Hagen v. Hickenbottom, H012841

Decision Date30 November 1995
Docket NumberNo. H012841,H012841
CourtCalifornia Court of Appeals Court of Appeals
Parties, 95 Cal. Daily Op. Serv. 9745, 95 Daily Journal D.A.R. 16,870 Michael John HAGEN, Plaintiff and Appellant, v. Terry HICKENBOTTOM, Individually and as Trustee, etc., Defendant and Respondent.

James Cameron, for appellant.

David Green Baskin, Dennis B. Lippitt, and Baskin, Grant & Joseph, for respondent.

BAMATTRE-MANOUKIAN, Associate Justice.

Mayme I. Hagen died in 1991, at the age of 96. Her two grandchildren, Michael and Amy Hagen, were her only surviving issue; her only child, John Hagen (the grandchildren's father) had died in 1980. In 1988 the decedent had executed a revocable living trust, supplemented by a pour-over will, which gave almost all of her property to her cousin, Terry Hickenbottom, upon the death of the decedent. After the decedent died the grandchildren brought this action against Hickenbottom, individually and as trustee of the 1988 trust, to set aside the trust upon the theory that Hickenbottom had exercised undue influence over the decedent, and for damages. The trial court granted Hickenbottom's motion for summary judgment, and entered a judgment awarding costs to Hickenbottom. The grandson, Michael Hagen, alone appeals; because the granddaughter, Amy Hagen, has not appealed, the judgment against her is final for all purposes.

Review of a summary judgment involves pure questions of law--the legal significance of the documents upon which the trial court acted--which we review independently. (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1513-1515, 285 Cal.Rptr. 385; Parsons Manufacturing Corp. v. Superior Court (1984) 156 Cal.App.3d 1151, 1156, 203 Cal.Rptr. 419.) Although the record suggests the grandson's case is weak we shall conclude, within the scope of the issues the parties have chosen to frame on appeal, that the trial court should not have granted summary judgment against the grandson. Accordingly we shall reverse the judgment against the grandson with directions.

The pleadings define the issues to which a summary judgment motion may, or need, be directed. (Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536, 249 Cal.Rptr. 5; cf. Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119, 31 Cal.Rptr.2d 8.) The factual premise of the grandchildren's first amended complaint was their assertion that Hickenbottom, by conduct and statements, unduly influenced the decedent's decision to leave almost none of her estate to the grandchildren, by persuading the decedent to execute the 1988 trust and by thereafter taking steps to reduce the possibility that the decedent would change her mind. The grandchildren sought relief for the undue influence on three theories which they undertook to state in separate counts.

The first count sought the traditional and essentially equitable remedy of annulment of the disposition of the decedent's assets. In support of a prayer for a declaration that the trust was "the result of undue influence and lack of capacity" and was "null and void in its entirety," the grandchildren alleged that they were the decedent's sole heirs and until 1988 had been her sole beneficiaries, that in 1988 Hickenbottom "began to exert undue influence over [the decedent], who was then over 90 years old and susceptible to undue influence by reason of age, infirmity and lack of capacity," that Hickenbottom gained control over the decedent's "personal, business, and financial affairs," induced her "to sever and discontinue relations" with the grandchildren, moved her from Santa Barbara to Santa Cruz where Hickenbottom lived, and caused her to execute the 1988 trust "pursuant to the terms of which [the grandchildren] received nothing from the estate of [the decedent], the provisions of which are unnatural, and which vary from [the decedent's] prior expressed intentions. [Hickenbottom] maintained a confidential relationship with [the decedent], [was] active in the preparation of the trust, and unduly profited by its terms."

The grandchildren's second and third counts undertook to state tort claims for damages, but again the theories were based on the factual premise that Hickenbottom had unduly influenced the decedent.

The second count suggested a theory--recognized in several states but not previously validated in California--of intentional interference with an expected inheritance or gift. (Cf. generally Annot., Liability in Damages for Interference with Expected Inheritance or Gift (1983) 22 A.L.R.4th 1229; Rest.2d Torts, § 774B, com. b, p. 58.) The count incorporated the allegations of the first count and added allegations that from 1980 to 1988 the grandson had been designated the sole beneficiary of the decedent's testamentary trust with assets of a value (after the decedent's death) in excess of $400,000, that from 1980 until the decedent died Hickenbottom "wrongfully and intentionally engaged in conduct in which she interfered with the relationship between [the grandchildren] and their grandmother, [the decedent], which caused decedent to create a revocable trust which excluded [the grandchildren] as beneficiaries," that over the same period Hickenbottom "knowingly, wrongfully and intentionally made statements to decedent which caused decedent to disinherit [the grandchildren]," that Hickenbottom's conduct and statements were "for the purpose of depriving [the grandchildren] of the testamentary gift which decedent had previously made and to obtain that gift exclusively for herself," that as a result the decedent "did disinherit her grandchildren" who were therefore entitled to recover compensatory and punitive damages.

The third count evoked an analogy to California's tort of negligent interference with prospective economic advantage (cf. J'Aire Corp. v. Gregory (1979) 24 Cal.3d 799, 803-808, 157 Cal.Rptr. 407, 598 P.2d 60). The count incorporated the allegations of the first count and the compensatory-damages allegations of the second count and added an allegation that Hickenbottom "negligently engaged in conduct in which she interfered with the relationship between [the grandchildren] and their grandmother, [the decedent], and which she knew or should have known would cause decedent to create a revocable trust which substantially excluded [the grandchildren] as beneficiaries."

In this court Hickenbottom points out that the grandchildren's pleading did not mention the pour-over will, complementary to the trust and executed on the same day, which provided among other things that if the trust were to fail or be revoked virtually all of the decedent's estate would nevertheless pass to the trustee to be administered as provided in the trust instrument. In our view the omission is obviously an oversight which the grandchildren undoubtedly would have sought to remedy had the point been timely raised in the trial court. Therefore we shall reject Hickenbottom's argument that the omission moots the attack upon the trust as such, and shall treat the grandchildren's theories as though addressed to both the trust and the pour-over will.

Hickenbottom moved for summary judgment or summary adjudication on multiple grounds, of which only her assertion that all of the grandchildren's theories were "barred" by a privilege to speak the truth (or "defense of truth") is relevant to the issues the parties have framed on appeal.

A defendant is entitled to summary judgment "if all the papers submitted show that there is no triable issue as to any material fact and that the [defendant] is entitled to a judgment as a matter of law" because "the action has no merit." (Code Civ.Proc., § 437c, subd. (a), (c).) In 1993, when Hickenbottom's motion was made, heard, and ruled on, Hickenbottom's burden in support of her motion was to show "that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant ... has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action." (Code Civ.Proc., § 437c, former subd. (n)(2); Stats.1992, ch. 1348, § 1.)

To bear her burden Hickenbottom submitted excerpts from transcripts of the depositions of the grandchildren, of their mother Maureen Hagen (who had been divorced from John Hagen in 1974), and of one of the decedent's physicians, and copies of three letters--two from Maureen Hagen to the decedent and one from Maureen Hagen to Hickenbottom--which had been marked as deposition exhibits.

The grandchildren interposed evidentiary objections to many of the facts reflected in Hickenbottom's showing, and several of these objections were discussed at hearing on Hickenbottom's motion, but we find no indication in the record that the trial court ever formally ruled on any of the objections. Accordingly all the evidence Hickenbottom submitted was available for the trial court's consideration (Code Civ.Proc., § 437c, subd. (c)) and is available for ours.

Hickenbottom showed, directly or by rational inference, the following facts pertinent to the issues before us:

The granddaughter had been adopted by John and Maureen Hagen. Sometime before 1982, the decedent omitted the granddaughter from her will, apparently because the granddaughter was not her natural issue, and the decedent did not thereafter make significant provision for the granddaughter.

The grandson graduated from high school in the spring of 1987. During his senior year in high school he became involved with drugs; in August 1987, following his graduation, he sought treatment in a rehabilitation program. Also during his senior year in high school the grandson impregnated his girlfriend and then paid for her to have an abortion. The grandson and the decedent were both Catholic, and although the grandson...

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