Judge: Curtis A. Kin, Case: 20STCV29664, Date: 2023-03-16 Tentative Ruling

Case Number: 20STCV29664    Hearing Date: March 16, 2023    Dept: 72

MOTION FOR SUMMARY JUDGMENT

Date:            3/16/23 (9:30 AM)                 

Case:            Carl H. Westcott v. Bernie Gudvi (20STCV29664)

TENTATIVE RULING:

Defendant Bernie Gudvi’s Motion for Summary Judgment is DENIED.

Defendant Bernie Gudvi moves for summary judgment on the ground that plaintiff Carl H. Westcott was purportedly of sound mind when he executed the agreement to sell his real property.

Defendant argues that, during the sale process, plaintiff retained a broker, provided feedback on the broker’s commission rate, compared multiple offers, engaged in negotiations, looked for replacement properties, and sold the subject property at a profit. (UMF 6-10, 13-18, 20-28, 38-40.) Defendant also argues that doctors did not notice any cognitive decline in plaintiff a year after the sale and that plaintiff’s broker had no reason to suspect cognitive decline during the sale negotiations. (UMF 40-46.)

According to plaintiff’s expert, Gary Small, M.D., a board-certified psychiatrist with expertise in aging, brain health, and dementia, during the period from July 8, 2020 to July 19, 2020, plaintiff was “of unsound mind and he lacked the ability to understand the nature, terms and consequences of a contract, including the one to sell his home, and thus, he was unable to give free and voluntary consent.” (Small Decl. ¶ 2 & Ex. 2 at 3-4.) Dr. Small attributes plaintiff’s purported impaired decision-making capacity to “Huntington’s disease, dementia, severe back pain, post-operative status, and his documented history of sensitivity to the mental side effects of medications.” (Id. at 4.)

Specifically, on July 10, 2023, plaintiff had back surgery. (Id. at 6.) Leading up to and after the surgery, plaintiff was taking opioid medications, including hydrocodone-acetaminophen (Norco) and tramadol (Ultram). Plaintiff was taking hydrocodone four times a day. (Id. at 6; Cf. Compl. ¶ 12 [after surgery, plaintiff was taking two prescribed opiates].) Dr. Small opines that, during the time plaintiff was agreeable to selling his house, plaintiff was taking medications which are medically known to compromise decision-making ability, including hydrocodone and tramadol. (Small Decl. ¶ 2 & Ex. 2 at 9.) The effects of the medications are exacerbated in older individuals or patients with Huntington’s disease, both of which describe plaintiff. (Ibid.) Dr. Small also attributes plaintiff’s impaired decision-making ability to Huntington’s disease dating back to 2015 and severe pain that plaintiff was experiencing during the real estate negotiations in July 2020. (Id. at 8-9.) Only shortly after plaintiff’s orthopedic surgeon reduced the dosage on his medication did plaintiff decide not to sell his home, according to Dr. Small. (Id. at 7-8 [plaintiff indicates he does not want to sell his home three days after dosage reduced].)

Based on Dr. Small’s report, plaintiff demonstrates a triable issue of material fact as to whether he was capable of consenting to the sale of the subject property.

Defendants argue that plaintiff was active in the negotiations of the sale of the subject property. Dr. Small demonstrates that plaintiff still may not have been able to appreciate the consequences of his actions: “The cognitive deficits may not be obvious initially in patients, such as Mr. Westcott, who have high cognitive functioning prior to the illness. Such individuals retain language and personality traits that allow them to compensate for initial cognitive deficits.” (Id. at 4.) Dr. Small also opined: “In many ways, it appears that Mr. Westcott, a business person for most of his life, was repeating familiar behaviors (reviewing contracts sent to him, making counter offers, having discussions with his real estate agent/advisor, looking at new potential homes to purchase, etc.) without appreciating the real-life nature of what he was doing or the effects it would have on his life.” (Id. at 8.)

Defendant also argues that plaintiff cannot rely on an assertion of cognitive impairment when the factors supporting the existence of cognitive impairment were also present when plaintiff purchased the subject property in May 2020. However, whether plaintiff was of sound mind when he purchased the property is not at issue in this action. Plaintiff is attempting to rescind the sale of the subject property, not the purchase. As discussed above, Dr. Small’s report indicates that plaintiff may not have been competent during period he was negotiating the sale.

Whether any cognitive decline that plaintiff may have been experiencing at the time of the sale significantly affected plaintiff’s ability to understand and appreciate the consequences of his actions is an issue to be determined at trial. (Prob. Code § 811(b).) Only at trial can the jury “judg[e] the credibility of the witnesses and resolv[e] the conflicts in the evidence.” (Gosnell v. Lloyd (1932) 215 Cal. 244, 258.)

The motion for summary judgment is DENIED.