Cook v. Trebino

CAROLE COOK et al., Plaintiffs and Appellants, v. ANNE TREBINO et al., Defendants and Respondents.

H047830, H048498

California Court of Appeals, Sixth District

May 9, 2022

NOT TO BE PUBLISHED

Monterey County Super. Ct. No. 18CV000223

ELIA ACTING P.J.

In these two appeals, plaintiffs Carole Cook, Joanne Martin Judy Berry, and Jeff Alsberg^[1] appeal from a judgment following a bench trial, in which the trial court determined that the operative complaint was barred by the statute of limitations. Plaintiffs assert that the trial court erred in finding the statute of limitations applicable, and argue that numerous other errors warrant reversal of the judgment. Plaintiffs also appeal the trial court's costs and attorney fees judgment awarding defendants $320, 100 in attorney fees. We affirm the judgments.

I. Background

A. Complaint and Answer

The dispute involved a property located at 45255 Arroyo Seco Road in Greenfield. According to plaintiffs, the Arroyo Seco property was a family property and had been "passed from generation to generation" since the late 1800's. In December 1991, Walter and Bessie Swenson conveyed the Arroyo Seco property to their children, Joanne Martin and Yvonne Alarid, as tenants in common, each with a 50 percent ownership interest. Walter and Bessie^[2] retained a life estate in the property. Walter died in 1992 and Bessie died in 2011.

Between 1992 and 2002, Joanne signed three promissory notes, each for $50, 000. The notes were presented to Joanne by Tondre Alarid, Yvonne's husband. Joanne and Yvonne were the borrowers under the notes. Tondre and Yvonne were the lenders. The purpose of the notes was to "cover [Joanne's contribution to] the cost of the Arroyo Seco home expenses as they would arise in the years to come."

In 2006, Joanne placed her share of the ownership of the Arroyo Seco property in the 2006 Joanne Martin Revocable Trust (Martin Trust).

In 2007, a fourth promissory note in the amount of $100, 000 was executed, again with Tondre and Yvonne as lenders under the note and Joanne and Yvonne as borrowers.

According to plaintiffs, in January 2010, following a flood at the Arroyo Seco property, Berry^[3] and defendants^[4] "discussed what to do about repairing the home."

"Defendants indicated to the successor Trustees [Berry and Alsberg] [that] they did not like having multiple owners of the property and offered to take over the property and maintain the property in exchange for [forgiving the] money they stated [Joanne] owed them." Defendants claimed that Joanne owed "over $250, 000 for expenses paid" on her behalf. "[Berry and Alsberg] refused to allow defendants to have full ownership of the property and denied [Joanne] owed [defendants] money."

Plaintiffs alleged that in May 2010 Joanne "became completely incapacitated and incompetent" due to "dementia, illness[, ] and severe alcoholism." She was "unable to manage her finances, [or] care for herself, and required a caretaker." Cook "was appointed the power of attorney," while Berry and Alsberg "took control of the [Martin Trust] as successor Trustees." In addition, due to Joanne's incapacitation, the Martin Trust became irrevocable.

In March 2011, "defendants again approached . . . [Berry and Alsberg] wanting to take over the Arroyo Seco property." "[Berry and Alsberg] disputed the computation of expenses their mother was being charged with." In particular, they asserted that there were inadequate records as to what purpose the promissory notes had been used for.

In July 2011, Joanne's youngest son, Walter, was murdered. Joanne's "mental state and incompetence deteriorated severely," and she began drinking heavily. She was later admitted to a hospital for severe alcoholism.

On July 26, 2011, Tondre visited Joanne at her home and had her sign a grant deed, conveying her trust's one-half ownership interest in the Arroyo Seco property to the Alarid Living Trust. Plaintiffs alleged that defendants misrepresented the document at the signing and that Joanne was not of sound mind at the time.

In 2013, Yvonne died and her share of the Arroyo Seco property was transferred to the Alarid Living Trust and was managed by the successor trustees, defendants in this action. Tondre died in 2014. Ownership of the Arroyo Seco property was divided among defendants.

Plaintiffs alleged that in 2015 they "began to question their mother regarding the Arroyo Seco property" after the locks were changed and they were refused entry. "[Joanne] indicated to her children [that] they could go up to the property anytime they wanted as she owned 50% of the property." "However, defendants informed [the] successor trustee Judy Berry on or about 9/17/15 that the defendants now had full ownership of the Arroyo Seco property and if [they] wanted to use the property they would have to get preapproval from defendant Anne Trebino."

Plaintiffs' original complaint was filed on January 17, 2018, and an amended complaint was filed on February 28, 2018. The amended complaint alleged nine causes of action. The first three causes of action sought to quiet title. The fourth cause of action alleged intentional misrepresentation/fraud, specifically, that defendants misrepresented the amounts owed by Joanne under the promissory notes. The fifth, sixth, and seventh causes of action alleged undue influence, "fraud in the concealment," and "fraud in the execution"-all of which related to the circumstances under which the grant deed was signed. The eighth and ninth causes of action alleged breach of fiduciary duty and negligent misrepresentation, under a theory that defendants failed to account for funds expended on the Arroyo Seco property and presented false accountings. Plaintiffs prayed for declaratory relief, that title to the property be restored to the Martin Trust, attorney fees and costs, and punitive damages.

In June 2018, defendants filed an answer in which they generally denied most of the allegations and raised affirmative defenses including the statute of limitations. Defendants also filed a cross-complaint, which sought, in the event the grant deed was rescinded, to reinstate the promissory notes and establish that plaintiffs were in breach of the notes. Plaintiffs, in their answer, alleged among other things elder abuse as an affirmative defense.

The initial case management conference was scheduled for May 22, 2018, but was later continued to August 7, 2018. Trial was originally scheduled to begin June 17, 2019, but was later continued to October 21, 2019, and then again continued to November 18, 2019.

Prior to trial, defendants filed a motion to bifurcate the statute of limitations defense from the rest of the trial. At the November 18, 2019 trial management conference, the trial court granted the motion. The court noted that the Civil Code provides for addressing issues such as statutes of limitation before trial to save "time and expenses both for the court and for the parties." The parties confirmed that the challenged instrument was signed on July 26, 2011. Plaintiffs asserted that a four-year statute of limitations applied, while defendants argued "[i]t's most likely three years." The court confirmed, "at least for quiet title and the reconveyance issue," that "the four-year statute [applied], [and] that would bring it up to July 26, 2015." The court stated that on the "fraud causes of action, perhaps a three-year statute of limitations [applied, ] but I'm going to use the four-year statute of limitations." The parties then discussed the scope of the proposed evidentiary hearing on the statute of limitations issue. Because of a scheduling issue involving one of the witnesses, the parties agreed to start the evidentiary hearing that same day.

B. Trial

1. Judith Berry

The bench trial began on November 18, 2019, and lasted three days. Berry testified first. She testified that she learned about the property transfer in August 2015 after checking "the Monterey County Assessor's Office tax bills and [finding] out that Anne Trebino was the owner of the property, of the parcel." Berry was prompted to check after "[t]here had been a change in the use of the property where Anne Alarid was indicating that we were locked out."

Defense counsel directed Berry to review an e-mail that she had sent dated April 8, 2015, with the subject line "Happy Easter." The e-mail stated: "We are all so appreciative to be able to share with our families the 'sacred' place that is such a huge part of all of us. I feel that you have done exactly what was promised when our mom [Joanne] and your dad [Tondre] settled things up - he said if he owned the cabin he would fix it up (wow did you ever!)." Berry explained that she sent the e-mail to "[try] to change the culture, if you will, or the tenor" of the management of the property. In 2015, there "was discussion about paying fees and lots of changes to the way that [Berry and her family] signed up to use the cabin and was not letting people plan ahead and the use of the cabin dramatically changed in 2015."

Berry was examined concerning her testimony from an earlier deposition. Berry recalled stating," 'We were told it had been transferred.'" She was asked," 'When?'" In response, Berry said," 'Not -- I wasn't told. I believe my sister Carole[] [Cook] was told.'" Berry was asked," 'When?'" She responded," 'Sometime in 2011.'" Asked whether Carole told Berry, Berry said:" 'Carole[] she -- yes, she told me she believed it had happened.'" Berry was then asked," 'So in 2011 when Carole[] told you that she believed that JoAnne had transferred her ownership interest to Tondre and Yvonne, what did you do?'" Berry responded," 'I didn't do anything. I mean, I was surprised and I was upset.'" Berry stated in her deposition...