Kalfin v. Kalfin

• Decision Date: 15 October 2013
• Docket Number: G046639
• Parties: DEBRA R. KALFIN, Plaintiff and Respondent, v. JUDITH A. KALFIN, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

DEBRA R. KALFIN, Plaintiff and Respondent, v. JUDITH A. KALFIN, Defendant and Appellant.

G046639

COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION THREE

Filed: October 15, 2013

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Super. Ct. No. 30-2010-00422625)

OPINION

Appeal from a judgment of the Superior Court of Orange County, H. Michael Brenner, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.

Freeman Firm, Thomas H. Keeling, Franklin J. Brummett; Law Offices of Scott E. Schutzman and Scott E. Schutzman for Defendant and Appellant.

Lamb & Kawakami, Patrick L. Rendon; Adams & Nelson and Keith A. Robinson for Plaintiff and Respondent.

Judith A. Kalfin (Judith) appeals from the judgment in favor of her younger sister, Debra R. Kalfin (Debra),¹ in this breach of contract and financial abuse action. Debra is blind and disabled and has suffered from numerous serious medical conditions throughout her life, frequently relying on her father, Harry Kalfin (Harry) for financial support. A few months before his death, Harry amended his long-established estate plan from one dividing the bulk of his sizeable estate equally between his two daughters, to one leaving virtually the entire estate to Judith in exchange for her promise to take care of Debra and make sure she would have everything she needed for as long as she lived. After Harry died, Judith declined to provide any financial assistance to Debra, and Debra filed this action. Her causes of action for breach of contract and financial abuse of a dependent adult (Debra) and an elder (Harry) (Welf. & Inst. Code, § 15600 et seq.), were tried before a jury. It returned special verdicts in Debra's favor on her breach of contract and financial abuse of a dependent adult claims, but against her on her financial abuse of an elder claim. The jury awarded Debra approximately $1.4 million in compensatory damages and $260,000 in punitive damages.

Judith contends: (1) inconsistent special verdicts pertaining to Debra's financial abuse cause of action require reversal and retrial of that cause of action; (2) Debra was not entitled to a jury trial because her action was more properly characterized as a probate action triable only by the court sitting in equity; (3) Judith's promise to her father to financially support her disabled sister is too indefinite to constitute a contract, the oral contract is unsupported by adequate consideration, and the oral contract is barred by the statute of frauds; and (4) the trial court erred by refusing to declare a mistrial after Debra's counsel attempted to ask Judith whether her own estateplan included provisions for her pets. We find no merit to Judith's contentions and affirm the judgment.

FACTS

Debra was born in 1957 and was in her early 50s when her father, Harry, passed away in April 2010. Her older sister, Judith, is her only sibling. Neither Debra nor Judith is married and neither has any children.

Debra has been plagued with serious and severe health problems for her entire life. As a child, she was diagnosed with acute severe asthma and Type 1 (juvenile) diabetes. She was frequently hospitalized, and often developed bronchitis and pneumonia. The steroid treatments she required for her asthma made her diabetes difficult to control, and as she grew older, she became insulin intolerant. In 1993, Debra was diagnosed with a retina disease common among diabetics. She had numerous laser treatments and surgeries, but after a surgery in 1997, she was left completely blind. Shortly after going blind, Debra suffered renal failure and went on dialysis. Complications with dialysis led to her requiring kidney and pancreas transplants in 2000. In 2007, Debra was diagnosed with colon cancer, and she underwent surgery in 2008 and again in 2009.

Debra tried to live a "normal" life when she was younger. She went to college, held part-time jobs, and pursued her favorite pastime of horseback riding—an expensive hobby financed by her father. After graduating from college, Debra worked full-time at Disneyland, but as her health continued to deteriorate, her medical leaves and hospitalizations became more frequent and longer, and by 1987, she went on disability. Since then her only significant independent source of income has been $900 a month Social Security and $327 a month in long-term disability insurance.

Debra's father, Harry, was a successful engineer and real estate investor. He was described as having a domineering personality—"He was the boss. There was no doubt of it." Despite being a "curmudgeon[l]y kind of guy," Harry nonetheless tookpride in being a good provider for his family and in knowing they would not have to endure the poverty he endured growing up during the Great Depression. After his wife (Judith and Debra's mother) passed away in 1988, Harry met Marjorie Solomon (Marjorie). Although not legally married, the two lived together for the rest of Harry's life and held themselves out as husband and wife. Harry provided both his daughters with a high standard of living throughout their lives.

Around the time Debra went on disability in 1987, she and Judith bought a house together in Yorba Linda (hereafter the Wabash house). They originally agreed to evenly split the costs of the house, including mortgage, taxes, and insurance. However, Debra eventually ran out of money and, unable to work, needed financial assistance. In 1993, Harry gave his daughters $100,000 to pay down the mortgage on the Wabash house. Although he had both daughters sign a promissory note for the money, the money was considered to be a gift to Debra so she could remain in the house, and neither sister ever made any payments on the note. After Harry's gift, Debra never made another payment towards the house. Judith, who had a job paying $112,000 a year, eventually moved out of the Wabash house when she bought another house in Yorba Linda with her boyfriend. Debra remained living in the Wabash house. Harry also allowed Judith to live rent free in one of his many rental units located in Hermosa Beach so she could be closer to her job during the week, with the understanding she would continue paying the costs associated with the Wabash house including taxes and insurance, which she did.

When Debra went blind in 1997, her relationships with family and particularly her father became strained, and they argued a lot. Debra lived with Harry and Marjorie for a while, but moved back to the Wabash house so she could feel more independent. She refused Harry's offer to hire a full time live-in assistant for her, and she adapted to her blindness by taking mobility and Braille classes, getting a guide dog, and learning new skills and hobbies. Although their relationship was strained, Debracontinued to visit her father a couple times a month, and he remained supportive of her. Debra asked for and received financial support from Harry as she needed it. Harry paid for many of Debra's expenses, including a new refrigerator, a new roof for her house, medical expenses, and veterinary bills for her guide dog. Debra and Judith both testified Harry always stepped in and helped them whenever they needed help.

Harry's living trust, prepared in 2002, provided that on his death all the trust assets would be divided equally between Judith and Debra, with the exception that Marjorie would have a life estate in the house he and Marjorie shared. Marjorie was designated as the successor trustee followed by Judith and Debra as successor co-trustees. Harry often joked about the great lifestyle his daughters would have when he died.

As Harry grew older, he became increasingly concerned about Debra. He was worried that if she was left any considerable amount of money or property, she would lose it. In October 2009, while he was in the hospital, Harry summoned a notary from the financial company that prepared his living trust, Marjorie, and Judith to his hospital room. He had the notary prepare two documents requesting changes be made to his living trust leaving the bulk of his estate to Judith and only $1,000 to Debra, and removing Debra as a successor trustee. The notary testified Harry was very clear about his instructions and neither Judith nor Marjorie said anything during the meeting. On November 10, 2009, the notary came to Harry and Marjorie's home with the prepared trust amendment documents, which Harry executed. Judith was not present. The notary had no reservations about Harry's soundness of mind or about his understanding of the changes he was making to his living trust. Harry passed away on April 11, 2010.

Marjorie testified Harry frequently discussed with Judith his concerns about Debra's health and her future. For the last five years of Harry's life, Judith came to the house on Sunday afternoons and during their "chats" "[Harry] would always tell [Judith] to take care of her sister[,]" by which he meant "financially . . . see that [Debra] was taken care of . . . referring to when he would be deceased." Marjorie testified that evenafter Harry amended his trust in November 2009, he continued to express to Judith in their Sunday visits that he expected Judith to take care of Debra financially. Marjorie testified it was never Harry's intention to have Debra cut off financially. Judith gave Harry her word that she would take care of Debra financially, and Marjorie never heard Judith say anything to Harry to the contrary. Since Harry's death, Judith had not provided Debra any financial assistance despite Debra's repeated requests.

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