Filed 1/30/20 Myers v. Fisher CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

NANCY MYERS,

Plaintiff and Respondent,

v.

CARLA FISHER,

Defendant and Appellant.

A155825

(Marin County

Super. Ct. No. FL 1800470)

Appellant Carla Fisher challenges an elder abuse restraining order issued against her based on allegations of financial elder abuse. (Welf. & Inst. Code, §§ 15657.03, 15657.07.) Nancy Myers, then 70 years old and frail, successfully petitioned for the restraining order after she was tricked into conveying a grant deed to her home, for no consideration at all, to a limited liability company run by appellant’s husband. Appellant was barely more than a stranger to Myers. We shall affirm the order. All statutory references are to the Welfare and Institutions Code.

FACTUAL AND PROCEDURAL BACKGROUND

A two-day evidentiary hearing was held on Myers’s petition for a restraining order on May 1 and October 11, 2018. Myers sought restraining orders against appellant, Henry Fisher, and Jole Braun, and the cases were heard simultaneously. This appeal concerns appellant only, and we summarize the relevant evidence in the light most favorable to the prevailing party.

Novato Police Corporal Jeremy Warren went to Myers’s house on January 26, 2018 in response to concerns by some out-of-state family members about the validity of transactions pertaining to Myers’s home. He found papers all over the table, and everyone trying to figure out what had transpired. Myers appeared “thin” and “confused” about what was going on with her house. She mentioned to Warren that she may have signed a deed, and she expressed concern that she had been served with a “60 day kick out order.”

Someone at Myers’s house gave Warren a telephone number for appellant, and he called her. Appellant told Warren she had been helping Myers and wanted to help her sell her house, put her in another residence she could afford, and give her an undisclosed and unagreed upon sum of money. Warren checked the deed to Myers’s home and saw it was registered to an LLC. Appellant’s husband, Henry Fisher, is the registered agent listed for the LLC.

On January 31, Mandi Smith, a senior social worker for Adult and Aging Services in Marin County, got a report alleging that Myers was a victim of financial abuse. She made a home visit the next day and found Myers emaciated, weak, and frail. Myers had difficulty following the conversation and explaining why she thought things had happened to her. Myers seemed “very impaired,” and Smith urged her to see a doctor as soon as possible. Myers was “hesitant and embarrassed,” and although she had notes to which she referred, she could not stay focused on the conversation.

Myers said she was depressed, had stopped taking medications, had not been out of her house in months, and was not eating well. And then Myers made the acquaintance of appellant, “who came to her door” one day.

Smith researched the records of the County Recorder and discovered Myers had signed a grant deed dated January 3, 2018, conveying her residence to MJJ Ventures, LLC, for no consideration. There is no record of any payment in exchange for the deed to Myers’s house, and Myers said she had not received any money from the Fishers.

Smith researched what happened prior to the grant deed transaction on January 3. Myers told her that she had not paid her mortgage for several months. Smith’s research revealed that there had been a notice of trustee sale, but it had not proceeded, and that after Myers deeded the house to the LLC, a mortgage of about $130,000 was paid off. As Smith stated, appellant and Henry Fisher “were in effect paying off their own house.” In Smith’s view, the house was stolen from Myers.

Smith has handled hundreds of financial abuse cases over 25 years. In her opinion, Nancy Myers was a victim of elder abuse. Smith reported the case to Novato Police on February 2, as was her duty if after preliminary investigation Adult and Aging Services believes the criminal allegation is “validated.”

Myers’s nephew and godson Talakai Na’dane was living with Myers at the time of the hearing and had by this time become Myers’s conservator at her request. Sometime shortly before the Novato police were called to Myers’s house in January 2018, Myers had called Na’dane’s mother to say she was being kicked out of her house; Na’dane and his mother immediately drove from Nebraska, where they lived, to Novato to help her. Myers was afraid her house would be taken away from her, and she was going to be thrown out in the street. Na’dane saw that there was zero balance on Myers’s mortgage with Chase Bank, which appeared to have been paid off after the property was deeded to the LLC.

Myers testified at the hearing. She was apparently introduced to appellant through Myers’s next-door neighbor, Jole Braun. In December 2017, Braun sent Myers a letter about the possibility that Myers was about to lose her home. Appellant made contact with Myers thereafter. “[Appellant] stood at my door, outside my door and talked.” At some point appellant sent Myers a note with a photograph of appellant’s family on it. Appellant helped Myers get Social Security and Medicare benefits, and once brought her chicken soup. Myers testified that she texted and spoke on the phone to appellant.

In very short order, Myers gave appellant authority to speak to Wells Fargo Bank on her behalf. Myers was interested in a refinancing offer from Wells Fargo, and the possibility of making monthly mortgage payments of $541.00. She believed appellant was going to Wells Fargo Bank on her behalf. But when Myers asked appellant what happened, “that’s when she said that they were going to take my house and that we didn’t have time, we had to act. And I asked her about the Wells Fargo option, and she said well, you know, we just don’t have time. She didn’t tell me about the Wells Fargo option. So she said she was going to come by with some paperwork to help that happen. And that’s what that thing was that I signed, was something to keep the bank from taking my home the way she said that they were so anxious to do, that was why I signed it.”

“[T]hat thing” she signed Myers now understands was “one paper” that said “grant deed.” At the time she signed it, however, Myers understood it “was a document that was required to keep Chase Bank from throwing me out into the street in 10 days, because that was what I was told was going to happen.” Myers testified she did not intend to gift her house to MJJ Ventures LLC, and at no time did appellant or her husband tell Myers that her house would be transferred to the LLC.

Myers described how she came to sign the grant deed. She was alone in her house on January 3. Appellant was outside, and Myers never opened the door to let appellant in her house. Myers stuck her hand out through the door so the notary public could get her fingerprint. She pulled the shade back and let the notary see that her face matched the face on her driver’s license. Henry Fisher was not there. No one mentioned a purchase price to her.

Myers signed the grant deed for no consideration. Shortly after Myers deeded the property to the LLC, appellant went to Myers’s home to inspect it, and threatened that she would call the sheriff on Myers. Appellant never told her she was going to serve her with a 60-day eviction notice, nor did Henry Fisher. Myers was served with the 60-day eviction notice, and the Fishers did not offer her any explanation why that happened. Appellant never presented her with a purchase price for her home, nor did Henry Fisher. There was no purchase agreement or written memorandum. Appellant never told Myers she was going to pay off her loan with Chase Bank, and according to Myers it did not have to be paid off; an accommodation could have been reached that would have given Myers “some breathing room.”

In Myers’s view, she “never met” appellant and did not think appellant would even recognize her. By that she apparently meant that when appellant had Myers sign documents, appellant would get out of her car and place documents on a table next to Myers’s front door and then go back to her car and wait for Myers to open up the door to sign the documents.

Myers loves her home of 24 years and does not want to move out. When she realized that her house had been taken from her, she “felt like I lost everything. I felt like I made a horrible mistake because I trusted some people to do somethings they weren’t doing. And I felt like I had nothing else, everything was over. I’m sorry.”

Jole Braun, the neighbor, testified that she had heard from another neighbor that Myers’s house was in “pre-foreclosure.” Braun spoke to a small group of women, including appellant, at a luncheon. Braun had enlisted this group previously to help her assist an employee “in a domestic situation” by “plac[ing] her in a home and furnish[ing] an apartment for her,” and appellant had enlisted this group to bring toys, clothing, and gift certificates to a family displaced by the Santa Rosa fires.

According to Braun, appellant volunteered that her husband had “experience” with this, and so Braun drafted a letter to Myers that she left in Myers’s mailbox sometime around December 20, 2017. Braun had no more contact with Myers in December. The group of women met again on January 2, 2018, and Braun learned that appellant had made contact with Myers and was contacting Myers’s bank.

The Fishers told them the balance of Myers’s loan and asked them to chip in to pay the balance because Henry Fisher was going to the bank to pay off the balance the next day. Braun wrote a check for $27,291.23 to “Henry Fisher.” She understood this was not a donation; it was to stop the foreclosure of Myers’s home. Braun thought the Fishers were going to sell the house and get a new home for Myers.

Braun learned of the first eviction notice sent by Henry Fisher to Myers on approximately January 12, and the second eviction notice on approximately February 2, but never went to talk to Myers about the real estate transaction. Throughout this entire incident, Braun had not talked to Myers directly “even through the door.” In fact, Braun had not talked directly with Myers since 2015.

At the conclusion of the hearing, the trial court issued a restraining order against appellant. In making its ruling, the trial court referred to social worker Smith’s testimony, noted that Myers “was very upset,” and added: “I didn’t like the fact that [appellant] slid the contract under the door, the unopened door, I wish that didn’t happen. I wish that Ms. Myers was engaged and she signed the paperwork in good faith, eye to eye, that there was a conversation. That didn’t happen. The paperwork was exchanged just by a slide [sic] of piece of paper through a closed door . . . .”

This appeal was timely filed.

DISCUSSION

We review the trial court’s issuance of an Elder Abuse Act protective order for abuse of discretion and its factual findings for substantial evidence. (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137.) This means that we accept all evidence that supports the trial court’s order, disregard all contrary evidence, and draw all reasonable inferences to uphold the order. (See Harley-Davidson, Inc. v. Franchise Tax Bd. (2015) 237 Cal.App.4th 193, 213.) We do not reweigh the evidence or redetermine the credibility of the witnesses. (Ibid.)

Appellant makes several arguments urging reversal. Each is without merit.

A.

First, appellant contends the trial court abused its discretion in granting the restraining order. After quoting the financial elder abuse statute at length, the substance of appellant’s first argument is stated in one sentence: no evidence was introduced at the hearing that “undue influence as [sic] exerted by [appellant] against Ms. Myers in order for her to sign paperwork regarding her house.” The problem with this argument is that “undue influence” is not a necessary predicate to a restraining order.

“Financial abuse” of an elder includes when a perpetrator “takes, secretes, appropriates, obtains, or retains real or personal property of an elder . . . for a wrongful use or with intent to defraud or both.” (§ 15610.30, subd. (a)(1), italics added.) Engaging in the same acts but with “undue influence, as defined in Section 15610.70” rather than “for a wrongful use or with intent to defraud” is an alternative prong of the financial elder abuse statute. (§ 15610.30, subd. (a)(3), italics added.) Puzzlingly, in a later argument, Fisher contends that the “undue influence” prong “is not applicable under the facts of this case, where it is undisputed that appellant and respondent scarcely knew each other . . . .” Because appellant makes and then undercuts her own argument on this point, we move on.

B.

Appellant next contends that the restraining order application itself “fails as a matter of law” to show facts demonstrating financial abuse. This argument, stated only as an assertion in a heading, is not developed further, so we do not consider it. (See Dept. of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals Bd. (2002) 100 Cal.App.4th 1066, 1078 [“Mere suggestions of error without supporting argument or authority . . . do not properly present grounds for appellate review” and are “treated as waived”].)

Appellant’s other argument in this section is that the trial judge “never explained” how appellant’s actions constituted “abuse of an elder.” The substance of this argument is also stated in one sentence: “[t]he trial judge relied on the sliding of documents under a door and the lack of face to face contact between Dr. Fisher and Ms. Myers as the critical facts upon which the injunction issued.”

This argument is untethered from legal standards and incorrect as a matter of fact. First, we presume that the judge’s order is correct. (See Jameson v. Desta (2018) 5 Cal.5th 594, 608-609.) The trial court did not need to “explain” its ruling. We look to the judge’s ruling, not the reasons in support of it. (See Day v. Alta Bates Medical Center (2002) 98 Cal.App.4th 243, 252, fn.1.) In any event, substantial evidence supports the issuance of this protective order, and the two facts mentioned by the trial court help explain why. A frail and confused 70-year old woman signed a grant deed to her home for no consideration to an LLC controlled by a perfect stranger (appellant’s husband) at most two weeks after being introduced to appellant. Myers did not intend to give her house away. She was told by appellant she needed to sign the deed to keep the bank from taking her home. Myers was interested in refinancing. Appellant never told Myers she was going to pay off Myers’s loan. Myers only ever communicated with appellant by text and email and truncated conversations through the door. Then, deed in hand, appellant subsequently threatened to call the sheriff if Myers wouldn’t let her in to inspect the house. Myers was then served with two 60-day eviction notices. Myers was devastated. On this record, it was not error to issue the restraining order.

C.

Appellant’s next argument is that the “undue influence” prong of “financial abuse” is not applicable here since Fisher and Myers “scarcely knew each other” and none of the facts “encompass [Fisher’s] attempts to utilize undue influence” as to any part of Myers’s finances. As we noted above, this argument is puzzling, because it rehashes and is seemingly at odds with appellant’s first argument about undue influence. In any event, it has no consequence to this appeal.

D.

Finally, Fisher claims the trial court “abused its discretion in deciding the facts” because its resolution of the disputed evidence “exceeds the bounds of reason.” This argument has three parts. None has any merit.

The first part focuses once again on the facts that the trial court called out in its ruling (sliding the contract under the door, no conversation or eye contact with Myers). As we have discussed, this was the undisputed evidence in the case. Appellant did not testify. It was not an abuse of discretion to credit this testimony.

The second part is the trial court’s reference to another case against Henry Fisher, which appellant contends “clearly influenced its decision against [appellant].” By way of background, at the afternoon session of the October 11 evidentiary hearing, Braun’s attorney elicited testimony from Braun that she had been present in court “when there was a temporary restraining order proceeding involving Henry Fisher and a woman who had been wheeled in, who was alleging elder abuse [against] Mr. Fisher.” Braun testified she was not aware of these allegations when she agreed to Henry Fisher’s proposal to help Myers.

At the end of the afternoon session on October 11, after the trial court stated that it was going to issue a restraining order against appellant and Henry Fisher, the court alluded to the fact “that this court preside [sic] over a separate hearing, which I’m not considering, but I think that it’s relevant to mention that an 84-year old woman was wheeled into court two weeks ago, two or three weeks ago, and she told me that Mr. Fisher tried to take her property, a separate person, completely separate. I certainly hope it’s not a coincidence that this is happening.”

We are unpersuaded that the trial court was “unduly influenced” by this reference to another matter against Henry Fisher. The issue apparently came up, without objection, on the questioning of Braun. The trial court mentioned it, but said explicitly that it was not considering it, and we take the trial court at its word. “As an aspect of the presumption that judicial duty is properly performed [(Evid. Code, § 644)], we presume . . . that the court knows and applies the correct statutory and case law [citation] and is able to distinguish admissible from inadmissible evidence, relevant from irrelevant facts, and to recognize those facts which properly may be considered in the judicial decisionmaking process.” (People v. Coddington (2000) 23 Cal.4th 529, 644, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) There is no proof to the contrary here to overcome this presumption. (Claremont Press Pub. Co. v. Barksdale (1960) 187 Cal.App.2d 813, 818.) In any event, the evidence as we have described it was overwhelmingly in favor of issuing the protective order.

The third part of the argument purportedly illustrating the trial court’s abuse of discretion was the alleged failure of Mandi Smith, the social worker, to render an opinion that appellant herself had committed elder abuse. Appellant argues that there was thus “no evidence introduced to support the issuance of the restraining order.” This argument is a makeweight.

The trial court found that Smith qualified as an expert in elder abuse and financial abuse. Smith opined that Henry Fisher (and Braun) committed financial elder abuse against Myers, but never answered the specific question whether appellant committed elder abuse against Myers. It is clear from the record that this was because an objection was made to the question, and by the time the colloquy was sorted out, Myers’s counsel never went back and asked the question, moving on instead to ask Smith whether she believed Henry Fisher and Braun committed elder abuse against Myers.

The failure to get the answer to this specific question is of no consequence. The trial court did not need an expert opinion to find that an elder abuse restraining order should be issued against appellant. Further, the import of Smith’s testimony was clear. As we have noted, Smith opined unequivocally that this was a case of financial elder abuse and Myers was a victim. As Smith testified, “They didn’t assist her in avoiding a foreclosure. They stole the house from her. . . . [¶] . . . [T]he documents speak for themselves.”

DISPOSITION

The order appealed from is affirmed. Costs of appeal to Myers.

 

_________________________

Miller, J.

We concur:

_________________________

Kline, P.J.

_________________________

Stewart, J.

A155825, Myers v. Fisher