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Tepper v. Wilkins

California Court of Appeals, Second District, Seventh Division

April 19, 2017

BELINDA WILKINS TEPPER, Plaintiff and Appellant,
v.
MARTHA WILKINS, Individually and as Trustee etc., et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Los Angeles County No. BC511863, Suzanne G. Bruguera, Judge. Affirmed.

          Freeman, Freeman & Smiley, Stephen M. Lowe and Thomas C. Aikin for Plaintiff and Appellant.

          Oldman, Cooley, Sallus, Birnberg & Coleman, Marc L. Sallus, Marshal A. Oldman and Susan B. Rosenblat for Defendant and Respondent Martha Wilkins, Individually and as Co-Trustee, etc.

          Edward H. Stone for Defendant and Respondent Eileen N. Wilkins, Individually and as Co-Trustee, etc.

          No appearances by Defendants and Respondents Geoffrey Wilkins and Derek Wilkins.

          PERLUSS, P. J.

         Belinda Wilkins Tepper sued her three siblings, Geoffrey Wilkins, Martha Wilkins and Derek Wilkins, on behalf of her 88-year-old mother, Eileen Wilkins, claiming her siblings' actions individually and while serving as trustees of Eileen's[1] revocable living trust constituted financial abuse of an elder or dependent adult. Tepper's siblings demurred to her first amended complaint, asserting Tepper lacked standing to pursue an action on Eileen's behalf. Eileen, separately represented by counsel, intervened in the action and joined the demurrer to Tepper's amended complaint. The court sustained the demurrer without leave to amend and dismissed Tepper's elder abuse action on standing grounds. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         1. The Original and First Amended Complaints

         a. The original complaint

         On June 12, 2013 Tepper filed an elder abuse action against Geoffrey, Derek and Martha alleging each of them, individually, and while serving together with Eileen as co-trustees of Eileen's revocable living trust, had taken and/or mismanaged Eileen's assets to Eileen's detriment. Tepper, who was not a trustee of Eileen's revocable trust, alleged she had standing as Eileen's child to pursue the action on Eileen's behalf to protect her mother from financial abuse. Tepper did not allege that she had been personally aggrieved by the actions of her siblings or that she possessed the ability to file suit as Eileen's conservator or attorney-in-fact under a power of appointment. In her prayer for relief Tepper sought compensatory and punitive damages and reasonable attorney fees.

         b. Eileen's motion to intervene

         On September 18, 2013 Eileen, represented by separate counsel, moved to intervene in the action. On February 5, 2014 the court granted Eileen's motion; and Eileen filed a complaint in intervention alleging she was the real party in interest and Tepper lacked standing to file this, or any, lawsuit on her behalf.

         c. Martha, Geoffrey, Derek and Eileen's motion for judgment on the pleadings

         Martha, Derek, Geoffrey and Eileen filed answers to Tepper's complaint. On March 5, 2014 Martha, individually and in her capacity as a co-trustee of Eileen's revocable living trust, moved for judgment on the pleadings asserting Tepper lacked standing to bring the elder abuse action on Eileen's behalf. Geoffrey, Derek and Eileen filed notices of joinder in Martha's motion. On August 20, 2014 the court granted the motion, but granted Tepper leave to amend her complaint.

         d. Tepper's first ...


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