Estate of Barrow CA2/1 ( 2015 )

Filed 9/24/15 Estate of Barrow CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
Estate of BERNARDINE BARROW, B253958
Deceased. (Los Angeles County
Super. Ct. No. BP121262, BP118944)
KAREN L.G. O'NEILL et al.,
Petitioners and Appellants,
v.
RICHARD SORRENTINO,
Objector and Respondent.
B253958
RICHARD SORRENTINO, (Los Angeles County
Super. Ct. No. BP121262, BP118944)
Petitioner and Respondent,
v.
KAREN L.G. O'NEILL et al.,
Objectors and Appellants.
APPEAL from an order of the Superior Court of Los Angeles County, Mitchell L.
Beckloff, Judge. Affirmed.
Balisok & Associates, Russell S. Balisok; Beltran, Beltran, Smith, Oppel &
Mackenzie and Thomas E. Beltran for Petitioners, Claimants and Appellants Karen L.G.
O’Neill and Allan B. DeMille.
Loeb & Loeb, David C. Nelson, Gabrielle A. Vidal and Amy L. Koch for
Claimant, Petitioner and Respondent Richard Sorrentino.
——————————
This case concerns the deceased Ms. Bernardine Barrow (Barrow) and specifically
who will receive the bulk of her estate: a house worth millions of dollars as well as
substantial stock holdings. The possible contenders are: (1) Richard Sorrentino
(Sorrentino), who was initially hired by Barrow for some construction work for the house
and then over 13 years became her closest and most trusted friend and caretaker,
(2) Karen O’Neill (O’Neill), who Barrow met while vacationing and talked with on the
phone frequently but drifted from after 30 years, or (3) Allan DeMille (DeMille), a distant
relative with whom Barrow had not spoken in many decades and about whom Barrow
frequently complained. The trial court found for Sorrentino, specifically that Barrow’s
December 6, 2007 declaration of trust (2007 Trust), July 16, 2008 restated amendment to
Bernardine Barrow revocable trust dated December 6, 2007 (2008 Restatement), and
July 16, 2008 last will and testament (2008 Will), are all valid and not the product of
undue influence by Sorrentino. O’Neill and DeMille appeal. We affirm.
BACKGROUND
I. Facts of the case
At her death in 2008, Barrow was a widow and had no surviving parents. She had
no close friends. She had distant relatives but did not like or want anything to do with
them. She had no interaction with her family and felt they had taken advantage of her.
For example, DeMille is a first cousin, once removed, and had no contact with Barrow for
many decades before she died. DeMille was one of many relatives about whom Barrow
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complained. The chronology below discusses how Barrow met O’Neill and Sorrentino as
well as key facts concerning Barrow’s health and estate planning efforts.
In 1978, Barrow (then age 62) and her husband met O’Neill (age 22) and her
husband while vacationing in Yosemite. O’Neill and her husband worked at the hotel
where the Barrows lodged. The four socialized together during the O’Neill’s off hours.
Over the years, Barrow sent gifts to O’Neill and her family.
In 1995, Barrow (age 77) hired Sorrentino to complete some construction work on
her house. After completion of that project, he continued to work on other construction
projects as requested by Barrow and assumed increasing responsibilities for daily
personal tasks such as retrieving packages and carrying in groceries. Eventually, he
became a salaried employee for house maintenance as well as a personal assistant and
thus was responsible for managing and hiring other employees in the house (such as the
housekeeper, gardener, and caregivers), obtaining personal items such as medicine, dry
cleaning, and groceries, and driving Barrow to appointments. For the next 13 years until
her death, Sorrentino was in Barrow’s life on a near daily basis. Sorrentino took good
care of Barrow; he was not only her employee but also her friend.
In 1996, Dr. Terry Jerge (a board certified internist with a large portion of his
practice treating the elderly) began treating Barrow. He found her proactive in her
medical care and in good health.
Sometime in 1996 or 1998, Barrow was involved in a car accident. The accident
did not injure Barrow in any way.
In 1997, Barrow provided in her will that her home and substantial Chevron stock
holdings (the bulk of her estate) would pass to Mr. and Mrs. Linn T. Hodge III, her
insurance agent and friend, but if they were both deceased then to O’Neill. The
remaining items (e.g., a car, $25,000, personal property) were left to O’Neill. Barrow did
not leave anything to DeMille.
In 1998, Barrow nominated Sorrentino as her attorney-in-fact for health care
decisions. She also nominated him as her conservator.
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In 1999, Barrow executed a will providing the bulk of her estate to Sorrentino.
Barrow did not provide in her will that O’Neill would receive any substantial gifts.
Barrow did not leave anything to DeMille. Consistent with that will, sometime between
1997 and 2000, Barrow told O’Neill that Sorrentino was going to receive the bulk of her
estate. All wills after this date continued to leave the bulk of Barrow’s estate to
Sorrentino.
In 2001, Barrow broke her wrist and thereafter had trouble writing. Thus, she
began having some physical limitations.
In 2002, Barrow again executed a will that gave the bulk of her estate to
Sorrentino. Barrow did not leave anything to DeMille.
In 2004, O’Neill visited Barrow for an afternoon. O’Neill and Barrow never lived
in the same city, and, while O’Neill visited Barrow at least four times, Barrow never
visited O’Neill in return. O’Neill and Barrow did speak on the phone about every two
weeks until Barrow’s death.
In 2005, Barrow started complaining to Dr. Jerge about some memory problems.
In June, Dr. Jerge opined that Barrow was suffering from “some level of dementia” but
that this mild dementia would not have been so serious as to impede Barrow’s ability to
make intelligent decisions. In July, Barrow suffered from hallucinations over a weekend
and spoke to Dr. Jerge about them. She knew that the hallucinations were not real; Dr.
Jerge concluded that Barrow was “fine” and “rationale.” He prescribed Barrow with
Aricept. Also in 2005, O’Neill visited Barrow for a few hours (visit No. 2). Also around
2005, Barrow began making a number of substantial gifts to Sorrentino, including a
tractor, a car, architectural plans, and paying his credit card bills, which may have been
work-related expenses.
The wills and trusts at issue in this case were executed in 2007 and 2008. Barrow
was 89 years old in 2007. Barrow executed at least 10 trusts and wills: the first six
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drafted by attorney Lambert Michael Javelera (Javelera) from 1997 to 2006,1 and the last
four drafted by attorney Christopher Botti (Botti) from 2007 to 2008.2 The new attorney
took over because Javelera had health issues that made him unavailable. Sorrentino
referred Barrow to Botti.
In December 2007, Barrow again left the bulk of her estate to Sorrentino,
specifically, in the 2007 Trust and a 2007 will, prepared by Botti. Barrow did not leave
anything to DeMille. Botti’s law partner, Paul Morrison, contacted an old college friend,
attorney Seth Friedman, to interview Barrow and prepare a certificate of independent
review (CIR). Friedman met with Barrow two months after she executed the 2007 Trust.
Only Friedman and Barrow were in the room when they discussed the 2007 Trust. The
counseling session lasted 60 to 90 minutes. After meeting with Barrow, Friedman drafted
and executed the CIR. He billed Barrow $750 for his services.
In 2008, Barrow executed the 2008 Restatement and 2008 Will, again leaving the
bulk of her estate to Sorrentino. Barrow did not leave anything to DeMille. Also in 2008,
O’Neill visited Barrow (visit No. 4). Unlike the other three visits, this one lasted two
nights. Sorrentino suggested some alone time for the two women, but Barrow
emphatically said no. Toward the end of 2008, Barrow was cognitively impaired. On
December 23, Barrow passed away at age 90.
II. Procedural history
Several petitions were filed before the trial court. O’Neill and Sorrentino each
filed separate petitions to admit to probate Barrow’s 1997 Will and 2008 Will,
respectively, in case No. BP118944. O’Neill and Sorrentino then each filed separate
petitions to determine the validity of the 2007 Trust, in case No. BP121262. The trial
court related the two cases and heard them together.
1June 11, 1997 will (1997 Will), April 19, 1998 will, January 17, 1999 codicil,
February 7, 1999 will, January 5, 2002 will, and April 6, 2006 codicil.
2 2007 Trust, December 6, 2007 will (2007 Will), 2008 trust, and 2008 Will.
5The trial court held a bench trial and heard testimony from several witnesses,
including Sorrentino, Dr. Jerge, Botti, Friedman, Javelera’s son (Javelera passed away in
2009), Mr. Hodge, and O’Neill.
In an organized and comprehensive opinion, the trial court explained its findings.
Probate Code former section 213503 presumptively prohibits donative transfers from a
dependent adult to her care custodian, such as the 2007 Trust and 2008 Restatement. But,
the trial court found two exceptions in former section 21351 apply to remove that
presumption: subdivision (b), because Friedman provided a valid CIR, and subdivision
(d), because it found clear and convincing evidence that the donative transfers were not
the product of undue influence. The trial court also decided that even though it already
found the statutory exception applies, it would proceed to determine whether there was
undue influence under common law; on that issue, the trial court concluded O’Neill and
DeMille had failed to meet their burden of proof. The trial court also found that
Sorrentino was not the transcriber of the 2007 and 2008 wills and trusts.
O’Neill and DeMille then filed a request for a statement of decision. Sorrentino
responded. The trial court issued a statement of decision, adopted Sorrentino’s response
as the court’s response to O’Neill and DeMille’s objections, and deemed its tentative
ruling to be the statement of decision.
DISCUSSION
I. Substantial evidence supports the trial court’s finding that there is clear and
convincing evidence of no undue influence.
A. Standard of review
If, on the entire record, there is substantial evidence to support the finding of the
probate court, we uphold those findings. (Estate of Odian (2006) 145 Cal.App.4th 152,
167.) We do not pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence, or evaluate the weight of the evidence. (Id. at p. 168.) Rather, we draw all
3 All further statutory references are to the Probate Code unless otherwise
indicated.
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reasonable inferences in support of the findings, view the record most favorably to the
probate court’s order, and affirm even if other evidence supports a contrary conclusion.
(Estate of Young (2008) 160 Cal.App.4th 62, 76.) Appellants have the burden of showing
there is no substantial evidence supporting the probate court’s order.
B. Applicable Probate Code sections
Former sections 21350 and 21351 provide the legal framework for this case.
Former section 21350 presumptively prohibits a dependent adult (such as Barrow in 2007
and 2008) from making a donative transfer (such as the 2007 and 2008 wills and trusts at
issue) to her care custodian (such as Sorrentino). But there are several exceptions, recited
in former section 21351. Under subdivision (b), the transferor can obtain a CIR. Under
subdivision (d), a court can determine upon clear and convincing evidence that the
transfer was not the product of undue influence.
C. Substantial evidence supports the trial court’s finding no undue influence
Here, the record shows substantial evidence to support the trial court’s finding of
no undue influence. In a well-reasoned opinion, the trial court explained that it relied on
testimony from Dr. Jerge, Mr. Hodge, Friedman, Barrow’s long-time housekeeper,
Javelera’s son, Sorrentino, and even O’Neill, plus stipulated facts from the parties and
documentary evidence.
First, there is substantial testimony from essentially all the key witnesses
(Dr. Jerge, Friedman, Mr. Hodge, and Sorrentino) that Sorrentino provided excellent care
to Barrow, that Barrow and Sorrentino were close friends, and that Sorrentino was in
Barrow’s life on a near daily basis for the last 13 years of Barrow’s life. That testimony
is confirmed in documents such as Ms. Hodge’s note to Sorrentino after Barrow died,
which recites that Sorrentino provided “wonderful care” for Barrow. Other supporting
documentary evidence includes legal documents in which Barrow nominated Sorrentino
as her conservator and her attorney-in-fact for health care decisions in 1998, long before
Barrow had cognitive issues.
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In addition, there is substantial testimony from witnesses (Friedman, Javelera,
Barrow’s long-time housekeeper, and even O’Neill) that Barrow repeatedly expressed her
intent to gift the bulk of her estate to Sorrentino. That testimony is confirmed in
documents such as Barrow’s 1999 and 2002 wills executing that intent.
Further, the only medical evidence before the trial court was Dr. Jerge’s testimony.
He opined that Barrow had no memory problems until 2005 and, even then, the mild
dementia would not impede her ability to make intelligent decisions. Dr. Jerge opined
that it was not until three months before her death that Barrow’s decisionmaking ability
was impaired. That testimony is confirmed in documents, specifically his
contemporaneous notes describing Barrow’s mental and physical health. Even testimony
from O’Neill confirmed that there was no decline in Barrow’s mental acuity until 2005.
The trial court noted that even by that point, Barrow had already executed wills providing
the bulk of her estate to Sorrentino (in 1999 and 2002).
Second, in contrast to Sorrentino, DeMille was not involved in Barrow’s life. The
parties stipulated that DeMille had no contact with Barrow for many decades. Even
O’Neill testified that DeMille was one of many relatives about whom Barrow
complained. Generally, several witnesses (Mr. Hodge, Sorrentino, and O’Neill) testified
that Barrow did not like and had no interaction with her family.
Third, while O’Neill may have had a closer relationship to Barrow than DeMille,
she was not as close to Barrow as Sorrentino. The trial court relied on O’Neill’s own
testimony that she only visited four times in four years, the visits did not last long, and
during the last visit Barrow refused to spend alone time with O’Neill.
D. The testimony of trial witness Friedman, who the trial court found
credible, can be substantial evidence supporting the trial court’s decision.
O’Neill and DeMille argue at length that the trial court erred in relying on
Friedman’s testimony for any purpose. But, O’Neill and DeMille are essentially asking
this court to reassess Friedman’s credibility. That is not our role. A party’s “lengthy
arguments as to the credibility and effect of the testimonies” of witnesses “are not
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appropriately addressed to this court”; “[t]he trier of fact was the exclusive judge of those
matters.” (Brewer v. Simpson (1960) 53 Cal.2d 567, 587.) “[T]he testimony of a witness
whom the trier of fact believes, whether contradicted or uncontradicted, is substantial
evidence, and we must defer to the trial court’s determination that these witnesses were
credible.” (Estate of Odian, supra, 145 Cal.App.4th at p. 168.) Here, the trial court was
entitled to credit entirely Friedman’s testimony and discredit entirely any witness
testimony proffered by O’Neill and DeMille. This problem—seeking an appellate court
to perform the role of a trial court—runs throughout appellants’ briefs and is the crux
(and downfall) of its appeal.
E. Trial court can consider Barrow’s 1997 and 1999 wills giving the bulk of
her estate to Sorrentino and Barrow’s statements that she intended the same
O’Neill and DeMille argue that the trial court erred in considering certain evidence
of Barrow’s actions (which the trial court found as showing Barrow intended to give the
bulk of her estate to Sorrentino) because those actions, according to O’Neill and DeMille,
were also the product of undue influence by Sorrentino. Specifically, (a) Barrow’s 1997
and 1999 wills (in which, like the 2007 and 2008 wills and trust at issue, Barrow also
gave the bulk of her estate to Sorrentino) and (b) Barrow’s statements that she intended to
give the bulk of her estate to Sorrentino.
1. 1997 and 1999 wills
O’Neill and DeMille’s arguments are contradictory to Sorrentino’s argument as to
how the trial court should consider this evidence. Specifically, though all parties agree
the former section 21350 presumption against a donative transfer from a “dependent
adult” to her care custodian would apply to the 2007 and 2008 wills, they disagree as to
the 1997 and 1999 wills. O’Neill and DeMille argue Barrow was a “dependent adult” due
to her age of 77 and because she gave substantial gifts to Sorrentino. Sorrentino argues
Barrow was not a “dependent adult” because Barrow did not have any physical
limitations until she broke her wrist in 2001 nor cognitive decline until 2005.
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The issue is not one of admissibility, as O’Neill and DeMille stipulated the
documents could enter into evidence before the trial court, and they made no objection
during trial. Instead, the issue is one of weight, and the trial court has complete discretion
to credit (or discredit) this evidence. (See Estate of Odian, supra, 145 Cal.App.4th at
p. 167.) The trial court found Sorrentino’s argument more persuasive. Substantial
evidence supports that finding, such as Dr. Jerge’s medical testimony and notes, which
the trial court pointed to.
2. Barrow’s statements
O’Neill and DeMille argue the trial court should not have found credible the
testimony from Sorrentino, Friedman, and even O’Neill, that Barrow told each of them
she planned on giving the bulk of her estate to Sorrentino. Assessing the credibility of
witness testimony is the role of the trial court. (See Estate of Odian, supra, 145
Cal.App.4th at p. 168.) Thus, the trial court was entitled to credit their testimony.
Further, O’Neill and DeMille argue that former section 21351, subdivision (d)
precludes the trial court from considering Sorrentino’s testimony at all. They misread the
code provision, which only precludes the trial court from “solely” relying on the
testimony of Sorrentino. Here, the trial court also relied on the testimony of Friedman,
O’Neill, and Barrow’s long-time housekeeper. The trial court expressly recognized that it
was not solely relying on Sorrentino’s testimony, in light of the Probate Code prohibition.
F. Trial court can consider Barrow’s substantial gifts to Sorrentino as
consistent with Barrow’s later gift of the bulk of her estate to him.
O’Neill and DeMille argue the trial court failed to consider Barrow’s substantial
gifts to Sorrentino as evidence of undue influence. But, the trial court did, in fact,
consider this evidence. Specifically, the trial court concluded these gifts did not show
undue influence because were Barrow to gift the bulk of her estate to Sorrentino then only
Sorrentino would ultimately be affected as Barrow spent down her estate with substantial
gifts to him. While O’Neill and DeMille argue the trial court should have come to a
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different conclusion, as an appellate court, we do not reweigh the evidence. (See Estate
of Odian, supra, 145 Cal.App.4th at p. 168.)
G. Trial court can consider Sorrentino the natural object of Barrow’s
bounty.
O’Neill and DeMille argue that Sorrentino cannot be the natural object of
Barrow’s bounty for two reasons: (i) Sorrentino had undue influence on Barrow and (ii)
only a descendent, surviving spouse, or parent can be the natural object of one’s bounty.
O’Neill and DeMille’s first argument assumes the conclusion and therefore is rejected.
As to their second argument, they cite Estate of Nolan (1938) 25 Cal.App.2d 738, but that
case contains no bright-line rule that nonrelatives can never become the natural object of
one’s bounty. Instead, Nolan only concerned relatives: a beneficiary who was a cousin
and contestants who were nephews and nieces. (Id. at p. 740.) Nolan merely explained
that descendents, spouse, and parents, are assumed to be such “natural objects,” merely by
the close relationship, but that collateral heirs such as siblings and nephews or nieces, at
least based on such relationship alone, are not so assumed. (Id. at p. 742.) Thus, we also
reject O’Neill and DeMille’s second argument.
H. Trial court’s finding under the common law is also affirmed.
Because we decide there is sufficient evidence to support the trial court’s finding
of clear and convincing evidence of no undue influence, we do not reach O’Neill and
DeMille’s alternative arguments as to whether there was sufficient evidence of no undue
influence under the common law. The statute supplements the common law. (Bernard v.
Foley (2006) 39 Cal.4th 794, 800.) Thus, clear and convincing evidence of no undue
influence satisfies both former section 21351, subdivision (d) and the common law.
II. O’Neill and DeMille’s other arguments are moot
An appeal is moot when it is “‘“impossible for this court, if it should decide the
case in favor of plaintiff, to grant any effectual relief whatever.”’” (City of Los Angeles v.
County of Los Angeles (1983) 147 Cal.App.3d 952, 958.)
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A. O’Neill and DeMille’s argument on former section 21351, subdivision (b)
Because we agree with the trial court that the exception in subdivision (d) applies,
we need not decide whether another exception (subdivision (b)) also applies. As the
opening paragraph to former section 21351 recites, the presumption against donative
transfer “does not apply if any of the following conditions are met.” (Italics added.)
B. O’Neill and DeMille’s argument on former section 21350, subdivision
(a)(4)
The trial court already held that the presumption against a donative transfer in
former section 21350 applies, pursuant to subdivision (6), where the transferor is a
dependent adult and the recipient is the care custodian of that dependent adult. O’Neill
and DeMille argue that subdivision (4), where the recipient transcribes the trust or will,
also applies. Were this court to determine whether subdivision (4) also applies, however,
there would be no effectual relief for O’Neill and DeMille, as they have what they seek:
the presumption has been applied. Further, as discussed above, we affirm the trial court’s
finding that an exception applies to remove that presumption.
C. O’Neill and DeMille’s argument on California Rules of Court, rule
3.1590.
O’Neill and DeMille argue the trial court failed to provide a tentative decision
pursuant to California Rules of Court, rule 3.1590, and therefore they did not have the
opportunity to make objections and request a statement of decision to address the
principal controverted issues. Here, the trial court did issue a proposed statement of
decision, and then O’Neill and DeMille made objections and requested a statement of
decision, to which the trial court responded. Thus, again, O’Neill and DeMille already
have what they seek.
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DISPOSITION
The order is affirmed. Costs are awarded to Richard Sorrentino.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
ROTHSCHILD, P. J.
CHANEY, J.
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