Newman v. Casey

317 Cal.Rptr.3d 706

Richard NEWMAN, as Executor, etc., Plaintiff and Respondent,

v.Marina CASEY, Defendant and Appellant.

A165210

Court of Appeal, First District, Division 1.

Filed January 30, 2024

Trial Court: San Mateo County Superior Court, Trial Judge: Hon. Lisa A. Novak (San Mateo County Super. Ct. No. 22PRO00138)

Law Office of Joe Goethals, Joseph Michael Goethals; Moskovitz Appellate Team, Myron Moskovitz for Plaintiff and Respondent.

Thompson, Welch, Soroko & Gilbert, Eric D. McFarland for Defendant and Appellant.

Banke, J.

This is an appeal from elder abuse restraining orders (EAROs) issued pursuant to Welfare and Institutions Code section 15657.03 ¹ and a subsequent order declaring a deed transferring property owned by Gracia Bovis to her daughter, Marina Casey, void ab initio. Casey challenges the restraining orders as not supported by the evidence. She challenges the order declaring the deed void on the additional ground the trial court exceeded its authority under section 15657.03. We conclude sufficient evidence supports the restraining orders, but agree the court exceeded its statutory authority in issuing the subsequent order declaring the deed void. As we explain, section 15657.03 establishes a summary and initially provisional remedy to secure the immediate protection of elders from further abuse. The statute expressly enumerates the kinds of restraining orders the court may issue, and in some situations, a restraining order, alone, may provide an elder a sufficient remedy. In other situations, it may not, and, in such situations, the summary restraining order process serves as an important adjunct to a civil or probate action for elder abuse under the Elder Abuse and Dependent Adult Civil Protection Act (§ 15600 et seq.) (Elder Abuse Act or the Act). We therefore affirm in part and reverse in part.

Background

In February 2022, Bovis filed a "Request for Elder or Dependent Adult Abuse Restraining Orders" on Judicial Council form EA-100.² She described the alleged abuse as follows: "[She] was misled by her daughter that she needed to protect her home from rising property taxes. Marina Casey, her daughter, told her mother to sign some documents last year or else her property taxes would skyrocket. Bovis later learned that the documents did not protect her from rising property taxes, but instead transferred the property into her daughter’s name."

Bovis requested (by checking the appropriate box on the form) a "Personal Conduct Order[ ]" that Casey "not to do any of the following things" to Bovis: "Physically abuse, financially abuse, intimidate, molest attack, strike, stalk, threaten, assault (sexually or otherwise), hit, harass, destroy the personal property of, or disturb the peace of the person." (Boldface omitted.) She also requested (by checking the appropriate box) a no contact order instructing that Casey not contact Bovis "either directly or indirectly, in any way, including but not limited to, in person, by telephone, in writing, by public or private mail, by interoffice mail, by e-mail, by text message, by fax, or by other electronic means." (Boldface omitted.) She additionally requested (by checking the appropriate box) a "Stay-Away" order requiring Casey to stay at least 100 yards away from Bovis and her home. In another section of the form, she requested an "Additional Order[ ]" requiring Casey "to sign the rescission deed to return her home to her" and attorney fees. (Boldface omitted.)

Casey filed a "Response to Request for Elder or Dependent Adult Abuse Restraining Orders" on Judicial Council form EA-120. As permitted by the form, Casey attached a declaration by her attorney. Counsel averred as follows: The transfer "was made because of Proposition 19, and to avoid reassessment of property that would otherwise be trigged by an intergenerational transfer." Proposition 19 "added new restrictions" on change of ownership and "prompted a rush on parent-child transfers to beat the deadline for filing reassessment exclusion forms on or before February 15, 2021."

The following were attached to counsel’s declaration as exhibits: a copy of the grant deed transferring the property from Bovis to Casey as a gift from parent to child;³ a copy of Bovis’s will dated February 6, 2020; and a copy of "the Second Amendment to the Survivor’s Trust under the Revocable Trust Agreement of James N. Bovis and Gracia Bovis dated February 18, 1997," executed on February 6, 2020.

These documents, according to counsel, effectively disinherit Bovis’s son. For example, the will provides that all household goods and personal property are to be given to Marina Casey and makes "no provision herein for Nicholas J. Bovis, my son," (Boldface & some capitalization omitted.) The will also nominates Marina as the executor of the will. The second amendment to the trust reads, "At the time that this Declaration of Trust is executed, the Settlors have two (2) children living: Nicholas J. Bovis and Marina V. Casey, both of whom are adults. The Surviving Settlor intends to make no provision in this trust for Nicholas J. Bovis, in that, in the Settlor’s view, Nicholas J. Bovis has certain criminal issues and the Settlor does not wish provide [sic] any financial support or distribution to him as a result.⁴ All remaining property in the trust shall be allocated and distributed to Marina V. Casey, outright and free of trust, if she is then living, and if not, to her issue by right of representation." (Boldface & some capitalization omitted.)

Counsel additionally averred that Bovis’s son had started spending significant time with his mother. Casey was concerned he was exercising undue influence over Bovis and had convinced his mother to seek return of the property so he could use it for "improper purposes," as he had previously done in connection with "other properties that belonged to his mother." Also attached to counsel’s declaration was a "draft-copy of The Gracia Bovis Irrevocable Trust, showing redline edits made" by counsel’s law firm to transfer title of the residential property to the trust and place management in the hands of an independent, professional fiduciary to ensure no undue influence by Bovis’s son. Bovis’s attorney had not agreed to management by a professional fiduciary, and Casey and Casey’s counsel were concerned this was due to pressure by Bovis’s son.

The hearing commenced remotely with only Bovis and her attorney present. Bovis proceeded to testify as follows: She had lived in her house for over 50 years. Her daughter, Casey, "tricked me into signing papers" so she "would not get higher taxes" under Proposition 19. When Casey presented the documents to Bovis to sign, she did not tell her the home would no longer be in her name. Bovis admittedly did not read the documents. She later discovered the documents transferred title to Casey. Casey had threatened to put Bovis "in an old folk’s home,"⁵ and Bovis had been receiving voicemails from realtors and was concerned Casey was trying to sell her home. She "had quite a difficult relationship" with Casey, and Casey was "abusive to me." Bovis wanted Casey "out of my life," and she wanted her house back.

When the court asked Bovis why she had not read the documents, Bovis stated, "There was so much confusion going on in this matter discussing this, and I just trusted her. It wouldn’t have entered my mind that she would do anything like that. So she said to sign the papers so I would [not] get higher taxes…. It was confusing for me." Casey only discussed the situation with her "one time."

Just as Bovis finished testifying, Casey and her counsel were connected to the hearing. The reason for their delay in appearing was that the notice of hearing stated the matter would be heard in a different department, and when it became apparent the hearing was not going to be held in that department, counsel had to work remotely through the clerks to get electronically connected into the proper department. The court deemed this a reasonable explanation for the tardy appearance and continued the hearing to the following week.

In light of Bovis’s testimony that she had received telephone calls from realtors, her attorney asked that temporary restraining orders be extended until the continued hearing and that they include a prohibition on Casey taking any steps to sell or encumber the property. Casey’s counsel denied that Casey was doing any such thing and stated her efforts, at his instruction, were focused on transferring the property into a trust and arranging for management by an independent, professional. "I advised her not to undo the status quo for now until we can work this out in a way that protects the property from Nick Bovis."

The court extended the temporary restraining orders with the additional prohibition that Casey "take no action whatsoever to encumber the property," and that Casey "have no communication with any realtors," "with any mortgage broker, with any lender as it relates to this particular property."

On cross-examination during the resumed hearing, Bovis conceded she signed the deed conveying her property to Casey but maintained Casey told her "to sign papers so I would not get taxed." Casey selected the attorney, and she and Bovis went to his office. The attorney did not explain to her that she was "deeding the property to Ms. Casey." The attorney "had his daughter with him at the time. It just seemed that everybody was talking at the same time. And I just probably didn’t pick up what was going on in the room and what they were discussing." She thought the attorney was Casey’s attorney but could not recall whether she wrote a check to pay him and stated, "All I know is Marina was in charge of this whole transaction." She did not know if the attorney had the deed recorded. It was never her "intention to give [her] house to [Casey] during [her] lifetime."

Casey also testified. She discussed Bovis’s estate planning documents and asserted she had not...