Pilibos v. Pilibos CA5

Filed 12/21/21 Pilibos v. Pilibos CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
SARAH PILIBOS, as Attorney-in-Fact, etc.,
F082952
Respondent,
(Super. Ct. No. 20CEFL02455)
v.
ALEXANDER PILIBOS, OPINION
Appellant.
APPEAL from an order of the Superior Court of Fresno County. Rosemary T.
McGuire, Judge.
McCormick, Barstow, Sheppard, Wayte & Carruth, Scott M. Reddie, Jerry D.
Casheros, and Jessica M. Boujikian, for Appellant.
Whitney, Thompson & Jeffcoach, Timothy L. Thompson and Nikole E.
Cunningham, for Respondent.
-ooOoo-
This case involves a restraining order issued under the Elder Abuse and Dependent
Adult Civil Prevention Act (Welf. & Inst. Code, § 15600, et seq.). The Fresno County
Superior Court issued a restraining order against appellant Alexander Pilibos (“Alex”)
under Welfare and Institutions Code section 15657.03, the statute governing the issuance
of protective orders for elder and dependent adults who have suffered abuse. The order
prohibits Alex from, among other things, having any discussions with his 100-year-old
mother, Lucille Pilibos, about her estate plan. 1 The restraining order petition was filed on
Lucille’s behalf by the eldest of Lucille’s five children, Sarah Pilibos, pursuant to a
durable power of attorney.
The trial court denied the initial request for a temporary restraining order and set
the matter for a hearing that would last 12 court days over several months. The court
heard testimony from six witnesses—including Sarah, Alex, and Lucille—and admitted
numerous exhibits. There were many hearsay statements attributable to Lucille and Alex
introduced at the hearing. The trial court admitted these hearsay statements over Alex’s
objection because it believed Code of Civil Procedure sections 527.6, subdivision (i), and
527.8, subdivision (j), which have been interpreted as allowing the court to consider
relevant hearsay in hearings conducted under those statutes, applied to Welfare and
Institutions Code section 15657.03 proceedings. In its statement of decision, the trial
court stated that it “strongly consider[ed]” the hearsay statements attributable to Lucille
and Alex that were testified to by non-family members.
Alex raises three issues on appeal. His chief contention is that the trial court erred
in admitting and relying on hearsay evidence in ruling on the petition. He argues that
Code of Civil Procedure sections 527.6 and 527.8 apply only to restraining order
proceedings brought under those respective statutes, and it was thus error for the court to
conclude that those statutes’ evidentiary rules applied in this Welfare and Institutions
Code section 15657.03 proceeding. He then argues that section 15657.03, unlike Code of
1Lucille was born in October 1921. The restraining order was issued when she
was 99 years old, but she is now 100.
Many persons involved in this case have the last name Pilibos. We will use these
persons’ first names for clarity.
2.
Civil Procedure sections 527.6 and 527.8, does not contain language providing that
hearsay is generally admissible at the hearing on a petition brought under the statute.
Alex’s second contention is that the trial court erred in excluding evidence of a
written settlement offer he made to Sarah during a multi-month break in the 12-day
hearing. The court excluded the evidence on relevancy grounds. Lastly, his third
contention is that certain aspects of the restraining order are unconstitutionally overbroad.
We conclude the trial court erroneously found that Code of Civil Procedure
sections 527.6 and 527.8 apply to Welfare and Institutions Code section 15657.03
proceedings and conclude section 15657.03 does not provide for the general admissibility
of hearsay. However, we also conclude that much of the hearsay admitted in the hearing
was admissible under the state of mind exception to the hearsay rule (Evid. Code,
§ 1250). Additionally, of the plethora of statements Alex calls our attention to in his
brief, only five are inadmissible hearsay, and he has not demonstrated that the erroneous
admission of inadmissible hearsay prejudiced him. We thus conclude that the trial
court’s erroneous admission of, and reliance on, inadmissible hearsay does not require
reversal in this case.
We also conclude Alex has not demonstrated he was prejudiced by the court’s
exclusion of the evidence of his mid-hearing settlement offer. Finally, we reject Alex’s
arguments that some of the restraining order conditions are unconstitutionally overbroad.
We affirm.
FACTS
I. Background
We begin by providing a summary of the relevant history of the Pilibos family and
of the procedural history of this litigation. We will provide more detailed facts in our
summaries of each witness’s testimony.
Y. Stephen Pilibos and Lucille were married for many years before Stephen’s
death in January 2014 at the age of 102. Lucille’s net worth is estimated to be around
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$28 million. Stephen and Lucille had five children, in order from oldest to youngest:
Sarah, Mary, Alex, Barbara, and Catherine.
For about the past 18 years, Sarah and her husband, Ralph Curtis, have lived in a
cottage on the same 40-acre property where Stephen and Lucille resided, and Lucille
continues to reside. Sarah handled Stephen’s business and financial affairs before his
death and continued to handle the affairs following his passing. Additionally, in 2004,
Lucille executed a durable power of attorney permitting Sarah to take actions and make
decisions on her behalf.
Mary is a California attorney with over 40 years in practice and a certified
specialist in trust and estate planning and administration. Prior to 2012, Mary prepared
her parents’ trust and estate plan. The trust provided for an equal division of the estate
among the five children.
Sometime after Stephen passed away, Alex, Mary, and Barbara received in the
mail portions of their parents’ trust documents. They learned that in 2012 their parents
had a different attorney prepare a completely new trust, which they signed in August
2012 when Stephen was 100 years old. The new trust (“the 2012 trust”) provides that
Sarah and Catherine are to receive the bulk of the estate after both Stephen and Lucille
die. Specifically, Mary and Alex are to each receive a cash gift of $500,000 when the
surviving spouse dies, and Barbara is to receive the house she lives in which is currently
owned by the trust; thereafter, Sarah and Catherine are to receive the residue of the estate.
Sarah is to receive 60 percent of the residue and Catherine is to receive the other
40 percent.
Up until January 2019, Lucille was in good health, taking care of herself, living
alone, and still driving. In late January 2019, she was hospitalized for an abdominal cyst
for about one week and was bedridden thereafter for about two months. Since then,
Lucille has needed caregivers 24 hours a day. She needs help dressing herself, using the
restroom, bathing, preparing meals, and getting out of a chair. According to Sarah and
4.
others who would later testify at the hearing, Lucille has also declined mentally since her
hospitalization.
Around April or May 2019, Alex began discussing Lucille’s estate plan with her,
including having discussions when Sarah was present. Alex believed, based on
discussions with Lucille and how the prior trust was to distribute the assets, that Lucille
disagreed with how the distributions were to be made by the 2012 trust. According to
Alex’s testimony, he thereafter assisted Lucille in finding a new lawyer that Lucille could
meet with to make whatever changes she wanted to her trust. But according to Sarah,
Alex coerced Lucille into setting up and attending this meeting with a new attorney.
According to this new attorney, who testified at the hearing, Lucille said she did not want
to make any changes to her estate plan. Alex also attempted to schedule a family meeting
with Lucille and her five children to discuss Lucille’s estate plan. Sarah rejected the
suggestion of a family meeting because, according to her, Lucille did not want to change
her estate plan. Sarah believed Alex was badgering Lucille and trying to get her to
change her estate plan against her will. According to Sarah, what Alex was doing was
upsetting to Lucille.
II. Restraining order filed
On June 22, 2020, 2 Sarah, pursuant to the durable power of attorney, filed on
Lucille’s behalf a Request for Elder or Dependent Adult Abuse Restraining Order under
Welfare and Institutions Code section 15657.03. This request, which section 15657.03
refers to as a petition, sought to preclude Alex from any contact, direct or indirect, with
Lucille and to require him to stay 100 yards away from her and her home.
The petition averred:
“Alexander Pilibos has been engaging in an unrelenting campaign to
harass, coerce, manipulate and unduly influence Lucille Pilibos into
amending her estate plan against her wishes. Alexander Pilibos, an
2 Subsequent references to dates are to dates in 2020 unless otherwise stated.
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attorney, has even presented legal documents to his 98 year old mother to
sign even though he knows she is represented by counsel. Lucille Pilibos
has requested on multiple occasions, through her counsel, that Mr. Pilibos
stop his coercion of her to make changes to her estate plan. However,
Mr. Pilibos refuses to comply with those instructions despite knowing the
harm it causes her.”
The petition further alleged:
“As a result of Alexander Pilibos’ conduct, Lucille Pilibos has suffered
extreme emotional distress, anxiety, and fear. Lucille Pilibos has
experienced physical manifestations of her extreme emotional distress,
including loss of sleep and confusion. Her extreme anxiety and fear has
even caused her to hide herself away like a prisoner in her own home in
order to avoid seeing Mr. Pilibos.”
The petition also sought a temporary restraining order without notice to Alex
because “Lucille Pilibos is terrified of Alexander Pilibos and counsel is concerned that
Mr. Pilibos will react irrationally or unpredictably if given advance notice of this request
for restraining order.” Sarah submitted four declarations to support the petition.
The trial court denied the request for a temporary restraining order because the
facts presented in the petition “do not sufficiently show reasonable proof of a past act or
acts of abuse of the elder or dependent adult by” Alex. The court then scheduled a
hearing on the petition for July 16. The hearing ultimately commenced on September 24
and lasted 12 court days, concluding on March 8, 2021. The hearing was delayed for
several months due to a witness’s ill health.
III. Pretrial ruling regarding hearsay evidence
Alex filed a motion in limine before the hearing “to preclude admission of any
statements attributed to Lucille Pilibos.” The trial court heard oral argument on the
motion. Sarah’s counsel argued the “court can also rely upon relevant hearsay, and it’s
admissible in restraining order hearings under CCP 527.6.” The court initially granted
Alex’s motion, stating it was not going to allow “witnesses to come in and tell the Court
what Ms. Pilibos said. So anything that you refer to about what she said, is—is not going
to be admitted.”
6.
Sarah was the first witness called. Early in her testimony, her counsel asked the
court to reconsider its hearsay ruling, contending “the Court can, in a restraining order
proceeding like this, allow and admit relevant hearsay.” The court stated that if it
changed its ruling, “we are going to be trying this case on hearsay, because we are going
to have multiple witnesses coming in, saying, well, she said this. Well, no, she said that.”
Nevertheless, the court stated it would take another look at the issue that evening and
revisit it the next morning.
The next day, Alex’s counsel argued that Code of Civil Procedure section 527.6—
which has been interpreted as allowing the court to consider relevant hearsay evidence in
restraining order proceedings brought under that statute—does not apply to restraining
orders sought under Welfare and Institutions Code section 15657.03. The court
disagreed, concluding that Code of Civil Procedure sections 527.6 and 527.8 applied in
Welfare and Institutions Code section 15657.03 proceedings. The trial court accordingly
ruled that it would permit and consider relevant hearsay. The court and both counsel
agreed that Alex could have a standing objection to all hearsay evidence and that Sarah
could have a “standing response” that each hearsay statement would be admissible under
a statutory exception to the hearsay rule.
IV. Evidence introduced at hearing3
A. Sarah Pilibos
Sarah testified she would not describe her family as close, as there has been
“interfamily conflict” for at least 20 years. Alex had always been “very distant” with his
parents and visited them “irregularly.” In 2003, Alex sued Mary and Mary’s husband
over a business dispute. The litigation “ripped a lot of the family apart.” In connection
with the suit, Alex filed a state bar complaint against Mary seeking to have her disbarred.
3We are opting to not summarize the witnesses’ testimony in the order in which
they were called.
7.
The litigation was not resolved until 2007. After Stephen died, Alex did not have a
strong relationship with Lucille and visited her irregularly.
Lucille experienced a significant decline in her health after her hospitalization.
She lost her independence and requires 24-hour care. She needs assistance with getting
up out of a chair, dressing, bathing, and using the restroom. She has also experienced
significant mental decline. Alex became “very present” in April or May 2019 in that he
began visiting Lucille more often.
Sarah estimated that she been inside of Lucille’s house with Alex about three or
four times since Lucille’s hospitalization, and each time Alex brought up the topic of
Lucille’s estate plan with Lucille. Alex would discuss Lucille’s estate plan with Lucille
in Sarah’s presence. During one conversation in approximately June 2019, Alex asked
Lucille, “Why isn’t it more fair?” “Why don’t you have it more fair?” “Why isn’t your
estate plan more fair?” Lucille would say to Alex during these conversations, “I don’t
know why you’re doing this.” Lucille also said, “I don’t want to change anything. Let
me buy you a house. You should have a family. Why don’t you move back in here with
me. I just want you to be happy.”
Sarah believed Alex was badgering Lucille during his visits to discuss her estate
plan. She believed he was “pushing” Lucille to change her estate plan against her will.
Sarah observed Lucille become upset and cry when Alex would bring up the subject of
her estate plan. Sarah was concerned the discussions would negatively impact Lucille’s
health. Lucille would get stressed and confused and would have trouble sleeping and
become disoriented. Lucille would ask after Alex left, “Why is he doing this to me?
What does he want?”
Sarah described Lucille as a people pleaser. There were times when Lucille would
agree to something and then later tell Sarah she did not want to do that. Sarah said that is
part of Lucille’s personality.
8.
Sarah had gone over Lucille’s estate plan with her many times, but Lucille did not
always remember those conversations. Sarah told Lucille that she could change the estate
plan anytime and that all she had to do was call the attorney. Lucille said, “No, I don’t
want to change anything. This is what dad and I did. This is the way we wanted it.
Leave it alone.”
Sarah had noticed personality changes in Lucille that began three to six months
before Sarah testified in this hearing. Lucille has become more subdued. She likes
interaction but is quieter and does not laugh as much. Lucille can have “social
conversations” on “light topics,” but would have difficulty discussing complex topics.
Sarah stated Lucille is “losing her happiness.”
Sarah testified that she had Lucille’s best interests at heart, but that she does not
believe Alex, Mary, and Barbara have Lucille’s best interests at heart. She does not trust
Alex, Mary, or Barbara and would not feel comfortable with any of them talking with
Lucille about her estate plan unless someone else were present. However, Sarah does
think it would be “wonderful” for Alex to continue to visit Lucille, so long as he does not
discuss her estate plan. Sarah also stated that Lucille loves Alex and likes to call him.
B. Mary Pilibos
Mary lives in San Francisco and is an estate planning attorney. She testified she
had not seen Lucille much recently, maybe five times in 2019 and three times in 2020,
but she writes Lucille notes and calls her. Lucille “seems fine” when Mary visits, and
Mary has not seen her become disoriented. Mary could not remember that Lucille was in
the hospital in January 2019.
Mary stated Alex was a favorite child since childhood. Lucille “idolizes” Alex
and adores him. But Mary has not often had the opportunity over the years to see Alex
and Lucille interact. Over the past five years, Mary only saw Alex and Lucille together at
family gatherings. She also stated that Alex was a loner, not a loving person, and
vindictive. She agreed with the suggestion that Lucille was a people pleaser.
9.
It was “unfathomable” to Mary that Lucille would fear Alex. Mary “know[s]”
Lucille is intimidated by Sarah and Ralph. Lucille whispers around Sarah and Ralph.
However, Mary stated Sarah and Ralph take good care of Lucille and they have devoted
their lives to Lucille and Stephen.
Mary does not feel welcome at Lucille’s home. One time when she came from
San Francisco to visit Lucille, Ralph said to her, “What are you doing here?” Ralph
follows Mary around whenever she is at Lucille’s and keeps watch over her. Mary feels
Sarah and Ralph are isolating Lucille from Mary.
On one occasion, Mary came from San Francisco to visit Lucille while Catherine
was there. When Mary arrived, Catherine “blew up” at her and took Lucille away from
the house for a couple of hours. Mary stayed at Lucille’s house and waited for them to
return. When Catherine and Lucille returned, Mary said hello to Lucille, then got into her
car and drove back home to San Francisco.
Mary had her law firm prepare trust documents for her parents in 1991. Mary
stated she remembered that those documents provided that each child receive an equal
share of the estate. Later, in 2004, when Mary and Catherine were practicing law
together, Mary prepared new trust documents for her parents that likewise provided that
the five children were to share equally in their parents’ estate.
Mary recalled that Lucille once told her on the phone that she wants all her
children to be treated equally and that she would not have signed something that didn’t
treat all the children the same.
C. Barbara Meinert
Barbara is Lucille’s second youngest child. She did not have a close relationship
with Stephen but has a good relationship with Lucille. Barbara visits Lucille every
Monday for about five hours to cook, clean the refrigerator, grocery shop, and read Bible
stories to Lucille. Since Stephen’s death, it has not been a welcoming feeling going to
the house. She believes Sarah and Ralph are isolating Lucille from her and other people.
10.
Barbara testified Lucille loves Alex, talks about him often, and says how much she
misses him. Barbara has never been at Lucille’s at the same time as Alex. While Lucille
has never expressed fear of Alex, she has expressed fear of Sarah and Ralph and has said
that she does not want to do anything to upset them because they control her.
Barbara testified Lucille declined when she was in the hospital but has since
recovered and is “doing great” now. When she speaks with Lucille, she feels Lucille is
lucid and can carry on intelligent conversation. She has heard Lucille say numerous
times she wants her estate divided equally amongst her children, including in the two
months prior to Barbara’s testimony. However, on cross examination, Barbara admitted
there was a time when Barbara was reading the Bible to Lucille outside at Lucille’s home
and Lucille said, “We’ve got to get out of here. I’m at a facility.” Barbara stated
“everything was fine” again, though, when they went back inside.
Barbara stated Lucille is someone who likes to please people and does not like to
be in confrontational situations. Lucille tells people things she thinks they may want to
hear to avoid confrontation. Barbara agreed Alex is a loner, not a loving person, and
vindictive. However, she does not think Alex is manipulative. Alex does not have a
close relationship with any of his siblings. She does not think a restraining order is in
Lucille’s best interest because Alex is not a danger to Lucille and Lucille loves him.
On August 17, after Sarah had filed the restraining order request, Barbara took a
video recording of Lucille. Barbara said Alex told her to take the recording. Alex
provides only an excerpt of the transcript of the recording in his brief, but we will provide
the entire recording.
“Barbara: Alright, here it is August 17th, I do not want to be doing a
video, because I look terrible, but I’m here with my mother and before I got
out of the car. I came to take her to her podiatrist appointment, I was in my
car and I drove up and um I got a call from my brother Alex’s attorney’s
office telling me that um I was going to be sent a subpoena and um I gave
my address for the subpoena to be sent and there is going to be a court date
on um August 27th, Thursday. So I was given that information, and of
11.
course it’s upsetting um and so I didn’t say anything to my mother of
course, I came in and we went go the podiatrist and then um, we read the
bible and I don’t know how it came up but um what was going on. So, so
when I told my mom um, you know she was quite upset and I’m gonna let
her tell you what her request is. I said, you know, that my father, it is my
understanding we had a trust set up for the children um in the 80’s it was
written up and everybody was all the children were listed in it as
beneficiaries of this trust and then um Alex told me that like in 2000 um no
in um when dad was 101 the whole trust was thrown out and a new trust
was written that was signed by my father and my mother that the only
beneficiaries are my sister Sarah and my sister Catherine and that’s why
Alex is, um that we are having there is this issue with Alex and Sarah. So,
um my mom I’ll let her tell you I’m going to turn it around which I think I
can do this, how do I turn it around, what does that button do, so turn it
around oh that makes a little sunshine. I’m gonna go like this. Okay this is
mom. Here’s mom.
“Barbara: Go ahead mom.
“Lucille: What do I say.
“Barbara: I um you say just say that when I told you what the trust,
who benefits from the trust is Sarah and Catherine and Mary, Alex and
Barbara are not beneficiaries of the trust either personal or
“Lucille: That’s ridiculous. That’s terrible.
“Barbara: Yeah, and you want and then you told me that you want
to go to an attorney. Go ahead.
“Lucille: Yes, I want to go to a good attorney, an honest attorney
and I want everything equaled out with my children, all five of them.
“Barbara: And then when I said you have an attorney, you said what
about this the attorney that that you have. Um I don’t want to put words in
your mouth. What do you think you have this attorney, this woman
attorney and um but you felt that, well you told me you felt that she was
more partial to Sarah and works for Sarah and not you.
“Lucille: Yes.
“Barbara: And you want a whole new attorney.
“Lucille: Yes.
12.
“Barbara: Well, that’s what you said.
“Lucille: Yes, alright fine.
“Barbara: No, well
“Lucille: Yes that’s what I said.
“Barbara: That’s what you said, maybe say it again for the record
“Lucille: I want everything to be honest and fair. Even with all the
children not one getting more than the other child.
“Barbara: Okay.
“Lucille: Now, let’s straighten this out so everybody has a fair
chance to have a little life in their life
“Barbara: Okay and I’m not holding a gun to you.
“Lucille: Oh no you’re not doing anything Barbara
“Barbara: Okay, so now that’s what mom’s wishes are that’s what
mom’s wishes are
“Lucille: Yeah
“Barbara: and that’s that.”
Barbara took another video recording of Lucille at Alex’s request on September 7.
Alex does not mention this recording in his brief. We reproduce the entire transcript of
the recording.
“Barbara: Oh my gosh, okay, so here I am again, it’s Monday, I’ve
come to visit mom, it’s Monday, Labor Day and I’ve come to visit mom
and um
“Lucille: She feels very bad at what I’ve done
“Barbara: Um here, here’s mom, okay, go ahead mom
“Lucille: Hi, Alex I miss you and I’m so sorry what I’ve done, and I
want to see you, you are my friend, and you used to come over and see me
and I miss your visits. So please forgive me for my, maybe because I’m so
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old I’m a little bit rusty in the brain. Forgive me. Please come and see me.
Please, please come and see me.
“Barbara: Okay
“Lucille: And I will call my lawyer too, to make sure that nobody
bothers you.
“Barbara: Oh that’s nice, yeah, maybe you call, yeah, call your
attorney. Mom’s going to call her attorney and tell her this is her wishes.
And that why no one’s listening to her, we don’t understand why no one
listens to her. These are her wishes. This is her attorney and her attorney is
supposed to be representing her, right?
“Lucille: Have him come and see me.
“Barbara: What about this restraining order against Alex, what do
you think of that one? Do you want him to stay away? Are you scared of
Alex?
“Lucille: No, no, no. No, Alex and I were real close friends you
know. He used to come and see me all the time.
“Barbara: Right
“Lucille: and now I never see my son anymore and it’s my own
fault, it’s my fault.
“Barbara: Well I don’t know whose fault it is.
“Lucille: Yes it is, it’s my fault. I’ve got to
“Barbara: What did you do that you think it’s your fault?
“Lucille: I want to get this straightened out.
“Barbara: Yes, but I don’t, but don’t blame yourself mom.
“Lucille: And I have to get it straightened out from my attorney
“Barbara: Yeah, maybe that’s it.
“Lucille: She’s got to clean it up, that’s it.
“Barbara: Yeah, okay, well that’s it.
14.
“Lucille: And you know what, he might turn around and say the
heck with her
“Barbara: No he loves you Mom
“Lucille: I love him too
“Barbara: Well he loves you and you know what this shouldn’t be
happening.
“Lucille: Good.”
D. Alex Pilibos
Alex described his relationship with his father as very close and personal from
2000 until Stephen’s death in 2014. He stated they had disagreements “like anyone else
would,” but he always respected his father and enjoyed working with him. He saw
Lucille once every other week during that period. He stated he has a “close personal
bond” with Lucille. Alex recalls the litigation with Mary and her husband and
remembers trying to get Mary disbarred. However, he said that all those legal matters
had settled and that they had “buried the hatchet.”
Alex began discussing Lucille’s estate plan with her in summer 2019. Alex often
recorded the conversations he had with Lucille. He said that Lucille is usually the person
who brings up the trust during their conversations, and that she has never told him it was
upsetting to her when they discussed her trust. He also stated that Lucille has never
seemed scared when they discussed her estate plan and that he has never yelled at or
threatened her.
Alex testified he discussed the 2012 trust with Lucille and asked her if it was
consistent with what she wanted to do with her estate. She said it was not what she
wanted and said she wanted her children to be treated equally. Alex then told Lucille to
write her feelings down. He said, “Write your feelings down, whatever you are feeling.
Just write them down. I want a record of this, what you just said.” Lucille then wrote a
15.
handwritten letter to Alex while Alex was there. The letter was dated “May 2019” and
read:
“Dear Alex:
Please help me. I want a lawyer. I do not have a will.
I do not understand what or where my property is but I want a will.
Please help me.
I want all my children to share. Please Alex, I beg you to help me,
help me now. Would please like the lawyer to come to my house.
Love Mom
P.S.
Mothers Day this was written by my self”
Sometime after, Alex called the attorney who prepared the 2012 trust, William
Coleman, and told Coleman that Lucille wanted to meet with him to discuss her trust.
Alex took Lucille to the meeting with Coleman. Coleman and Lucille met privately in a
room. When they came back out, Coleman stated he would make the changes Lucille
demanded. Alex testified he did not know any specifics that were discussed in that
meeting but stated he does know that Coleman did not make any changes.
Alex stated Lucille told him once, “You keep telling me that two kids are going to
get everything, and three kids are, are being cut out. Where is this document? Why don’t
I have a copy of it? Can’t I see?” Alex said he would send her a copy. Alex mailed a
copy of the 2012 trust to Lucille and included in the envelope a note that read: “Mom—
here is the trust document you signed that disinherits 3 of your children. The most
important pages are pages 8—13. Page 12 is marked. It gives 60% of your estate to
Sarah & 40% to Catherine.”
Alex testified it is clear to him that Lucille is “being fed systemic misinformation
by a very special interest in this family, and that family’s committed to maintaining the
16.
status quo.” He continued, “They got her to sign a document not knowing what it says,
and now they don’t want anyone or anything coming between that to change it.” He also
stated, “And so I’ve taken it upon myself to make sure that her true wishes, which she has
expressed to me many times, which I’ve recorded, are in fact honored, and that she’s not
disrespected at this stage of her life and her good nature taken advantage of.”
Alex acknowledged that her mother’s estate plan was last amended in 2012 when
both Stephen and Lucille were alive. However, he said, “I expect that my mother had no
idea what it said. She was just told to sign something, and she signed it.” He stated he
believed his parents were “duped” into signing the 2012 trust but did not specify who
duped them.
When Lucille’s estate plan came up in discussions, Lucille would say to Alex she
wanted all her children to take equal shares of the estate. Alex would then “have to
explain to her that that was impossible because two of them had already arranged things
so they would get the entirety of [his] father’s estate less the contingent gifts to me and to
Mary, a cash gift.” He testified he has never told Lucille she needs to change her estate
plan, and instead has told her that what she wants to do with her estate plan is up to her.
Alex also testified Lucille and he have always liked the idea of having a family
meeting so that they can all “get together and hear what everybody has to say and hear
their grievances” regarding the estate plan. He further stated, “I just think it’s important
for everyone to have all the facts, and I think the best form to do that in a non-
confrontational way is a family meeting.” He also said he thinks “it’s important that
everyone has a say.”
There was a family meeting at Lucille’s house in October 2019 with Lucille, Alex,
Catherine, and Sarah. Alex recorded the meeting. Lucille became very upset during the
meeting and started crying and said, “I can’t take this anymore.” “You wanted an
airplane, and father bought you an airplane. What else do you want from your dad? He’s
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dead now.” “You’re a grown man. I just want you to grow up.” Alex said these words
from his mother hurt him very deeply.
Alex stated that if Lucille were given the chance to meet with an independent
person, and if she told that person she is satisfied with how her trust distributes her estate
and that she does not want to make any changes, he would accept that and walk away.
Alex testified before Mary and Barbara, and he admitted he communicated with
both of them about other witnesses’ testimony. He also admitted he understood that his
own lawyers made an unopposed motion at the beginning of the hearing to exclude
witnesses from the courtroom in part so that they could not hear the testimony of other
witnesses. He said he made a mistake.
E. Patricia Ventura
Patricia Ventura is a caregiver for Lucille. At the time of her testimony, she had
been caring for Lucille for about one and a half years, working four to five days a week
from 7 a.m. to 3 p.m. The company she works for was hired by Sarah. She testified
Lucille needs help with “everything”—showering, brushing her teeth, eating, changing,
and using the restroom. Lucille cannot turn on the television, change the stations, or use
the telephone without assistance.
Lucille was a very happy, outgoing person when Ventura first came to work for
her. Lucille told Ventura before Ventura met Alex that there was “some distance” in
Lucille and Alex’s relationship. Alex began visiting his mother around Easter 2019 and
Ventura has seen Alex at Lucille’s house approximately eight times. Alex brought up the
subject of the estate plan during about five or six of those visits; Lucille never brought the
topic up herself during any of those visits. Alex would ask Lucille if she has read
through her estate plan or if she has a copy of it and ask her if she thinks it’s fair. Lucille
would respond, “Whatever my husband and I wrote, that’s what’s going to be, and I’m
not planning to change anything.” However, Ventura has also heard Lucille say in front
of Alex that she wanted all her children to be treated equally. Ventura explained that
18.
Lucille does not express to Alex what she really wants to express to him and instead tells
him what he wants to hear.
Ventura explained that when people came to Lucille’s house to visit, Ventura
typically stays in the room because Lucille is a fall risk. When Alex visits, he usually
asks Lucille to ask the caregivers to leave the room. Alex would take Lucille to her
bedroom or to the office in the house. It concerned Ventura that Alex asked her not to sit
in those meetings because none of the other kids asked to be alone with Lucille. It
appeared to Ventura that the estate planning topic upset Lucille. Lucille once told
Ventura it was upsetting to her that Alex kept bringing up the estate planning subject.
After Alex would leave, Lucille would say something like, “Why? Why does he want to
change it?” Or, “What does he want?”
In the year and a half prior to Ventura’s testimony, Ventura became concerned that
Alex had been attempting to influence Lucille regarding her estate plan. Alex would try
to record Lucille while discussing the estate plan, and there were times when Lucille did
not want to talk about it. Ventura had become suspicious of Alex being alone with
Lucille because Alex told Ventura he was planning to sue Sarah, and Ventura was
concerned perhaps Alex was trying to extract evidence from Lucille or make Lucille sign
something. Alex asked Lucille many times if he could record her and Lucille always said
no. Alex would then leave without saying goodbye. She never saw Alex yell at,
threaten, or physically abuse Lucille, but he would become upset when Lucille said she
did not want to be recorded.
Ventura was never concerned Sarah was influencing Lucille. She also had never
heard Barbara, Mary, or Sarah discuss Lucille’s estate plan with Lucille. She overheard
Sarah tell Lucille that Lucille was free to change her estate plan, but Lucille said that she
did not want to change it and that it would remain how Stephen and she did it.
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F. Attorney Robyn Esraelian’s involvement
As stated earlier, Alex sent Lucille a handwritten note stating her current estate
plan disinherits three of her children and gives the entire estate to the other two.
Additionally, on February 13, Alex drafted and personally presented a letter for Lucille to
sign authorizing Alex to obtain copies of William Coleman’s files. The letter read, in all
capital letters:
“I GIVE MY SON ALEX THE RIGHT TO COPIES OF ALL
FILES YOUR FIRM RECEIVED FROM BILL COLEMAN’S OFFICE.
LUCILLE PILIBOS”
Lucille signed and wrote the date, February 13, below the typed text.
Thereafter, in February 2020, Lucille retained attorney Robyn Esraelian, an
attorney with 40 years of estate planning experience, to represent her with respect to her
personal estate planning. Esraelian was initially contacted by Lucille’s other attorneys,
Timothy Thompson and Niki Cunningham, about potentially representing Lucille.
Thompson and Cunningham were representing Lucille in her capacity as trustee of the
2012 trust. Esraelian remembered Lucille and her family from when she was a young
girl.
Esraelian met Lucille in February 2020 at a meeting at Lucille’s home.
Thompson, Cunningham, Esraelian, Lucille, and a caregiver were there. Neither Sarah
nor Alex was present. The three attorneys met with Lucille with the caregiver within
earshot. Esraelian said the focus of the discussion at that first meeting was the
February 13 authorization Lucille signed. Esraelian stated, “As a result of discussing that
letter, Lucille made it absolutely clear that she did not want Alex or his attorneys, or
anyone else, to see her estate planning documents.” Esraelian explained to Lucille she
could make changes to her estate plan at any time, and Lucille “stated in no uncertain
terms that she did not want to make any changes to her existing estate plan.” Esraelian
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believed that to be Lucille’s true intent. Lucille indicated that she wanted to retain
Esraelian.
Esraelian returned a week later with an engagement letter that Lucille signed. No
one else was present during this second meeting with Esraelian except for the caregiver,
who was again within earshot. Esraelian discussed with Lucille again whether she
wanted to make any changes to her estate plan, and Lucille “made it clear again and
stated several times that she did not want to make changes to her estate plan.” Lucille
also told Esraelian “something to the effect … that Alex kept trying to get her to do
something that she didn’t want to do.” Lucille kept saying to Esraelian, “I just want
everyone to get along. I just want to be at peace. I don’t want to discuss this with Alex
or anyone else for that matter.” Lucille said she wanted to continue to see and visit with
Alex, but just did not want to discuss her estate plan.
During that second meeting, Lucille suggested to Esraelian that Lucille should
write a letter to Alex revoking the letter she signed on February 13 authorizing Alex to
obtain Lucille’s legal files. Lucille said Alex brought the consent letter over to her house
and told her to sign it. Lucille handwrote a letter to Alex revoking her prior written
authorization and telling him to speak to her attorney regarding estate planning matters.
Lucille signed and dated the letter to Alex February 21. Lucille told Esraelian that she
was so afraid Alex might hand her another document to sign that she asked Esraelian to
prepare envelopes for her so that if Alex showed up with documents, she could put them
in an envelope and mail them to her.
Esraelian wrote a letter to Alex’s attorney, Rex Haught, enclosing Lucille’s letter.
Esraelian’s letter advised Haught that Lucille has revoked the document she signed on
February 13 and that Lucille does not want Alex to present any other documents to her
for signature without first having Esraelian review them. Esraelian’s letter also read:
“It is my understanding that Alex was previously instructed not to
have communication with Lucille regarding her estate plan or estate
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planning documents. He has obviously disregarded that instruction. Alex’s
continued efforts to discuss Lucille’s estate plan and estate planning
documents is extremely upsetting to Lucille. If Alex continues this
conduct, I may be forced to take other action to prevent this unreasonable
pressure and attempt to unduly influence Lucille.”
Haught responded with an email suggesting a “family meeting” with all the
children and Esraelian. Esraelian responded in writing stating, “We will not have a
‘family meeting’ as requested,” and reiterating the message in one of her prior letters that
“Alex is to ‘refrain from discussing Lucille’s estate plan or estate planning documents
with her.’ ” Esraelian and Haught exchanged additional correspondence but nothing
changed.
Esraelian stated she often gave Lucille the opportunity to discuss possible changes
to her estate plan. However, Lucille did not even want to discuss potential changes.
Lucille would say things along the lines of, “My husband and I did this together, and
what we did together is going to stay the way it is. I’m not going to change what we –
what we decided to do.” Esraelian explained to Lucille what the ultimate distribution of
her estate would be under the 2012 trust, “simplify[ying] it down to the specific gifts and
then the gift of their residuary.” But Lucille did not want to discuss it any further than
that.
Esraelian also testified that, over the course of her attorney-client relationship with
Lucille, Lucille became less able to track their discussions and less able to understand
what Esraelian was explaining to her. Esraelian tried to explain Lucille’s healthcare
directive to her because it was outdated and the financial durable power of attorney
because one of the individuals named in it was no longer in her life, but Lucille had
trouble understanding Esraelian’s discussion of those documents. Esraelian therefore
made no changes to those documents because she did not think Lucille had the capacity
to understand them. Esraelian also stated it was her understanding that William Coleman
22.
withdrew from representing Lucille because of Alex’s pressure to get her to change her
estate plan.
1. Esraelian’s purported termination
On Monday, May 4, Alex sent Barbara the following email at 12:24 p.m.:
“Barbara:
You called me today from mom’s house and told me mom
desperately wanted to talk to me.
I told you to tell mom that I cannot talk to her about her estate or any
related matters; and her attorney Robyn Esraelian basically threatened me
with possible legal action if I did. Robyn also forbid a family meeting to
try and resolve estate issues.
Tell her I’m sorry but I can’t take the chance of getting sued. Wish
her a Happy Mother’s Day and Easter etc for me. My thoughts are with
her.
Alex.”
Phone records introduced at the hearing showed that Alex and Barbara called each
other 15 times on May 4 between 11:38 a.m. and 5:17 p.m.. Alex and Mary also called
each other seven times that day between 11:41 a.m. and 4:50 p.m., the last call lasting
28 minutes. Alex testified that he sent that email to Barbara after Lucille called him
wanting to talk about her estate. Alex said he told Lucille that threatening letters had
been sent to him. Alex said he told Lucille, “I really can’t talk to you. Not comfortable
talking about this as long as you are represented.” He further stated to her, “You need—
you need a lawyer that’s going to, to be impartial and truthful with you, and I don’t
believe that this is the lawyer that you have right now. As long as she’s working for you,
I really can’t help you.” He testified Lucille was surprised to learn Esraelian was sending
him cease and desist letters. Alex said Lucille asked him, “So what if I fire [Esraelian]?”
Alex said he responded, “You do what you want.”
23.
Also on May 4, Lucille called Esraelian’s office and left a voice message stating,
“I found out that I no longer need your services.” Barbara was with Lucille when she
made the call. Esraelian thought the voicemail was “unusual.” Esraelian called Lucille
back later that afternoon to confirm that she wanted to terminate the representation.
Lucille said to her, “I don’t want to fire you.” Esraelian met with Lucille the next day.
Lucille told her that the day before someone picked up the phone, dialed, gave the phone
to Lucille, and told Lucille, “Now, do what I tell you to do or say what I tell you to say.”
But Lucille could not remember who that person was.
On May 5, one of Alex’s attorneys, Phil Martinez of Wild, Carter & Tipton, sent
an email to Esraelian stating Martinez had heard that Lucille had left Esraelian a message
terminating her representation. Martinez asked Esraelian to confirm if that was true.
Alex testified he did not know how Martinez’s law firm learned about Lucille’s voice
message for Esraelian. However, he admitted the only people he could think of who
would have informed Martinez’s firm are himself and Esraelian. Alex’s phone records
also showed that he made two calls to Wild, Carter & Tipton on May 4, the first one at
1:14 p.m., and the firm also made one call to him that day, for a total of three calls. Alex
also called Wild, Carter & Tipton two times the next morning, and the firm made one call
back to him, before Martinez sent his email to Esraelian inquiring about the alleged
termination.
Alex acknowledged that he was asked multiple times by Lucille’s attorneys not to
talk with Lucille about changing her estate plan, and that he was told in each of those
letters that Lucille did not want to make changes to her estate plan. However, he testified
that he did not agree with the premises of the letters from Lucille’s attorneys because
those lawyers were all hired by Sarah “to feed [Lucille] misinformation.” He said if she
24.
told him directly to stop discussing her estate plan with her then he would stop, but she
did not ever do that. 4
G. The June 5 incident
Also, on May 4, the same day Lucille called Esraelian to purportedly terminate
her, Lucille made a phone call to attorney Joseph Doerr’s office and told Doerr she
wanted to make an appointment to come see him regarding her estate plan. Phone
records show that Alex made a phone call to Doerr’s office at 12:50 p.m. that day, and a
call to his cell phone at 12:51 p.m..
Doerr is an estate planning attorney in Fresno. Alex had been in contact with
Doerr for about a year and told him Lucille wanted to leave her current attorney, William
Coleman, and make some changes to her estate plan. Doerr said he had had about six
conversations with Alex. Alex told him that Lucille wanted to amend her estate plan so
that all five of her children shared equally in her estate. Alex also told him that Sarah
was controlling who Lucille got to see and prevented Lucille from seeing her own estate
planning attorney and getting things done the way she wanted.
Doerr testified he spoke with Lucille twice on May 4. During the first call, Doerr
asked for her phone number, and Lucille said, “I don’t even know my phone number.” It
took Lucille about 20 seconds to remember her number. Doerr then called back to
schedule an appointment. Barbara was present when Lucille spoke to Doerr, but Alex
was not. The meeting was ultimately set for June 5.
Alex showed up to Lucille’s house on June 5 at about 9:30 a.m. when Lucille had
just finished eating breakfast. Ventura was on duty at the time. Alex brought with him a
private investigator named James who Lucille did not know. Alex introduced James and
4 Alex was asked by Lucille’s counsel: “And you certainly didn’t care what any
of the lawyers had been telling you on her behalf, and that was to leave her alone and
stop talking to her about trust changes; correct?” Alex answered: “When she is around
me, she’s chipper and happy and always happy to see me.”
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then took him into a private room in the house. Alex and James returned about a minute
later and Alex told Lucille he wanted to take her to lunch. Lucille said she did not want
to go because she had just finished eating breakfast. Ventura thought it was strange
because it was only 9:30 a.m. and because of the COVID-19 pandemic.
Lucille eventually agreed to go. While she was in the bathroom, Alex tried to
hurry her up: “Come on, Mom, let’s go.” Ventura testified Alex seemed very nervous
and “shivery.” As Lucille and Ventura were walking out of the house with Alex and
James, Ralph approached Alex and said Alex was not going to take her. Lucille said she
was going to go with her son, and they got into the car and left. Alex had hired a driver.
Ventura did not know where they were going when they got into the car. Alex
then told Lucille he was taking her to see a “friend.” Lucille said she wanted to call
Sarah, but Alex said she could call her when they were finished with what they were
doing. Ventura testified Lucille looked nervous in the car, and Ventura patted Lucille’s
hand and said, “It’s okay, you’re fine.”
When they arrived at Doerr’s office, Alex called to let the staff know Lucille was
coming. He then told Lucille someone was waiting for her. Lucille went with Ventura
from the car to the office. As they were walking, Lucille told Ventura she did not
understand why she was going to the office or who she was there to see. Lucille stated,
“I don’t know who I am going to see.” Ventura said, “I don’t know either.”
Ventura told Doerr’s receptionist Lucille is here. The receptionist said, “Oh, yes,
she called to make an appointment.” Lucille said, “I don’t remember making an
appointment.” Lucille and Ventura then went into a room with Doerr. Doerr testified the
meeting started at 10:32 a.m. Lucille asked Doerr if it was okay if Ventura stayed with
her and Doerr said it was.
Doerr testified he asked Lucille if she knew why she was there, and Lucille said
she did not know. Lucille stated she did not remember speaking with Doerr on the phone
the month before and asked, “What am I here for?” Doerr explained he was an estate
26.
planning attorney, but she did not understand what that was. He then explained he helped
people with wills and trusts, and she understood that. Lucille told him Alex arrived that
day and told her he was taking her to lunch. She said she got in the car with him so that
he would not get angry with her.
Doerr testified that Lucille told him she was “terrified” of Alex, and Doerr got the
sense that she did not want to disappoint Alex. She was afraid Alex would get mad if she
did not do what he said. He asked Lucille if she wanted Ventura to leave the room but
she said no. Doerr felt it was appropriate for Ventura to remain in the room because he
did not think there was going to be any estate planning business conducted that day and
because he did not want to add to Lucille’s stress. Doerr decided within the first couple
of minutes that he was not going to be doing anything regarding Lucille’s estate plan.
Doerr further testified Lucille was afraid and he tried to comfort her. He testified
he did not want to cut the meeting short because that may be a “bad sign,” so he made the
meeting last 30 minutes and passed the time by just talking with her about other things.
Lucille could not remember her daughter Catherine and said she forgot how many
children she had; she said three or four. He could tell by the tone in her voice and look in
her eyes she was distressed, and he did not feel it would have been appropriate to prepare
estate planning documents for her that day. Lucille told him several times she was
“terrified” of Alex and did not want Alex to be mad at Doerr.
It was clear to Doerr that Lucille did not want anything to do with her estate plan.
Lucille said her husband handled the estate plan and knew what he was doing. She said
that women should not be making those kinds of decisions. She said it should have been
done by her husband and said, “I want things left alone.” 5 Doerr got the impression
Lucille did not want to discuss her estate plan with anyone. Doerr said he had some
5Ventura also testified that Doerr asked Lucille if she wanted to change her estate
plan and Lucille responded, “No, I don’t. I don’t want to change it.”
27.
doubts about her competency during the meeting and noticed she had trouble
remembering things, but observed she otherwise seemed to understand what they were
discussing during the meeting. Doerr testified that he thinks the topic of Lucille’s estate
plan should be “off limits” until she can perhaps speak to a third party about her wishes.
When Lucille and Ventura were walking back to the car where Alex was waiting,
Lucille told Ventura that she was going to tell Alex that everything was fine and that she
met a very good person and that she wasn’t going to say anything else. Alex asked
Lucille how it went and Lucille responded, “It went very well. He’s a very good person.”
Alex did not take Lucille to lunch, as she wanted to go back home. Alex asked if Lucille
wanted to see Doerr again and Lucille said, “Well, if he’s your friend, he’s my friend.”
Ventura testified Lucille was very upset when she got home. She said, “I can’t
believe Alex is doing this. What does he want from me?” The rest of the day Lucille
was confused, was not herself, and did not feel like eating. Ventura testified that after
what happened that day Lucille did not sleep well and would wake up and not know
where she was.
Sarah arrived at Lucille’s house late in the afternoon on June 5. Lucille looked
sullen and asked if everyone could leave the room. Lucille then asked Sarah if Lucille
had any children and if she had a son. Sarah told Lucille her son was Alex. Lucille was
trembling and very scared. Lucille said, “There was a man here today that could not have
been my son. I don’t know who that man was, but that man could not have been my son.
He was not.” “He was terrible.” “I don’t know who those men were. I don’t ever want
them to come back. I never want to see them again.”
Sarah further stated that Lucille’s mental health has worsened since June 5 and
that she has been prescribed new mental health medication. Lucille forgets where she is
when she is at home and becomes disoriented. In the days following June 5, Lucille
would not get up and get dressed like she usually did.
28.
H. June 9 incident
According to Sarah’s testimony, Alex called Lucille on June 9 and said he was
coming over with a friend, and Lucille said he could. Sarah stated Lucille was “nice” to
Alex on the phone, but when Lucille hung up, she said, “I don’t want to see him. I don’t
want to see anybody. I’m afraid. I don’t want anybody to come over.” Lucille said she
wanted the curtains drawn, the doors locked, and the phone unplugged. She asked,
“What if he comes to the house and knocks on the door? He’ll go around. He’ll look in
the windows.”
Sarah further testified that after Lucille’s June 9 phone call with Alex, Lucille did
not want to leave her bedroom for a couple of days. Lucille made Sarah put a sign in the
front window that said, “If you want to talk about the estate plan, call the attorney.” The
sign had Esraelian’s phone number on it.
I. Lucille Pilibos
Lucille was called to testify by Alex. Lucille gave her testimony in a conference
room at the courthouse with the judge and both parties and their counsel present. The
court asked Lucille some questions before allowing the parties to voir dire Lucille for the
purpose of establishing Lucille’s competency to testify.
The judge asked Lucille if she knew why she was there that day and Lucille said
she did not. The judge introduced herself and told Lucille her lawyers were there in the
room. The judge asked Lucille if she remembered her lawyers and she said, “Because
I’m so old, I forget.” Lucille promised to tell the truth. The judge asked Lucille how old
she was and Lucille answered, “I think I’m 99.” Lucille did not know what day it was
and said, “Why am I so scared? I think I’m going to jail or something.”
Lucille said she has children: “Sarah, Mary, Barbara, Alex – that’s it. I think that
comes to five or six.” Lucille was then sworn in. The judge reiterated she was not in
trouble. Lucille said, “No, I don’t want to be in trouble, and if I am in trouble, I want you
to tell me right now, because I’m scared as it is.”
29.
Alex’s counsel then conducted voir dire of Lucille. Counsel asked Lucille how
she felt about Alex and Lucille said, “Alex is a little hard to get along with.” She added
that she hates to say that, and said, “[W]e just don’t get along. I’m sorry to say that. It’s
terrible for a mother to say that.” When asked if she was afraid of Alex, she answered,
“No, I feel sorry for him. I’m not afraid of him.” She added: “But, honestly, I hate to
say this, but my girls don’t get along with him either. I’m sorry.” She said she knows
that Alex would never strike her, but that Alex is a loner.
The judge asked Lucille again if she understood why she was there today and
Lucille answered, “No, I have no idea.” Lucille then spontaneously stated, “But, you
know, I think this gentleman here, he looks like the type could talk to Alex, and I think
Alex would talk to him. But I don’t know if he wants to talk to Alex.” The “gentleman”
she was referring to was her own attorney, Timothy Thompson. Lucille then said to
Thompson, “You look like a very calm person.”
Her counsel, Thompson, then conducted voir dire. He asked Lucille if they had
ever met before and Lucille said she did not think so. Lucille also said she did not know
her other attorney, Niki Cunningham, who was also present. Lucille then spontaneously
turned to the judge and asked, “Are you a judge?” Thompson asked Lucille if she
remembered Alex taking her to see a lawyer and Lucille said Alex had not taken her to
see a lawyer. Lucille also said she does not remember the name of the caregiver who was
sitting behind her while she was testifying.
Alex’s counsel then conducted further voir dire. Lucille testified that she did not
think Sarah would ask for a restraining order against Alex on her behalf and that she had
never talked to Sarah about wanting to be kept away from Alex. The following colloquy
took place:
“[ALEX’S COUNSEL]: Well, do you want to see Alex?
“[LUCILLE]: If he does that, I have to—there’s a good lawyer,
right there, if he doesn’t go against me.
30.
“[THOMPSON]: I won’t go against you, Mrs. Pilibos.
“[LUCILLE]: I’ll hire you.
“[ALEX’S COUNSEL]: Well, Mrs. Pilibos, do you want to be kept
away from Alex?
“[LUCILLE]: I’m sorry, honey?
“[ALEX’S COUNSEL]: Do you want to be kept away from Alex?
“[LUCILLE]: What does she mean?”
Lucille explained Alex was good at one time until he “just turned different.” She
stated that she does not think she has a will or a trust and that she does not know how
things should be divided between her children. Lucille said, “Maybe after this program, I
better do something. And there’s a good judge over there. Oh, no, he’s a lawyer. You
are a lawyer.” She continued, “I have to get a good lawyer and have him help me to say
do it like this. You do it like this so it comes out even with all of them. Then I really like
to get a good lawyer.”
Lucille stated Alex has never pressured her to see a lawyer or to sign any
documents, and he has never discussed a will or trust with her. She also said she is not
scared to talk to Alex. The following colloquies took place between Alex’s counsel and
Lucille:
“[ALEX’S COUNSEL]: Have you ever asked Alex to help you get
an attorney?
“[LUCILLE]: I don’t think so. He went to law school, and I met
nice boys, and I used to say, ‘Alex, you know, a lot of those boys don’t
have a chance to have dinner.’ I says, ‘I make dinner for you. I don’t care
if you bring five kids, six kids. However many you want to bring, bring
them to my house, and when I make your dinners, I’ll feed those boys too.
And I really meant it, and, but he never brought anybody home.’ ”
Alex’s counsel also asked if Lucille would like to get a lawyer to help her children
share equally in her estate, and Lucille answered: “I absolutely have to get a lawyer to
help me, and right now, I don’t have a lawyer. But what I’d probably do is ask the kids.
31.
I’d ask the girls, ‘Let’s get a good lawyer.” Regarding if she would mind talking about
her trust and estate with Alex, Lucille said, “No, I wouldn’t mind talking it over with
him. Because I don’t even have it now. I should do something. I think I see a good
lawyer over there.”
Lucille said she would “love it” if Alex and the whole family got together. She
said that would be “wonderful.” After being told by counsel that she had met her
attorney Robyn Esraelian on several occasions and then being asked if she remembered
Esraelian, Lucille said she did not.
The court ultimately ruled that Lucille was competent to testify because she was
capable of expressing herself and understood the need to tell the truth. However, the
court noted Lucille became confused about some things, which “[would] go into the
assessment of her credibility as a witness.”
IV. Trial court’s statement of decision
Following the conclusion of testimony, Sarah orally amended her pleadings,
requesting an order restraining Alex from (1) speaking directly or indirectly with Lucille
about her estate plan and (2) presenting Lucille any documents for her signature. The
court issued its oral tentative decision on March 8, 2021. The tentative decision
confirmed hearsay evidence was admissible in the proceeding.
The court issued its final written statement of decision on May 6, 2021. The
statement of decision issued the following restraining order, restraining Alex from the
following conduct:
“(1) intimidating, harassing, or disturbing the peace of Lucille
Pilibos; (2) directly or indirectly discussing Lucille Pilibos’ estate plan with
her; (3) directly or indirectly requesting or pressuring Lucille Pilibos to
make any changes to her estate plan; and (4) directly or indirectly
requesting that Lucille Pilibos sign any documents, or presenting
documents to Lucille Pilibos to sign.”
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The restraining order is to remain in effect until the end of the day on March 8,
2022.
Regarding the admissibility of hearsay evidence, the statement of decision stated:
“Pursuant to Code of Civil Procedure sections 527.6(i) and 527.8(j), at the hearing on a
request for restraining order, a trial court may consider relevant hearsay evidence. (See
also Kaiser Foundation Hospitals v. Wilson (2011) 201 Cal.App.4th 550 [(Kaiser)].)”
The court continued: “The Court finds that the hearsay statements attributed to Lucille
Pilibos are relevant. Therefore, the Court considered the hearsay statements attributed to
Lucille that were offered into evidence by both parties at trial. In weighing the evidence
presented at the trial, the Court finds the hearsay statements attributed to Lucille by non-
family members were credible. In weighing the evidence presented at trial, the Court
finds that the hearsay statements attributed to Lucille by certain members of her family
were less credible and not as reliable.”
The court acknowledged its ruling that Lucille was competent to testify as a
witness, but also noted that Lucille had difficulty remembering many things and became
confused at times during her testimony. The court stated, “Lucille’s impaired memory
and mental state impacted the Court’s assessment of the credibility of her testimony.”
The court stated it “found Alex Pilibos to be evasive in his testimony, elusive, and
not credible. Alex testified that his mother wanted to speak with a lawyer about her
estate plan, and he was simply trying to facilitate her request. The Court finds this claim
by Alex to be inconsistent with the testimony of Robyn Esraelian and Joseph Doerr both
of whom the court finds to be credible witnesses.”
The statement of decision contained a “Summary of Key Factual Findings and
Conclusions.” The court concluded that a preponderance of the evidence showed that
“Alex was pressuring his mother Lucille to meet with an attorney, to change her estate
plan, and to sign documents that she did not want to sign and of which she did not
understand the impact. Based on the evidence presented at trial, it appears to the Court
33.
that when Alex found out the terms of Lucille’s trust, he began a campaign to convince
his mother to change her estate plan. In the Court’s assessment, Alex attempted to coerce
and convince Lucille to change her estate plan through pressure and deception.”
Regarding the June 5 incident, the court found “that Alex engaged in intimidating
behavior by coercing Lucille into making an appointment with a lawyer and forcing her
to go meet with an attorney when she clearly did not want to go and had no
understanding of where she was going and why she was going there.” The court further
found Lucille was “manipulated into terminating [Esraelian] and to making an
appointment with another attorney that Alex had selected.”
The court concluded that Alex’s actions constituted harassment, disturbed
Lucille’s peace, and caused her mental suffering. The court further stated it was clear
from Doerr, Esraelian, and Ventura’s testimony that Lucille was “extremely distressed
and scared” the day she met with Doerr.
DISCUSSION
I. Hearsay evidence
Alex first contends the trial court, relying on inapplicable statutes, erroneously
admitted and relied on hearsay in ruling on the Welfare and Institutions Code
section 15657.03 petition. He contends that there was a large amount of hearsay admitted
and that the sheer amount of this evidence prejudiced him.
We conclude Alex is partly correct. He is correct that the trial court incorrectly
concluded that Code of Civil Procedure sections 527.6 and 527.8 apply in Welfare and
Institutions Code section 15657.03 proceedings. He is also correct that section 15657.03
does not provide that hearsay is generally admissible in proceedings brought under that
statute.
However, the record does not show that Alex was prejudiced by the erroneous
admission of any hearsay. Most of the hearsay statements Alex calls to our attention
were admissible under the state of mind exception to the hearsay rule codified in
34.
Evidence Code section 1250. Other statements he notes in his briefing were not hearsay
at all because they were not inherently true or false. Alex’s briefing points to only five
inadmissible hearsay statements introduced at the 12-day hearing, and we conclude these
statements did not result in prejudice warranting a new hearing.
We therefore affirm on this ground.
A. Standard of review
Trial court rulings on the admissibility of evidence are generally reviewed for
abuse of discretion. (IIG Wireless, Inc. v. Yi (2018) 22 Cal.App.5th 630, 655 (IIG
Wireless).) “ ‘If the court’s decision is influenced by an erroneous understanding of
applicable law or reflects an unawareness of the full scope of its discretion, the court has
not properly exercised discretion under the law.’ ” (Cooper v. Bettinger (2015)
242 Cal.App.4th 77, 90 (Cooper).) “ ‘Therefore, a discretionary order based on an
application of improper criteria or incorrect legal assumptions is not an exercise of
informed discretion and is subject to reversal.’ ” (Ibid.)
However, “ ‘[a] judgment of the trial court may not be reversed on the basis of the
erroneous admission of evidence, unless that error was prejudicial. (Code Civ. Proc.,
§ 475.)’ [Citation.] ‘The record must show that the appellant “sustained and suffered
substantial injury, and that a different result would have been probable if such error ...
had not occurred or existed. There shall be no presumption that error is prejudicial, or
that injury was done if error is shown.” [Citation.] Additionally, article VI, section 13,
of the California Constitution provides that a judgment may not be set aside based on the
erroneous admission of evidence “unless, after an examination of the entire cause,
including the evidence, the court shall be of the opinion that the error complained of has
resulted in a miscarriage of justice.” Evidence Code section 353 reinforces that
provision: we may not reverse a judgment by reason of the erroneous admission of
evidence unless ... [¶] ... [¶] ... the error or errors complained of resulted in a miscarriage
of justice.” ’ ” (IIG Wireless, supra, 22 Cal.App.5th at p. 655.)
35.
B. Code of Civil Procedure sections 527.6 and 527.8 were inapplicable
We begin by stating that the trial court erroneously concluded that Code of Civil
Procedure sections 527.6 and 527.8 apply in proceedings under Welfare and Institutions
Code section 15657.03. Code of Civil Procedure section 527.6 provides an expedited
procedure for issuing a limited-scope and limited-duration injunction in instances of
harassment, which is narrowly defined by that section. Conduct that is outside the
definition of harassment cannot be enjoined under the summary procedures of section
527.6 even if it might ultimately be enjoined under ordinary injunctive procedures after
full development of the facts and law. (Byers v. Cathcart (1997) 57 Cal.App.4th 805,
811—812.) The trial court in this case apparently believed that this statute applied to all
restraining order proceedings, regardless of under which statute the restraining order
request was sought. But this is incorrect. Section 527.6 is not broadly applicable to all
restraining order proceedings. Section 527.6 and Welfare and Institutions Code section
15657.03 also do not reference each other. The trial court erred in ruling Code of Civil
Procedure section 527.6 had any bearing at all on the proceedings below. 6
Code of Civil Procedure section 527.8 was equally inapplicable. That statute,
enacted as the “Workplace Violence Safety Act” in 1994, allows a corporate employer to
obtain injunctive relief on behalf of an employee to prevent acts of violence in the
workplace. (Stats. 1993-94, 1st Ex. Sess., ch. 29 (A.B. 68), § 2, eff. Nov. 30, 1994;
6 Welfare and Institutions Code section 15657.03, subdivision (d), provides in
part: “Upon filing a petition for protective orders under this section, the petitioner may
obtain a temporary restraining order in accordance with Section 527 of the Code of Civil
Procedure, except to the extent this section provides a rule that is inconsistent.” Code of
Civil Procedure section 527.6 is not specifically referenced anywhere in the statute. And
section 527, as it applies to Welfare and Institutions Code section 15657.03, only governs
the issuance of temporary restraining orders. The trial court in this case denied Sarah’s
request for a temporary restraining order; this is an appeal from an order granting a
protective order. Thus, section 527 does not apply here either because of the specific
order appealed from.
36.
Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333—334 (Scripps Health).)
“Given that section 527.6 only allowed injunctive relief for natural persons [citation],
section 527.8 was enacted to allow a corporate employer to bring such an action on
behalf of an employee. Section 527.8 was thus intended to enable employers to seek the
same remedy for its employees as section 527.6 provides for natural persons.” (Scripps
Health, at pp. 333—334.) Section 527.8 closely parallels section 527.6, and likewise
makes no reference to Welfare and Institutions Code section 15657.03. It thus has no
application to the proceedings in this case.
Code of Civil Procedure sections 527.6, subdivision (i) and 527.8, subdivision (j)
are identical: “At the hearing, the judge shall receive any testimony that is relevant and
may make an independent inquiry.” (Emphasis added.) This emboldened language “has
been interpreted to mean hearsay evidence, such as a declaration or police report, is
admissible during hearings conducted pursuant to section 527.6” and section 527.8.
(Yost v. Forestiere (2020) 51 Cal.App.5th 509, 521, citing Duronslet v. Kamps (2012)
203 Cal.App.4th 717, 728—729 [interpreting in the context of § 527.6; see also Kaiser,
supra, 201 Cal.App.4th at p. 557 [interpreting same language in context of § 527.8].)
The trial court was aware these statutes had been interpreted as generally allowing
hearsay in proceedings they control and erred in concluding these statutes applied here.
We will next demonstrate how Welfare and Institutions Code section 15657.03
does not provide that hearsay is generally admissible in proceedings brought under it.
C. Interpreting Welfare and Institutions Code section 15657.03
Our interpretation of Welfare and Institutions Code section 15657.03 is guided by
well-established legal principles governing our standard of review and the interpretation
of statutes. We will first set forth these governing principles, and then demonstrate how
applying these principles leads to our conclusion that section 15657.03 clearly and
unambiguously does not provide that hearsay is generally admissible in proceedings
brought under that statute.
37.
1. Principles of statutory interpretation
When interpreting statutory language, “ ‘[w]e begin with the fundamental rule that
our primary task is to determine the lawmakers’ intent.’ [Citation.] The process of
interpreting the statute to ascertain that intent may involve up to three steps.
[Citations.] … We have explained this three-step sequence as follows: ‘we first look to
the plain meaning of the statutory language, then to its legislative history and finally to
the reasonableness of a proposed construction.’ ” (MacIsaac v. Waste Management
Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 1082 (MacIsaac).)
“In the first step of the interpretive process we look to the words of the statute
themselves. [Citations.] The Legislature’s chosen language is the most reliable indicator
of its intent because ‘ “it is the language of the statute itself that has successfully braved
the legislative gauntlet.” ’ [Citation.] We give the words of the statute ‘a plain and
commonsense meaning’ unless the statute specifically defines the words to give them a
special meaning.” (MacIsaac, supra, 134 Cal.App.4th at pp. 1082—1083.) “ ‘It is
axiomatic that in the interpretation of a statute where the language is clear, its plain
meaning should be followed.’ ” (Security Pacific National Bank v. Wozab (1990)
51 Cal.3d 991, 998.) Furthermore, we are not empowered to insert language into a
statute, as “[d]oing so would violate the cardinal rule of statutory construction that courts
must not add provisions to statutes.” (Ibid.; see also Code Civ. Proc., § 1858 [“[i]n the
construction of a statute ..., the office of the Judge is simply to ascertain and declare what
is in terms or in substance contained therein, not to insert what has been omitted, or to
omit what has been inserted ....”].) “If the statutory language is clear and unambiguous,
our task is at an end, for there is no need for judicial construction. [Citations.] In such a
case, there is nothing for the court to interpret or construe.” (MacIsaac, supra,
134 Cal.App.4th at p. 1083.)
38.
2. Analysis
Welfare and Institutions Code section 15657.03 clearly and unambiguously does
not provide that hearsay is generally admissible in proceedings brought under that code
section. Hearsay is “evidence of a statement that was made other than by a witness while
testifying at the hearing and that is offered to prove the truth of the matter stated.” (Evid.
Code, § 1200, subd. (a).) Unless subject to an exception, hearsay evidence is
inadmissible. (Evid. Code, § 1200, subd. (b).) “Except as otherwise provided by
statute,” the Evidence Code applies in every action conducted before courts in this state.
(Evid. Code, § 300.)
There is only one subdivision in Welfare and Institutions Code section 15657.03
bearing on the admissibility of evidence. Subdivision (c) of section 15657.03 states: “An
order may be issued under this section, with or without notice, to restrain any person for
the purpose of preventing a recurrence of abuse, if a declaration shows, to the satisfaction
of the court, reasonable proof of a past act or acts of abuse of the petitioning elder or
dependent adult.”
This subdivision does not provide, expressly or implicitly, that hearsay is
generally admissible in proceedings for dependent adult protective orders. Welfare and
Institutions Code section 15657.03, subdivision (c) only provides that a court may issue a
protective order based on a written declaration alone. A declaration is an unsworn,
written statement made under penalty of perjury whenever state law requires or permits
facts to be proved by affidavits or other sworn statements. (Code Civ. Proc., § 2015.5.)
“Declarations and affidavits are frequently used as a substitute for sworn oral testimony”
when statutorily permitted. (O’Connor’s Cal. Practice (2021 ed.) Civil Pretrial, Ch. 1-B,
§ 4.) “In the absence of statutory permission, an affidavit is not competent evidence,
although made under oath, because it is hearsay.” (In re Estate of Horman (1968) 265
Cal.App.2d 796, 805; see Evid. Code, § 1200 [hearsay rule].) The same rule should
apply to declarations. But even when a declaration is statutorily authorized for use in a
39.
specific proceeding, its contents must be based on personal knowledge and be otherwise
admissible. (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 609.)
Thus, the only substitute for sworn oral testimony in proceedings under Welfare
and Institutions Code section 15657.03 is a declaration based on personal knowledge;
there are no other exceptions. The plain and unambiguous interpretation of the statute
then is that hearsay is not generally admissible in proceedings under section 15657.03.
Since the statute is plain and unambiguous on this point, our analysis ends here.
Alex’s argument largely relies, unnecessarily, on a distinguishing of Welfare and
Institutions Code section 15657.03 from Code of Civil Procedure sections 527.6 and
527.8. We have already demonstrated the dissimilarity between section 15657.03 and the
two Code of Civil Procedure sections. Section 15657.03’s meaning is clear and
unambiguous from its plain language, and we therefore need not resort to comparing it to
other statutes.
Sarah’s briefing also has a misplaced focus concerning the interpretation of
Welfare and Institutions Code section 15657.03. Sarah’s argument is largely based on
her contention that interpreting section 15657.03 as generally allowing hearsay in
proceedings under that section would make for good public policy and would further the
Elder and Dependent Adult Abuse Prevention Act’s stated purpose of providing greater
protection for vulnerable adults. Sarah gleans the Act’s purpose from section 15600,
subdivision (a), as well as legislative committee analyses. (See Assem. Com. on Aging
and Long-Term Care, Analysis of Assem. Bill No. 59 (1999—2000 Reg. Sess.) May 28,
1999; and Sen. Rules Com., Analysis of Assem. Bill No. 59 (1999—2000 Reg. Sess.)
Sept. 2, 1999.) First, it is improper to turn to legislative materials and policy
considerations to interpret a statute when its language is clear and unambiguous. (In re
A.L. (2015) 243 Cal.App.4th 628, 641.) Additionally, section 15657.03 no doubt furthers
the goal of providing greater protection for vulnerable adults; whether it furthers the goal
in the exact manner Sarah wishes it did is irrelevant to our analysis.
40.
C. No prejudice
1. Standard for reversal
We briefly restate the standard for reversal. Erroneous introduction of evidence
must result in a miscarriage of justice and reversal should be granted only where the
reviewing court is convinced that it is reasonably probable that a more favorable result to
the appellant would have been reached but for the error. (Evid. Code, § 353; Brokopp v.
Ford Motor Co. (1977) 71 Cal.App.3d 841, 853.)
2. Analysis
Despite that the trial court erred in concluding hearsay was generally admissible in
this proceeding, Alex has not demonstrated he was prejudiced by the admission of any
inadmissible hearsay. He contends the proceeding was “truly a trial by hearsay,” and his
briefing calls 20 allegedly inadmissible statements to our attention that the trial court
relied on in its statement of decision. Alex clearly does not mean to say there were only
20 inadmissible hearsay statements admitted at the hearing; we understand these
20 statements are but a sampling of what he believes were the most prejudicial ones.
However, as we have stated, only five of these 20 statements were inadmissible hearsay
that should have been excluded. These five inadmissible statements were not so
prejudicial to constitute a miscarriage of justice warranting a new hearing.
The 20 statements are cited in a single paragraph in Alex’s opening brief. We
have inserted bold numbers to count the statements:
“[I]n rendering its decision, the court relied almost exclusively on
hearsay statements allegedly made to others by Lucille and Alex. The court
stated it was relying principally on the hearsay statements from non-family
members. [Citation.] Those non-family member statements, as recited in
the statement of decision, are replete with statements like ‘Lucille told’
Ms. Ventura (1), Ms. Ventura ‘heard Alex ask Lucille’ (2), ‘Lucille would
say’ (3), ‘Ms. Ventura was present during Lucille’s conversation with
Mr. Doerr and heard Lucille say’ (4), Lucille ‘asked Ms. Ventura’ (5),
‘Alex called Lucille and said’ (6), Lucille ‘asked Ms. Ventura’ (7), ‘Lucille
stated’ to Ms. Esraelian (8), ‘Lucille also told Ms. Esraelian’ (9), ‘Lucille
41.
told Ms. Esraelian on multiple occasions’ (10), ‘Lucille had made it clear’
to Ms. Esraelian (11), ‘Lucille told Ms. Esraelian’ (12), ‘Lucille made it
very clear to’ Mr. Doerr (13), and ‘Lucille stated’ to Mr. Doerr (14).
[Citation.] There are also six statements stating ‘'Lucille told Mr. Doerr.’ ”
(15—20)
The difficulty in analyzing any of these 20 statements is that the above block
quote, taken from Alex’s brief, contains only bits of the trial court’s paraphrasing of the
witnesses’ statements. However, we have carefully reviewed the record for each of the
20 statements from which the trial court derived its paraphrasing. We conclude only five
of these statements were inadmissible hearsay, and 11 others were admissible as
statements of Lucille’s then-existing state of mind (Evid. Code, § 1250). The remaining
four statements were not hearsay because they were not inherently true or false.
We will analyze the 20 statements in three groups: the inadmissible hearsay
statements, the admissible hearsay statements, and the non-hearsay statements. We will
discuss in our analysis of the inadmissible hearsay statements how the admission of those
statements did not prejudice Alex, meaning that there is no reasonable probability of a
different outcome had the court excluded them.
a. Inadmissible hearsay statements
As we have already stated, under the hearsay rule, subject to several exceptions,
“evidence of a statement that was made other than by a witness while testifying at the
hearing and that is offered to prove the truth of the matter stated” is generally
inadmissible. (Evid. Code, § 1200.) The first, ninth, twelfth, fifteenth, and sixteenth
statements numbered above were inadmissible hearsay; we will analyze each of them.
The first numbered statement in the statement of decision reads: “Ms. Ventura
testified that Lucille told her that there was a distance between her and Alex[.]” This
statement by Lucille was obviously offered to prove that there was distance between
Lucille and Alex, and we can discern no applicable statutory exception to the hearsay rule
that would allow for it to be admitted. It therefore should have been excluded. However,
42.
this statement’s admission did not prejudice Alex because multiple witnesses testified to
the fact that Lucille and Alex were not close, and that Alex did not visit often. The trial
court’s statement of decision noted Sarah’s testimony that Alex visited Lucille
“irregularly.” The court also noted Ventura’s testimony, apparently based on Ventura’s
own observation, that Alex did not visit Lucille regularly.
The ninth numbered statement in the statement of decision reads: “Lucille also
told Ms. Esraelian words to the effect that Alex kept trying to get Lucille to do something
she did not want to do.” It is clear from the context in the statement of decision that the
court relied on this statement for the truth of the assertion that Alex kept trying to get
Lucille to do something she did not want to do. The statement was hearsay and we
cannot discern an applicable exception. However, the fact that Alex kept trying to get
Lucille to do something she did not want to do—specifically, change her estate plan—
was established by a wealth of other evidence, and Alex was therefore not prejudiced.
Multiple witnesses testified that Lucille had stated that she did not want to change her
estate plan, and Doerr testified that Lucille told him multiple times that she was
“terrified” of Alex. As we will demonstrate in the following section, these other
statements were admissible under the state of mind exception to the hearsay rule (Evid.
Code, § 1250).
The twelfth numbered statement in the statement of decision reads: “Lucille told
Ms. Esraelian that the only reason she made the call [terminating Esraelian] was because
someone was at her home with her, dialed the phone, handed the phone to her, and told
her to do what we tell you to do, and Lucille was following their instructions.” The trial
court cited to Exhibit no. 16, a letter from Esraelian to Alex’s counsel, for this statement.
In the letter, Esraelian relates to Alex’s counsel what Lucille told Esraelian regarding
what happened the day Lucille called and left Esraelian a voice message purportedly
firing her. The court clearly relied on this statement for the truth of the matter asserted
therein and this statement was thus inadmissible.
43.
However, the twelfth statement was not prejudicial because other evidence noted
in the statement of decision supported the court’s finding that Lucille was coerced into
calling and terminating Esraelian. Alex’s phone records from that day, showed 15 calls
to and from Barbara, five to and from Mary, three to and from Alex’s attorneys at Wild,
Carter & Tipton, and two to Doerr. Additionally, the voice message from Lucille stated
she “found out” she no longer needed Esraelian’s services, which indicated someone else
was behind the idea to terminate Esraelian. Moreover, Esraelian also testified that
Lucille told her in person the day after the voice message that she did not want to
terminate Esraelian, and Alex does not challenge this statement as inadmissible hearsay.7
The fifteenth statement reads: “Lucille told Mr. Doerr that her son Alex had come
to the house and told her to get in the car, and she did as she was instructed.” This
statement was obviously offered to prove the truth of the matter asserted and thus should
have been excluded. However, it was not prejudicial because Alex himself admitted in
his testimony that he came to Lucille’s house on June 5 and told her he was taking her to
lunch and that Lucille got into the car with him. Ventura also testified consistently to
those exact facts.
The sixteenth statement reads: “Lucille told Mr. Doerr that she thought Alex was
taking her to lunch, and she did not want to come to see Mr. Doerr.” This statement was
introduced solely to prove the truth of the matter asserted. However, it was not
prejudicial because Doerr also testified that Lucille told him, “Well, I’m not sure why I’m
here. I don’t want to be here.” This quoted statement was not noted in the statement of
decision and not challenged by Alex. It is hearsay, but it is admissible under Evidence
Code section 1250 as a statement of Lucille’s then existing state of mind. Moreover, we
7Even if Alex did challenge it as inadmissible hearsay, we would find it was
admissible as evidence of Lucille’s then existing state of mind (Evid. Code, § 1250).
44.
have already mentioned that Alex admitted that he told Lucille he was taking her to lunch
when he arrived at her house that day.
None of these five inadmissible statements were in the least bit prejudicial, mainly
because there was other ample evidence establishing the contents of those statements.
b. State of mind exception to hearsay rule
“Except as otherwise provided by statute, all relevant evidence is admissible.”
(Evid. Code, § 351.) Evidence is relevant if it has “any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.)
Evidence Code section 1250 provides an exception for “evidence of a statement of
the declarant’s then existing state of mind, emotion, or physical sensation (including a
statement of intent, plan, motive, design, mental feeling, pain, or bodily health).” For this
exception to apply, the statement must not have been made under circumstances
indicating a “lack of trustworthiness” (Evid. Code, § 1252), and must be offered either
“to prove the declarant’s state of mind, emotion, or physical sensation,” or “to prove or
explain acts or conduct of the declarant.” (Evid. Code, § 1250, subd. (a).) “A
prerequisite to this exception is that the declarant’s mental state or conduct be placed in
issue.” (People v. Kovacich (2011) 201 Cal.App.4th 863, 884 (Kovacich).)
An important point is that “ ‘a statement which does not directly declare a mental
state, but is merely circumstantial evidence of that state of mind, is not hearsay. It is not
received for the truth of the matter stated, but rather whether the statement is true or not,
the fact such statement was made is irrelevant to a determination of the declarant’s state
of mind.’ ” (Kovacich, supra, 201 Cal.App.4th at p. 885.)
Eleven of the statements we numbered were hearsay statements admissible under
the state of mind exception of Evidence Code section 1250. Four of these statements
involved Lucille stating she is afraid of Alex, and six others involved Lucille stating she
does not want to change her estate plan. All these statements were offered to prove the
45.
truth of their contents and were therefore hearsay. But they were all statements Lucille
made of her then existing state of mind, specifically of her intent to keep her estate plan,
and of her then existing emotion. Lucille’s mental state at the time she made these
statements was relevant in these proceedings because two of the central issues were
whether Alex was trying to get Lucille to act against her will and whether Alex’s conduct
caused her mental suffering. These statements were probative of Lucille’s wishes and of
her emotional experiences.
The one other statement involved Alex telling Lucille that he wanted to bring a
friend over to her house to discuss Lucille’s estate plan. This statement was offered to
prove Alex’s then existing intent to bring someone over to Lucille’s house, and as such
was admissible under Evidence Code section 1250. The statement was relevant because
it proved that Alex intended to continue talking with Lucille about her estate plan even
after he had been instructed multiple times not to, and even after he had already taken
Lucille days earlier to see Doerr.
i. Evidence Code section 1252
Alex states that the trial court never determined whether any of the hearsay
statements were subject to any exceptions in light of its ruling that all relevant hearsay
was admissible. As such, he contends he never had any opportunity to present evidence
or argument regarding the applicability of any exceptions. 8 He states this court is not
able to address the trustworthiness issues in the first instance.
8 While neither party makes an issue of it, we note that Alex agreed that Sarah
could have a “standing response” to his standing objection regarding the admissibility of
hearsay. Sarah’s standing response meant that all hearsay, if inadmissible generally,
would be admissible under some statutory exception to the hearsay rule. We presume
this broad standing response included the contention that all of Lucille’s statements
favorable to Sarah’s position would not be excludable under Evidence Code section
1252. Perhaps it is inconsistent for Alex to agree to the standing response below, and
then on appeal complain that the trial court did not give him the chance to present
evidence on the admissibility of exceptions. Maybe he deprived himself of that chance
by agreeing to the standing response. Alex could have, and perhaps should have, not
46.
Specifically with respect to the state of mind exception of Evidence Code
section 1250, Alex contends the trial court did not conduct the required analysis
regarding the trustworthiness of the purported statements. “Evidence of the declarant’s
state of mind, even if otherwise admissible under Evidence Code section 1250, is
inadmissible ‘if the statement was made under circumstances such as to indicate its lack
of trustworthiness.’ (Evid. Code, § 1252.)” (People v. Livaditis (1992) 2 Cal.4th 759,
779.) “To be admissible under Evidence Code section 1252, statements must be made in
a natural manner, and not under circumstances of suspicion, so that they carry the
probability of trustworthiness. Such declarations are admissible only when they are
‘ “made at a time when there was no motive to deceive.” ’ ” (People v. Edwards (1991)
54 Cal.3d 787, 820.)
First, we are not convinced that the trial court did not consider the trustworthiness
of the hearsay statements subject to the state of mind exception. The court’s duties as the
trier of fact in this case included determining the weight and credibility of the evidence.
(In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 319.) The court stated in its
statement of decision it “strongly consider[ed]” Lucille’s hearsay statements as testified
to by non-family members, which we take to mean the court found those hearsay
statements to be credible and capable of supporting legal conclusions. We do not believe
the trial court would have given such weight to hearsay statements attributable to Lucille
had the court believed they were made in circumstances indicating they were
untrustworthy.
agreed to the standing response and instead stated on the record that he wanted a chance
to present evidence regarding exceptions to the hearsay rule.
We are not holding any of this against Alex. We only bring this to the parties’ and
the court’s attention to show the danger in liberally agreeing to and granting standing
objections and responses. Parties and trial courts can inadvertently create waiver and
forfeiture issues that can doom an appeal.
47.
Moreover, the court’s statement of decision implies that the court afforded less
credibility to some of the hearsay attributable to Lucille. For example, several witnesses
testified they had heard Lucille say she wanted her estate equally divided among all her
children. There were even recordings of Lucille saying that. However, the implication is
that the trial court believed Lucille made those statements while under pressure from
Alex and others working with him. Thus, in our view, the statement of decision shows
that the trial court thoughtfully analyzed the hearsay statements attributable to Lucille and
reached a considered conclusion on the trustworthiness of each one.
Additionally, both parties had the opportunity and the motive to elicit testimony
from the witnesses regarding the circumstances in which Lucille made her statements.
Each side had the motive to bolster the credibility of some of Lucille’s statements and
attack the credibility of others. All the witnesses were asked how they perceived Lucille
to be while she made certain statements to them. There was much testimony about
Lucille’s mental alertness at various times, her people-pleasing personality, the quality of
her relationships with different persons, and whether she seemed to be expressing her true
feelings at various times. In our view, the parties made diligent efforts to portray the
circumstances in which Lucille made various statements. We conclude from this that the
trial court had sufficient evidence of these circumstances for it to earnestly gauge the
trustworthiness of the statements. We also note that the trial court deemed certain
witnesses credible and others not credible, and accepted certain narratives and rejected
others. The court could not have done this without analyzing the trustworthiness of
Lucille’s various statements introduced via hearsay. We have no basis for second
guessing these determinations.
c. Nonhearsay statements
The purpose of the hearsay rule is to exclude statements made when the declarant
was not under oath and not subject to cross-examination, because the trier of fact is
unable to properly gauge the veracity of such statements. (People v. Cudjo (1993)
48.
6 Cal.4th 585, 608.) But concerns about whether a declarant was telling the truth are not
implicated when the only relevance of the statement is the mere fact that it was made.
Some statements are considered “ ‘verbal conduct,’ ” meaning they are neither true nor
false, and therefore cannot be hearsay. (People v. Cowan (2010) 50 Cal.4th 401, 472.) A
proposal to perform an act falls within the category of verbal conduct, because a
statement offering to do something cannot be true or false. (Ibid. [defendant’s statement
offering to “ ‘come down right now’ ” and talk to police was not hearsay].) Similarly, a
question or request has no inherent truth or falsity and is not hearsay. (People v. Jurado
(2006) 38 Cal.4th 72, 117 (Jurado).)
In Jurado, the declarant’s statement was a request that a friend get her a “gat” (a
slang term for a gun), because she had a problem she needed to take care of. The portion
of the statement where the declarant asked for a gun was not hearsay because such a
request does not assert the truth of any fact. (Jurado, supra, 38 Cal.4th at p. 117.)
The second, third, fifth, and seventh numbered statements were not hearsay
because they all referenced questions or directives from the declarants. The second
statement related Alex asking Lucille to see an estate planning attorney. The third
statement related Lucille asking Ventura after Alex left her house, “Why does he want to
change it? What does he want?” The fifth statement relates Lucille asking Ventura,
“What does he want from me?” And the seventh statement relates to Lucille asking
Ventura to lock the doors in the house, unplug the phone, and close the curtains. None of
these statements have any underlying truth or falsity and are therefore not hearsay.
In conclusion, Alex was not prejudiced by the court’s erroneously ruling that
hearsay was generally admissible in this proceeding. There was indeed a lot of hearsay
introduced at the hearing, too much for Alex to be reasonably expected to analyze in his
briefing. However, we would expect that his sample of 20 allegedly inadmissible hearsay
statements would comprise the most prejudicially inadmissible ones. However, as we
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have explained, only five of them were inadmissible, and none were proven to be
prejudicial.
II. Exclusion of settlement agreement
Alex next contends the trial court abused its discretion by sustaining an objection
to testimony about a settlement offer Alex made to Sarah during the several-month break
in the hearing.
After the court heard Sarah’s, Ventura’s, Doerr’s, and part of Alex’s testimony,
and during the extended break in testimony due to a health issue, Alex made a settlement
offer to Sarah. Alex’s offer proposed that Sarah and Alex agree to a “mutual non-CLETS
Agreement.”9 The general points of the proposal were these: (1) for nine months,
neither he nor Sarah would speak with Lucille about her estate plan; (2) Sarah would
dismiss the underlying restraining order action without prejudice; and (3) the parties
would agree that Lucille speak to an independent third party about her estate planning
desires and report back to the parties regarding Lucille’s wishes. The proposal also stated
that, if the third party reported that Lucille does not want to change her estate plan, Alex
would dismiss the action he filed in August 2020 seeking, among other things, to remove
Sarah as co-trustee of the 2012 trust and to direct a modification of the trust.
Alex sought to admit the settlement offer into evidence as well as testimony about
it. Sarah’s counsel objected, arguing it was inadmissible as a settlement communication.
The court sustained the objection, but on relevance grounds. The court stated, “I think
9 Welfare and Institutions Code section 15657.03, subdivision (p), subparts (2) and
(3), set forth the two alternative methods for transmitting protective order information to
the Department of Justice. Under subpart (2), the petitioner may transmit a copy of the
protective order to each law enforcement agency having jurisdiction over the petitioner’s
residence. Alternatively, under subpart (3), the court must either transmit a copy of the
order to a local law enforcement agency authorized by the Department of Justice to enter
orders into the California Law Enforcement Telecommunications System (CLETS) or,
with the approval of the Department of Justice, enter the order into CLETS directly.
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that it is not really relevant to the issues that the Court has to decide today. So I am going
to rule that that testimony is not going to be admitted.”
Alex correctly notes that “[a]lthough settlement offers are not admissible to prove
liability (Evid. Code, § 1152), they may be admitted in evidence to show good faith.”
(Lemer v. Boise Cascade, Inc. (1980) 107 Cal.App.3d 1, 11—12, citing Warner Constr.
Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 297—298.) A court may issue a
restraining order under Welfare and Institutions Code section 15657.03 if an elder or
dependent adult has suffered abuse. (§ 15657.03, subd. (a)(1).) “Abuse” is defined as
“[p]hysical abuse, neglect, abandonment, isolation, abduction, or other treatment with
resulting physical harm or pain or mental suffering.” (§ 15610.073, subd. (a)(1).) Mental
suffering is defined in section 15610.53 as “fear, agitation, confusion, severe depression,
or other forms of serious emotional distress that is brought about by forms of intimidating
behavior, threats, harassment, or by deceptive acts performed or false or misleading
statements made with malicious intent to agitate, confuse, frighten, or cause severe
depression or serious emotional distress of the elder or dependent adult.”
Alex interprets Welfare and Institutions Code section 15610.53 to mean that there
can be no finding of “mental suffering” without a finding that the person sought to be
restrained acted “with malicious intent.” Sarah more narrowly construes the phrase
“malicious intent” as referring only to “false and misleading statements” in
section 15610.53. Alex argues the settlement communication was “highly relevant” to
the issue of malicious intent. This is because he believes the proposal corroborates his
testimony that his only intent was to make sure Lucille’s estate plan is distributed as she
actually wishes. He also argues, relatedly, the settlement offer shows there is no need for
a restraining order because he is willing to walk away from the issue of Lucille’s estate
plan if she meets with an independent third party and states she does not want to make
any changes to her estate plan. However, Alex fails to acknowledge that the trial court
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found him to be “elusive, “evasive,” and “not credible,” and rejected his narrative that he
was only intending to help his mother speak with an attorney.
We need not resolve whether Alex or Sarah has correctly interpreted Welfare and
Institution Code section 15610.53. This is because even assuming the settlement offer
was relevant to the issue of malicious intent, we are not convinced Alex was prejudiced
by the exclusion of evidence regarding the offer. First, Alex testified in other ways about
his good faith, lack of malice, and desire to avoid litigation regarding Lucille’s estate
plan. Alex made clear he only intended to get his mother to an attorney like she had
asked so she could discuss her estate plan. He also testified he tried through his counsel
to set up a family meeting in part because he felt that would be an effective way to avoid
litigation among the family members. However, the trial court disbelieved Alex, and
instead concluded based on the testimony of other witnesses he surreptitiously and
abusively attempted to get Lucille to change her estate plan. It is highly unlikely the trial
court’s appraisal of Alex’s character and motives would have changed had it admitted
evidence regarding the settlement proposal that was made mid-hearing.
Moreover, Alex’s argument that the settlement communication tends to prove a
restraining order was unnecessary is very weak due to the fact Sarah rejected it and thus
left Alex unrestrained. Additionally, even had the trial court admitted evidence of the
settlement offer, it could not have forced Sarah to accept it. The trial court at most could
have asked Sarah if she wanted to accept it, and it is entirely unlikely she would have.
That being the case, even had the trial court accepted evidence of the settlement proposal
and concluded it bore on Alex’s good faith, it would not have changed the fact that Alex
remained unrestrained, nor would it have likely altered the court’s finding that Alex
abused his elderly mother. In other words, it is unlikely that evidence of the settlement
offer would have changed the court’s mind that Alex needed to be restrained. There is
not a reasonable probability of a different result but for the exclusion of this evidence,
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and we therefore affirm on this ground. (Evid. Code, § 354; College Hospital Inc. v.
Superior Court (1994) 8 Cal.4th 704, 715.).)
III. Overbreadth
Lastly, Alex contends the restraining order is unconstitutionally overbroad because
it impacts Alex’s California constitutional rights to free speech more than reasonably
necessary to protect Lucille.
A. Basic legal principles
Under state and federal law, a restraining order may be unconstitutional because it
is vague, overbroad or a combination of the two. (E.g., Smith v. Silvey (1983)
149 Cal.App.3d 400, 406—407 [order prohibiting defendant from “ ‘contacting’ ” mobile
home park residents was unconstitutionally overbroad and vague]; see Pittsburgh Press
Co. v. Pittsburgh Commission on Human Relations (1973) 413 U.S. 376, 390 [upholding
an order that is “clear and sweeps no more broadly than necessary”].) Whether a
restraining order infringes upon the constitutional rights of the restrained party because it
is overbroad, vague, or both presents questions of law subject to de novo review.
(Harris v. Stampolis (2016) 248 Cal.App.4th 484, 497.)
Alex only contends the restraining order is overbroad. A restraining order is
unconstitutionally overbroad if it impacts the restrained person’s constitutional rights
more than reasonably necessary to protect the aggrieved party. (See People ex rel.
Reisig v. Acuna (2017) 9 Cal.App.5th 1, 22 [injunction may not burden constitutional
rights more than necessary to serve the significant governmental interest at stake].) For
example, when an injunction restricts the right to free speech, courts seek “to ensure that
the injunction was no broader than necessary to achieve its desired goals.” (Madsen v.
Women’s Health Center, Inc. (1994) 512 U.S. 753, 765.) Under the foregoing principles,
an overbreadth analysis (1) identifies the restrained party’s constitutional interests,
(2) evaluates how the restraining order impacted those interests, (3) identifies the
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protection needed by the aggrieved party, and (4) determines whether restrictions
imposed are more than reasonably necessary to protect the aggrieved party.
B. Analysis
Alex contends two of the four restraining order provisions are unconstitutionally
overbroad because they are not tailored as precisely as possible to the needs of the case.
He specifically argues the restraining order should be modified to state he is not
permitted to discuss Lucille’s estate plan with her if they are alone. He also argues the
portion restraining him from presenting any documents for Lucille to sign is overbroad
because the issues here relate to Lucille’s estate plan, and thus the restriction should be
limited to documents relating to her estate plan. We reject his arguments.
Alex identifies his right to free speech under the California Constitution as his
only constitutional interest that the two specified restraining order provisions implicate.
Article 1, section 2, subdivision (a) of the [California] state constitution provides: “Every
person may freely speak, write and publish his or her sentiments on all subjects, being
responsible for the abuse of this right.”
“ ‘[P]rior restraints on speech ... are the most serious and the least tolerable
infringement on First Amendment rights.’ [Citation.] Orders enjoining the right to speak
on a particular topic are disfavored and presumptively invalid. [Citation.] However,
courts have recognized a prior restraint may be permissible under certain limited
circumstances.” (Molinaro v. Molinaro (2019) 33 Cal.App.5th 824, 831 (Molinaro).)
“To establish a valid prior restraint under the federal Constitution, a proponent has
the heavy burden to show the countervailing interest is compelling, the prior restraint is
necessary and would be effective in promoting this interest, and less extreme measures
are unavailable. [Citations.] A permissible order restraining future speech ‘must be
couched in the narrowest terms that will accomplish the pin-pointed objective permitted
by constitutional mandate and the essential needs of the public order.’ ” (Molinaro,
supra, 33 Cal.App.5th at pp. 831—832.)
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“The California Constitution is more protective of free speech rights than the
federal Constitution, and California courts require ‘extraordinary circumstances’ before a
prior restraint may be imposed. [Citations.] Nonetheless, in determining the validity of a
prior restraint, California courts engage in an analysis of various factors similar to the
federal constitutional analysis [citation], and injunctive relief restraining speech under the
California Constitution may be permissible where the relief is necessary to ‘protect
private rights’ and further a ‘sufficiently strong public policy’ ” (Molinaro, supra,
33 Cal.App.5th at p. 832.)
We first examine Alex’s challenge to the restraining order provision preventing
him from speaking with Lucille about her estate plan under any circumstances. This
provision of the order no doubt impacts his free speech rights. The question then is
whether this restriction on speech is more than is reasonably necessary to protect Lucille
from abusive mental suffering. We conclude it is not more than is reasonably necessary.
Alex argues Sarah’s testimony establishes that this restraining order provision is
more restrictive than is reasonably necessary to protect Lucille and is thus
unconstitutionally overbroad. He notes Sarah testified that (1) Lucille loves Alex,
(2) Lucille likes to talk to Alex and call Alex, and (3) she is fine with Alex being around
Lucille and is comfortable with Lucille having discussions about her estate plan with
Alex “if they were in the presence of somebody else.”
We disagree that Sarah’s testimony, including the third item of testimony just
listed, establishes the challenged provision is overbroad as a matter of law. We have no
reason to doubt this was Sarah’s genuine opinion. But Sarah’s opinion was not binding
on the trial court and did not impose a limit on the type of order the court could fashion to
protect Lucille. The evidence presented at the hearing supported a finding that the estate
planning topic caused Lucille mental suffering regardless of who she discussed it with,
but especially when she discussed it with Alex. Indeed, Esraelian and Doerr both
testified they got the impression Lucille did not want to discuss her estate plan with
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anyone at all. There was also a wealth of evidence supporting the court’s finding that
Lucille was “terrified” of Alex, as well as evidence to support an inference that this terror
proceeded from Alex’s unrelenting campaign to get Lucille to change her estate plan.
There was no evidence in the record indicating that Lucille would not experience mental
suffering if she discussed estate planning matters with Alex so long as someone else was
present. Thus, we cannot conclude that the restraining order provision was more
restrictive than reasonably necessary to accomplish the objective of protecting Lucille.
We next address Alex’s second challenge, that the restriction on his presenting any
documents at all for her signature is overbroad. Like the first provision, he challenges
this provision on free speech grounds only. But he has not even attempted to explain
how the act of presenting documents to a person to sign is an act of speech that implicates
constitutional free speech rights, and we do not see how free speech rights are implicated
here. Alex thus has not identified a constitutional interest that the restriction on
presenting documents to Lucille for signature impacts. Our analysis of that restriction
therefore ends here.
DISPOSITION
The trial court’s March 8, 2021, order is affirmed. Respondent is awarded her
costs on appeal.
SNAUFFER, J.
WE CONCUR:
PEÑA, ACTING P. J.
DE SANTOS, J.
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