Bakkers v. Bakkers CA4/3

Filed 11/12/20 Bakkers v. Bakkers CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
MICHAEL Y.C. BAKKERS et al.,
Plaintiffs and Respondents, G058261
v. (Super. Ct. No. 30-2017-00902317)
GABY J.P. BAKKERS et al., OPINION
Defendants and Appellants.
Appeal from a judgment of the Superior Court of Orange County, Edward
W. Hall, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Law Office of John A. Belcher and John A. Belcher for Defendants and
Appellants.
No appearance for Plaintiffs and Respondents.
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Gaby J.P. Bakkers and her son, Jeffrey Parham, appeal from a judgment
after the trial court ruled in favor of Gaby’s siblings, Michael Y.C. Bakkers, Andrew
Bakkers, and Joyce Leidelmeyer in their petition to invalidate certain documents and
confirm their parents trust. Gaby and Jeffrey argue the trial court’s conclusion various
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documents were obtained by undue influence was erroneous. None of their contentions
have merit, and we affirm the judgment.
3
FACTS
A. Substantive Facts
The Bakkers, who were real estate investors, were married for over 70
years and had six children, four of whom are parties to this litigation: Michael, Andrew,
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Joyce, and Gaby. The Bakkers primary residence was located at 244 Juanita Way,
Placentia, CA 92870 (the Bakkers’ residence). Gaby lived across the street at 237 Juanita
Way, Placentia, CA 92870 (Gaby’s residence). The Bakkers helped Joyce, Gaby, and
Andrew purchase homes.
In January 1989, the Bakkers created a trust that provided for two specific
bequests and the balance of the trust property to be distributed to Michael, Andrew,
Joyce, and Gaby.
1
Because the parties share the same last name, and for clarity and
convenience, we refer to the parties by their first names, except when referring to Paul
Bakkers (Father) and Joan Bakkers (Mother) and collectively as the Bakkers.
2
Michael, Andrew, and Joyce did not file a respondent’s brief.
3
On our own motion, we take judicial notice of the record in the
nonpublished opinion Bakkers v. Bakkers (Jan. 24, 2019, G054865) [nonpub. opn.]
(Bakkers I). (Evid. Code, § 452, subd. (d).)
4
The other two siblings are Inge J.P. Cornelius (deceased) and Marjorie J.P.
Waclawick.
2
In February 2009, the Bakkers created a new trust, The Bakkers Living
Trust (Trust). The Trust’s typewritten portion stated Joyce, Andrew, and Gaby were to
each receive a one-third interest. However, the Trust included in handwriting Michael’s
name, and a new distribution—one-quarter interest each to Michael, Joyce, Gaby, and
Andrew. The Trust’s typewritten portion stated Andrew was successor trustee but the
handwritten portion stated Michael was first successor trustee and Andrew was second
successor trustee.
In March 2012, the Bakkers purchased an investment property at 1907
Whitman Drive, Placentia, CA 92870 (Whitman Property). Andrew owned the Whitman
Property, which was going into foreclosure. Michael was the realtor, and Michael’s
girlfriend (Girlfriend) was Father and Mother’s agent. Andrew transferred the Whitman
Property to Girlfriend, and she transferred the Whitman Property to the Bakkers. In
January 2013, the Bakkers executed a grant deed giving Michael joint tenant ownership
rights in the Bakkers’ residence. (Bakkers I, supra, G054865.)
In May 2013, Father, Mother, Michael, and Gaby had a meeting where they
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discussed, in Dutch, the Bakkers testamentary intent. The meeting was video recorded.
During the meeting, Father stated he gave houses to Michael and Andrew. He said Gaby
used her “$200,000,” and asked, “You used it right? $280,000.” He added Gaby bought
a house for “almost $300,000[]” and he gave her the rest “as a gift.” Father stated he
gave Joyce $200,000 to buy a house but she only spent $100,000, and he would give her
the balance. The conversation turned to the Bakkers remaining cash reserves, about
$400,000. Mother said to divide it among the four children. Father said, “[Michael] take
care of me as well as her, without my finances from Holland. [¶] That’s the only thing I
ask in exchange for this house.” Father told Gaby he gave Michael the Bakkers’
residence in exchange for him caring for them and Michael could “use [his] money . . .
5
Later, the meeting was translated and transcribed.
3
[and] everything of [his].” Father said, “Oh yeah Gaby, so what? [¶] And now about you
what do you want . . . to bring up? [¶] What do you want to know?” Gaby replied,
“Nope, I want nothing to do with it. [¶] I’ll see what crumbs are gonna [sic] be thrown
my way.”
In September 2013, the Bakkers amended the Trust (2013 Trust
Amendment). The 2013 Trust Amendment stated Michael was first successor trustee and
Andrew was second successor trustee. The 2013 Trust Amendment provided Joyce,
Gaby, Andrew, and Michael would each receive a one-quarter interest in the estate.
In January 2014, Father exhibited signs of dementia. A doctor made a
primary diagnosis of dementia and referred him to a neurologist and prescribed him
medication. Father did not see the neurologist or pick up the medication.
On April 30, 2014, the Bakkers executed a reconveyance of Gaby’s
residence to Gaby (2014 Reconveyance). In June 2014, the Bakkers moved into Gaby’s
residence so she could care for them.
On August 13, 2014, the Bakkers executed a restatement and amendment of
the Trust (2014 Trust Amendment). At this time, the Bakkers were both in their early
90’s. The 2014 Trust Amendment named Mother and Gaby as trustees, and if both
ceased to serve as trustees, Jeffrey would serve as trustee. The 2014 Trust Amendment
made five bequests of real estate, one bequest of an investment account, and one bequest
of a trust account. The 2014 Trust Amendment provided Joyce, Gaby, and Andrew
would each receive a one-third interest in the residue of the estate. The 2014 Trust
Amendment stated Michael and Inge’s heirs were disinherited. Father and Mother also
executed power of attorney and health care directives naming each other for asset
decisions, and each other, Gaby, and Jeffrey for health care decisions.
The day after the Bakkers executed the 2014 Trust Amendment, Mother
sought temporary elder abuse restraining orders for her, Father, Gaby, Jeffrey, and Joyce
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against Michael. The court granted the temporary restraining order as to the Bakkers but
denied it as to the others.
At the October 20, 2014, hearing on the elder abuse restraining orders,
Mother testified Michael improperly took $1 million and the Bakkers’ residence. Mother
wanted all her children to get the Bakkers’ residence. On cross-examination, Mother
admitted Father told Michael that upon both of their deaths, the Bakkers’ residence
belonged entirely to Michael. Mother said Gaby and Jeffrey helped her with her
finances. After Michael’s counsel asked Mother a couple questions about the Bakkers’
Trust documents, counsel asked, “And was there a modification to that [T]rust recently,
just about a month and a half ago?” Mother replied, “No modification that I know of.”
Counsel asked whether she knew the Trust was recently amended and Gaby was trustee.
Mother answered, “It’s not changed.” Joyce testified that since the Bakkers moved in
with Gaby, it was difficult for Joyce to visit them. Joyce stated that since July 2014, she
was not allowed to be alone with Mother. Andrew testified Jeffrey would not let him see
his parents alone. After hearing argument, Judge Kim R. Hubbard denied the request for
a restraining order because there was insufficient evidence of abuse.
In November 2014, the Bakkers executed an “Exercise of General Power of
Appointment” (2014 Power of Appointment). (All caps. omitted.) The 2014 Power of
Appointment made two $100,000 bequests, one to Joyce and one to Andrew. It
distributed the residue of the Trust property to Gaby (two-thirds) and Jeffrey (one-third).
In December 2014, the Bakkers executed a document forgiving Gaby’s
$200,000 debt for the purchase of 237 Juanita Way, Placentia, CA 92870 (2014 Monetary
Gift). The documents titled, “The Bakkers Living Trust Gifts of Tangible Personal
Property,” stated the $200,000 note secured by a deed of trust on Gaby’s residence was
“to be forgiven on our demise.”
In March 2015, the Bakkers executed an “Exercise of General Power of
Appointment” (2015 Power of Appointment). (All caps. omitted.) The 2015 Power of
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Appointment distributed the Trust property to Gaby (two-thirds) and Jeffrey (one-third).
It disinherited Michael, Marjorie, Joyce, Andrew, and Inge’s heirs.
Mother passed away on May 30, 2016. Father passed away December 15,
2017.
B. Procedural Facts
After Mother but before Father passed away, Michael, Andrew, and Joyce
filed a petition against Gaby and Jeffrey. The petition sought to do the following:
(1) invalidate the 2014 Reconveyance, the 2014 Monetary Gift, the 2014 Trust
Amendment, the 2014 Power of Appointment, and the 2015 Power of Appointment;
(2) confirm the 2013 Trust Amendment; (3) remove Gaby as trustee and Jeffrey as
second successor trustee; (4) order a trust accounting; and (5) order Gaby and Jeffrey to
return all Trust assets.
In Bakkers I, supra, G054865, we affirmed the trial court’s ruling on
Father’s causes of action against Michael for cancellation of interest and quiet title. In
that case, the court cancelled Michael’s joint tenancy interest in the Bakkers’ residence
and restored title to the 2013 Trust. The court also cancelled deeds of trust on the
Bakkers’ residence and the Whitman Property.
Trial began on this case three months later. Michael, Andrew, and Joyce
were in propria persona.
1. Michael’s Testimony
Michael testified Father never selected Gaby as trustee or executor because
he believed her to be incapable. He added Father did not intend to provide for his
grandchildren. Michael testified that on May 22, 2013, there was a meeting between
Father, Mother, Michael, and Gaby, and the Bakkers intended to divide their estate in
fourths and Michael was to care for them. He stated that in 2012, Father began to forget
people and occasions, and lose things. He said Mother suffered from macular
degeneration, was “basically . . . blind,” and they had to read to her. He stated Father
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worked in real estate investments, and he would help his father. Father took care of their
finances, but Michael assisted him. Michael would check to determine if there were liens
on the Bakkers’ properties, which is how he found the 2014 Reconveyance and the 2014
Monetary Gift. He said that in late 2013 or early 2014, Gaby began to care for the
Bakkers for $600 per month, although she wanted $2,000 per month. Michael stated that
beginning in July 2014, Gaby and Jeffrey would not let him see his parents.
On cross-examination, Michael testified concerning the Bakkers
withdrawing $350,000 to purchase the Whitman Property to avoid foreclosure. Michael
admitted Girlfriend acted as a “straw person” to purchase the property and transfer it to
the Bakkers.
2. Brian Mandel’s Testimony
Attorney Brian Mandel testified concerning his representation of Mother.
Mandel stated another attorney referred Mother to him and in preparation for the meeting
Mandel reviewed a deed for the Bakkers’ residence indicating Father, Mother, and
Michael were joint tenants. Mandel said Gaby and Jeffrey brought Mother to the
meeting, but they did not try to influence him and he spoke to Mother alone. Mother told
Mandel that Michael procured the deed to the Bakkers’ residence through trickery.
Mandel also reviewed the 2014 Trust Amendment, a doctor’s report for Father indicating
he was incapacitated, and a doctor’s report for Mother. Mandel admitted he was not a
doctor, but stated he believed “[Mother] knew exactly what she was talking about.”
Based upon Father’s incapacity and Mother’s desire to amend the Trust to disinherit
Michael and change the distributions, Mandel prepared the 2014 Power of Appointment
and the 2015 Power of Appointment to disinherit Michael and change the beneficiaries.
Mother executed the 2014 Power of Appointment on November 24, 2014, and it was
notarized by Mandel’s partner. Mother left the meeting with the 2015 Power of
Appointment and signed it on March 3, 2015.
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3. Mother’s Testimony and Exhibits
The parties stipulated a transcript of the video recording of Mother’s
October 29, 2015, deposition could be admitted into evidence. The deposition was part
of Michael’s unsuccessful action to obtain a conservatorship for Mother. The video was
played but not reported. The trial court also admitted exhibits into evidence.
Mother testified Michael stole $1 million from them and Girlfriend was
“not [her] favorite.” She added she never forgave Gaby’s debt. Mother said she began
losing her sight three years earlier and had been blind for one year. She said people need
to read to her and tell her where to sign things. After Mother said she had to ask the
person what the document is about, she added, “And if I like what I hear and it’s all right,
I always ask Gaby, ‘Do you want me to sign it? Where do I sign?’ [¶] And she says that
‘[b]etween these two lines.’” She added that she did not always sign documents Gaby
asks her to sign, but she could not offer a specific example. She said she wanted Gaby
and Jeffrey to get her assets when she passed away and Gaby could decide how her assets
should be divided. Everyone, including Gaby and Father, told her that Michael was
stealing money from them. She stated Jeffrey was studying to be a lawyer. He called the
bank and found out Michael was stealing money from them.
Mother stated none of her children were calling her “that [she] can
remember.” No one told her Joyce was trying to call her. She did not remember if
anyone told her that Michael or Andrew called to speak with her. She did not think Joyce
or Andrew would want to visit with her. Mother said she and Andrew “were very close,
but not anymore.” She added, “That is [Michael’s] work. Everybody must be promised
the money that he gets in this lawsuit. And he has everybody now on his side. Before,
they were all against him. And now he seem[s] to have promised all the kids that he’s
winning this and they’re getting the money.” After Mother stated she and Father owned
the Bakkers’ residence, the following colloquy occurred.
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“Q. Did you ever want [Michael] to have it after you pass away?
“A. After we all passed away.
“Q. Okay. So you signed papers -- do you remember signing papers
saying that, after you all pass away, that [Michael] gets the house?
“A. Not [Michael].
“Q. Not [Michael]?
“A. Never [Michael] alone.
“Q. So who?
“A. All the kids.
“Q. So you wanted all the kids to get the [Bakkers’ residence] after you
pass away?
“A. Yeah.
“Q. And did you want all the kids to get equally?
“A. Of course.
“Q. And did you want all the kids to get all of your assets equally?
[¶] . . . [¶]
“A. Yeah.”
Mother denied she and Father signed a document giving Michael joint
tenant ownership in the Bakkers’ residence. She did not know of anything Michael did
improperly concerning the Whitman Property, but she heard Girlfriend did and “[s]he
steals.”
One exhibit was a report from neuropsychologist Stephanie Moore dated
August 2, 2014, 11 days before the Bakkers executed the 2014 Trust Amendment.
Moore stated she evaluated Mother and she knew “the bounty of her estate” and “retains
all forms of decisional capacity,” and her decision to amend her Trust was “not the result
of the influence of others.” Two other exhibits were Fall 2015 visit reports from Marla
9
Feldman, a gerontologist, who stated Mother was “mentally intact,” clearly expressed her
preferences and likes, and “show[ed] no signs of cognitive impairment.”
4. Jeffrey’s Testimony
Jeffrey testified he lived at Gaby’s residence. Jeffrey stated that on July 21,
2014, Mother walked from the Bakkers’ residence across the street, knocked on the door,
and said she needed help. He said Mother, who was upset, told him, Gaby, and Joyce, “‘I
think [Michael] is stealing again. Please help me.’” He added that Mother was
concerned Michael was going to poison her.
Jeffrey testified he worked in a law firm during 2013, and he told Mother
problems arise when children have to resolve their parents’ financial affairs. When
Michael asked Jeffrey whether he told Mother that her will and testament were
incomplete, Jeffrey stated he could not remember. When presented with a transcript of
his testimony from Bakkers I, supra, G054865, to refresh his recollection, Jeffrey
admitted he may have told her that. Jeffrey also admitted he told Mother he saw blanks
and handwriting on her will and trust, and Michael had control. Jeffrey stated he told
Mother that he wanted to help her but he could not if Michael was involved. He also told
Mother that her will and trust left half of everything to Girlfriend. When Mother asked
him whether they needed a lawyer, Jeffrey said, “Yes.” Jeffrey testified he saw
handwriting on the trust. When shown the 2013 Trust Amendment, the wills, the powers
of attorney, and health care directives, Jeffrey admitted they did not have blanks,
crossovers, or handwriting. Jeffrey testified he saw handwriting on the will. Jeffrey
testified he found an attorney to help his grandparents with their trust. He went to her
office a few times but only his grandparents were in the room with the attorney when
discussing and signing the 2014 Trust Amendment. Jeffrey said he did not read the 2014
Trust Amendment until after they left.
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5. Gaby’s Testimony
Gaby testified she began to be paid as a caregiver for her parents in 2013
and they moved into her house in June 2014. Gaby stated they initially payed her $600
per month but it increased to $5,600 per month. She provided for their daily needs and
managed their finances. Michael questioned Gaby about three deeds of trust totaling
$312,000. Gaby said her parents paid that amount, placed a $200,000 lien on her
property, and forgave the balance, $112,000. She made $600 payments to her parents,
but she could not remember whether she paid the amount off. She added though she did
not have a mortgage and her parents forgave the amount. When Michael asked her about
the language of the 2014 Monetary Gift, Gaby said it was her handwriting. Gaby stated
Mother wanted to reconvey Gaby’s residence to her, Jeffrey drafted it, and she read the
document to her parents. She could not remember which parts she read to them. Gaby
admitted she knew her parents had a trust attorney for many years, but that Jeffrey found
a new attorney to assist Mother.
6. Trial Court’s Ruling
In its statement of decision, the trial court ruled for Michael, Andrew, and
Joyce. At the outset, the court opined Gaby and Jeffrey were not credible, Andrew and
Joyce were credible, and Michael’s credibility was suspect. The court provided both the
statutory and common law tests for undue influence and a detailed recitation of the trial
testimony. The court stated the Bakkers were a vulnerable elderly couple who were in
deteriorating health and moved in with Gaby so she could care for them. Specifically,
Gaby had to read to Mother, who was blind. Jeffrey, who Mother believed was studying
law, told her, incorrectly, that her Trust had blanks and was incomplete, and Girlfriend
stood to inherit half of her estate. Numerous family members, including Gaby and
Jeffrey, convinced Mother that Michael was stealing from her. Jeffrey found the attorney
who assisted Mother in disinheriting Michael and leaving her estate to Gaby, Andrew,
and Joyce. Later, Mother went to another attorney that eventually resulted in only Gaby
11
and Jeffrey sharing the Bakkers estate, although Mother later stated she intended her four
children to share their assets equally.
The court concluded that under both theories, there was clear and
convincing evidence Gaby and Jeffrey unduly influenced Mother. The court explained
the evidence established Gaby isolated her parents from Joyce and Andrew. The court
added the evidence demonstrated Jeffrey lied to Mother about her beneficiaries and told
Mother that Michael was stealing from her. The court stated that although neither Gaby
nor Jeffrey participated in the meeting with their attorneys, they did not overcome the
evidence they unduly influenced Mother. The court opined the 1989 Trust and the 2013
Trust both provided the bulk of the Trust assets must be divided equally among the four
children. The court concluded that regardless of what Mother signed after that, it was her
intent to distribute their assets equally to her four children. The court ruled the 2014
Trust Amendment, the 2014 Power of Appointment, the 2015 Power of Appointment, the
2014 Reconveyance, and the 2014 Monetary Gift were all invalid.
DISCUSSION
I. Miscellaneous Matters
Gaby and Jeffrey’s opening brief is not the model of clarity and violates the
California Rules of Court. As we explain below in greater detail, it does not include a
summary of all the significant facts, which is mandatory in all opening briefs. (Cal.
Rules of Court, rule 8.204(a)(2)(C); see Kleveland v. Siegel & Wolensky, LLP (2013)
215 Cal. App. 4th 534, 558 [appellants failure to provide summary of significant facts
violated court rules and justified sanctions]; Evans v. Centerstone Development Co.
(2005) 134 Cal. App. 4th 151, 166 [recitation of facts improper because not in summary
style and included argument].)
Instead, its statements of fact, which comprises pages 12-28, and is titled,
“The Evidence at Trial Does not Establish Undue Influence,” is argument that masks as
12
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facts. Two subheadings are worth mentioning. Subheading F is titled, “The trial court
improperly admitted an uncertified translation.” Subheading G is titled, “The trial court
improperly admitted Andrew [sic] and Joyce’s hearsay.” These subheadings, which
include argument, are noteworthy because they are included in what purports to be a
statement of facts, but they are not included in their legal analysis section that begins on
page 29. Their argumentative presentation of the limited facts they provide violates the
California Rules of Court. Failing to include these arguments in the legal analysis section
forfeits appellate review of them. (See Provost v. Regents of University of California
(2011) 201 Cal. App. 4th 1289, 1294 [failure to address issue independently under separate
heading in discussion section may forfeit argument]; Cal. Rules of Court, rule
8.204(a)(1)(B).)
In any event, their claims are meritless. As to translation of the May 2013
family meeting from Dutch to English, there is no requirement the meeting had to be
translated by a court certified Dutch translator. Dutch is not one of California’s certified
languages. (Jud. Council of Cal., Operations and Programs Division, 2020 Language
Need and Interpreter Use Study (Mar. 2020), p. 11, fn. 9 [listing California certified
languages] [as of Nov. 2, 2020].) Gaby and Jeffrey cite to
California Rules of Court, rule 3.1110(g)’s requirement a translation must be certified
under oath by a qualified interpreter. It was. The interpreter signed a declaration stating
she was a California registered court interpreter. Additionally, the Bakkers intent in May
2013 was relevant evidence and explained their thinking just months before they
executed the 2013 Trust. (Estate of Aiello (1980) 106 Cal. App. 3d 669, 676 [letters
hearsay but admissible pursuant to Evidence Code section 1250 as declarant’s then
existing mental state].)
6
We have omitted initial capitalizations throughout.
13
With respect to Andrew’s and Joyce’s testimony at the restraining order
hearing, Gaby and Jeffrey’s trial counsel did not argue the witnesses were available at
trial. Counsel simply argued the transcript was hearsay, not properly authenticated, and
not a certified copy. Counsel forfeited appellate review of this issue when he failed to
object on this basis below. (Cinnamon Square Shopping Center v. Meadowlark
Enterprises (1994) 24 Cal. App. 4th 1837, 1844 [party not free to change theory of
recovery or relief on appeal.])
II. Sufficiency of the Evidence
Criticizing the trial court for not “drill[ing] down” on when the documents
were prepared, Gaby and Jeffrey argue insufficient evidence supports the trial court’s
conclusion there was clear and convincing evidence they procured the documents through
undue influence. Not so.
Generally, California law allows a testator to dispose of her/his property as
she/he sees fit regardless of whether the dispositions specified are fair or proper. (Estate
of Sarabia (1990) 221 Cal. App. 3d 599, 604 (Sarabia), superseded by statute on other
grounds as stated in Rice v. Clark (2002) 28 Cal. 4th 89, 96-97 (Rice).) This presumption
can be overcome if it is established the testator was affected by undue influence.
(Sarabia, supra, 221 Cal.App.3d at p. 604.) Undue influence is pressure brought to bear
directly on the testamentary act sufficient to overcome the testator’s free will amounting
to coercion destroying the testator’s free agency. (Rice, supra, 28 Cal.4th at p. 96.)
Undue influence may be established in two ways. First, the person
challenging the testamentary instrument may submit direct or circumstantial evidence
demonstrating a number of factors that in combination support the inference of undue
influence. (David v. Hermann (2005) 129 Cal. App. 4th 672, 684 (David).) Those factors
include the victim’s vulnerability, the influencer’s apparent authority, the influencer’s
actions or tactics, and the fairness of the result. (Welf. & Inst. Code, § 15610.70.)
Additionally, it is important the chief beneficiaries actively procured the instrument to be
14
executed. (David, supra, 129 Cal.App.4th at p. 684.) The person contesting a trust bears
the burden of proving undue influence by clear and convincing evidence. (Estate of
Clementi (2008) 166 Cal. App. 4th 375, 384.)
Second, a presumption of undue influence may arise shifting to the
proponent of the disposition the burden of proving by a preponderance of the evidence
the donative instrument was not procured by undue influence. (Rice, supra, 28 Cal.4th at
p. 97.) The presumption of undue influence arises if the challenger establishes the
following: “(1) the person alleged to have exerted undue influence had a confidential
relationship with the testator; (2) the person actively participated in procuring the
instrument’s preparation or execution; and (3) the person would benefit unduly by the
testamentary instrument. [Citations.]” (Ibid.)
“When determining whether there is sufficient evidence to support the trial
court’s finding of undue benefit, we follow established rules of appellate review: We
view factual matters most favorably to the prevailing party and in support of the
judgment. We defer issues of credibility to the trier of fact. Additionally, we resolve all
conflicts in the evidence in favor of the respondents. [Citation.] Our power ‘begins and
ends with a determination as to whether there is any substantial evidence, contradicted or
uncontradicted, which will support the conclusion’ reached by the trier of fact.
[Citation.]” (Estate of Auen (1994) 30 Cal. App. 4th 300, 311 (Auen), superseded by
statute on other grounds as stated in Rice, supra, 28 Cal.4th at pp. 96-97.)
“An appealed judgment is presumed correct, and the appellant must
affirmatively demonstrate error. [Citation.] An appellant challenging the sufficiency of
the evidence to support the judgment must cite the evidence in the record supporting the
judgment and explain why such evidence is insufficient as a matter of law. [Citations.]
An appellant who fails to cite and discuss the evidence supporting the judgment cannot
demonstrate that such evidence is insufficient. The fact that there was substantial
evidence in the record to support a contrary finding does not compel the conclusion that
15
there was no substantial evidence to support the judgment. An appellant . . . who cites
and discusses only evidence in [their] favor fails to demonstrate any error and waives the
contention that the evidence is insufficient to support the judgment. [Citations.]” (Rayii
v. Gatica (2013) 218 Cal. App. 4th 1402, 1408.)
Here, Gaby and Jeffrey fail to cite and discuss the evidence supporting the
judgment. They do not discuss Michael’s, Andrew’s, or Joyce’s testimony. They do not
discuss evidence of Father’s and Mother’s advanced age or health. They do not discuss
Mother’s testimony she relied on Gaby to read to her and tell her where to sign
documents. They do not discuss evidence Jeffrey told his blind grandmother he worked
at a law firm and her Trust was incomplete. Instead, they provide a self-serving
recitation of those facts that support their desired outcome. Their failure to acknowledge
or mention the conflicting testimony and other evidence supporting the judgment, and
lack of explanation as to why such evidence was insufficient as a matter of law, is fatal to
their sufficiency of the evidence claim. Thus, we conclude substantial evidence
supported the finding Gaby and Jeffrey procured the documents through undue influence.
In any event, substantial evidence supported the trial court’s conclusion
Gaby and Jeffrey exerted undue influence over Mother under either theory. We begin
with the court’s determination Gaby and Jeffrey were not credible.
The evidence demonstrated the statutory elements were satisfied. At the
time of the 2014 Trust Amendment, the Bakkers were both in their early 90s. Father had
dementia, and Mother was blind. Thus, the Bakkers were vulnerable to undue influence.
Additionally, Gaby and Jeffrey exercised authority over the Bakkers. The Bakkers lived
with Gaby and Jeffrey. Because Mother was blind, Gaby had to read to her. At her
deposition, Mother testified Gaby would tell her where to sign documents. Jeffrey told
Mother that he was studying the law, suggesting he possessed some experience in estate
planning.
16
Furthermore, Gaby’s and Jeffrey’s actions demonstrate they unduly
influenced Father and Mother. Gaby and Jeffrey isolated the Bakkers from three of their
children while they lived in Gaby’s residence. At trial, Jeffrey admitted he told Mother
her Trust documents were incomplete and had blanks and handwriting, but when
presented with all the documents conceded they did not have blanks, handwriting, or
crossouts. Jeffrey incorrectly told his grandmother that Girlfriend, who she did not like,
would get half of her assets.
And the evidence supported the conclusion Gaby and Jeffrey actively
procured the documents benefitting them. Gaby and Jeffrey complain the trial court did
not evaluate whether they unduly influenced Mother when they procured each document.
(Estate of Welch (1954) 43 Cal. 2d 173, 175-176 [undue influence at time will was
made].) Gaby and Jeffrey did more than drive Mother to the attorneys’ offices. (Estate
of Lingenfelter (1952) 38 Cal. 2d 571, 586 [merely accompanying testator to lawyer’s
office insufficient to establish undue influence].) The record supports the conclusion that
Gaby and Jeffrey embarked on a campaign to unduly influence the Bakkers from the
moment they moved in with her. After they moved in with Gaby, who isolated them
from their other children, the Bakkers executed four of the five documents in question.
Again, Jeffrey told his grandmother that her Trust documents were incomplete, but they
were not. Jeffrey selected the attorney to assist Mother. Jeffrey and Gaby took Father
and Mother to the attorney who assisted the Bakkers with the 2014 Trust Amendment.
Mother, who relied on Gaby to read to her and tell her where to sign, testified she did not
forgive any debt of Gaby’s, yet the Bakkers executed the 2014 Monetary Gift, a
document Gaby admitted she wrote. Although Mandel spoke with Mother alone, Gaby
and Jeffrey assisted Mother in the meeting with Mandel and in executing the 2014 Power
of Appointment and the 2015 Power of Appointment, both of which benefitted Gaby and
Jeffrey.
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Finally, the result was unfair. Although in May 2013 Gaby stated she did
not want to be involved with her parents estate planning, in August 2014 she was
assisting her parents in amending their Trust to disinherit Michael and increase her share
of their assets. Eight months later, she and her son had control of the Bakkers assets. At
her deposition five months later, Mother stated she wanted her four children to share their
estate equally. That is not what the Trust documents provided. At the hearing on the
restraining order, just two months after the Bakkers amended their trust to disinherit
Michael and increase Gaby’s percentage of inheritance, Mother testified the Trust was
not recently modified or changed. Finally, Gaby and Jeffrey assert they did not unduly
profit because the Bakkers wanted to provide for Gaby because she cared for them. The
evidence demonstrated the Bakkers paid her to care for them.
The same evidence established the presumption arose. Gaby and Jeffrey
clearly had a confidential relationship with Mother. They actively participated in
procuring the documents that benefitted them. Because the presumption of undue
influence arose, the burden shifted to Gaby and Jeffrey to prove by a preponderance of
the evidence the donative instruments were not procured by undue influence. They
failed. Although the evidence demonstrated Mother met with both attorneys alone, the
damage was done. Gaby and Jeffrey isolated nonagenarian Mother from her children,
and Jeffrey posed as an aspiring lawyer to convince his grandmother her Trust was
incomplete and a non-family member who she did not care for would share half of her
estate. Meeting with attorneys without Gaby and Jeffrey could not undo the isolation and
fear their undue and improper influence instilled in her.
Gaby and Jeffrey argue Mandel’s testimony alone establishes they did not
unduly influence Mother in procuring the documents. They also rely on Moore’s and
Feldman’s statements regarding Mother’s mental capacity. The trial court heard,
considered, and necessarily found their testimony lacking. Whether or not the
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presumption of undue influence has been dispelled is one of fact for the trial court.
(Auen, supra, 30 Cal.App.4th at p. 311; Estate of Gecht (1958) 165 Cal. App. 2d 431,
444-445.) The fact the trial court did not prove a detailed recitation of Mandel’s
testimony, or mention Moore’s or Feldman’s, does not alter our conclusion.
Gaby and Jeffrey criticize the trial court for basing its conclusion on
Mother’s deposition testimony in October 2015, after all the documents were executed,
that she wanted all her children to share her assets. But they hang their hat on Mother’s
testimony during the same deposition that she wanted Gaby and Jeffrey to get her assets
upon her death. This inconsistency only serves to illustrate an aging person who was
unduly influenced. Again, at the hearing on the restraining order 10 weeks after
executing the 2014 Trust Amendment, Mother insisted she and Father did not amend the
2013 Trust.
DISPOSITION
The judgment is affirmed. Respondent shall recover his costs on appeal.
O’LEARY, P. J.
WE CONCUR:
THOMPSON, J.
GOETHALS, J.
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