BELINDA WILKINS TEPPER, Plaintiff and Appellant, v. MARTHA WILKINS, Individually and as Trustee, etc., et al., Defendants and Respondents.
No. B269900
Second Dist., Div. Seven
Apr. 19, 2017
Freeman, Freeman & Smiley, Stephen M. Lowe and Thomas C. Aikin for Plaintiff and Appellant.
Oldman, Cooley, Sallus, Birnberg & Coleman, Marc L. Sallus, Marshal A. Oldman and Susan B. Rosenblat for Defendant and Respondent Martha Wilkins.
Edward H. Stone for Defendant and Respondent Eileen N. Wilkins.
No appearances for Defendants and Respondents Geoffrey Wilkins and Derek Wilkins.
PERLUSS, P. J.—Belinda Wilkins Tepper sued her three siblings, Geoffrey Wilkins, Martha Wilkins and Derek Wilkins, on behalf of her 88-year-old mother, Eileen Wilkins, claiming her siblings’ actions individually and while serving as trustees of Eileen‘s1 revocable living trust constituted financial abuse of an elder or dependent adult. Tepper‘s siblings demurred to her first amended complaint, asserting Tepper lacked standing to pursue an action on Eileen‘s behalf. Eileen, separately represented by counsel, intervened in the action and joined the demurrer to Tepper‘s amended complaint. The court sustained the demurrer without leave to amend and dismissed Tepper‘s elder abuse action on standing grounds. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The Original and First Amended Complaints
a. The original complaint
On June 12, 2013 Tepper filed an elder abuse action against Geoffrey, Derek and Martha alleging each of them, individually, and while serving together with Eileen as cotrustees of Eileen‘s revocable living trust, had taken and/or mismanaged Eileen‘s assets to Eileen‘s detriment. Tepper, who was not a trustee of Eileen‘s revocable trust, alleged she had standing as Eileen‘s child to pursue the action on Eileen‘s behalf to protect her mother from financial abuse. Tepper did not allege that she had been personally aggrieved by the actions of her siblings or that she possessed the ability to file suit as Eileen‘s conservator or attorney in fact under a power of appointment. In her prayer for relief Tepper sought compensatory and punitive damages and reasonable attorney fees.
b. Eileen‘s motion to intervene
On September 18, 2013 Eileen, represented by separate counsel, moved to intervene in the action. On February 5, 2014 the court granted Eileen‘s motion, and Eileen filed a complaint in intervention alleging she was the real party in interest and Tepper lacked standing to file this, or any, lawsuit on her behalf.
c. Martha, Geoffrey, Derek and Eileen‘s motion for judgment on the pleadings
Martha, Derek, Geoffrey and Eileen filed answers to Tepper‘s complaint. On March 5, 2014 Martha, individually and in her capacity as a cotrustee of
d. Tepper‘s first amended complaint
On September 19, 2014 Tepper filed a first amended complaint substantially repeating the allegations of elder financial abuse. As to standing Tepper added, “Plaintiff brings this action in the name of Eileen, the real party [in] interest, who is incapable of bringing the action herself. Eileen has no awareness of her finances or how her continued trust in Defendants is harming her financial security. Defendants are Eileen‘s other three children and they are or have been trustees of various Trusts established by Eileen and her late husband . . . . While Eileen is nominally a Co-Trustee [of her revocable living trust], it is clear she has entirely delegated control of her finances to the Defendants. This action became necessary after the Defendants failed to respond to requests for an accounting and information about expenditures from Eileen‘s trusts after Eileen‘s professional advisers became concerned that she would shortly run out of money.2 [¶] . . . A formal conservatorship action is not required to act on behalf of Eileen because it would unnecessarily involve her in proceedings primarily concerned with her capacity rather than the actions being taken by her fiduciaries and would create additional expense for her. A conservatorship would focus the legal action as an attack on Eileen‘s capacity, rather than an attempt to protect her from her children/trustees who are endangering her financial security.”
Tepper further alleged Eileen‘s “lack of understanding of her situation” was supported by numerous statements Eileen had made during her deposition including: She does not sign her own checks, does not have a budget and does not know specifically how her money is being spent; she relied on her lawyer to produce documents at her deposition; she could not independently describe the extent of gifts being made from her assets by her three cotrustees; and she was under the “mistaken impression” that Tepper was suing her. Tepper attached transcripts from Eileen‘s deposition as exhibits to support these allegations. This time, in her prayer for relief Tepper sought compensatory and punitive damages “payable to Eileen Wilkins or her designated trust,” as well as Tepper‘s reasonable attorney fees.
On February 26, 2015 Martha, individually and as cotrustee, demurred to the amended complaint asserting, primarily, Tepper‘s lack of standing to
On November 24, 2015 the court sustained without leave to amend the Wilkinses’ demurrer to Tepper‘s complaint, ruling Tepper “did not allege facts showing she has standing to assert the financial elder abuse claim on behalf of Eileen Wilkins.” After this court advised her counsel that an order sustaining a demurrer was not an appealable order, Tepper obtained an order dismissing her complaint with prejudice, and judgment was entered for defendants on February 2, 2017.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the superior court‘s ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action or discloses a complete defense. (Loeffler v. Target Corp. (2014) 58 Cal.4th 1081, 1100; McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) However, we are not required to accept the truth of the legal conclusions pleaded in the complaint. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126; Yhudai v. IMPAC Funding Corp. (2016) 1 Cal.App.5th 1252, 1257.) We liberally construe the pleading with a view to substantial justice between the parties. (
2. The Court Did Not Err in Ruling Tepper Lacked Standing To Bring the Elder Abuse Action
a. Governing law
The Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) (
Special standing rules apply in certain circumstances for actions under the Elder Abuse Act. Generally, an action must be prosecuted by the real party in interest, that is, the person aggrieved by the alleged conduct or otherwise “beneficially interested” in the controversy. (See
An action may also be brought by the elder‘s personal representative after the elder‘s death. (See
b. Tepper‘s lack of standing
Tepper concedes she has not been personally aggrieved by her siblings’ actions. However, Tepper contends as Eileen‘s daughter she is an interested person with standing to prosecute this action on Eileen‘s behalf under section 15600, subdivision (j), part of the Elder Abuse Act, and Probate Code section 48. Neither statute, whether considered separately or together, aids Tepper.
Section 15600, subdivision (j), states, “It is the further intent of the Legislature in adding Article 8.5 (commencing with Section 15657) to this chapter to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” This declaration neither defines “interested person” nor extends standing beyond the specific provisions of the Elder Abuse Act. Rather, it provides the legislative justification for the expansive remedies and more liberal standing rules expressly stated in the Elder Abuse Act. (See Delaney v. Baker, supra, 20 Cal.4th at p. 33 [
Tepper, however, contends section 15600, subdivision (j), must be read together with
Tepper misapprehends the scope and purpose of
Tepper‘s reliance on Estate of Giraldin, supra, 55 Cal.4th 1058 is entirely misplaced. William Giraldin created a revocable living trust and made his son Timothy trustee. William was the sole beneficiary while he was alive; his wife Mary was the remainder beneficiary for as long as she lived. After both William and Mary died, the remainder of the trust assets would go to their nine children. The trust document provided the trustee had no duty after William died to disclose assets to anyone other than Mary. After William died, but while Mary was still alive, four of William‘s children sued Timothy, claiming, among other things, Timothy‘s breach of duty to William during William‘s lifetime had depleted trust assets and harmed their contingent interests. Timothy argued his siblings lacked standing because his sole duty during William‘s lifetime was to William and then, after William died, to Mary. The Supreme Court agreed Timothy had no duty to William‘s contingent beneficiaries during William‘s lifetime. But, to the extent Timothy violated his fiduciary duty to William, the beneficiaries affected by that violation had standing to sue after William‘s death when the trust was no longer revocable. The court explained: “[T]he trustee owes no duty to the beneficiaries while the settlor is alive and competent, and this lack of a duty does not retroactively change after the settlor dies. But after the settlor has died and can no longer protect his own interests, the beneficiaries have standing to claim a violation of the trustee‘s duty to the settlor to the extent that violation harmed the beneficiaries’ interests. A trustee . . . cannot loot a revocable trust against the settlor‘s wishes without the beneficiaries’ having recourse after the settlor has died.” (Id. at p. 1071.)
The holding in Estate of Giraldin is limited to confirming the standing of beneficiaries of a formerly revocable trust to sue a trustee after the death of a settlor for breaching his or her duty to the settlor during the settlor‘s lifetime. Tepper appears to recognize that holding does nothing to support her argument for standing in this case. Nevertheless, quoting a sentence from the opinion that suggested someone in William‘s position potentially had a claim
Estate of Giraldin does nothing of the sort. The case was not addressed to the Elder Abuse Act. Its passing reference to a potentially viable claim under the act to refute one of Timothy‘s arguments simply acknowledged that a settlor‘s personal representative has standing to pursue a trustee for breach of fiduciary duty to the settlor following the settlor‘s death and that, if the personal representative will not maintain the action, certain defined interested parties may do so, as expressly provided by statute. (See
Tepper also asserts the “greater purpose” of the Elder Abuse Act is to permit interested persons to protect an elder from abuse during the elder‘s lifetime and complains it would be inconsistent with that purpose to prevent her from proceeding on her mother‘s behalf when her mother‘s personal representatives are the ones alleged to be committing the abuse. According to Tepper, unless claims such as hers are recognized, a personal representative could commit financial abuse with impunity without any remedy or repercussions during the elder‘s lifetime. This proposition sweeps too broadly.
If Tepper truly believes her mother lacks capacity to manage her affairs, she may seek appointment as Eileen‘s conservator. Alternatively, she may seek to proceed on Eileen‘s behalf in this action as a guardian ad litem, subject to the appropriate protections for Eileen inherent in those procedures. (See
Tepper, however, has affirmatively stated in her amended complaint and on appeal that she does not seek appointment as Eileen‘s conservator or guardian ad litem. And she does not have Eileen‘s consent to pursue the action on her behalf through a power of appointment. Thus, the cause of action for elder financial abuse belongs to Eileen as the real party in interest. The court did not err in sustaining the demurrer without leave to amend. (See Martin v. Bridgeport Community Assn., Inc. (2009) 173 Cal.App.4th 1024, 1031 [“[s]tanding is the threshold element” of a cause of action and may be the basis for sustaining a demurrer without leave to amend].)
DISPOSITION
The judgment is affirmed. Martha Wilkins and Eileen Wilkins are to recover their costs on appeal.
Segal, J., and Small, J.,* concurred.
*Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.