Estate of Pryor

• Decision Date: 29 September 2009
• Docket Number: No. B207402.,B207402.
• Citation: 177 Cal.App.4th 1466,99 Cal. Rptr. 3d 895
• Court: California Court of Appeals Court of Appeals
• Parties: Estate of RICHARD PRYOR, Deceased. ELIZABETH PRYOR, Petitioner and Appellant, v. JENNIFER LEE PRYOR, Objector and Respondent.

177 Cal.App.4th 1466

99 Cal. Rptr. 3d 895

Estate of RICHARD PRYOR, Deceased.

ELIZABETH PRYOR, Petitioner and Appellant, v. JENNIFER LEE PRYOR, Objector and Respondent.

No. B207402.

Court of Appeals of California, Second District, Division Four.

September 29, 2009.

Holland & Knight, Bruce S. Ross, Linda Rottman and Vivian L. Thoreen for Petitioner and Appellant.

Kibre & Horwitz, Howard L. Horwitz and Eric G. Stockel for Objector and Respondent.

OPINION

EPSTEIN, P. J.

This appeal concerns the presumptive disqualification of a care custodian from receiving a donative transfer from a dependent or elder adult. (Prob. Code, § 21350.)¹ Appellant Elizabeth Pryor, daughter of the decedent, argues that her stepmother, respondent Jennifer Lee Pryor, may not invoke the spousal exception to this presumption because the marriage was the product of undue influence and fraud. (§ 21351.) We find nothing in the statutory scheme or the legislative history which would warrant the judicial creation of an exception to the rule that a spouse may receive a donative transfer. We shall affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

Elizabeth is one of six children of Richard Pryor, the well-known comedian and actor.² Jennifer and Richard married in 1981 and divorced in 1982. Richard was diagnosed with multiple sclerosis in the mid-1980's and his condition deteriorated thereafter. It is undisputed that Jennifer became a care custodian for Richard in 1994. In 2001, four and one-half years before Richard's death in 2005, Richard and Jennifer entered into a confidential marriage. Before and after this remarriage, Richard revised his estate plan to leave substantial assets to Jennifer rather than his six children. Apparently Elizabeth did not learn of the remarriage until after Richard's death.

In a companion appeal, Pryor v. Pryor (2009) 177 Cal.App.4th 1448, we affirmed the denial of Elizabeth's petition to annul the 2001 marriage between Jennifer and Richard on the ground of fraud. This case arises from a probate proceeding brought by Elizabeth. The first amended petition is the charging pleading. We are concerned here only with the fifth and sixth causes of action to set aside donative transfers under section 21350, because Elizabeth has confined her appeal to those claims. These causes of action seek to have various gifts, bequests, and transfers of property or assets made by Richard between 1994 and 2005 declared void under section 21350 because Jennifer's status as care custodian raises a presumption they are invalid.

Jennifer demurred to the first amended petition, invoking section 21351, subdivision (a) which allows a donative transfer by a dependent adult to a spouse. She argued that section 21351, subdivision (a) insulates any transfer to her by Richard from the presumption of invalidity raised by section 21350 regardless of the date of transfer. Elizabeth opposed the demurrer, challenging the validity of the remarriage, and arguing that transfers made by Richard before the remarriage come under section 21350. Her theory was that Jennifer's status as care custodian beginning in 1994 renders her ineligible to receive transfers under section 21350 and that the 2001 marriage does not "`cancel out' her care custodian status."

The court rejected Jennifer's expansive reading of section 21351, subdivision (a): "The court's read of the statute is not as expansive. The statute centers on a transferor and a transferee and whether they are related by marriage. The legislature's use of the transferor/transferee language suggests that the relevant inquiry is the nature of the parties' relationship at the time of the transfer." The court found support for this interpretation in section 21351, subdivisions (b) and (c) and concluded "There is nothing in the statute that suggests that a transfer might be subject to an after-the-fact exemption. In fact, subdivision (d) suggests that an otherwise prohibited transfer may be exempted later only upon a showing that the transfer was not the result of fraud, menace, duress, or undue influence."

Elizabeth's interpretation of section 21350 also was rejected. The trial court distinguished the cases on which she relied because none involved a formal legal relationship like marriage. In this case, the probate court concluded that the formally recognized marriage between Richard and Jennifer on June 8, 2001, created a bright line unlike the circumstances in the cases cited by Elizabeth. It ruled that this bright line "provides a division for transfers made before and after that time. [¶] Elizabeth's annulment action is pending. Absent success in that action, transfers to Jennifer from Richard occurring after June 8, 2001 are exempt from attack under Probate Code section 21350. Transfers occurring prior to June 8, 2001 are not."

The demurrer to the fifth and sixth causes of action was sustained to the extent that they alleged transfers to Jennifer after her remarriage to Richard. Elizabeth was given leave to amend at the conclusion of the annulment action and to amend the cause of action to allege only transfers occurring prior to the remarriage.

Elizabeth elected not to amend her petition. Jennifer applied for entry of an order of dismissal with prejudice, which Elizabeth opposed. The probate court granted Jennifer's application and dismissed the action. Elizabeth filed a timely appeal.

DISCUSSION

I

Elizabeth chose not to amend her complaint after the trial court sustained Jennifer's demurrer with leave to amend as to premarital gifts. "`It is the rule that when a plaintiff is given the opportunity to amend his complaint and elects not to do so, strict construction of the complaint is required and it must be presumed that the plaintiff has stated as strong a case as he can.' [Citations.]" (Reynolds v. Bement (2005) 36 Cal.4th 1075, 1091 [32 Cal.Rptr.3d 483, 116 P.3d 1162].) "`"We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed." [Citation.] Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.]'" (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126 [119 Cal.Rptr.2d 709, 45 P.3d 1171].) Questions of statutory interpretation are subject to de novo review. (Elsenheimer v. Elsenheimer (2004) 124 Cal.App.4th 1532, 1536 .)

Jennifer argues that Elizabeth has forfeited her argument because she did not amend her petition to apply to gifts by Richard between their first and second marriages and because she failed to present argument as to those gifts. We agree. (See Estate of Felder (2008) 167 Cal.App.4th 518, 523 [failure to raise argument on appeal results in waiver of issue].)

II

A

(1) The issue in this case is one of statutory interpretation. "Our fundamental task in construing a statute is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute. [Citation.] We begin by examining the statutory language, giving the words their usual and ordinary meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant what they said, and the plain meaning of the language governs. [Citations.] If, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history. (People v. Coronado [(1995)] 12 Cal.4th [145,] 151 [48 Cal.Rptr.2d 77, 906 P.2d 1232].) In such circumstances, we `"select the construction that comports most closely with the apparent intent of the Legislature, with a view to promoting rather than defeating the general purpose of the statute, and avoid an interpretation that would lead to absurd consequences." [Citation.]' ([Citation]; see Escobedo v. Estate of Snider (1997) 14 Cal.4th 1214, 1223 [60 Cal.Rptr.2d 722, 930 P.2d 979].)" (Day v. City of Fontana (2001) 25 Cal.4th 268, 272 [105 Cal.Rptr.2d 457, 19 P.3d 1196], italics added.) We must construe the language of a statute "`in the context of the statute as a whole and the overall statutory scheme, and we give "significance to every word, phrase, sentence, and part of an act in pursuance of the legislative purpose."'" (Smith v. Superior Court (2006) 39 Cal.4th 77, 83 [45 Cal.Rptr.3d 394, 137 P.3d 218], quoting People v. Canty (2004) 32 Cal.4th 1266, 1276 [14 Cal.Rptr.3d 1, 90 P.3d 1168].)

(2) Sections 21350 to 21351 were enacted in 1993 in response to reports that a probate attorney had exploited his elderly clients by drafting estate plans for them including large gifts to himself and his confederates.³ (Recommendation on Donative Transfer Restrictions (Oct. 2008) 38 Cal. Law Revision Com. Rep. (2008) p. 113 (Law Revision Recommendation).) "Part 3.5 of division 11 of the Probate Code (hereafter part 3.5), section 21350 et seq., sets forth certain limitations on donative transfers by testamentary instrument. Section 21350 lists seven categories of persons who cannot validly be recipients of such donative transfers, including, inter alia, `[a] care custodian of a dependent adult who is the transferor' (id., subd. (a)(6)). The statute provides that the term `care custodian' for these purposes `has the meaning as set forth in Section 15610.17 of the Welfare and Institutions Code.' (§ 21350, subd. (c).) That section, in turn, defines `care custodian' by means of a list of described agencies and persons, concluding in its final subdivision with `[a]ny other ... agency or person providing health services or social services to elders or dependent adults.' (Welf. & Inst. Code, § 15610.17, subd. (y).)" (Bernard v. Foley (2006) 39 Cal.4th 794, 799-800 [47 Cal.Rptr.3d 248, 139 P.3d 1196], fns. omitted (Bernard).)

(3) Once it is determined...