Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lickter v. Lickter

October 27, 2010

JOSHUA LICKTER ET AL., PLAINTIFFS AND APPELLANTS,
v.
MAGGIE LICKTER, AS TRUSTEE, ETC., ET AL., DEFENDANTS AND RESPONDENTS.



APPEAL from a judgment of the Superior Court of Nevada County, Thomas M. Anderson, Judge. Affirmed. (Super. Ct. No. 73039).

The opinion of the court was delivered by: Robie, J.

CERTIFIED FOR PUBLICATION

The primary issue in this case is who is entitled to commence and/or maintain an elder abuse action after the elder who was allegedly abused has died. Generally, "the right to commence or maintain [such] an action . . . pass[es] to the personal representative of the decedent." (Welf. & Inst. Code, § 15657.3, subd. (d)(1).) However, "[i]f the personal representative refuses to commence or maintain an action or if the personal representative's family or an affiliate . . . is alleged to have committed abuse of the elder," (italics added) then the Legislature has granted "standing to commence or maintain an action for elder abuse" to "[a]n intestate heir whose interest is affected by the action," "[t]he decedent's successor in interest," or "[a]n interested person, as defined in Section 48 of the Probate Code [with certain limitations not applicable here]." (Id., subd. (d)(1) & (2).)

Here, plaintiffs Joshua and Jezra Lickter sued their father (Robert Lickter), their half-sisters (Maggie and Kate Lickter), and their half-sisters' mother (Mary McClain) for elder abuse and other related causes of action that had belonged to their grandmother (Robert's mother), Lois Lickter, when she died.*fn1 Plaintiffs claimed they had standing to commence and maintain the action under Welfare and Institutions Code section 15657.3, subdivision (d).

Defendants moved for summary judgment based on lack of standing. In defendants' view, plaintiffs would have standing to sue on Lois's causes of action only if Robert, Maggie, and Kate all were deemed to have predeceased Lois pursuant to Probate Code section 259,*fn2 because only then would plaintiffs be left "as successors-in-interest to [Lois's] estate." Applying the elements of Probate Code section 259 to establish plaintiffs' lack of standing, defendants offered evidence and argued that none of them committed elder abuse against Lois and that none of them acted in bad faith or with recklessness, malice, oppression, or fraud.

In response, plaintiffs argued there was "no need for th[e] Court to delve into 'who predeceases whom' for purposes of standing" because they had standing as "interested persons" under subdivision (d)(2) of Welfare and Institutions Code section 15657.3 because they were beneficiaries of Lois's trust.

The trial court agreed with defendants that plaintiffs would have standing only if Robert, Maggie, and Kate all were deemed to have predeceased Lois under Probate Code section 259. Applying the elements of Probate Code section 259, the court went on to conclude there was no triable issue of fact as to whether Kate was liable for elder abuse or as to whether she acted in bad faith or engaged in reckless, malicious, oppressive, or fraudulent conduct. Accordingly, because Kate could not be deemed to have predeceased Lois under Probate Code section 259, plaintiffs were not Lois's heirs and therefore lacked standing to pursue the action.

On plaintiffs' appeal from the summary judgment in favor of defendants, we find no prejudicial error. As we will explain, just because plaintiffs were beneficiaries of Lois's trust did not make them "interested persons" for purposes of pursuing this elder abuse action under subdivision (d) of Welfare and Institutions Code section 15657.3. To be an "interested person" for purposes of instituting or participating in a particular proceeding under Probate Code section 48 -- and, by extension, under subdivision (d) of Welfare and Institutions Code section 15657.3 -- the person must have an interest that may be impaired, defeated, or benefited by the proceeding. Plaintiffs were former beneficiaries of Lois's trust, as they already had been paid the amounts they were owed under the trust. Thus, plaintiffs had no such interest in this elder abuse action.

Indeed, the trial court was correct in concluding that the only way plaintiffs would have standing to pursue this action was if they succeeded to Lois's causes of action because Robert, Maggie, and Kate all were deemed to have predeceased Lois under Probate Code section 259. Because there was no triable issue of fact as to whether Kate acted in bad faith or engaged in reckless, malicious, oppressive, or fraudulent conduct, Kate cannot be deemed to have predeceased Lois under Probate Code section 259, plaintiffs did not succeed to the causes of action they sought to pursue in this action, and therefore the trial court correctly concluded they lacked standing.

We also conclude that even if the trial court erred in denying plaintiffs' motion to compel Kate to answer certain deposition questions, plaintiffs have failed to show any prejudice from that error because they have failed to show it is reasonably probable they could have avoided summary judgment if the trial court had compelled Kate to answer. Accordingly, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying facts are largely irrelevant. For our purposes, it is sufficient to say that Lois died in August 2007 at the age of 91, leaving property in a trust, of which Robert became the trustee.*fn3 The terms of the trust provided that upon Lois's death, $10,000 each would be distributed to plaintiffs and the entire residue of the trust would then be distributed to Robert. If Robert predeceased Lois, the residue was to be distributed to Maggie and Kate. If Maggie and Kate also predeceased Lois, the residue was to be distributed to their children or, if none, to Lois's living children by right of representation.

Because Robert was Lois's only surviving child, and because neither Maggie nor Kate had children, the residue of Lois's trust would be distributed to plaintiffs under the terms of the trust if Robert, Maggie, and Kate all were deemed to have died before Lois.

Shortly after Lois's death, plaintiffs commenced this action. In June 2008, they filed their first amended complaint, alleging nine different causes of action that had belonged to Lois when she died: (1) elder abuse (neglect, isolation, and deprivation of goods or services); (2) financial elder abuse; (3) breach of fiduciary duty (against Robert only); (4) breach of fiduciary duty (against all defendants); (5) aiding and abetting breach of fiduciary duty; (6) undue influence and duress; (7) false imprisonment; (8) civil conspiracy; and (9) negligence. The gist of their allegations was that defendants abused Lois physically and financially from May 2007, when she was admitted to the hospital on a psychiatric hold, until she died three months later.

Plaintiffs alleged they had standing to commence and maintain the action under Welfare and Institutions Code section 15657.3, subdivision (d). Additionally, part of the relief plaintiffs sought in their complaint was a "judgment that the Defendants should be deemed to have predeceased [Lois] pursuant to . . . Probate Code [section] 259." That statute provides in relevant part as follows:

"(a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply:

"(1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or fiduciary abuse[*fn4 ] of the decedent, who was an elder or dependent adult.

"(2) The person is found to have acted in bad faith.

"(3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent.

"(4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence.

"[¶] . . . [¶]

"(c) Any person found liable under subdivision (a) . . . shall not (1) receive any property, damages, or costs that are awarded to the decedent's estate in an action described in subdivision (a) . . . , whether that person's entitlement is under a will, a trust, or the laws of intestacy . . . ."

Shortly after plaintiffs filed their first amended complaint, defendants moved for summary judgment on the ground that plaintiffs lacked standing. Defendants pointed out that subdivision (d) of Welfare and Institutions Code section 15657.3 gives standing to three types of persons to pursue an elder abuse action on behalf of a deceased elder: "[a]n intestate heir whose interest is affected by the action," "[t]he decedent's successor in interest, as defined in Section 377.11 of the Code of Civil Procedure," and "[a]n interested person, as defined in Section 48 of the Probate Code" (with certain exceptions not applicable here). (Welf. & Inst. Code, § 15657.3, subd. (d)(1), (2).) Defendants asserted plaintiffs would have standing to pursue Lois's causes of action under this statute only if they could be deemed Lois's "intestate heirs," which would happen only if Robert, Maggie, and Kate all were deemed to have predeceased Lois under Probate Code section 259. Defendants argued, however, that plaintiffs could not meet the requirements of Probate Code section 259 because they did not have any clear and convincing evidence that any of the defendants abused Lois, acted in bad faith, or was reckless, oppressive, fraudulent, or malicious.

In opposing the summary judgment motion, plaintiffs argued they had standing as "interested persons" under subdivision (d)(1)(C) of Welfare and Institutions Code section 15657.3 because they were beneficiaries of Lois's trust.

While the summary judgment motion was pending, plaintiffs moved to compel Kate to answer a number of questions her attorney had instructed her not to answer at her deposition. The trial court denied that motion.

Also, around this same time Robert filed a petition in the probate court seeking a determination that plaintiffs' elder abuse action constituted a "contest" of the trust in violation of the no contest clause in the trust and seeking to cancel their beneficial interests in the trust as a result. In July 2008, the probate court denied that petition and ordered Robert to pay plaintiffs the $10,000 Lois left to each of them within five days.

In subsequently ruling on the summary judgment motion in February 2009, the trial court agreed with defendants that plaintiffs would have standing only if Robert, Maggie, and Kate all were deemed to have predeceased Lois under Probate Code section 259. The trial court first determined plaintiffs were not Lois's "successors in interest" under subdivision (d)(1)(B) of Welfare and Institutions Code section 15657.3 and they did not qualify as "interested persons" under subdivision (d)(1)(C) of that statute just because Lois left them each $10,000 in her trust. In the court's view, to be an "interested person," plaintiffs had to have a property right in or claim against the trust estate that might be affected by the elder abuse proceeding, and since plaintiffs had already received their money from the trust "there is no property right or claim against the trust estate that may be affected by this proceeding." Thus, the trial court concluded "the only way plaintiffs have standing is via their claim they are intestate heirs due to violation by all defendants of Probate Code Section 259." (Boldface text omitted.)

The court then explained as follows: "Since the court has determined that plaintiffs have standing only if they prove all of the Lickter defendants have committed elder abuse within the meaning of [Probate Code] Section 259, if it is determined that any one of the Lickter defendants did not commit elder abuse as a matter of law, then all motions for summary judgment are properly granted." (Boldface text omitted.) Focusing on Kate in particular, the court proceeded to engage in an exceedingly detailed analysis of "each fact presented by . . . Kate . . . in support of her motion, each fact presented by plaintiffs to dispute Kate's facts, and each additional fact presented by plaintiffs," as well as "each item of evidence set out in support of these facts." Ultimately, the court concluded there were no triable issues as to whether Kate committed financial abuse, and there was "no evidence, clear or convincing or otherwise, that Kate acted in bad faith regarding Lois's property or that she was reckless, oppressive or malicious in regard to said property." The court also concluded there were no triable issues as to whether Kate committed physical abuse, and there was no showing of "bad faith and reckless, malicious, oppressive, or fraudulent conduct" relating to any physical abuse of Lois. Finally, the court concluded there was no triable issue as to whether Kate committed neglect, and there was "no clear and convincing evidence or any inference therefrom that Kate acted in bad faith or was reckless, oppressive, fraudulent or malicious in the commission of any neglectful act."

Because the trial court found as a matter of law that the requirements of Probate Code section 259 could not be met as to Kate, Kate could not be deemed to have predeceased Lois under the terms of that statute, and therefore plaintiffs did not have standing as Lois's intestate heirs. Accordingly, the trial court granted summary judgment in favor of all defendants.

From the resulting judgment, plaintiffs timely appealed.

DISCUSSION

I. Survival And Standing In Elder Abuse Cases

Before we turn to plaintiffs' arguments on appeal, we begin with some basic legal principles about the survival of causes of action at death and standing to pursue those causes of action, particularly, those for elder abuse.

The general rule of survival is that "[e]xcept as otherwise provided by statute, a cause of action for or against a person is not lost by reason of the person's death, but survives subject to the applicable limitations period." (Code Civ. Proc., ยง 377.20, subd. (a).) With respect to causes of action belonging to a decedent, the general rule about who succeeds to such a cause of action and who may prosecute such a cause of action is contained in section 377.30 of the Code of Civil Procedure, which provides as follows: "A cause of action that survives the death of the person entitled to commence an action or proceeding passes to the decedent's successor in interest, subject to Chapter 1 (commencing with ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.