California Court of Appeals, Second District, Sixth Division
Superior Court of Santa Barbara County, No. 1383524, Colleen
K. Sterne, Judge.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Offices of Michael P. Ring & Assoc., Michael P. Ring; Weldon
& Hass and Scott B. Fooks for Defendant and Appellant.
Office of John Derrick and John Gregory Derrick for
Plaintiffs and Respondents.
by Yegan, J., with Gilbert, P. J., and Perren, J.,
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
LeBouef, an attorney, appeals a probate judgment invalidating
a will and living trust purportedly executed by John Patton
on December 22,
2006. Probate Code section 21380 (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.
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.
and Procedural History
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.
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
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
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.
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.
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.
Questionable Estate Plans and Administrations
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.
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.
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 ...