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Butler v. LeBouef

California Court of Appeals, Second District, Sixth Division

June 20, 2016

KIM BUTLER et al., Plaintiffs and Respondents,
JOHN F. LeBOUEF, Defendant and Appellant

          Superior Court of Santa Barbara County, No. 1383524, Colleen K. Sterne, Judge.

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         Law Offices of Michael P. Ring & Assoc., Michael P. Ring; Weldon & Hass and Scott B. Fooks for Defendant and Appellant.

         The Law Office of John Derrick and John Gregory Derrick for Plaintiffs and Respondents.

         Opinion by Yegan, J., with Gilbert, P. J., and Perren, J., concurring.


          YEGAN, J.

          [203 Cal.Rptr.3d 575] --An ethical estate planning attorney will plan for his client, not for himself. (See Estate of Moore (2015) 240 Cal.App.4th 1101, 1103 [193 Cal.Rptr.3d 179].) A license to practice law is not a license to take advantage of an elderly and mentally infirm client. As we shall explain, the factual findings of the trial court compel the conclusion that appellant used his license to take advantage of an elderly and mentally infirm person to enrich himself. The trial court factual findings are disturbing, fatal to appellant's contentions, and suggest criminal culpability.

         John F. LeBouef, an attorney, appeals a probate judgment invalidating a will and living trust purportedly executed by John Patton on December 22,

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2006. Probate Code section 21380[1] (formerly § 21350) provides in pertinent part: " A provision of an instrument making a donative transfer to [203 Cal.Rptr.3d 576] any of the following persons is presumed to be the product of fraud or undue influence: [¶ ] (1) The person who drafted the instrument[; ] [¶ ] (2) A person in a fiduciary relationship with the transferor who transcribed the instrument or caused it to be transcribed." (§ 21380, subd. (a).) Patton's will and trust named appellant as the principal beneficiary to a $5 million estate. After five weeks of testimony, the trial court factually found that appellant, acting as Patton's attorney and fiduciary, drafted or transcribed the 2006 will and trust. (See Rice v. Clark (2002) 28 Cal.4th 89, 97 [120 Cal.Rptr.2d 522');">120 Cal.Rptr.2d 522, 47 P.3d 300] [discussing former § 21350, subd. (a)]; Graham v. Lenzi (1995) 37 Cal.App.4th 248, 255 [43 Cal.Rptr.2d 407].) In a supplemental statement of decision, the trial court factually found that appellant caused the loss of the original trust instrument, which made it impossible for the court to determine the true terms of the trust. The trial court declared the will and trust invalid and removed appellant as trustee. Appellant was ordered to turn over the trust assets and pay $1,256,971 attorney fees pursuant to section 21380, subdivision (d). We affirm this judgment.

         In a postjudgment order, the trial court approved appellant's trust accounting but denied his request for trustee fees, attorney fees, and reimbursement for out-of-pocket expenses and property management services. It ruled that an award for fees, costs, services, and out-of-pocket expenses would be inequitable and reward appellant for his misconduct. We affirm this order.

         Facts and Procedural History

         Kim Butler and Julie Butler Black are the nieces and last known heirs-at-law of John A. Patton. After Patton passed away in 2011, Butler, Black, and Carol Archer filed a petition to invalidate a $5 million donative transfer to appellant (Prob. Code, § § 17200, 6104, 15642) and remove appellant as trustee of the John A. Patton Revocable Trust, dated December 22, 2006. Respondents claimed that appellant, an attorney, drafted or transcribed Patton's will and trust to enrich himself.

         John Patton, a renowned interior designer, died in Santa Barbara on June 18, 2011. He was 73 years old, in poor health, and suffering from depression, alcohol abuse, hepatitis, diabetes, high blood pressure, gout, and incontinence. Patton's housekeeper testified that he was more often drunk than sober during the last six months of his life. He would drink heavily, howl like a dog, and fall down and injure himself. Neighbors had to pick him off the

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floor, help him out of his car, and shower him. Patton grieved the 2004 death of his domestic partner, Leo Duval, and, by the end of his life, was often emotionally out of control.

         Appellant was Patton's social acquaintance. After Duval died, appellant took an active interest in Patton and frequently drove up from Los Angeles to visit and stay the night. Appellant's life partner, Mark Krajewski, accompanied appellant on many of the visits. Krajewski was also appellant's business partner. They owned property in Los Angeles and Buenos Aires, maintained joint checking and investment accounts, shared a cell phone plan, and used the same post office box.

         As Patton's health deteriorated, appellant and Krajewski visited more frequently. Patton complained that appellant was overbearing and visited too often. In 2010, Patton told his assistant, Neely Bermant, that he was losing control of his finances and that appellant had moved his money around.

         On December 22, 2006, Patton allegedly changed his will and created a trust naming appellant principal beneficiary. He gifted a vintage car to Donald Pooler, appellant's [203 Cal.Rptr.3d 577] friend. It was a radical change in Patton's estate plan. In 1994 and 2000 Patton had executed wills gifting his estate to his nieces and Wendy Greenstein, Patton's friend for 20 years.

         Prior Questionable Estate Plans and Administrations

         Respondents argued that it was not the first time that appellant befriended an elderly person and drafted a will or trust naming himself or his partner, Krajewski, principal beneficiary. Respondents claimed there were eight prior incidents. Pursuant to Evidence Code section 1101, subdivision (b), the trial court exercised its discretion and limited the prior acts evidence to two trust matters (the Irene Grant Trust and the Audrey Cook Trust). Appellant drafted both trust instruments.

         In 1999, appellant helped Irene Grant inherit $2.5 million from Walter Pick. Grant was Pick's caretaker. Pick's will, which was drafted by appellant, gifted the estate to Grant. After Pick died, appellant married Grant who was 20 years older and managed the inheritance. Before Grant passed away in 2006, appellant drafted Grant's trust naming himself principal beneficiary. Appellant received the bulk of the estate on Grant's death and gave $800,000 to $1 million to Grant's niece in Buenos Aires. The niece was told that Grant wanted her to receive the entire estate but appellant kept some estate assets. Appellant also collected Grant's social security benefits for the next seven years.

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         In 2003, appellant befriended Audrey Cook, an elderly widow, and wrote four amendments to the Audrey Cook Trust. The fourth trust amendment, written in August 2006, left most of Cook's estate to Krajewski and named appellant's friend, Donald Pooler, as successor trustee. When 90-year-old Cook passed away in 2007, Pooler sold the house and distributed the $1.3 million sale proceeds to Krajewski. Family members ...

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