2012-00121788-CU-FR

The Estate of Melvin J. Carbone vs. Mary Pete Carbone

Nature of Proceeding:   Motion for Summary Judgment and/or Adjudication

Filed By:  O’Neill, Cara M.

Defendant Mary Pete Carbone’s motion for summary judgment, or in the alternative,
summary adjudication is denied.

The parties’ requests for judicial notice are granted.

Plaintiff is the natural daughter of Melvin Carbone (“MC”) who passed away in October
2010.  The action is filed on her own behalf and on behalf of MC’s estate.  She asserts
causes of action for financial elder abuse, intentional and negligent misrepresentation,
trespass, conversion, trespass to chattels, cancellation of instrument, quiet title,
constructive trust, declaratory relief, and unjust enrichment.  Plaintiff alleges that in  2000 when MC was in the hospital following surgery, an “inappropriate sexual
relationship” between MC and Defendant’s daughter came to light and soon after
Defendant told MC she was leaving him.  Plaintiff alleges that in 2004, MC executed a
grant deed, granting him and Defendant a joint tenancy in a Duplex in Elk Grove,
despite having been separated from Defendant for over two years.  The deed stated
that the conveyance was a bona fide gift.  Plaintiff alleges that Defendant exercised
undue influence over MC prior to the execution of the grant deed to obtain an interest
in the Duplex, specifically, by threatening MC with criminal action for his relationship
with her minor daughter.  Plaintiff also alleges that in 2010, approximately one month
before his death and while he was gravely ill, Defendant liquidated bank accounts
which contained money that MC inherited from his mother.  Plaintiff also alleges that
upon MC’s death, many personal belongings were distributed pursuant to Defendant’s
wishes, not MC’s.

Defendant’s separate statement includes the following.   Defendant and MC married
on November 13, 1982.  On August 5, 2004, MC by way of grant deed, deeded MC
and Defendant a joint tenancy in an Elk Grove duplex.  In 2004, MC and Defendant
opened the Scott Trade joint bank account on which they were both signatories.  In
1976, they opened a Bank of America joint account on which they were signatories.
MC passed away on October 16, 2010 at which time the Duplex and the bank
accounts remained jointly held by MC and Defendant.  After MC passed away,
Defendant allowed another one of MC’s daughter’s to take whatever personal items
she wished from MC’s house, including furniture and jewelry.  Defendant also gave her
[MC’s other daughter] $5,000.  Plaintiff was also allowed to remove the items she
wished as well.  The unclaimed items were discarded as they were damaged by MC’s
heavy smoking.

Trespass, Conversion, and Trespass to Chattels (Fourth, Fifth and Sixth Causes of
Action)

Defendant moves for summary adjudication on these causes of action on the basis
that Plaintiff lacks evidence of an ownership interest in the Duplex or the bank
accounts, and that with respect to the allegedly converted personal property of MC,
Defendant allowed family members to remove MC’s personal effects and that Plaintiff
does not even know if any remain.

Trespass (Fourth Cause of Action)

Defendant argues that since the Duplex was MC’s and her joint property, it became
her sole property upon MC’s death.  Here, the Court concludes that with respect to the
trespass cause of action, premised on Plaintiffs’ allegations that Defendant trespassed
in the Duplex, Defendant failed to meet her initial burden of proof to demonstrate that
there are no triable issues of material fact.

Defendant’s motion with respect to the trespass causes of action is premised on her
assumption that Plaintiff has the burden to prove that the transaction between MC and
Defendant with respect to the Duplex was the product of undue influence and that she
lacks the evidence to do so as seen from her inability to answer specific questions on
these topics at her deposition.  However, the burden, in these circumstances, lies with
Defendant to show that the transaction was not the product of undue influence in the
first instance. Evid Code § 500 [Except as otherwise provided by law, a party has the
burden of proof as to each fact the existence or nonexistence of which is essential to  the claim for relief or defense that he is asserting.]  Indeed, where as here, one spouse
(Defendant) obtains an advantage over the other (MC, given the allegations that his
property interest in the Duplex went from his separate property to a joint interest with
Defendant with no consideration paid to MC) in an interspousal property transaction
the law presumes such transactions to have been induced by undue influence.  (See
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In re Marriage of Starr (2011) 189 Cal.App.4   277, 281-282 [discussing that because
of Family Code § 721’s requirement that interspousal transactions are subject to
general rules governing fiduciary duties “our courts have long held that when an
interspousal transaction advantages one spouse, public policy considerations create a
presumption that the transaction was the result of undue influence”].)  “[I]t was the
Wife’s burden to establish that the Husband’s transmutation of the Property to joint
tenancy was freely and voluntarily made, with full knowledge of all the facts, and with a
complete understanding of the effect of the transfer from his unencumbered separate
property interest to a joint interest as Husband and Wife.”  (In re Marriage of Delaney
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(2003) 111 Cal.App.4   991, 999-1000.)

The cases cited by Defendant do not deal with interspousal transactions advantaging
one spouse and thus are inapplicable to the instant trespass cause of action.  Here,
Defendant made no attempt to demonstrate that the grant deed pursuant to which MC
transferred his separate interest in the Duplex to himself and Defendant as joint
tenants for no consideration, did not result in an advantage to her and/or that it was not
the product of undue influence.  Thus, the motion with respect to the trespass cause of
action is denied on the basis that she never met her initial burden to demonstrate the
absence of any triable issue of material fact.  Thus, the burden never shifted to Plaintiff
to demonstrate the existence of a triable issue of material fact.

The Court rejects the argument in reply that Plaintiff is applying the incorrect standard
regarding the burden of proof with respect to the Duplex.  Defendant argues that cases
such as In re Marriage of Delaney only apply where the challenge to an interspousal
transfer involves a dispute between spouses, not where an heir, such as Plaintiff seeks
to challenge an interspousal transaction.  (Reply 3:21-5:3.)  Defendant reasons that
instead that the general rules regarding joint tenancy apply, specifically that the Duplex
became her separate property upon MC’s death.  The Court disagrees; the In re
Marriage of Delaney line of cases make clear that where interspousal transactions
advantage one spouse, it is presumed to have been the product of undue influence
and there is no discussion in those cases that the presumption changes in the event
one spouse dies and the heir challenges the transaction.  In any event, Defendant
overlooks the fact that Plaintiff has brought the suit not only on her own behalf, but
also on behalf of MC’s estate (e.g., the other spouse to the transaction).

As a result, the motion for summary adjudication as to the fourth cause of action for
trespass is denied.

Conversion and Trespass to Chattels (5th and 6th Causes of Action)

The pleadings determine and frame the issues to be addressed by a summary
judgment motion. As it relates to the conversion cause of action, Defendant argues
that the bank accounts which Plaintiff alleges were converted became her sole  with his wishes, and Defendant’s attack on that cause of action is essentially identical
to her attack on the conversion cause of action (excluding the bank accounts portion).

Here, assuming Defendant’s evidence is sufficient to meet her initial burden, the Court
finds that Plaintiff has established the existence of numerous triable issues of material
facts on both the conversion and trespass causes of action, both of which are
premised on allegations that Defendant inappropriately disposed of MC’s personal
property.  Specifically, Plaintiff’s evidence that Defendant had already taken or
disposed of MC’s personal property before Plaintiff and his other daughter Kris Ingalls
were able to visit the Duplex after MC’s death disputes Defendant’s material facts 7
and 9 that she allowed MC’s daughters to take whatever they wished.  (Ingalls Decl. ¶¶
6, 10 and 11; Plaintiff’s Decl. ¶¶ 13-16.)  In addition, while Defendant’s material fact 11
states that the remaining household furniture items were discarded as having no value
because of smoke damage, Plaintiff’s declaration indicates that she removed furniture
that had been in the home for years and was not smoke damaged thus creating an
inference that the remaining furniture was not in fact smoke damaged.  (Plaintiff’s Decl.
¶¶ 17-20.)  Given the existence of these numerous triable issues of material fact, any
one of which is sufficient to defeat the motion, the motion for summary adjudication as
to the fifth cause of action for conversion and the sixth cause of action for trespass to
chattels is denied.

The Court rejects Defendant’s argument in reply that Plaintiff’s Declaration
impermissibly contradicts her deposition testimony.  Indeed, the cited deposition
testimony does not, as Defendant asserts, show that Plaintiff testified that she has no
evidence that any other personal property of MC existed other than what she saw
when she visited the duplex.  Rather, she testified that she “didn’t look around” during
the visit.  (Plf’s depo. 115:19.)  Further, in response to a question as to what she based
her contention that MC desired his personal property to be included in his estate upon,
she stated “Well, because they had been in our family.”  (Id. 115:25.)  Defendant’s
counsel then asked if there was anything other than that and she responded “I don’t
really know.  I don’t know what.”  (Id. 116:1-3.)  But Plaintiff did not testify that she had
no evidence that any other property existed and nothing in the cited testimony shows
she was even asked such a question.  The cited deposition testimony therefore does
not contradict her declaration where she indicates that she was not allowed to take
whatever she wished from MC’s home as when she arrived there, the garage was
open and “books and photos were strewn throughout the garage floor”, and that
specific items were missing from the home.  (Plaintiff’s Decl. ¶¶ 13-16.)  In any event,
even if this portion of Plaintiff’s declaration were not considered, the portions of the
Ingalls’ Declaration as well as the other portions of Plaintiff’s declaration cited in the
above paragraph create a triable issue of material fact as discussed above.  (Ingalls
Decl. ¶¶ 6, 10, and 11; Plaintiff’s Decl. ¶¶ 17-20.)

Given the above, the Court need not, and does not reach the parties’ arguments raised
in support of and in opposition to the motion directed to the fifth cause of action as they
related to the bank accounts.

Given the existence of the triable issues of fact, the motion for summary adjudication
directed to the fifth and sixth causes of action is denied.

Intentional and Negligent Misrepresentation (Second and Third Causes of Action)

In these causes of action, Plaintiff alleges that Defendant represented to MC that she
would initiate criminal proceedings against him unless he provided her with something
in exchange for her silence.  Defendant moves for summary adjudication on the basis
that Plaintiff testified at her deposition that she has no evidence to support her
allegation that Defendant made a false representation.  Here, the Court concludes that
pointing to Plaintiff’s inability to support her allegations at her deposition, for example,
by responding that she never heard Defendant threaten MC with criminal prosecution,
is not sufficient to meet Defendant’s burden on this motion.

Indeed, Defendant’s “‘simply pointing to’ the absence of evidence [emphasis added]
supporting plaintiff’s position is not in itself enough to obtain summary judgment in its
favor.  There must be some ‘affirmative showing’ by the moving defendant that plaintiff
could not obtain such evidence, before summary judgment would be proper.”  (Krantz
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v. Bt Visual Images (2001) 89 Cal.App.4   164, 173-174 [citations omitted].)  This is
particularly relevant where, as here, “there was no basis for believing plaintiff would
have been present during…communications [between defendant and others relied on
by defendant as supporting the motion].”  (Id. [quoting Villa v. McFerren (1995) 35
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Cal.App.4   733, 748.)  Defendant’s showing in this regard, specifically, Plaintiff’s
deposition testimony that she never heard Defendant threaten MC, that MC never told
her directly that Defendant threatened him, or know if MC was coerced into signing the
grant deed for the Duplex is insufficient to show that Plaintiff will be unable to obtain
such evidence to support these claims.  This testimony, is not as Defendant attempts
to characterize it, an admission that she will not be able to obtain such evidence.

Thus, the burden never shifted to Plaintiff to demonstrate the existence of a triable
issue of material fact and the motion for summary adjudication directed to these two
causes of action is denied.

Financial Elder Abuse and Cancellation of Instrument (First and Seventh Causes of
Action)

Defendant moves for summary adjudication on these causes of action on the basis
that Plaintiff cannot demonstrate that Defendant made a false representation and/or
used undue influence on MC or that MC suffered emotional distress.  Defendant
concedes that the issues herein are identical to those presented in connection
regarding her fraud and undue influence arguments which were rejected above.  (Mot.
15, fn.1 [“issues are identical”].)  As a result, the motion is denied for the identical
reasons the motion was denied in connection with the above causes of action

Constructive Trust, Quiet Title, Declaratory Relief and Unjust Enrichment (Eighth
through Eleventh Causes of Action)

Defendant moves for summary adjudication on these causes of action based on an
argument encompassed in a single sentence that “they are remedies rather than
affirmative causes of action and fail along with the underlying actions.”  (Mot. 15:22.)
The motion is denied.  Defendant’s argument in this regard is inappropriate on a
motion for summary judgment, though it might be an appropriate challenge on a
demurrer or motion to strike.  In any event, Defendant fails to even present any legal
authority to support the argument and as seen from case law, cases have recognized
all three as causes of action.  (Heckman v. Ahmanson (1985) 168 Cal.App.3d 119, fn.8
[recognizing authority holding that a complaint alleging defendant retained money in
violation of fiduciary duty stated a constructive trust cause of action]; Lucas v. Sweet
(1956) 47 Cal.2d 20 [finding allegations sufficient to “state a cause of action for quiet               title”]; City of Cotati v. Cashman (2002) 29 Cal.4   69 [discussing declaratory relief
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causes of action]; Lectrodryer v. SeoulBank (2000) 77 Cal.App.4   723 [recognizing
claim for unjust enrichment].)  To the extent Defendant is really arguing that these
causes of action are not tethered to an underlying wrong because the above causes of
action are deficient, the motion is denied because the Court denied the motion directed
to the other causes of action.

Defendant’s evidentiary objections are ruled upon as follows:  Objections 1, 2, 5, and 6
are overruled.  Objections 3, 4, 7, 8, and 9 are sustained.

As Defendant failed to obtain summary adjudication on all causes of action, the motion
for summary judgment is denied.

Plaintiffs’ counsel shall prepare an order pursuant to CCP § 437c(g)(1) and CRC Rule
3.1312.