Filed 10/23/19 Dean v. Martinez CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

LAWRENCE DEAN II, as Trustee, etc.,

Plaintiff and Appellant,

v.

JOSEPH W. MARTINEZ,

Defendant and Respondent.

D075549

(Super. Ct. Nos. PROPS1600462 & CIVDS1605008)

APPEAL from a judgment of the Superior Court of San Bernardino County, Stanford E. Reichert, Judge. Affirmed.

Law Offices of Vera & Barbosa and Ronald T. Vera, for Plaintiffs and Appellants.

Brown White & Osborn, Jack B. Osborn and John W. Short, for Defendant and Respondent Joseph W. Martinez.

Plaintiff and appellant Lawrence Dean II, as special administrator of the estate of Jose Vasquez (the Estate), appeals from a portion of the November 8, 2017 judgment ruling that defendant and respondent Joseph W. Martinez (Joseph), the step-son of Jose, did not commit elder abuse against Jose as Jose had alleged in the fourth cause of action of his verified complaint; and that, based on such ruling, Jose was not entitled to an award of attorney fees.

The Estate contends the “sole issue” on appeal is “whether there was a preponderance of evidence at trial [that] would lead the trial court to determine that financial elder abuse occurred.” The Estate further contends that, because such evidence exists in the record, the court was “mandated” to award Jose attorney fees. (See Welf. & Inst. Code, § 15657.5, subd. (a). ) As we explain, we disagree and affirm the judgment.

FACTUAL BACKGROUND

Jose married Annie, Joseph’s mother, in 1971, when Joseph was two years old. Jose previously had been married, and he and his former wife had six children, one of whom had predeceased Jose. Annie passed away on Thanksgiving day, 2015.

Jose and Annie created the Vasquez Trust dated February 20, 2001 (Trust). The Trust named Joseph as successor trustee and Antoinette Martinez (Antoinette), Joseph’s wife, as the alternate successor trustee. The Trust provided upon the death of the surviving trustee, the assets of the Trust would be divided as follows: estate of Joseph (75 percent); estate of Josie Aguilar (5 percent); estate of Rosemary Gonzales (4 percent); estate of Richard Vasquez (4 percent); estate of James Vasquez (4 percent); estate of Fredy Vasquez (4 percent); and estate of Susan Fuston (4 percent).

The Trust further provided if no beneficiaries or alternate beneficiaries survive the trustees, then the net assets of the Trust would be distributed 75 percent to the “heirs at law of grantor-wife” (i.e., Annie), and 25 percent to the “heirs at law of the grantor-husband” (i.e., Jose). Thus, the record shows as originally drafted, Joseph (or his estate) would receive 75 percent, and Jose’s children (or their estates) 25 percent, of the Trust’s assets upon the death of the surviving trustee.

The Trust also gave the trustees power to revoke it; to change the successor trustee; and included a provision if and when a trustee became incapacitated due to “mental or physical infirmity.” Jose and Annie as individuals executed a grant deed recorded on February 23, 2001, transferring title in real property located on “North J” Street in San Bernardino (sometimes, J Street Property) to the Trust. Jose and Annie bought the J Street Property with community funds from money they made operating a “mom and pop” grocery store, run mostly by Annie.

Joseph testified he was at the “table and listened” when Jose and his mother Annie executed the Trust in 2001. Prior to the Trust, Joseph testified that Jose and Annie had wills that gave Joseph “everything”; that at or near the time Annie executed the Trust, Joseph told his mother it was her money and she should “do as [she] see[s] fit” with it; that the individual who prepared the Trust reviewed its provisions with Jose and Annie, who thereafter initialed the bottom of each page of the Trust; and that shortly after the Trust was executed, Joseph kept the original for safekeeping.

Joseph testified that originally Jose and Annie did not want any of Jose’s children to be beneficiaries under the Trust; that Jose for more than 40 years had told Joseph he did not “want anything to go to [Jose’s] side of the family for various reasons”; that both Jose and Annie also said they wanted Joseph to get “everything”; and that Annie in particular told Joseph she wanted him, and not Jose’s children, to have the J Street Property. Joseph further testified he was “fighting” to give Jose’s children “something” under the Trust, despite Jose being adamant they end up with nothing.

Joseph also testified that after 2001, per his mother’s request, he was “involve[d]” in the “financial affairs” of Jose and Annie. Often Annie would ask Joseph for investment advice. Sometimes they would discuss such matters on the phone, and other times in person, including in Jose’s presence.

Joseph testified in April 2004 he opened an annuity in his name alone that was funded by Jose and Annie, after Annie asked him to invest the money but not to lose any of it. In investing the money, Joseph always looked out for the “best interest[s]” of Jose and Annie, as Joseph knew they both trusted him. According to Joseph, the annuity earned 7 percent interest and the money from the annuity was available for use by Jose and Annie after 2011.

In response to a subpoena duces tecum, Joseph at trial produced records from the inception of the annuity. Joseph explained certain monies were spent from the annuity, including for insurance when Annie totaled her car, and when Jose and Annie needed money to pay caregivers. Significantly (and a key fact omitted from the Estate’s “summary” of the evidence in its opening brief, as discussed post), Joseph testified that the last statement showed there was $68,000 “and change” remaining in the account; that he had never spent any of this money on himself; and that he had used his own money to pay some of Jose and Annie’s bills.

In 2009, Jose and Annie in their individual capacities executed and recorded a grant deed attempting to transfer title to the J Street Property to Jose, Annie, and Joseph, as joint tenants with the right of survivorship. Joseph testified he helped to prepare the grant deed because Annie wanted him on title. He further testified his mother for “decades” had talked about putting him on title to the J Street Property; that it was the decision of Jose and Annie, and theirs alone, to do so; and that he merely followed the directions of his mother, who conveyed to Joseph that this was also what Jose wanted. Joseph testified his mother also wanted him on title to the J Street Property because she was concerned he would be disinherited if something happened to her.

In November 2013, Jose and Annie executed and recorded a quitclaim deed, attempting to transfer the J Street Property outright to Joseph. Joseph testified that it was Annie’s idea to quitclaim the J Street Property to him; that he recalled the specific discussion regarding this transfer, which took place around a table in Jose and Annie’s home; and that Jose was present when that discussion took place. As part of that discussion, Joseph recalled Jose and Annie were concerned that, after they passed away, their home could be lost if the government sought reimbursement for the medical benefits Annie was then receiving.

The record shows almost immediately after Annie passed away in November 2015, the relationship between Joseph, on the one hand, and Jose and his children, on the other hand, changed dramatically. Prior to her passing, Annie had been Jose’s main caregiver, as Jose suffered from various medical conditions, including being legally blind and hard of hearing. Once Annie passed away, Jose’s children moved into the J Street Property and started caring for him.

Shortly thereafter and even before Annie’s funeral, a chain was placed around the front gate of the J Street Property preventing Joseph and his wife Antoinette from gaining access to the home, including to obtain clothes to dress Annie in for her funeral, and from seeing or talking to Jose and ensuring his well-being, which, according to Joseph, they had been doing for about 40 years.

Joseph testified he also was prevented from speaking with Jose over the telephone, as members of Jose’s family and/or his caregivers stopped answering Joseph’s calls. Joseph in response called police, who conducted a welfare check on Jose. Joseph also called Adult Protective Services, and reached out to Jose’s doctor, asking the doctor to “assess” Jose to ensure his well-being.

The record further shows there were additional disagreements between Joseph and his stepsiblings shortly after Annie’s death, including when Joseph cut the chain on the front gate of the J Street Property; when Joseph went to the department of motor vehicles in a failed attempt to register in his name the car Annie had driven, based on her promise to give the car to her grandson (i.e., Joseph’s son) after she passed away; when Joseph tried to serve one of his half-siblings with a three-day notice to quit after finding he had been locked out of the J Street Property; and when Jose’s children held a “yard sale” that included many items belonging to Annie that held significant sentimental value for Joseph.

In March 2016, Jose and the Trust filed a lawsuit seeking to quiet title to the J Street Property, asserting claims against Joseph for injunctive and declaratory relief, and elder abuse. In May 2016, Joseph in response filed his own lawsuit, seeking to remove Jose as trustee based on his alleged infirmity. As noted, the two lawsuits were consolidated for trial.

Also in March 2016, the record shows Jose executed a last will and testament providing that each of his five surviving children and his caretaker would take an interest in “proportional equal representation” of his entire estate, “including all ownership in real property.” This will named his son James Vasquez and the caretaker as coexecutors. At or near the same time, Jose revoked the Trust. After the lawsuits were filed, Joseph had no further contact with Jose.

The record shows two of Jose’s doctors testified at the trial. Kamal Kejriwal, M.D. testified that Jose was 91 years old on examination; that he saw Jose twice; and that Jose did appear to have some memory disorder due to a stroke, but otherwise showed no other signs of dementia. Tony Cho, M.D. testified that Jose was also his patient; that in December 2016, Dr. Cho was of the opinion that Jose “had the capacity to decide who was going to take care of his financial affairs”; and that, at the request of one of Jose’s children and/or caregivers who had accompanied Jose to a medical appointment, Dr. Cho wrote a very short statement memorializing his conclusion of Jose.

Several other witnesses also testified at the consolidated trial. Antoinette testified she and Joseph had been married for 42 years. She also testified she saw her mother-in-law Annie “often,” and her relationship with Annie and her father-in-law Jose was “good.”

Antoinette recalled a conversation when she, Joseph, Jose, and Annie were all sitting at the dining room table inside the J Street Property, in which Jose said, “his kids were not, absolutely not, to have anything of his or the property.” Antoinette also testified that Annie had said she and Jose both wanted the J Street Property to go to Joseph; that Annie wanted Antoinette to have all of her “personal jewelry” after Annie passed away; and that Annie had given Antoinette some pieces of jewelry before Annie died. Despite Annie’s wishes, once Annie passed away Antoinette made no attempt, nor did she ask Joseph to attempt, to obtain the remainder of Annie’s jewelry.

Antoinette also testified regarding the relationship between Jose and Annie and Jose’s children over the course of more than 40 years. Antoinette stated she and Joseph spent “every holiday” with Jose and Annie; and Jose’s children “[s]eldom” attended these holiday parties. Antoinette added, “As the years progressed, you couldn’t count on [Jose’s children] being there. Not even on their birthday or father’s day.”

Within two days after Annie passed away, Antoinette and Joseph went to the J Street Property to check on Jose. According to Antoinette, Joseph was unable to open the outside wrought-iron gate with his key. Antoinette next tried her key, and found it too would not open the gate. Antoinette testified they were “surprised” they had been “locked out” of the J Street Property. Concerned for Jose and worried he might be in the home alone, Joseph in response made numerous unsuccessful calls to the home’s landline and to the cellphones of Jose’s caregivers.

Jose’s children also testified at the trial. Susan Fueston (Susan), Jose’s youngest, testified she started caring for her father when Annie was admitted to the hospital, shortly before Annie passed away. Susan testified they decided to change the locks to the J Street Property after Joseph and his son Nathaniel came to the home and took “stuff” from Jose.

James Vasquez (James) testified that after Annie passed away, his father asked him to check the title of the J Street Property. James went to a governmental office and discovered the recorded quitclaim deed. James made a copy of the deed and gave it to Jose’s caregiver. James testified that Jose did not want Joseph to get the J Street Property; and that Joseph wanted Annie’s car so he could sell it and use the money to pay for her funeral. In 2016, James took Jose to Mexico to visit relatives. Based on this trip and their time together, James believed his father was “pretty sharp” and had “all his mental faculties.”

When asked if he knew Joseph was holding money (i.e., ostensibly the annuity) belonging to Jose and Annie, James testified as follows: “Well, as far as I knew is that he was—Joey [i.e., Joseph] was working trying to make my dad some money. At that time—at the same time, I was doing the same thing. I was in the stock market too. And my dad found out about that and Annie. So they wanted to kind of invest too to get some money so that Annie’s son, I guess, he invested some money for my dad. That’s as far as I know.”

Jose also testified at the trial. He provided the address of the J Street Property; recalled he had lived at the property for 37 years; and proclaimed he built the home from the “bottom up.” He also recalled many other details of his life, including when he was born, where he went to grammar school, and where he worked and for how long.

Jose was clear that he did not want Joseph inheriting anything from his estate. Jose recalled a conversation between Annie and Joseph when Annie signed the quitclaim deed in 2013. Jose testified he signed a part of his name on that deed after Annie had signed it, even though Jose then did not want Joseph to get the J Street Property. Jose admitted that Annie could have told Joseph they wanted him to get the J Street Property, but Jose never agreed to that arrangement.

Jose offered conflicting testimony on whether Annie read him the contents of the quitclaim deed, and added, “They just did what they wanted to.” Jose also testified that he felt something was “wrong” when he signed the quitclaim deed; that he had considered tearing up that document but did not do so; and that he never told anyone, including his children or caregivers, he did not want Joseph to receive the J Street Property.

PROCEDURAL BACKGROUND

On November 8, 2017, the court entered judgment, as noted ante. The judgment noted that, after the multiday bench trial, the parties submitted posttrial briefing. The court on May 1, 2017, issued a tentative proposed judgment. Jose moved to modify the tentative, which was opposed by Joseph. An unreported hearing was held on August 30, 2017.

Briefly, the court denied Joseph’s petition to remove Jose as trustee, finding Joseph failed to prove by a preponderance of the evidence that Jose could not discharge the duties of trustee based on mental or physical infirmity. The court also found Jose had “decisional capacity” at the time he revoked the Trust, even though the validity of the revocation was outside the contested issues tried by the court.

As more pertinent to this appeal, with respect to the declaratory relief cause of action the court validated the Trust transfer deed recorded on February 23, 2001; and invalidated both the grant deed with the right to survivorship recorded on September 10, 2009, and the quitclaim deed recorded on November 12, 2013. In invalidating the two latter deeds, the court found Jose and Annie lacked the capacity as individuals to make those transfers because the Trust then owned the J Street Property. The court further found Joseph had no interest whatsoever in the J Street Property; and, at least for purposes of the consolidated case, the Trust owned the property.

Finally, regarding the elder abuse cause of action which is the focus of this appeal, the court in ruling in Joseph’s favor found as follows: “1. The court finds that the Plaintiffs failed to carry their burden of proof that the grant deed or the quitclaim deed were obtained by undue influence or elder abuse. [¶] a. The grant deed . . . and the quit claim deed . . . were both signed by Annie Vasquez. Because both Annie Vasquez and Jose Vasquez signed both deeds, . . . the Court cannot find that there was elder abuse with respect to Jose Vasquez at the time he signed these documents. [¶] 2. With respect to the allegation that [Joseph] has taken about $85,000 of Vasquez’s or the . . . Trust[‘]s money, the court does not find that the Plaintiffs have met their burden of proof to show that [Joseph] used the money for his own ends. [¶] 3. The court finds that the Plaintiffs have failed to meet their burden of proof that Joseph . . . took any property of Jose Vasquez from the J Street [P]roperty from December 1, 2015[] to present. [¶] 4. Therefore, the court finds that there is no basis to determine emotional distress damages for pain and suffering. [¶] 5. Therefore, the court also denies the request for attorney’s fees by Jose Vasquez for elder abuse. [¶] 6. The court therefore finds for Defendant [Joseph] Martinez on the . . . cause of action for elder abuse.”

Near the conclusion of the judgment, the court reiterated that Jose was not entitled to an award of attorney fees, as the court “so indicated at the [unreported] hearing on August 30, 2017.”

DISCUSSION

A. The Estate’s Opening Brief

As noted, the Estate argues the “sole issue” on appeal is whether it established by a preponderance of the evidence that Joseph committed elder abuse against Jose. Given that Jose has died, in our view the “real issue” on appeal is whether, upon such a showing, the court erred in refusing to award Jose/the Estate attorney fees under the Act. In support of its argument, the Estate in its opening brief argued the following facts were “undisputed”: that, despite the existence of the Trust and the Trust transfer deed of February 23, 2001, Joseph “induced” Jose and “his wife” in September 2009 to sign the grant deed with the right of survivorship; that in November 2013, Joseph went to “Plaintiff’s home and requested Mr. Vasquez and his wife . . . sign [the] quitclaim deed”; and that Jose was an elder person as described under the Elder Abuse and Dependent Adult Civil Protection Act (§§ 15600 et seq. (the Act) & 15610.27 [under the Act, anyone living in the state who is 65 years of age or older qualifies as an “elder”].)

The Estate further argues in its opening brief that the evidence proffered at trial was “more than substantial” to show Joseph “was intent on not just depriving Plaintiff of the home he lived in, but was intent on eviscerating the terms of the . . . Trust that provided a modicum of assets to Plaintiff’s children.” In support thereof, the Estate also attacked Joseph’s credibility, arguing as follows: “A careful review of [Joseph’s] testimony reveals that he was unable to articulate why he went to Plaintiff’s home to have his stepfather and his then living mother Annie Vasquez sign a grant deed in September 2009 giving [Joseph] a right of sole survivorship to the real property based on joint tenancy. [Citations.] [Joseph] was equally evasive as to whether he was aware of the legalities or terms of the Trust Transfer Deed that had placed the real property under the legal ownership of the . . . Trust.”

With respect to the annuity, the Estate argues that, although Joseph testified Jose and Annie were having “financial problems,” he nonetheless “was frequently depositing his mother’s checks into his own checking account in an aggregate amount of at least sixty thousand dollars ($60,000).” The Estate also argues that Joseph allegedly was unable to account for this money.

The Estate further argues Joseph sought to remove Jose as trustee of the Trust, despite the fact his stepfather was “suffering from various infirmities, including blindness, and [was] substantially unable to resist fraud or undue influence. [¶] While [Joseph] states in his Petition that it was his belief that Plaintiff Vasquez did not want his children to receive anything from the Trust, the designated allocations to the family members in the . . . Trust contravene his testimony.”

The Estate goes on to argue that the “most troubling transaction” involved the 2013 quitclaim deed, which was the “cornerstone” of Jose’s claim against Joseph for financial elder abuse. The Estate argues that Joseph purposely kept this deed a secret from his stepsiblings, and only apprised them of its existence when he attempted to evict Susan from the J Street Property, after he was “locked out” of the premises and prevented from seeing Jose.

B. Forfeiture

The Estate’s arguments on appeal amount to a collateral attack on the sufficiency of the evidence to support the court’s finding that Joseph did not commit elder abuse against Jose. As is clear, however, the Estate’s opening brief omits myriad salient facts expressly or tacitly relied on by the trial court in finding that Joseph did not commit elder abuse, financial or otherwise, against Jose.

By way of example only, the record evidence shows that, although Joseph opened an account in his name and deposited money given him to invest by Jose and Annie, at the time of trial Joseph produced statements accounting for all such money, minus certain expenses (i.e., an insurance payment after Annie totaled her car, and expenses for Jose and Annie’s caretakers). This evidence, which the Estate omitted from its opening brief, supported the court’s finding that Joseph did not use any of the money from this account for “his own ends.”

The record further shows that between 2001 when the Trust was created and when Annie passed away in November 2015, Jose did not have any issue with Joseph being the successor trustee of the Trust; nor with Joseph (or his estate) receiving 75 percent of the Trust’s assets upon the death of the surviving trustee; nor with his own children collectively receiving only 25 percent of said assets. The record also shows that Annie was concerned that, if something happened to her, Joseph would be disinherited, which ostensibly turned out to be the case; that Annie in 2009 wanted Joseph on title to the J Street Property; that Jose in 2009 willingly signed the grant deed attempting to place Joseph on title; that Annie in 2013 also willingly signed the quitclaim deed in another attempt to transfer title of the J Street Property to Joseph; and that after Annie signed the quitclaim deed, she ostensibly read its contents to Jose, who also signed the document.

In addition, the record shows Jose’s children “seldom” attended holidays and family events, including birthdays and Father’s Day; that Joseph and Antoinette attended most if not all such events; that Joseph for years helped Jose and Annie, including paying their bills, and also using his own money to pay those bills; and that Joseph clearly loved Jose and Annie and was distraught, after Annie passed away, not only because of her death but also because he and Antoinette had been locked out of the J Street Property and thus, unable to check on Jose’s well-being.

Because the Estate included very little, if any, of this evidence in its “summary” of the evidence, and because the Estate, when it does describe the evidence, paints it in the light most favorable to itself, we conclude it has forfeited on appeal any and all evidentiary claims it otherwise may have raised. (See Cal. Rules of Ct., rule 8.204(a)(2)(C) [appellant’s opening brief must “provide a summary of the significant facts”]; Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881 (Fallon) [noting defendants challenging a finding based on the lack of substantial evidence are ” ‘required to set forth in their brief all the material evidence on the point and not merely their own evidence,’ ” and further noting that “[u]nless this is done the error is deemed to be waived”].)

C. Merits

The Estate also bore the burden to demonstrate that there is no substantial evidence to support the challenged findings of the trial court, including its finding that Joseph did not use for “his own ends” any of the money he invested for Jose and Annie; and that Joseph did not commit elder abuse against Jose either in 2009 or in 2013, when Annie and Jose both signed deeds in their ill-fated attempt to put Joseph on title to the J Street Property. (See Fallon, supra, 3 Cal.3d at p. 881.)

However, we note the Estate did not even attempt to make such a showing. Instead, it asks this court to reweigh the evidence, after reconsidering the witnesses’ credibility, and make new findings favorable to it based on conflicting evidence. This we cannot and will not do. (See In re Estate of Young (2008) 160 Cal.App.4th 62, 75–76 [noting that a trial court’s findings are “liberally construed to support the judgment” and that a court of review “may not reweigh the evidence” in a substantial evidence challenge to a judgment].) For this reason alone we reject the Estate’s claim of error.

In any event, based on the evidence we have summarized ante from our own independent review of the appellate record, we conclude there is ample evidence to support the court’s finding that Joseph did not commit elder abuse against Jose. (See Brewer v. Murphy (2008) 161 Cal.App.4th 928, 935–936 [noting evidence is “substantial” for purposes of this standard of review if it is of ponderable legal significance, reasonable in nature, credible, and of solid value]; In re Marriage of Mix (1975) 14 Cal.3d 604, 614 [noting the testimony of a single witness, even if that witness is a party to the case, may constitute substantial evidence].)

DISPOSITION

The judgment is affirmed. Respondent is awarded his costs on appeal.

BENKE, J.

WE CONCUR:

McCONNELL, P. J.

DATO, J.