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In re Estate of Manuel

August 10, 2010


APPEAL from an order of the Superior Court of Los Angeles County, Reva Goetz, Judge. Reversed and remanded with directions. (Los Angeles County Super. Ct. No. BP095813).

The opinion of the court was delivered by: Croskey, Acting P. J.



Under Code of Civil Procedure section 2033.420, a party who unreasonably denies a request for admission may be required to pay the requesting party its reasonable expenses (including reasonable attorney's fees) incurred in proving the truth of the matter at trial. In this case, a will contestant, Nancy Brown, denied requests for admission which, if admitted, would have resolved the entire case in favor of the executor, Terri Wilson. When Wilson then prevailed at trial, she sought an award of costs of proof in the amount of all of her legal fees incurred after the date of the denial of the requests for admission. The trial court granted the motion, ordering Brown, and her counsel, Attorney Larry Lewellyn and Attorney Dawn Clark-Johnson, to pay Wilson the full amount of her legal fees.

In this appeal, we consider whether a costs of proof order may be directed to the denying party's counsel, as well as the denying party. We conclude that costs of proof may be imposed only against a party, not the party's counsel. We therefore reverse that portion of the trial court's order requiring Brown's attorneys to pay a share of the costs of proof in this case. In the unpublished portion of this opinion, we consider whether the trial court properly awarded costs of proof with respect to requests for admission pertaining to every theory on which Brown challenged the will, and, therefore, whether the trial court properly calculated the costs of proof as Wilson's entire attorney fee bill. We conclude that the trial court abused its discretion, and remand for a recalculation of the costs of proof pertaining only to those requests for admission for which Brown lacked a reasonable ground to believe that she would prevail at trial.


As the determination of whether costs of proof were appropriate involves a consideration of whether Brown had a reasonable ground to believe that she would prevail on the matters denied, we must set forth the facts of the underlying dispute in some detail. This case centers around the validity of the July 24, 2003 will of the decedent, Dorothy Manuel. In that will, the decedent left all of her property to Wilson, whom she also named as executor. The contestant of the will is Brown, who was decedent's second cousin. Wilson is married to Brown's son.*fn2

Decedent died on October 14, 2005, at the age of 99. She was survived by no children, grandchildren, or siblings. Decedent's estate consisted largely of her home; the property also contained two rental units.

1. Decedent's Stroke and 1999 Mental Examinations

Decedent, who lived alone, suffered a stroke in 1999.*fn3 She was referred for a neurological evaluation. On June 10, 1999, a Mini-Mental State Examination was performed. Decedent scored 12 points out of 30.*fn4 Decedent could not identify the year, season, date, day, or month, apparently believing it was November of 1977. When asked to spell the word "world," backwards, she could not place any letter correctly. When her recall was tested, she could remember only one of three previously remembered objects. When directed to "[w]rite a sentence," she could not comply. A diagnosis of "probable Alzheimer's disease" was made.*fn5 Decedent returned on August 18, 1999 for a follow-up appointment. She again scored 12 out of 30 on the Mini-Mental State Examination,*fn6 with the exact same missed questions as before.

In November 1999, decedent suffered a seizure and was hospitalized. She was discharged from the hospital on December 3, 1999. The discharge summary indicated that decedent needed 24-hour care, and that the decedent's family was making arrangements for such care. Brown took on this task, living with decedent for at least one month, and possibly as many as four months.*fn7 Brown made certain that decedent was taking her medications; Brown helped with decedent's meals, and went shopping for her. It was another relative's opinion that, after Brown moved out, decedent still required assistance, but she preferred to live alone. Another relative agreed that, from the time of her stroke until her death, decedent needed to be reminded to take her medications and eat.

2. The Campbells Take Advantage of Decedent

Even before her stroke, decedent was not paying her bills herself. At some point, unknown individuals started taking financial advantage of decedent.*fn8 In October 1999, decedent quitclaimed her property to a relative, Leatrice Campbell. The reason for this was disputed. Leatrice Campbell testified that her father, Irvin Campbell, convinced decedent to transfer the property in order to keep it safe from people who were trying to take advantage of her. Wilson, however, testified that the family simply thought decedent would soon die and wanted to avoid probate.

Brown stopped living with decedent when she did because the Campbells had started to look after decedent. They assisted decedent through 2002. In 2002, Leatrice Campbell took out a $50,000 loan on the property. She used some of the money to pay back taxes and perform repairs on decedent's house, but she also used the proceeds to buy a car for herself.

3. Wilson Becomes Involved

In 2002 or 2003, Wilson began visiting decedent. Wilson would stop by decedent's house on her lunch break, and she would share her lunch with decedent. Wilson started noticing that decedent was not being properly cared for; for example, her toenails were uncut. Wilson realized that decedent could not cook for herself, and needed assistance in bathing. Eventually, decedent confided in Wilson that she believed the Campbells were stealing her money. Wilson opened two new bank accounts for decedent, and had decedent's regular payments transferred to the new accounts. Wilson opened the accounts in her name as well as decendent's. Wilson testified that it was not necessary for her to be on the accounts in order to protect them. Nonetheless, she thought that "it was a good idea" to be on the accounts, since she "was going to be the one helping [decedent] out."

A friend of decedent's had contacted Santa Monica Protective Services, which sent an Elder Abuse investigator, apparently with regard to decedent's allegations against the Campbells. The investigator spoke with decedent and Wilson, and instructed Wilson to hire an attorney for decedent. Wilson did so.

4. Decedent Executes the Will in Favor of Wilson

Wilson took decedent to meet Attorney Julius Wulfsohn, for the purpose of getting her property back from Leatrice Campbell. However, decedent had not only quitclaimed her property to Leatrice Campbell, she had also executed a will leaving her estate to the Campbells. Attorney Wulfsohn informed decedent that she should have a new will drawn up so that the Campbells would not inherit. Decedent made an appointment with Attorney Wulfsohn to have a new will drafted.

Although Wilson brought decedent to the appointment to draft her will, the evidence is undisputed that Attorney Wulfsohn met with decedent privately, as was his practice. Decedent told Attorney Wulfsohn that she wanted to leave everything to Wilson, and he drafted the will accordingly. Before decedent executed the will, on July 24, 2003, Attorney Wulfsohn again discussed the will's contents with decedent without Wilson being present. Attorney Wulfsohn believed that decedent was mentally competent, and that Wilson was not unduly influencing her.

5. The September 2003 Mental Evaluation of Decedent

Once the new will had been executed, Attorney Wulfsohn discussed litigation against the Campbells to get decedent's property returned. Attorney Wulfsohn told decedent that litigation was very strenuous and that she would not be able to handle it. Decedent pointed to Wilson as her agent. At first, Attorney Wulfsohn considered obtaining a conservatorship for decedent, with Wilson as the conservator. The first step to obtaining a conservatorship would be to obtain a declaration from decedent's physician.

Elliot Felman, M.D., was decedent's primary physician. In September 2003, at Attorney Wulfsohn's request, he performed an evaluation of decedent's mental capacity. Dr. Felman concluded decedent was in great mental shape for her age "and she pretty much had all of her - all of her mental capacity."*fn9 Dr. Felman opined that most of decedent's problems were physical, and that she did not need help taking medications or feeding herself. He felt that she was qualified to make her own decisions and handle her own money.

6. The 2003 Suit Against the Campbells

In the absence of a declaration of incompetence, Attorney Wulfsohn could not proceed with the planned conservatorship. Instead, the decision was made for decedent to execute a power of attorney in favor of Wilson, so that Wilson could pursue the action against the Campbells on decedent's behalf. The power of attorney was executed on September 8, 2003.

On September 25, 2003, suit was filed by decedent "by her agent" Wilson, against the Campbells; Attorney Wulfsohn was counsel for decedent. Wilson verified the complaint. In the complaint, Wilson alleged that decedent's "age and infirmities placed her in a dependent and vulnerable position, and also reduced [decedent's] ability to carry out normal activities or to protect [her] rights."

Decedent's deposition was taken in the action against the Campbells on January 27, 2004. Decedent was clearly disoriented, confused and dependent. She repeatedly stated that she did not know why she was there. She was able to identify Wilson as the person who is "looking after my business," but could not name her. At one point, she called Wilson "Mama." She did not know if Leatrice Campbell was related to her. She thought the Campbells were only her neighbors. Decedent stated that she liked Irvin Campbell, and that he did not do anything to her; decedent had to be reminded that she was suing the Campbells. Even after being reminded, she stated she did not remember this. Decedent did not know who paid her bills, who collected rent on her rental units, whether her tenants were charged rent, who buys her groceries, and how food ends up in her refrigerator. She did not remember making a will. She agreed that she signed papers in Attorney Wulfsohn's office, but did not remember what they were. She repeated that she never made a will to anybody, but later stated she did not know what a will is.

In May 2004, Dr. Felman performed another capacity evaluation of decedent. At this point, he concluded that decedent had deteriorated substantially from his earlier evaluation in September 2003. He attributed the decline to the general aging process and "some type of dementia process," which could have been Alzheimer's disease or a series of small strokes. He was unable to determine whether decedent would have been capable of handling her affairs in May 2004.

The suit against the Campbells settled; decedent's property was quitclaimed back to her, and Irvin Campbell repaid the $50,000 loan which encumbered the property. It was also agreed that a conservatorship would be established,*fn10 and that an attorney would be appointed to create a new estate plan for decedent. Probate Volunteer Panel Attorney Marc Sallus was appointed to act on decedent's behalf in the conservatorship. On June 7, 2004, the court suspended the power of attorney in favor of Wilson, and authorized Attorney Sallus to prepare estate planning documents for decedent.

7. No New Documents Are Prepared

Attorney Sallus first met with decedent in April or May 2004. He performed an "amateur mini mental test to see if she was oriented as to time and place and would know who her relatives were and who she was." Attorney Sallus concluded that decedent's long-term memory was intact, but her short-term memory was very poor. At that time, Attorney Sallus asked what, if anything, decedent wanted done with her estate; she could not say. Decedent said she was thinking about it, and asked if she had to decide right then; Attorney Sallus told her that she did not have to decide immediately.

After the court authorized Attorney Sallus to prepare estate planning documents for decedent, he met with her again to discuss the issue. Decedent could not identify anyone she wanted to have her estate when she died. At one point, Attorney Sallus asked, "would you mind if it's whoever [is] your last living relative?" Decedent agreed, as long as the Campbells would not inherit. Attorney Sallus prepared a trust document reflecting that disposition.

A hearing was held*fn11 on August 30, 2004. Immediately before the hearing, Wilson approached Attorney Sallus and told him that decedent had something to say to him. Attorney Sallus then spoke with decedent. Decedent "was very adamant that she had not made up her mind dealing with the trust document and that she did not want that trust document to be approved . . . in particular as to who was supposed to receive the estate. [ΒΆ] She wanted more time to make that decision. And she wanted [Attorney Sallus] to remove that as her attorney so she could think about it and ...

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