60 Cal.App.5th 1115
Cal. Ct. App.2021Background
- Lucille and Lewis Keading created a family trust to split assets equally between their children Hilja and Kenton; by 2011 a 2014 amendment made Kenton the residual beneficiary but Lewis executed an "equalizing amendment" in October 2015 to restore parity.
- In December 2015–January 2016, while Lewis was seriously ill, Kenton obtained a durable power of attorney, caused a grant deed (Dec. 30, 2015) to be executed transferring the trust residence to himself and Lewis as joint tenants, arranged a near-death stock transfer to himself, and signed a trust amendment removing Hilja as successor trustee; Lewis died Jan. 4, 2016.
- Hilja petitioned to suspend/remove Kenton as trustee, set aside transfers, and pursued elder-financial-abuse and related claims; the court appointed professional trustee Elizabeth Soloway.
- After a bench trial the court found Kenton exerted undue influence and was liable for elder financial abuse, set aside the grant deed, and awarded doubled damages under Probate Code §859, totaling about $1.55 million.
- Kenton appealed the elder-abuse judgment and the prior prejudgment attachment order; in a separate action he sued Hilja for libel and the trial court struck his complaint as an impermissible SLAPP—this dismissal was also appealed.
Issues
| Issue | Plaintiff's Argument (Hilja) | Defendant's Argument (Kenton) | Held |
|---|---|---|---|
| Standing to bring elder-abuse claim after trustee appointment | Hilja was a co-trustee when she filed and, if Soloway declined to prosecute, Probate Code §48 allows an interested beneficiary to proceed | Soloway’s appointment divested Hilja of standing and only the trustee could pursue trust-property claims | Hilja retained standing as an interested beneficiary once the trustee declined to join; appeal rejected |
| Substantial evidence of elder financial abuse by undue influence | Circumstantial evidence showed Lewis’s vulnerability, Kenton’s authority, rushed/secret transfers, and result inconsistent with Lewis’s prior equalizing intent | Transfers conceded invalid later; no undue influence because no isolation or sole control and some documents bore Lewis’s signature | Court’s factual findings were supported by substantial evidence and affirmed; undue influence established under §15610.70 |
| Double damages under Probate Code §859: is a separate finding of bad faith required when elder financial abuse is the basis | §859 authorizes double damages when property is taken through elder financial abuse without a separate bad-faith finding | A separate bad-faith finding is required before imposing double damages for undue influence | Court construed §859 literally: the clause authorizing double damages for takings "through the commission of elder or dependent adult financial abuse" does not require a separate bad-faith finding; doubled award affirmed |
| Constitutionality/equal protection and vagueness of §859 | Statute is clear and can be reasonably applied; no vagueness or equal-protection issue | Statute is vague and arbitrary; discriminates by family size | Court rejected vagueness and equal-protection challenges |
| Prejudgment writ of attachment (Crockett property) | Attachment was proper to preserve recovery given probable validity of claim | No irreparable harm shown; no legal interest in property; trial court abused discretion | Appeal of the attachment order dismissed as moot because final judgment superseded the attachment |
| Anti-SLAPP dismissal of Kenton’s libel claim | Hilja’s email was litigation-related pre-filing communication protected by anti-SLAPP; elder-abuse judgment rendered the central accusation substantially true | Email statements included alleged defamatory facts and pejoratives; discovery was needed to show falsity or malice | Anti-SLAPP motion granted; dismissal affirmed because the email was protected and Kenton could not demonstrate probability of prevailing; court did not abuse discretion in denying limited discovery or in notice |
Key Cases Cited
- Estate of Lowrie, 118 Cal.App.4th 220 (Cal. Ct. App. 2004) (purpose and private-enforcement aspects of the Elder Abuse Act)
- Tepper v. Wilkins, 10 Cal.App.5th 1198 (Cal. Ct. App. 2017) (trustee qualifies as personal representative for elder-abuse claims)
- Thompson v. Asimos, 6 Cal.App.5th 970 (Cal. Ct. App. 2016) (standard of review for bench-trial findings)
- In re Cheryl E., 161 Cal.App.3d 587 (Cal. Ct. App. 1984) (undue influence typically proved circumstantially)
- Estate of Sarabia, 221 Cal.App.3d 599 (Cal. Ct. App. 1990) (common-law presumption of undue influence elements)
- Kavanaugh v. West Sonoma County Union High School Dist., 29 Cal.4th 911 (Cal. 2003) (statutory construction principles)
- Hill v. Superior Court, 244 Cal.App.4th 1281 (Cal. Ct. App. 2016) (reading of Prob. Code §859 allowing double damages for elder financial abuse without separate bad-faith finding)
- Kerley v. Weber, 27 Cal.App.5th 1187 (Cal. Ct. App. 2018) (same statutory interpretation of §859)
- Levin v. Winston-Levin, 39 Cal.App.5th 1025 (Cal. Ct. App. 2019) (contrary view requiring bad-faith finding for undue influence; court distinguished it)
- Sweetwater Union High School Dist. v. Gilbane Building Co., 6 Cal.5th 931 (Cal. 2019) (anti-SLAPP standard and de novo review)
- Briggs v. Eden Council for Hope and Opportunity, 19 Cal.4th 1106 (Cal. 1999) (litigation-related communications protected)
- Ludwig v. Superior Court, 37 Cal.App.4th 8 (Cal. Ct. App. 1995) (pre-litigation communications need not be made directly to the official body to be protected)
- Emde v. San Joaquin County Central Labor Council, 23 Cal.2d 146 (Cal. 1943) (substantial-truth defense in defamation)
- Chaker v. Mateo, 209 Cal.App.4th 1138 (Cal. Ct. App. 2012) (distinguishing actionable fact from nonactionable opinion)