KATIE THE SORRY GARDENER

A gardener became the sole beneficiary of a 97-year old widow's will.  The gardener's attorneys got the will admitted to probate, but when sued by the decedent's nephews, gave up all claims to the estate on the eve of trial. To see how the California Care Provider Statute left them with no choice, read on.

1.  WHAT MUST THE NEPHEWS PROVE?      Decedent’s nephews petition for an order that Probate Code § 21350 invalidates a will’s transfer of the entire estate to Katie the Gardener, whom the will describes as “Caretaker/Friend.”  They have three initial points to prove, that the petition is timely, that the decedent was a “dependent adult” and that Katie the Gardener was a “care custodian:” 

    1.1.  THE PETITION IS TIMELY.  “An action to establish the invalidity of any transfer described in Section 21350 can only be commenced within the periods prescribed in this section as follows:

        (a) In case of a transfer by will, at any time after letters are first issued to a general representative and before an order for final distribution is made.”  Probate Code § 21356(a).

    The clerk issued Letters to Katie the Gardener on 1/4/2007.  The court has ordered no distribution.

    1.2.  THE DECEDENT WAS A “DEPENDENT ADULT.”  The 97 year-old decedent’s death certificate recites that she had dementia for two years before she died on 6/22/06.  That two-year period includes the day on which she signed the will, 10/6/05, which was just 14 days after her son George’s death on 9/23/05.  The decedent was a widow.  She was nearly deaf.  She could not care for her home, transport herself or write her own checks.  She hired Katie the Gardener to do those things for her.  She was a “dependent adult” as  Probate Code § 21350(c) defines the term:
 
         “(c) For purposes of this section, the term ‘dependent adult’ has the meaning as set forth in Section 15610.23 of the Welfare and Institutions Code and also includes those persons who (1) are older than age 64 and (2) would be dependent adults, within the meaning of Section 15610.23, if they were between the ages of 18 and 64.”

    Welfare & Institutions Code § 15610.23 in turn recites as follows:

        “(a) ‘Dependent adult’ means any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age. . .

        (b) ‘Dependent adult’ includes any person between the ages of 18 and 64 years who is admitted as an inpatient to a 24-hour health facility, as defined in Sections 1250, 1250.2, and 1250.3 of the Health and Safety Code.”

    1.3.  Katie the Gardener WAS A “CARE CUSTODIAN.”  Probate Code § 21350(c) defines “care custodian” in its final sentence:

        “The term ‘care custodian’ has the meaning set forth in Section 15610.17 of the Welfare and Institutions Code.”

     Section 15610.17, in turn, includes a catch-all definition of “care custodian” in its subparagraph (y): 
        “Any . . . person providing health services or social services to elders or dependent adults.”

    The court in Estate of Odian (2006) 145 Cal.App.4th 152, 163, 51 Cal.Rptr.3d 390 ruled on that subparagraph (y) definition exactly as quoted above, affirming the Riverside County Superior Court’s interpretation of section 21350 to include a live-in care giver.  There, Mrs. Odian hired Ms. Vulovic to do housework and laundry, cook, and drive her to appointments and on shopping trips, for which she was paid $9 an hour. (145 Cal.App.4th at 156.)  Ms. Vulovic also wrote checks at the decedent’s direction and the decedent signed them. Eventually, Mrs. Odian gave Ms. Vulovic a power of attorney and Ms. Vulovic began writing checks on Mrs. Odian’s account and signing them.  (Id.)  The court ruled that Ms. Vulvoic was a care custodian:

        “Thus, the court recognized that the Legislature intended the definition of ‘care custodian’ as used in Welfare and Institutions Code section 15610.17 to apply expansively to protect vulnerable elders. There is no reason to believe that it intended a narrower application of the identical term when it enacted section 21350(a)(6). On the contrary, an expansive interpretation of 'social services' to include personal services provided by an in-home caregiver best promotes the Legislature's objective of protecting vulnerable dependent adults from exploitation.”   (145 Cal.App.4th at 166-167)

        "Here, the trial court found that appellant was employed" to provide in-home care. In that capacity, she cooked, cleaned and drove [Ms. Odian] to appointments, meetings and shopping" and "took care of [Ms. Odian's] home, took care of [Ms. Odian] and was [Ms. Odian's] paid live-in caregiver.’ Appellant does not dispute those findings. A "paid live-in caregiver" clearly provides social services within the meaning of section 21350(a) and is, therefore, a care custodian. Thus, based on the trial court's undisputed findings, we conclude that appellant was a care custodian within the meaning of section 21350(a)(6).”  (145 Cal.App.4th at 167)

    Katie the Gardener worked for the decedent as follows:

    1.  The decedent met Katie the Gardener when she hired her to do yard work and home repairs.

    2.  Katie the Gardener also cleaned the decedent’s carpet, painted her house and helped pay the decedent’s bills.  She filled out checks for the decedent’s son to sign, and, after the son died, for the decedent to sign.  She later signed her own name to all checks drawn on the decedent’s account.

    3.  After the decedent’s son died on September 23, 2005, the checks to Katie the Gardener increased in frequency and amount.  She filled out the checks and wrote notations on them including “Mailbox & Groceries” and “Groceries - Yardwork - Gas.”

    4.  Katie the Gardener took groceries to the decedent and took her out for meals, to the hairdresser’s, doctor’s office and the hospital.

    5.  The decedent signed the will two weeks after her son had died.  He was her only descendant.  He had written most of the decedent’s checks; Katie the Gardener had written others. 

    6.  Katie the Gardener became the agent under the decedent’s power of attorney dated October 6, 2005 - the same date as the will.

    7.  Katie the Gardener and Winston Schnoop, the boyfriend with whom she then lived, signed the will as witnesses.  The will also bears the signature and notary stamp of Linda Dulpin, whom Katie the Gardener had used in a previous real estate transaction. 

    8.  The will was a pre-printed form that was typed in part.  The decedent had no typewriter; Katie the Gardener never saw one in the decedent’s house.

    9.  The will describes Katie the Gardener as “Caretaker / Friend” twice at the bottom of its first page and directs the entire estate to her.

    10.  Katie the Gardener was paid $25 to $100 per visit for work including writing checks.

    11.  At her deposition on 10/8/07, Katie the Gardener tried to conceal what she had done for the decedent:

      “Q     DID YOU EVER TAKE HATTIE TO ANY DOCTOR’S OFFICE? 
        A     NO.”  (27:3-5)
      “Q      DID YOU EVER TALK WITH ANYONE AT DR. DONALD BAILEYBERG’S OFFICE ABOUT HATTIE?
        A    NO.”  (32:22-25)

    Dr. Bailyberg’s records and his staff contradict those statements.

      “Q    DID YOU EVER TAKE ANY FOOD TO HER AT ALL?  ANYTHING?
        A    I THINK I BROUGHT HER A BIRTHDAY CAKE A COUPLE TIMES."
      "Q    ANYTHING ELSE?
        A    NO.”  (28:6-11)

    Katie the Gardener’s own hand impeaches her deposition testimony.  She wrote on the decedent’s check # 1481 “Mailbox & Groceries” and on check # 1482 “Groceries - Yardwork - Gas.”  (Exhibit 34, page GB0076.)

        “Q    DID YOU EVER WRITE ANY CHECK TO YOURSELF DRAWN ON ANY ACCOUNT OF HATTIE? 
    .    A    NO.”  (53:4-6)  

    Katie’s own hand again condemns her.  Exhibit 34, pages GB 0064 et seq. includes the checks that she wrote to herself on the decedent’s account.

2.  THE DONATIVE TRANSFER TO KATIE IS INVALID UNLESS SHE PROVES BY CLEAR AND CONVINCING EVIDENCE THAT IT WAS NOT THE PRODUCT OF FRAUD, MENACE, DURESS OR UNDUE INFLUENCE.  

    Probate Code § 21350.5 provides that gifts to persons listed as disqualified in section 21350, including care custodians, may be exempted by Probate Code § 21351.  It appears that Katie the Gardener can seek refuge in only the clear-and-convincing evidence exemption of section 21351(d):

    “The court determines, upon clear and convincing evidence, but not based solely upon the testimony of any person described in subdivision (a) of Section 21350, that the transfer was not the product of fraud, menace, duress, or undue influence.  If the court finds that the transfer was the product of fraud, menace, duress or undue influence, the care custodian shall bear all costs of the proceeding including reasonable attorney’s fees.”

......The statute limits the evidence.  Subdivision (a) of Section 21350 includes the following in its list of persons who are prohibited transferees and whose testimony therefore cannot be considered:

    “(6) A care custodian of a dependent adult who is the transferer.
......(7) A person who is related by blood or marriage to, is a domestic partner of, is a cohabitant with, or is an employee of, a person who is described in paragraph (6).”

......This means that, in determining whether there is “clear and convincing evidence” “that the transfer was not the result of fraud, menace, duress or undue influence,” the court must look to the testimony of only persons other than Katie the Gardener, because she was a care custodian; Katie the Gardener’s mother, Lois Jones, because she is related by blood to Katie the Gardener; Adam the Gardener, because he was Katie the Gardener’s husband; Winston Schnoop, because he was Katie the Gardener’s live-in boyfriend and her cohabitant; and Jason Everson, because he is Katie the Gardener’s current live-in boyfriend and her cohabitant. 

3.  WHAT IS UNDUE INFLUENCE? 

    “Undue influence consists of conduct which subjugates the will of the testator to the will of another and causes the testator to make a disposition of his property contrary to and different from that which he would have done had he been permitted to follow his own inclination or judgment.”  Estate of Baker, (1982) 131 Cal.App.3d 471, 480, 182 Cal.Rptr. 550, 556.
           
    “Where, as in this case, there is an old person, so broken in health and so worn down mentally that her actions may readily be influenced by those in whom she has confidence, and it appears that one who has her confidence emerges with a goodly prize for which no consideration was given, an inference arises, capable of sustaining a finding that undue influence has been used.” Olson v. Washington (1936)18 Cal.App.2d 85, 86-88, 63 P.2d 304, 305-306.


4.  CIRCUMSTANTIAL EVIDENCE PROVES UNDUE INFLUENCE.

    “‘Undue influence,’ obviously, is not something that can be seen, heard, smelt or felt; its presence can only be established by proof of circumstances from which it may be adduced.”  Estate of Peters (1970) 9 Cal.App.3d 916, 923, 88 Cal.Rptr. 576.

      “Direct evidence, however, is not indispensable. As stated in  Estate of Ramey (1923) 62 Cal. App. 413, 426 [217 P. 135], undue influence can hardly ever be shown in any way other than by circumstantial evidence.”  Olson v. Washington (1936) 18 Cal.App.2d 85, 86-88, 63 P.2d 304, 305-306

      “That the alleged wrongdoer had power or ability to control the testamentary act may be established by a variety of circumstances, -- such as control over the decedent's business affairs, dependency of the decedent upon the beneficiary for care and attention, or domination on the part of the beneficiary and subserviency on the part of the deceased.” Estate of Baker (1982) 131 Cal.App.3d 471, 481, 182 Cal.Rptr. 550, 557.

    What reasonable inferences, then, can the court draw from the answers to the following questions?

    1.  Why did Katie the Gardener start working for the decedent?

    2.  Why did the decedent need a power of attorney?

    3.  Why was the decedent’s son, George, writing or signing the decedent’s checks until he died on September 23, 2005?     

    4.  Why was Katie the Gardener writing checks for the decedent?

    5.  Why does the diagnosis of “dementia” appear on the decedent’s death certificate? 

    6.  Why did Katie the Gardener write on some of the checks “Mailbox & Groceries” and “Groceries - Yardwork - Gas?”

    7.  On whom did the decedent depend for groceries and transportation after her son George died? 

    8.  How did the will come to be signed just two weeks after that death?

    9.  Was the decedent grieving? 

    10.  Who typed the will, when the decedent had no typewriter? 

    11.  Whom does the will benefit? 

    12.  Who came up with the word “caretaker” on the will? 

    13.  How did Katie the Gardener and her boyfriend Winston Schnoop come to be witnesses to the will? 

    14.  How did Linda Dulpin, a notary whom Katie the Gardener had used in a previous real estate transaction, come to be the notary who acknowledged the will and the power of attorney? 

    15.  How probable is it that the decedent would have found Linda Dulpin and arranged for her, Katie the Gardener and Winston Schnoop to meet at her home when she had dementia, did not drive and was profoundly hard of hearing?

    16.  Why does Katie the Gardener’s deposition testimony differ from the checks she wrote and signed, and the testimony of non-party witnesses?


5.  IF THE COURT FINDS THAT THE TRANSFER WAS THE PRODUCT OF FRAUD, DURESS, MENACE OR UNDUE INFLUENCE, THEN Katie the Gardener SHALL BEAR ALL COSTS OF SUIT INCLUDING REASONABLE ATTORNEY’S FEES.
 
   Section 21351(d) gives a prohibited transferee more to lose than just the gift:

    “ . . . If the court finds that the transfer was the product of fraud, menace, duress or undue influence, the care custodian shall bear all costs of the proceeding including reasonable attorney’s fees.”

    Code of Civil Procedure § 1033.5(a)(10)(B) includes “attorney’s fees when authorized by statute” as an item of “costs.”  Subsection (c)(5) of that statute goes on to provide for several times and methods of fixing such attorney’s fees, the first of which is a noticed motion:

    “When any statute of this state refers to the award of ‘costs and attorney's fees,’ attorney's fees are an item and component of the costs to be awarded and are allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a). Any claim not based upon the court's established schedule of attorney's fees for actions on a contract shall bear the burden of proof. Attorney's fees allowable as costs pursuant to subparagraph (B) of paragraph (10) of subdivision (a) may be fixed as follows: (A) upon a noticed motion, (B) at the time a statement of decision is rendered, (C) upon application supported by affidavit made concurrently with a claim for other costs, or (D) upon entry of default judgment. Attorney's fees allowable as costs pursuant to subparagraph (A) or (C) of paragraph (10) of subdivision (a) shall be fixed either upon a noticed motion or upon entry of a default judgment, unless otherwise provided by stipulation of the parties.” 


9.  CONCLUSION:   The Legislature imposed formidable limitations on donative transfers to prohibited transferees.  The statutes also aim not just to invalidate those transfers but also to discourage errant care custodians from even defending them.  As to the first aspect of the legislative scheme, Petitioners submit that Katie the Gardener cannot meet her evidentiary burden of negating fraud, menace, duress and undue influence, and that the gift to her is therefore invalid.  As to the second aspect,  Petitioners have filed a motion for an order fixing the non-reciprocal attorney’s fees that Probate Code § 21351(d) mandates if the court finds that the transfer was procured by fraud, menace, duress or undue influence.  The clerk set the motion to be heard on April 22, 2008.
                        ____________________________________
                        Robert A. Foster, II,
........................Attorney for the Nephews,

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