Tepper v. Wilkins

• Decision Date: 19 April 2017
• Docket Number: B269900
• Citation: 217 Cal.Rptr.3d 111,10 Cal.App.5th 1198
• Court: California Court of Appeals Court of Appeals
• Parties: Belinda Wilkins TEPPER, Plaintiff and Appellant, v. Martha WILKINS, Individually and as Trustee etc., et al., Defendants and Respondents.

10 Cal.App.5th 1198

217 Cal.Rptr.3d 111

Belinda Wilkins TEPPER, Plaintiff and Appellant,

v.Martha WILKINS, Individually and as Trustee etc., et al., Defendants and Respondents.

B269900

Court of Appeal, Second District, Division 7, California.

Filed April 19, 2017

Freeman, Freeman & Smiley, Stephen M. Lowe and Thomas C. Aikin, Los Angeles, for Plaintiff and Appellant.

Oldman, Cooley, Sallus, Birnberg & Coleman, Marc L. Sallus, Marshal A. Oldman, Encino, and Susan B. Rosenblat, North Hollywood, for Defendant and Respondent Martha Wilkins, Individually and as Co-Trustee, etc.

Edward H. Stone, Irvine, for Defendant and Respondent Eileen N. Wilkins, Individually and as Co-Trustee, etc.

No appearances by Defendants and Respondents Geoffrey Wilkins and Derek Wilkins.

PERLUSS, P.J.

Belinda Wilkins Tepper sued her three siblings, Geoffrey Wilkins, Martha Wilkins and Derek Wilkins, on behalf of her 88-year-old mother, Eileen Wilkins, claiming her siblings' actions individually and while serving as trustees of Eileen's¹ revocable living trust constituted financial abuse of an elder or dependent adult. Tepper's siblings demurred to her first amended complaint, asserting Tepper lacked standing to pursue an action on Eileen's behalf. Eileen, separately represented by counsel, intervened in the action and joined the demurrer to Tepper's amended complaint. The court sustained the demurrer without leave to amend and dismissed Tepper's elder abuse action on standing grounds. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Original and First Amended Complaints

a. The original complaint

On June 12, 2013 Tepper filed an elder abuse action against Geoffrey, Derek and Martha alleging each of them, individually, and while serving together with Eileen as co-trustees of Eileen's revocable living trust, had taken and/or mismanaged Eileen's assets to Eileen's detriment. Tepper, who was not a trustee of Eileen's revocable trust, alleged she had standing as Eileen's child to pursue the action on Eileen's behalf to protect her mother from financial abuse. Tepper did not allege that she had been personally aggrieved by the actions of her siblings or that she possessed the ability to file suit as Eileen's conservator or attorney-in-fact under a power of appointment. In her prayer for relief Tepper sought compensatory and punitive damages and reasonable attorney fees.

b. Eileen's motion to intervene

On September 18, 2013 Eileen, represented by separate counsel, moved to intervene in the action. On February 5, 2014 the court granted Eileen's motion; and Eileen filed a complaint in intervention alleging she was the real party in interest and Tepper lacked standing to file this, or any, lawsuit on her behalf.

c. Martha, Geoffrey, Derek and Eileen's motion for judgment on the pleadings

Martha, Derek, Geoffrey and Eileen filed answers to Tepper's complaint. On March 5, 2014 Martha, individually and in her capacity as a co-trustee of Eileen's revocable living trust, moved for judgment on the pleadings asserting Tepper lacked standing to bring the elder abuse action on Eileen's behalf. Geoffrey, Derek and Eileen filed notices of joinder in Martha's motion. On August 20, 2014 the court granted the motion, but granted Tepper leave to amend her complaint.

d. Tepper's first amended complaint

On September 19, 2014 Tepper filed a first amended complaint substantially repeating the allegations of elder financial abuse. As to standing Tepper added, "Plaintiff brings this action in the name of Eileen, the real party [in] interest, who is incapable of bringing the action herself. Eileen has no awareness of her finances or how her continued trust in Defendants is harming her financial security. Defendants are Eileen's other three children and they are or have been trustees of various Trusts established by Eileen and her late husband.... While Eileen is nominally a Co-Trustee [of her revocable living trust], it is clear she has entirely delegated control of her finances to the Defendants. This action became necessary after the Defendants failed to respond to requests for an accounting and information about expenditures from Eileen's trusts after Eileen's professional advisers became concerned that she would shortly run out of money.^{[2 ]}[¶] ... A formal conservatorship action is not required to act on behalf of Eileen because it would unnecessarily involve her in proceedings primarily concerned with her capacity rather than the actions being taken by her fiduciaries and would create additional expense for her. A conservatorship would focus the legal action as an attack on Eileen's capacity, rather than an attempt to protect her from her children/trustees who are endangering her financial security."

Tepper further alleged Eileen's "lack of understanding of her situation" was supported by numerous statements Eileen had made during her deposition including: She does not sign her own checks, does not have a budget and does not know specifically how her money is being spent; she relied on her lawyer to produce documents at her deposition; she could not independently describe the extent of gifts being made from her assets by her three co-trustees; and she was under the "mistaken impression" that Tepper was suing her. Tepper attached transcripts from Eileen's deposition as exhibits to support these allegations. This time, in her prayer for relief Tepper sought compensatory and punitive damages "payable to Eileen Wilkins or her designated trust," as well as Tepper's reasonable attorney fees.

On February 26, 2015 Martha, individually and as co-trustee, demurred to the amended complaint asserting, primarily, Tepper's lack of standing to pursue the elder financial abuse action on Eileen's behalf. Eileen, Geoffrey and Derek joined in Martha's demurrer.

On November 24, 2015 the court sustained without leave to amend the Wilkinses' demurrer to Tepper's complaint, ruling Tepper "did not allege facts showing she has standing to assert the financial elder abuse claim on behalf of Eileen Wilkins." After this court advised her counsel that an order sustaining a demurrer was not an appealable order, Tepper obtained an order dismissing her complaint with prejudice; and judgment was entered for the defendants on February 2, 2017.

DISCUSSION

1. Standard of Review

A demurrer tests the legal sufficiency of the factual allegations in a complaint. We independently review the superior court's ruling on a demurrer and determine de novo whether the pleading alleges facts sufficient to state a cause of action or discloses a complete defense. (Loeffler v. Target Corp . (2014) 58 Cal.4th 1081, 1100, 171 Cal.Rptr.3d 189, 324 P.3d 50 ; McCall v. PacifiCare of Cal., Inc . (2001) 25 Cal.4th 412, 415, 106 Cal.Rptr.2d 271, 21 P.3d 1189.) We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded and matters of which judicial notice has been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1, 20, 40 Cal.Rptr.3d 205, 129 P.3d 394 ; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569.) However, we are not required to accept the truth of the legal conclusions pleaded in the complaint. (Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, 119 Cal.Rptr.2d 709, 45 P.3d 1171 ; Yhudai v. Impac Funding Corp . (2016) 1 Cal.App.5th 1252, 1257, 205 Cal.Rptr.3d 680.) We liberally construe the pleading with a view to substantial justice between the parties. (Code Civ. Proc., § 452 ; Gilkyson v. Disney Enterprises, Inc . (2016) 244 Cal.App.4th 1336, 1340, 198 Cal.Rptr.3d 611 ; see Schifando , at p. 1081, 6 Cal.Rptr.3d 457, 79 P.3d 569 [complaint must be read in context and given a reasonable interpretation].)

2. The Court Did Not Err in Ruling Tepper Lacked Standing To Bring the Elder Abuse Action

a. Governing law

The Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst. Code, § 15600 et seq. )³ was enacted in 1982 to "protect a particularly vulnerable portion of the population from gross mistreatment in the form of abuse and custodial neglect." (Delaney v. Baker (1999) 20 Cal.4th 23, 33, 82 Cal.Rptr.2d 610, 971 P.2d 986 ; accord, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 779, 11 Cal.Rptr.3d 222, 86 P.3d 290.) Among other things, the Elder Abuse Act provides that any person who takes, secretes, appropriates, obtains or retains real or personal property of "an elder"—a person residing in this state who is 65 years or older (§ 15610.27)—for a wrongful use or with the intent to defraud or by undue influence is liable for elder financial abuse. (§ 15610.30, subd. (a); see §§ 15657.5 [authorizing action for damages and recovery of enhanced remedies in certain circumstances], 15657.6 [return of property].)

Special standing rules apply in certain circumstances for actions under the Elder Abuse Act. Generally, an action must be prosecuted by the real party in interest, that is, the person aggrieved by the alleged conduct or otherwise "beneficially interested" in the controversy. (See Code Civ. Proc., § 367 ["[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute"]; Carsten v. Psychology Examining Com. (1980) 27 Cal.3d 793, 796, 166 Cal.Rptr. 844, 614 P.2d 276 [a real party in interest is one who is beneficially interested in the controversy, that is, one who has "some special interest to be served or some particular right to be preserved or protected"]; Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American Dist. of the Assemblies of God (2009) 173 Cal.App.4th 420, 445, 93 Cal.Rptr.3d 75 [same].) The Elder Abuse Act, however, authorizes an action to be brought not only by the elder, but also by the elder's "personal representative" when the elder is alive but "lacks capacity under section 812^{[4 ]} of the Probate Code, or is of unsound mind, but not entirely without understanding, pursuant to [...