Robinson v. Gutierrez

316 Cal. Rptr. 3d 579

Lisa ROBINSON et al., Plaintiffs and Appellants,

v.Elvira GUTIERREZ, Individually and as Trustee, etc., Defendant and Respondent.

C097301

Court of Appeal, Third District.

Filed December 26, 2023

APPEAL from a judgment of the Superior Court of San Joaquin County, Carter P. Holly, Judge. Reversed. (Super. Ct. No. STK-PR-TR-2020-0000916)

Law Office of Kristi Barnard and Kristi Barnard for Plaintiffs and Appellants.

Kroloff, Belcher, Smart, Perry & Christopherson, Rebecca H. Sem, Stockton, and Kelsea A. Carbajal for Defendant and Respondent.

HULL, J.

A provision of a dependent adult’s testamentary instrument that makes a donative transfer to the adult’s "care custodian" is presumed to be the product of fraud or undue influence if the adult executed the instrument during the period when the care custodian provided services to the adult or within 90 days before or after that period. (Prob. Code, § 21380, subd. (a)(3) [subsequent undesignated references to statutes are to the Probate Code].) A "care custodian" is a person who provides health or social services to a dependent adult. (§ 21362, subd. (a).)

For purposes of section 21380’s presumption, however, a "care custodian" does not include a person "who provided services without remuneration if the person had a personal relationship with the dependent adult" as established by criteria in the statute. (§ 21362, subd. (a).)

In this matter brought by a decedent’s intestate heirs at law, the trial court determined that defendant Elvira Gutierrez was not a care custodian for purposes of section 21380’s presumption. Gutierrez was residing with the decedent receiving free room and board in exchange for providing care services when the decedent executed instruments transferring her entire estate to Gutierrez. The trial court ruled that Gutierrez was not a care custodian because room and board did not constitute remuneration for her services and she had a prior personal relationship with the decedent that met the other criteria set forth in section 21362, subdivision (a).

Plaintiffs contend on appeal that the trial court erred by determining Gutierrez was not a care custodian. They argue that Gutierrez’s receipt of free room and board in exchange for her services for decedent constituted remuneration. They also assert that the record does not support the court’s finding that Gutierrez and the decedent had a prior personal relationship.

We reverse. Free room and board in exchange for care services are remuneration for purposes of section 21362.

Facts and Procedural History

In 2015, the decedent, Gwyneth A. Robinson, expressed to an acquaintance her desire to have a housemate to assist her on an as-needed basis. The acquaintance arranged for the decedent to meet the acquaintance’s sister, defendant Gutierrez. As a result of this meeting, Gutierrez moved into the decedent’s residence in 2015 and received free room and board in exchange for performing household duties of cleaning and laundry, and driving the decedent as needed. When Gutierrez moved in, the decedent was able to maintain her personal needs, pay her bills and expenses, purchase her own food, prepare her meals, and administer her medications. Gutierrez provided companionship, which the decedent needed. This relationship lasted for nearly three years. There was no evidence Gutierrez received remuneration for her services other than free room and board.

In September 2018, the decedent executed a joint tenancy deed naming Gutierrez as a joint tenant on the title to her residence. In October 2018 and while a patient in a hospital, the decedent directed an attorney to prepare her estate plan. She wanted her entire estate to go to Gutierrez and to have Gutierrez be the trustee of her trust.

The attorney prepared a trust instrument, a will, and an individual grant deed. In the revokable inter vivos trust agreement, the decedent named Gutierrez as the trustee of the trust, and she transferred her property into the trust. Decedent transferred her residence by grant deed to Gutierrez as trustee of the trust. The trust and the will declared that upon the decedent’s death, all of decedent’s property passed to Gutierrez free of trust.

The decedent executed the estate instruments at her home on October 18, 2018. She died 10 days later.

Plaintiffs are the surviving children of the decedent’s brother, who predeceased her.¹ They brought this action in 2020 by petition in the probate court to determine the validity of the trust and the will. In their first amended petition, they also alleged causes of action for elder financial abuse and undue influence. They sought a constructive trust and other forms of relief.

Following a three-day court trial, the trial court denied plaintiffs’ petition and entered judgment in favor of Gutierrez. The court stated that based on the evidence presented, Gutierrez was a "care custodian" unless the evidence showed that the exception under section 21362 applied: that she had a preexisting personal relationship with the decedent, who was a dependent adult, and she provided services to the decedent without remuneration. The court found the exception applied. The court ruled that Gutierrez’s receipt of free room and board did not constitute remuneration for purposes of section 21362 because room and board did not constitute taxable income. The court also found that the decedent and Gutierrez had the requi- site personal relationship before Gutierrez began providing services. As a result of these findings, the instruments’ donative transfers were not presumed under section 21380 to be the result of fraud or undue influence.

The court also found there was insufficient evidence that Gutierrez exercised undue influence over the decedent’s execution of the instruments or that the donative transfers were the result of undue influence or fraud. There also was no financial elder abuse.

Plaintiffs on appeal challenge the court’s findings that Gutierrez did not receive remuneration for her services and that Gutierrez and the decedent had a prior personal relationship.

Discussion

I Evidentiary Arguments

[1] Plaintiffs did not submit a reporter’s transcript of the trial as part of the record. As a result, and because no factual error is apparent on the face of the record, plaintiffs are barred from challenging the sufficiency of the evidence. We conclusively presume the evidence supports the judgment. (Estate of Fain (1999) 75 Cal. App.4th 973, 992, 89 Cal.Rptr.2d 618.) This includes our conclusively presuming that sufficient facts support the trial court’s determination that Gutierrez and the decedent had the prior personal relationship required by section 21362 for Gutierrez not to be a "care custodian" for purposes of section 21380.

[2, 3] Also, the briefs filed by both sides do not comply with the Rules of Court. The Rules require briefs to support any reference to a matter in the record with a citation to a place in the record where the matter appears. (Cal. Rules of Court, rule 8.204(a)(1)(c).) Each of the briefs filed in this appeal omit citations to the record in support of factual assertions and arguments. We deem arguments not supported by citations to the record to have been waived. (Brown v. El Dorado Union High School Dist. (2022) 76 Cal. App.5th 1003, 1021, 292 Cal.Rptr.3d 72.)

II Meaning of "Remuneration" in Section 21362

The trial court determined that the free room and board Gutierrez received for her services did not constitute "remuneration" as that term is used in section 21362. The court stated: "No evidence was presented at trial that [Gutierrez] received remuneration for the services [she] provided to the Decedent other than the receipt of free rent and board. This is not remuneration as used in Probate Code § 21362. Petitioners in their Post-Trial Brief have cited various court opinions arising out of an employer-employee relationship to argue that free rent and board is a form of compensation and hence is remuneration. The logic of these cases cannot be applied to the relationship between the Decedent and [Gutierrez]. If free rent and board is remuneration, then any parent who allows an adult child to return to live at the parent’s residence would have imputed rental income from the adult child or the child would have to pay income taxes on the value of the room and board received. It is appropriate to look at how the Internal Revenue would characterize the relationship between the Decedent and [Gutierrez]. There was no dollar value placed on the room and board that [Gutierrez] received, and hence there was no taxable income received by [Gutierrez] such that free room and board is not remuneration." The trial court did not cite any federal tax statutes, regulations, or cases to support its reasoning.

Plaintiffs contend the trial court erred. They argue that the free room and board Gutierrez received in exchange for her services qualified as remuneration for purposes of section 21362. They and Gutierrez acknowledge that no statute or reported opinion has defined "remuneration" as it is used in section 21362. But plaintiffs argue that the trial court’s analogizing the decedent and Gutierrez’s relationship to a parent/child relationship is misplaced and defeats the statute’s purpose of protecting vulnerable dependent adults from exploitation while at the same time allowing them to make donative transfers to long-time friends who assist them for no compensation. Plaintiffs rely on employment compensation and workers’ compensation cases, discussed below, where the Courts of Appeal determined that forms of noncash benefits in exchange for services qualified as compensation or remuneration to argue that "remuneration" as used in section 21362 encompasses noncash forms of compensation. In exchange for her services, Gutierrez could have received money and then rented a room and paid for food on her own, but she and the decedent made a different arrangement for remuneration.

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