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C.A. Upholds Attorney-Fee Award in Case Alleging Undue Influence, Elder Abuse
By a MetNews Staff Writer
Div. One of the Fourth District Court of Appeal has held that an award of attorney fees under the Elder Abuse and Dependent Adult Civil Protection Act was proper in a probate case in which the court invalidated three trusts due to a finding that the widow of the decedent committed financial elder abuse through undue influence.
The court found that Welfare and Institutions Code §15657.5 supports the award even though the plaintiff seeking to invalidate the trust failed to state a cause of action in his petition specifically relating to elder abuse and the court declined to impose double damages for the value of the property under a statute authorizing such a boost in undue influence cases.
Presiding Justice Judith McConnell authored the unpublished opinion affirming the award of attorney fees by San Diego Superior Court Judge Robert C. Longstreth. Justices William Dato and Jose S. Castillo joined in the opinion.
Three Trust Documents
Appealing the award was Joy Nigro, who assisted the decedent in creating three trust documents that named her as beneficiary and disinherited his two children, including his son James T. Bohart Jr.
According to Nigro, she met the decedent in 1999 and the two began a romantic relationship which continued after she married another man in 2002.
In 2008, when the decedent was 69, his mental state had declined due to dementia and Nigro took control of his finances and care. Nigro claims that he directed her to find an attorney to create a new trust in 2009.
She hired Mark Brashear, a non-attorney document preparer who was later jailed for fraud, to prepare the trust documents using the letterhead of a lawyer. The trust prepared by Brashear was executed on Feb. 15, 2009, despite Brashear admitting during deposition testimony that he did not know the decedent.
Nigro divorced her husband in 2009 and married the decedent in a civil ceremony at the San Diego County Clerk’s office in 2010. She continued living with her ex-husband after the 2010 marriage.
Brashear assisted in creating a second trust, executed on Jan. 4, 2012.
Nigro claims that the decedent subsequently became concerned that he may have signed something to alter the 2012 trust. In response, she brought the decedent to the San Diego office of attorney Michael Alfred to prepare an updated trust and will, which were each executed on Sept. 22, 2015.
Alfred also represented Nigro in the appeal.
Petition to Invalidate
After the decedent’s death in August 2017, Bohart filed a petition to determine the validity of the trusts.
After a five-day trial during which experts testified as to the decedent’s mental abilities, the court announced its tentative decision that Bohart had proven that the 2009, 2012, and 2015 trusts were void due to undue influence.
On May 27, 2022, the probate court entered its final statement of decision invalidating the documents, finding that Nigro committed elder abuse against the decedent as defined in §15657.5, declaring that Bohart failed to meet his burden of proof as to the award of double damages under Probate Code §859, and awarding Bohart costs as the prevailing party.
After serving notice of final judgment, Bohart filed an application for attorney fees under §15657.5, which Longstreth granted on Sept. 29, 2022. The order awarded Bohart fees in the amount of $540,425.20.
Statutory Authority
Sec. 15657.5 provides for attorney fees in several circumstances including “[w]here it is proven by a preponderance of the evidence that a defendant is liable for financial abuse, as defined in Section 15610.30.”
“Financial abuse” is defined in §15610.30 as the taking of real or personal property of an elder or dependent adult by undue influence. For purposes of the statute, such a taking occurs “when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.”
Bohart requested double damages under Probate Code §859 which provides that “[i]f a court finds that a person has…taken, concealed, or disposed of…property by the use of undue influence in bad faith or through the commission of elder or dependent adult financial abuse, as defined in Section 15610.30..., the person shall be liable for twice the value of the property recovered by an action under this part.”
Nigro contends that because the court found that Bohart failed to meet his burden to justify double damages under §859, and Bohart did not assert a specific cause of action for elder abuse against her, the probate court was without statutory authority to award attorney fees under §15657.5.
Financial Elder Abuse
McConnell was not persuaded by either of Nigro’s contentions, saying:
“We agree with Bohart that the allegations in his petition, particularly his prayer for attorneys’ fees and damages under Probate Code section 859 put at issue the question of whether Nigro committed financial elder abuse. Probate Code section 859 in particular, specifically required the court to determine whether Nigro committed financial elder abuse as defined by section 15610.30. These allegations sufficiently supported the probate court’s decision to award attorneys’ fees under section 15657.5, subdivision (a).”
She noted that Longstreth did not impose the double damages under §859 because he found that the invalidation of the trusts meant that no property ever passed to Nigro, but that did not mean that the judge failed to determine that Nigro committed undue influence.
The justice remarked:
“We are also not persuaded that reversal of the attorneys’ fee award is required because the court concluded damages under Probate Code section 859 were not available….This conclusion…does not negate the court’s…finding that Nigro influenced the decedent to alter his trust so that she would receive the entire estate upon his death, ‘to the total exclusion of his children and grandchildren to whom he had previously expressed an intent to benefit.’”
The presiding justice also concluded that “by asking the court to determine whether she committed financial elder abuse, Nigro herself placed the issue before the trial court, inviting the error she now asserts.”
Taking of Property
McConnell went on to say:
“Substantial evidence supports the probate court’s finding that this conduct constituted a taking of decedent’s property under section 15610.30. In 2009, 2012, and 2015, Nigro caused the decedent to modify his trust to her benefit, so that all of his assets would pass to her. After decedent’s death in 2017, the parties litigated the validity of the trust amendments for five years.”
She continued:
“While Bohart was ultimately successful in his effort to invalidate the trusts, at least during this lengthy period of litigation, Nigro’s conduct constituted the taking of property under section 15610.30, which supported the court’s award of attorneys’ fees under section 15657.5, subdivision (a). Indeed…section 15610.30 itself explicitly states that a person ‘takes…real or personal property when an elder...adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest.’ ”
The case is Bohart v. Nigro, D081402.
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