Judge: Barbara M. Scheper, Case: 21STCV29867, Date: 2023-09-05 Tentative Ruling
Case Number: 21STCV29867 Hearing Date: September 5, 2023 Dept: 30
Dept. 30
Calendar No.
Montelongo vs. Martin
del Campo, et. al., Case No. 21STCV29867
Tentative Ruling
re: Defendant’s Motion for Summary
Judgment, or in the alternative, Summary Adjudication of Issues
Defendant
Elizabeth Martin Del Campo (Defendant) moves for summary judgment, or,
alternatively, summary adjudication, against Plaintiff Miguel Montelongo
(Plaintiff). The motion for summary judgment is granted.
The
function of a motion for summary judgment or adjudication is to allow a
determination as to whether an opposing party can show evidentiary support for
a pleading or claim and if not to enable an order of summary dismissal without
the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843 (Atlantic Richfield).) Code
of Civil Procedure Section 437c, subdivision (c) “requires the trial judge to
grant summary judgment if all the evidence submitted, and ‘all inferences
reasonably deducible from the evidence’ and uncontradicted by other inferences
or evidence, show that there is no triable issue as to any material fact and
that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7
Cal.App.4th 1110, 1119.)
Once the
moving party has met that burden, the burden shifts to the opposing party to
show that a triable issue of one or more material facts exists as to that cause
of action or a defense thereto. To establish a triable issue of material fact,
the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68
Cal.App.4th 151, 166.)
At issue in this action is the
estate and trust of Martha Martin Del Campo (Martha), who died on August 20,
2020. Plaintiff met Martha in late 2010, and the two became romantically
involved. In February 2011, Plaintiff
began to live with Martha at her home in Whittier, California, where they lived
together until her death. Defendant Elizabeth Del Campo is one of Martha’s three
daughters. (UMF 3.) Plaintiff and Martha held a marriage ceremony on October
29, 2011, and thereafter referred to one another as husband and wife, but the
marriage was not legally effective. Plaintiff did not learn this until after
Martha’s death. (Montelongo Decl. ¶ 12.)
Prior to meeting Plaintiff, on
August 8, 2007, Martha established the Martin Del Campo Family Trust, a
revocable living trust, and named her three daughters as beneficiaries, with
Defendant and her sister, Erika Lamas, as successor co-trustees. (UMF 5-6; Del
Campo Decl., Ex. 1 [11].) On September 19, 2019, Martha executed an amendment
to the trust making Defendant sole Successor Trustee. (Del Campo Decl., Ex. 2
[32].)
Plaintiff, who is now 75 years old,
has no formal education and is unable to read or write. (Montelongo Decl. ¶ 2.)
Plaintiff has worked as a gardener for all of his working life, and when he met
Martha, was operating a gardening business in the Whittier area. (Montelongo
Decl. ¶ 3.) When Plaintiff began living with Martha, he asked Martha to manage
his money due to his inability to read and write. (Montelongo Decl. ¶ 16.)
Martha agreed to manage Plaintiff’s money, and had Plaintiff close his bank
account and open two new accounts. One account was in their names jointly and
the other in Plaintiff’s name only, with Martha the signatory for both
accounts. (Montelongo Decl. ¶ 17.)
After opening the new accounts,
each day, Plaintiff would give Martha all the money he had received for his
gardening services, in the form of both cash and checks. (Montelongo Decl. ¶
18.) Martha alone conducted all financial transactions, and Plaintiff never
asked where she deposited the money or how she used it. (Montelongo Decl. ¶
18.) Plaintiff kept no records of his earnings or expenses, entrusting all
financial matters to Martha. (Montelongo Decl. ¶ 22.) Plaintiff did not have
information on his bank accounts until his attorney provided him the records in
August 2022. (Montelongo Decl. ¶ 24.)
Martha had retired from working as
a waitress several years before meeting Plaintiff, and during their time
together, all living expenses were paid with Plaintiff’s income alone.
(Montelongo Decl. ¶ 26.) Plaintiff also paid for updates to Martha’s home,
including window replacements, recarpeting, repainting, and other repairs, in
total costing $51,500. (Montelongo Decl. ¶ 21.) Based on his conversations with
Martha, Plaintiff believes that her only income was $700 a month from Social
Security, and around $600 a month from investments. (Montelongo Decl. ¶ 27.)
Of her three daughters, Martha was
the closest with Defendant, who frequently visited Martha, and lived at the
Whittier home with the couple from late 2017 until the beginning of 2020. (Montelongo
Decl. ¶ 28.) Plaintiff states that Defendant and Martha would sometimes get
into arguments, but also spent a lot of time together and would go on vacations
together. (Montelongo Decl. ¶¶ 28-29.) Almost immediately after Martha’s death
in August 2020, Defendant asked Plaintiff to leave the Whittier house; when
Plaintiff protested that, as Martha’s husband, he had the right to live in the
house for his life, Defendant replied that Plaintiff wasn’t married to Martha
and had no right to any of her belongings. (Montelongo Decl. ¶ 31.) This was
the first time that Plaintiff was told he was not legally married to Martha.
(Montelongo Decl. ¶ 12.) Plaintiff asked Defendant for his money and bank
records, but Defendant told him that she did not have them. (Montelongo Decl. ¶
32.)
When Plaintiff received his bank
account records in August 2022, he found that there had been many monthly
withdrawals of around $1,000, sometimes larger, totaling around $73,000.
(Montelongo Decl. ¶ 34.) Counsel for Plaintiff states that the withdrawals
began in 2014 and continued through 2020, and that copies of the withdrawal
slips all show only Martha’s signature. (Malhotra Decl. ¶ 16, Ex. I.) Plaintiff
does not know the purpose of these withdrawals, and was never told by Martha
about them. (Montelongo Decl. ¶ 35.)
One withdrawal of $100,000 in April
2019 was apparently used to buy an annuity for Plaintiff’s benefit, which he
received following Martha’s death. (Montelongo Decl. ¶ 36.) Plaintiff also
notes that the bank statements showed relatively few cash deposits,
inconsistent with his approximate monthly savings of $5,000 to $7,000.
(Montelongo Decl. ¶ 38.) In total, minus the $100,000 annuity, Plaintiff
estimates that his saved earnings from February 2011 until July 2020, should
have amounted to between $465,000 and $578,000. (Montelongo Decl. ¶ 39.)
Following Martha’s death, Defendant
served as presumptive Executor and filed the petition for probate of the
Estate. (UMF 10; Del Campo Decl. ¶ 12, Ex. 7 [108].) The Inventory and
Appraisal of Martha’s Estate, filed with the LASC Probate Court (case no.
20STCB08840), lists two Chase Bank accounts with the total value of
$147,113.58. (Malhorta Decl., Ex. J [162].) However, Plaintiff’s counsel states
that Martha’s estate or trust included additional assets totaling $491,740.37,
consisting of $218,942.31 in investment accounts with JPMorgan Chase, and
$125,684.55 in other checking accounts. (Malhotra Decl. ¶ 20(b).) Plaintiff
argues that these assets were partly taken from the money he entrusted to
Martha.
Plaintiff
has asserted six causes of action against Defendant, for: (1) Undue Influence;
(2) Breach of Fiduciary Duty; (3) Elder Abuse; (4) Declaratory Relief; (5)
Constructive Trust; and (6) Injunction.
First Cause of Action for Undue Influence
Plaintiff’s
first cause of action alleges that “[Defendant] secretly prevailed on [Martha]
to amend her [trust], so that [Plaintiff] was not named as a beneficiary . . .
and further, to not add his name to any of the bank accounts as either a joint
account-holder or beneficiary of the accounts into which [Martha] had deposited
all of [Plaintiff’s] earnings and savings.” (Comp. ¶ 40.) Plaintiff alleges
that Defendant’s conduct constituted undue influence given Martha’s “age,
weaknesses, and vulnerabilities.” (Comp. ¶ 43.) Plaintiff seeks compensatory
and punitive damages pursuant to this cause of action. (Comp., Prayer 1-2.)
In the
context of testamentary instruments, undue influence is “pressure brought to
bear directly on the testamentary act, sufficient to overcome the testator's
free will, amounting in effect to coercion destroying the testator's free
agency.” (Rice v. Clark (2002) 28 Cal.4th 89, 96; see Civ. Code §
1575.) A finding of undue influence functions to void a written instrument
based on the influenced party’s lack of actual consent. (See Civ. Code §§ 1567;
1689.) No authority suggests that undue influence may be pled as a civil cause
of action allowing for recovery of damages.
Because Plaintiff’s first cause of
action for undue influence is not a proper cause of action and seeks no valid
relief, the claim fails as a matter of law.
Second Cause of Action for Breach of Fiduciary Duty
Plaintiff’s second cause
of action for Breach of Fiduciary alleges that Defendant, as the Trustee of
Martha’s trust and a personal representative of Martha’s estate, owed fiduciary
duties to Plaintiff as an heir and creditor of the estate. (Comp. ¶ 48.) Plaintiff
alleges that Defendant breached her fiduciary duty to him by “failing to give
any Notices as required of [her] by California law.” (Comp. ¶ 49.) In his
Opposition, Plaintiff argues that Defendant failed to provide him the notice
required under Probate Code §§ 9050 and 9060, et seq.
Defendant moves for
summary adjudication of this cause of action on the grounds that she did not
owe Plaintiff a fiduciary duty, that there was no breach of any fiduciary duty
because Plaintiff was not entitled to notice of probate, and that Plaintiff
cannot show damages caused by the alleged breach.
“The elements
of a claim
for breach of fiduciary duty are (1)
the existence of a fiduciary relationship, (2)
its breach,
and (3) damage
proximately caused
by that breach.” (Mendoza v.
Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.)
“An executor is an officer of the court and
occupies a fiduciary relation toward all parties having an interest in the
estate.” (Estate of Hammer (1993) 19 Cal.App.4th 1621, 1637.) “Executors
occupy trust relations toward the legatees, and are bound to the utmost good
faith in their transactions with the beneficiary. [Citation.] ‘An executor also
bears a duty to disclose all the facts ... and to refrain from taking an unfair
advantage of [the legatees].’ ” (Ibid.)
Prob. Code § 9050, subd. (a) provides, “the personal
representative shall give notice of administration of the estate to the known
or reasonably ascertainable creditors of the decedent. For the purpose of this
subdivision, a personal representative has knowledge of a creditor of the
decedent if the personal representative is aware that the creditor has demanded
payment from the decedent or the estate.”
The Law Revision Commission
Comments to section 9050 further explain the scope of a personal representative’s
duty to give notice: “The personal representative is required only to notify
creditors who are actually known to the personal representative either because
information comes to the attention of the personal representative in the course
of administration or because the creditor has demanded payment during
administration. Information received by the personal representative may be
written or oral; but actual, as opposed to constructive, knowledge is required
before a duty to give notice is imposed on the personal representative. The
personal representative is protected by statute from a failure to give notice
unless the failure is in bad faith. See Section 9053(b). However, the personal
representative may not willfully ignore information that would likely impart
knowledge of a creditor.”
Under Probate Code § 9053, subd.
(b), “If the personal representative
fails to give notice required by this chapter, the personal representative is
not liable to any person for the failure, unless a creditor establishes all of
the following: (1) The failure was in bad faith. (2) The creditor had no actual
knowledge of the administration of the estate before expiration of the time for
filing a claim, and payment would have been made on the creditor's claim in the
course of administration if the claim had been properly filed.”
As personal
representative of Martha’s estate, Defendant held a fiduciary duty toward all
parties interested in the estate. Defendant’s duties included giving notice to
all “known or reasonably ascertainable creditors of the decedent.” (Prob. Code
§ 9050, subd. (a).) Defendant disputes that Plaintiff was entitled to notice
under section 9050, pointing out that Plaintiff was not married to Martha and
was not a beneficiary of Martha’s trust. (Defendant’s Undisputed Material
Facts, p. 22 ¶ 6.) It is undisputed that Plaintiff and Martha were not legally
married; Martha’s will lists her marital status as single. (Del Campo Decl.,
Ex. 7 [112].) While Plaintiff previously believed that he and Martha were
married on October 29, 2011, he was told by Defendant that there was no legal
marriage following Martha’s death. (Montelongo Decl. ¶ 12.) Defendant describes
the October 29, 2011 ceremony as “a commitment ceremony.” (Green Decl., Ex. T
[280].)
Plaintiff argues that he was entitled
to notice because he was Martha’s putative spouse, and therefore an heir of the
estate. (See Family Code § 2251.) It is unnecessary to reach this issue,
because Plaintiff has shown a triable issue of material fact as to whether he
was entitled to notice as a known creditor of Martha’s estate. After Martha’s
death, Plaintiff asked Defendant for his money and bank records that had been
in Martha’s control, but Defendant stated that she didn’t have them.
(Montelongo Decl. ¶ 32.) Given Plaintiff’s inquiries, Defendant was “aware that
[Plaintiff] has demanded payment from the decedent or the estate,” and so
should have given notice to Plaintiff. (Prob. Code § 9050, subd. (a); see Law
Revision Commission Comments to sec. 9050 [“In a case where there is doubt
whether notice to a particular person is required under this standard, the
personal representative should give notice.”].) Plaintiff has thus raised a
triable issue as to whether Defendant breached her fiduciary duty owed to him
as a “part[y] having an interest in the estate” (Estate of Hammer, 19
Cal.App.4th at 1637) by failing to provide notice under Section 9050.
However, Plaintiff has failed to raise a triable issue as
to the element of damages. Plaintiff argues that he is entitled to damages
based on Martha’s unauthorized withdrawals and for the money that he gave to
Martha to rehabilitate her house. (Opposition p. 16.) But Martha’s alleged
misuse of those funds necessarily took place before Defendant’s failure to give
notice, and so could not have been proximately caused by the lack of notice.
Plaintiff has pointed to no other basis for damages. Accordingly, summary
adjudication is granted as to the second cause of action.
Third Cause of Action for
Financial Elder Abuse
“Section
15610.30, subdivision (a), provides that financial abuse of an elder or
dependent adult occurs where a person takes or assists in taking real or
personal property of such an adult to a wrongful use or with an intent to
defraud, or both.” (Wood v. Santa Monica
Escrow Co. (2007) 151 Cal.App.4th 1186, 1189; see Welf. & Inst. Code, §
15610.30.) The Elder Abuse Act
protects “any person residing in this state, 65 years of age or older” at the time
of the alleged wrongful conduct. (Welf. & Inst. Code, § 15610.27.)
To establish
the cause of action, “[a]s a general matter, a plaintiff must demonstrate that
a defendant: (1) subjected an elder to statutorily defined . . . financial
abuse; and (2) acted with recklessness, malice, oppression, or fraud in the
commission of the abuse.” (Davenport v. Litton Loan Servicing, LP (N.D.
Cal. 2010) 725 F.Supp.2d 862, 879.) “Financial abuse” of an elder 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 15610.70.
(Welf. & Inst. Code, § 15610.30, subd. (a).)
“A person or entity shall be deemed to
have taken, secreted, appropriated, obtained, or retained property for a
wrongful use if, among other things, the person or entity takes, secretes,
appropriates, obtains, or retains the property and the person or entity knew or
should have known that this conduct is likely to be harmful to the elder or
dependent adult.” (Welf. & Inst. Code, § 15610.30, subd. (b).) “Undue influence,”
is defined as “excessive persuasion that causes another person to act or
refrain from acting by overcoming that person’s free will and results in
inequity." (Welf. & Inst. Code, § 15610.70, subd. (a).)
Plaintiff’s third cause of action for
Financial Elder Abuse alleges that Defendant committed financial elder abuse
against Plaintiff “in denying that there was any money in the estates of either
[Martha] or the [Trust], and failing to give Plaintiff any Notices as required
by California law…” (Comp. ¶ 55.) Defendant argues that Plaintiff has produced
no evidence that Defendant’s has taken Plaintiff’s property, or that any taking
was for “wrongful use.” The Court agrees. Plaintiff’s Opposition points to the
unauthorized withdrawals made by Martha, but Plaintiff provides no reason why
Defendant should be held liable for Martha’s alleged conduct. While Plaintiff
claims that the withdrawals were “likely made under Defendant’s influence or
with her participation,” Plaintiff cites no evidence in support of this
statement. (Opposition p. 17.) Summary adjudication is therefore granted as to
the third cause of action.
Fourth Cause of Action for
Declaratory Relief; Fifth Cause of Action for Constructive Trust; Sixth Cause
of Action for Injunctive Relief
Plaintiff’s claim for
declaratory relief alleges that a dispute exists between Plaintiff and
Defendant with respect to Plaintiff’s monies held in Martha’s estate, and that
Plaintiff “claims his right to cash held in the estates of [Martha] and the
[Trust] as his earnings that constitute his life savings during the course of
his relationship with [Martha] until the time of her death.” (Comp. ¶ 60.)
Plaintiff “seeks a determination by the court of the rights and duties of the
parties to this dispute by way of a declaration with respect to Plaintiff’s
earnings that he had entrusted to [Martha].” (Comp. ¶ 63.)
This is not a proper
claim for declaratory relief, and so summary adjudication is warranted. Plaintiff’s
alleged interest in Martha’s estate does not involve any controversy “under a
written instrument” (Code Civ. Proc., § 1060); furthermore, “[a] dispute
concerning the meaning or validity of the provisions of a will cannot be
resolved by declaratory judgment.” (Cabral v. Soares (2007) 157
Cal.App.4th 1234, 1239; see Code Civ. Proc., § 1060 [declaratory relief
available to “[a]ny person interested under a written instrument, excluding
a will or a trust…”].)
Plaintiff cannot challenge the rejection of
his creditor’s claim via a claim for declaratory relief. “The appropriate
course of action when a creditor's claim is rejected is for the creditor to
commence a separate action on the rejected claim challenging rejection of the
creditor's claim. [Citation.] This is the exclusive method of enforcing a claim
which has been rejected by the court.” (McDonald v. Structured Asset Sales,
LLC (2007) 154 Cal.App.4th 1068, 1074.) While Plaintiff has filed a
petition in the probate action (21STPB07909) which includes a claim to approve
his rejected creditor’s claim (Malhorta Decl., Ex. A [8]), Plaintiff has not
requested such relief in this civil action.
Plaintiff’s fifth cause of action seeks to
impose a constructive trust over the money in Martha’s estate allegedly held
for Plaintiff. (Comp. ¶¶ 65-67.) The sixth cause of action requests injunctive
relief to enjoin Defendant from transferring or otherwise alienating
Plaintiff’s money held in Martha’s trust. (Comp. ¶¶ 71-72.) The parties agree
that these claims are premised on Plaintiff’s tort claims. Because summary
adjudication is granted as to the tort claims, summary adjudication is also
granted as to the fifth and sixth causes of action.