White v. Davis

• Decision Date: 05 January 2023
• Docket Number: E077320
• Parties: Laura WHITE, as Trustee, etc., Plaintiff and Appellant, v. Russell Lowell DAVIS et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

87 Cal.App.5th 270

303 Cal.Rptr.3d 480

Laura WHITE, as Trustee, etc., Plaintiff and Appellant,

v.Russell Lowell DAVIS et al., Defendants and Appellants.

E077320

Court of Appeal, Fourth District, Division 2, California.

Filed January 5, 2023

Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Santa Monica, Evan D. Marshall ; Law Offices of Steven Glick, Stephen Glick, Los Angeles, and M. Anthony Jenkins for Defendants and Appellants.

Sheppard, Mullin, Richter & Hampton, Adam F. Streisand, Nicholas J. Van Brunt and Valerie E Alter, Los Angeles, for Plaintiff and Appellant Laura K. White.

OPINION

McKINSTER, J.

Defendants and appellants Russell Lowell Davis (Davis), Ian Herzog (Herzog), Evan D. Marshall (Marshall), Debra Wear (Wear), Gloria Tedesco (Gloria), and Stephen Carpenter (Carpenter) (collectively defendants) appeal from the March 22, 2021 order, which denied each of their special motions to strike ( Code Civ. Proc., § 425.16 ; anti-SLAPP statute)¹ the corresponding applications for elder abuse restraining orders (EARO) filed by plaintiff and appellant Laura White (White), as cotrustee of the Thomas S. Tedesco Living Trust (the living trust), to protect her father, conservatee Thomas S. Tedesco (Thomas) from defendants' concerted efforts to isolate and unduly influence him to change his estate plan for their benefit.² White cross-appeals from the same order denying her request to hear the EARO applications prior to the anti-SLAPP motions.

On appeal, defendants contend that (1) White has no standing to request the EAROs because she is unable to establish that she is either a trustee of the living trust or fiduciary of Thomas; (2) the lower court erred in assuming the conservatorship is valid and White is a cotrustee of the living trust, and relying on this court's opinions affirming the probate court's actions; (3) the court erred by denying defendants' anti-SLAPP motions; (4) their assistance in asserting Thomas's civil and testamentary rights cannot be restrained by an EARO to prevent them from seeking a judicial determination that will resolve the very issue raised by the EARO; (5) the EAROs must be stricken because they interfere with Orange County's exclusive subject matter jurisdiction; and (6) the court erred in proceeding without joinder by Thomas.

In response, White asserts that Wear's anti-SLAPP motion is moot given this court's affirmance of the EARO against her, the anti-SLAPP motions were properly denied, and defendants' remaining contentions lack merit. In her cross-appeal, she argues the trial court abused its discretion in refusing to rule on her applications before deciding the anti-SLAPP motions.

We affirm the order denying each special motion to strike; however, we conclude the trial court abused its discretion in failing to utilize its case management tools and prevent a delay in hearing the merits of the applications for EAROs by failing to either (1) revisit the prior denial of temporary EAROs and grant temporary relief pending the resolution of defendants' anti-SLAPP motions (through appeal), or (2) decide the applications and the anti-SLAPP motions at the same time. Thus, the matter is remanded for the trial court to proceed to trial on White's applications for EAROs regarding all defendants except Wear, against whom an EARO is already in place.

I. PROCEDURAL BACKGROUND AND FACTS³

A. Background History of the Parties.

Thomas is a wealthy nonagenarian, having amassed more than $40 million in various assets which were held by TW Tedesco Properties, L.P., a California limited partnership (Tedesco Properties).⁴ ( White, supra , 76 Cal.App.5th at pp. 27-28, 290 Cal.Rptr.3d 876.) In 1988, he and his late wife created an estate plan to benefit their three daughters, White, Sandra Kay, and Julie Bas, and their grandchildren. Part of the estate plan included the creation of the living trust and W. Mae, LLC, a California limited liability company (W. Mae). ( Id. at pp. 28-29, 290 Cal.Rptr.3d 876.)

After the death of his first wife, on March 25, 2007, Thomas married Gloria (nee Basara) who had two daughters from a prior relationship, Wear (aka Debbie Basara Wear) and Wendy Basara (Wendy). Since both Thomas and Gloria entered the marriage with multimillion-dollar estates, they executed prenuptial and postnuptial agreements. ( White, supra , 76 Cal.App.5th at p. 28, 290 Cal.Rptr.3d 876.) There were extensive discussions regarding Thomas's residence. According to Thomas's family/estate plan attorney Burton A. Mitchell (Mitchell), the prenuptial agreement and modifications to Thomas's estate plan grant Gloria a life estate in Thomas's residence should she survive him; however, the documents do not bequeath to her fee title to his interest in the residence. ( Tedesco I , E070316.)

On February 11, 2011, Thomas appointed his three daughters as his true and lawful attorneys to act in any lawful way for him and his name, place, and stead, and for his use and benefit as authorized. Thus, Thomas's daughters were authorized to transfer trust assets and file any necessary tax returns, and if a conservatorship was needed, they were nominated to serve, acting by majority vote. ( White, supra , 76 Cal.App.5th at p. 28, 290 Cal.Rptr.3d 876.) Following the creation of W. Mae (Sept. 2012), on December 26, 2012, Thomas gifted the living trust's general partner's interest in Tedesco Properties to W. Mae.⁵ ( Tedesco I , E070316 ) On or about February 20, 2013, Thomas's daughters authorized Wells Fargo Bank, N.A., to change the signer on the Tedesco Properties' account. ( Ibid. ) On January 3, 2013, the gift documents were sent to Capitol Services for filing with the California Secretary of State; however, on March 28, 2013, Mitchell's paralegal was informed that they were rejected because the Secretary of State "now require[d] not only the signature of the new general partner, but also the signature of the former general partner." Thus, the paralegal revised the form to add a signature block for Thomas, as former general partner, and faxed the revised form to him for signature. Thomas signed the revised form and returned it on April 4, 2013. The amendment to the certificate of limited partnership, which evidences the transfer of the living trust's general partner's interest in Tedesco Properties to W. Mae, was filed with the Secretary of State that same day, April 4, 2013. ( Tedesco I , E070316.)

After the gift documents were filed with the Secretary of State, Thomas underwent bladder surgery

on April 15, 2013, and back surgery on April 30. On June 5, 2013, Thomas resigned as trustee of the living trust, and his three daughters began to serve as successor cotrustees. ( White, supra , 76 Cal.App.5th at pp. 28-29, 290 Cal.Rptr.3d 876.) Twenty-four days later, on June 29, Thomas signed an amendment to the living trust, prepared by Mitchell, which made the living trust irrevocable and unmodifiable without the written consent of Thomas and his daughters. ( Id. at p. 29, 290 Cal.Rptr.3d 876.) Thomas underwent a second bladder surgery

on July 30, 2013.

During the first six years of Thomas and Gloria's marriage, no issues arose regarding Thomas's estate plan, which favored his biological heirs. However, by fall 2013, after undergoing multiple surgeries, Thomas had become intellectually impaired and susceptible to being unduly influenced. He ended his decades-long relationship with Mitchell, who stated: " ‘[I]t was very difficult to communicate with [(Thomas)], as Gloria seemed to be blocking the calls. When [Mitchell] called, either [Thomas] was never there or someone else was on the phone. [Mitchell] related that he heard other voices in the background, particularly Gloria, telling Thomas what to say [and Mitchell] ha[d] seen scripts written for [Thomas] regarding what he [was] to say to his attorney.’ " ( White, supra , 76 Cal.App.5th at p. 29, 290 Cal.Rptr.3d 876.) Around the same time, "White and her sisters were denied access to their father. A housekeeper ... confronted Gloria and said, ‘ " ‘You can't keep the girls from seeing their dad. They're not stupid!’ " ’ Gloria responded, ‘I don't care.’ Gloria told Thomas that his daughters were ‘being bad’ to her, blocked his communication with his family, and attempted to erase them from his memory by removing their photographs [from the residence]. Gloria prepared scripts⁶ for Thomas to say to Mitchell or his daughters and caused him, for the first time, to express a desire to leave 75 percent of his estate to Gloria and 25 percent to charity." ( Ibid. ) Gloria further wanted outright ownership of Thomas's residence. ( Tedesco I , E070316.)

B. The Conservatorship.

As Thomas's memory took a "huge nose dive" in 2013, he stopped paying bills and taxes, resulting in significant penalties. On September 9, 2013, Dr. Ivor J. Nazareth, a neurologist, evaluated Thomas and reported that he had "significant cognitive impairment with a Mini Mental State Examination

score of 23 out of 30."⁷ The doctor opined that Thomas "is unable to make consistent and reliable rational decisions, especially when it comes to his health or handling any financial issues, even simple ones. He needs total supervision" ( Tedesco I , E070316.) Concerned about Thomas's health and Gloria's actions, on May 2, 2014, White petitioned for the appointment of a conservator of Thomas's person, and later amended the petition to seek a conservator of his estate. On October 17, 2014, the probate court appointed Kenneth Jenkins (Jenkins) as the guardian ad litem (GAL) for Thomas with authority to investigate, retain, and discharge counsel for Thomas's protection. ( Tedesco I , E070316.) Jenkins opposed the appointment of attorney Mary Gilstrap as Thomas's counsel on the grounds a conflict of interest existed since Gloria's attorney had recommended Gilstrap to Thomas. ( Ibid. )

Undeterred by White's petition for a conservatorship, Gloria and Wear continued to influence Thomas to change his estate plan by isolating him from his...