APPEAL from the Superior Court of San Bernardino County. Frank Gafkowski, Jr., Judge. (Retired judge of the former L.A. Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Reversed and remanded with directions. (Super.Ct.No. CIVSS704529)
The opinion of the court was delivered by: Hollenhorst J.
CERTIFIED FOR PUBLICATION
Plaintiff, cross-defendant, and appellant Donna Jean Knox, individually and as successor conservator and guardian ad litem for Blaine H. Knox,*fn1 appeals from judgment in favor of defendant, cross-complainant, and respondent Lawrence A. Dean II, Blaine's former conservator, on Donna's complaint for damages under the Elder Abuse and Dependent Adult Civil Protection Act (the Act) (Welf. & Inst. Code, §§ 15600 et seq.) and default judgment in favor of Dean on his cross-complaint.*fn2 Donna contends the trial court erred in failing to apply protections under the Act that supersede Probate Code section 2103, subdivision (b), and in failing to allow a challenge to prior probate accounting orders. Donna also contends (1) the trial court erred in failing to transfer the case to the probate court, (2) triable issues of material fact existed that should have precluded summary judgment, and (3) the trial court erred in its evidentiary rulings.
Dean argues that (1) Donna's claims for acts up to April 30, 2006, are barred by res judicata under Probate Code section 2103, subdivision (b), based on final orders settling conservatorship accounts and reports, and (2) Donna has failed to allege facts sufficient to state a cause of action against Dean for the entire period during which he served as conservator. We conclude that Dean's res judicata defense applies only to acts before May 1, 2006, and that Donna's allegations were sufficient to state causes of action against him. Because Dean failed to establish a complete defense as to certain causes of action, summary judgment was improper, although summary adjudication may be entered as to the causes of action for fraud and constructive fraud.
In addition, Dean has filed a motion for imposition of sanctions against Donna and her attorney on the ground that the appeal is frivolous. We deny the motion.
II. FACTS AND PROCEDURAL BACKGROUND
Donna is the daughter and successor conservator of Blaine, who was 94 years old in 2007. On April 7, 2003, Dean was issued temporary letters as conservator of Blaine's person and estate, and general letters were issued on May 30, 2003. Dean resigned as conservator on January 4, 2007.
The principal assets of Blaine's estate consist of two apartment buildings in Redlands and a collection of classic cars and antique engines. At the beginning of the conservatorship the value of Blaine's assets totaled approximately $1.5 million, including approximately $295,000 in cash.
On August 11, 2004, Dean submitted a first accounting, seeking confirmation of his acts and transactions during the period of April 6, 2003, through April 5, 2004. Dean mailed a notice of the hearing on the accounting to Donna. Donna did not file any objection to the first accounting. The probate court approved the first accounting on September 17, 2004.
Dean filed a second accounting on July 21, 2005, covering the period of April 6, 2004, through April 30, 2005. Dean mailed a notice of the hearing to Donna. Donna did not file any objection to the second accounting. The probate court approved the second accounting on August 26, 2005.
Dean filed a third accounting on November 8, 2006, covering the period of May 1, 2005, through April 30, 2006. Donna filed an objection to the third accounting, and the probate court approved it on January 4, 2007, over her objection after examining the bills and statements associated with the third accounting.
Dean filed a fourth accounting on February 23, 2007, covering the period of May 1, 2006, through December 26, 2006. Donna filed written objections on April 5, 2007. The probate court stayed proceedings on the fourth accounting until the current case was finalized.
On August 6, 2007, Donna filed a complaint against Dean alleging causes of action for elder financial abuse (Welf. & Inst. Code, §§ 15610.23 et seq.), elder physical neglect (Welf. & Inst. Code, §§ 15610.57 et seq.), breach of fiduciary duty, fraud, and constructive fraud. Donna alleged that, while acting as conservator, Dean engaged in financial self dealing, neglected Blaine's physical needs, and created phantom services provided by Dean's employees that drained Blaine's estate of all cash. Although the probate court approved Dean's first three accountings, Donna alleged that Dean had omitted material facts from those accountings, including his personal relationships with individuals he hired; he made payments for services that were never provided to Blaine; and he committed waste and churned Blaine's estate for his own benefit. She also alleged that Blaine suffers from vision and hearing impairments that made him susceptible to undue influence and prevented him from effectively protecting his rights.
Dean filed a motion for summary judgment or summary adjudication. He contended the probate court orders approving the first three accountings were res judicata as to matters encompassed in those accountings. He argued that Donna had an opportunity to object to the accountings in the probate court, but she failed to object to the first and second accountings, and the probate court approved the third accounting over her objections. He further argued that Donna had failed to allege facts sufficient to support her causes of action. Donna filed an opposition to the motion.
Meanwhile, on May 1, 2009, the probate court terminated the conservatorship of Blaine's person but continued the conservatorship of his estate. At some point it appears that Donna was appointed Blaine's guardian ad litem.
Following oral argument, the trial court granted Dean's motion for summary judgment. Judgment was thereafter entered in favor of Dean.
We review de novo the trial court's determination of a motion for summary judgment. (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1003.) "We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party's showing has established facts which justify a judgment in movant's favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue. [Citation.]" (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.)
1. Issue Framed by Pleadings
Donna alleged Dean committed elder financial abuse under Welfare and Institutions Code section 15610.30 by, among other things, failing to take reasonable steps to repair Blaine's apartments, allowing the apartments to deteriorate, and allowing an in-home caregiver to reside rent free in one of Blaine's apartments.
Welfare and Institutions Code section 15610.30, subdivision (a), provides:
"(a) 'Financial abuse' of an elder or dependent adult occurs when a person or entity does any of the following:
"(1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
"(2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.
"(3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence, as defined in Section 1575 of the Civil Code."
Dean argues that Donna failed to allege that he "took" any property from Blaine's estate within the meaning of Welfare and Institutions Code section 15610.30, and she therefore failed to plead a cause of action. However, Donna alleged that Dean allowed a caregiver to live rent free in one of Blaine's apartments, allowed two of his friends to rent Blaine's apartments at below-market rents, acquiesced in improper billing from a care giving agency, overcharged Blaine's estate for conservator services that were never performed or were unnecessary, and conspired to provide unnecessary care-giving services. Those allegations, if proved, would be sufficient to establish a cause of action under Welfare and Institutions Code section 15610.30, subdivision (b). We therefore conclude that Donna properly pleaded a cause of action for elder financial abuse.
2. Dean's Showing in Motion for Summary Judgment
Dean argues the probate court orders approving his first three accountings were res judicata under Probate Code section 2103, and his acts and transactions during the periods covered by those accountings are not subject to further ...