Nersesian's influence because she isolated decedent from his friends and relatives and allowed him to believe she was interested in him romantically. Although Nersesian said her relationship with decedent was always platonic, she apparently did not correct him when he referred to her as his girlfriend and told others he hoped to marry her. At the same time, Nersesian took steps to cut decedent off from everyone he was close to, including by telling decedent that Doris did not care for him, and by preventing Doris from speaking to decedent on the telephone after 2012. Finally, during the last weeks of his life, Nersesian ensured decedent could not make a new will by moving decedent into the home of her boyfriend, apparently against decedent's wishes, and preventing decedent's daughter and caregiver from visiting him.
Considered together, this evidence provided substantial support for the conclusion that decedent's donative transfers to Nersesian were the result of fraud or undue influence. The probate court did not err by so concluding.
DISPOSITION
The order is affirmed. Respondent is awarded his appellate costs.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EDMON, P. J. We concur:
LAVIN, J.
DHANIDINA, J.