White v. Wear

• Decision Date: 08 March 2022
• Docket Number: E076352
• Parties: Laura WHITE, Plaintiff and Respondent, v. Debra WEAR, Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

76 Cal.App.5th 24

290 Cal.Rptr.3d 876

Laura WHITE, Plaintiff and Respondent,

v.Debra WEAR, Defendant and Appellant.

E076352

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

Filed March 8, 2022

Herzog, Yuhas, Ehrlich & Ardell, Ian Herzog, Santa Monica, and Evan D. Marshall for Defendant and Appellant.

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

OPINION

McKINSTER, J.

The parties to this appeal are no strangers to this court. This case is yet another skirmish in a long series of disagreements about the control of the multi-million-dollar estate¹ of nonagenarian² Thomas S. Tedesco.³ Plaintiff and respondent Laura White is one of Thomas's three biological daughters and a cotrustee of his living trust. ( Conservatorship of Tedesco (Sept. 19, 2019, E070316), 2019 WL 4508965 [nonpub. opn.] review denied Dec. 18, 2019, S258835 ( Conservatorship , E070316 ).) Defendant and appellant Debra Wear aka Debbie Basara Wear is one of Thomas's stepdaughters. In 2013, Thomas suffered serious health issues, which resulted in significant cognitive impairment, leaving him susceptible to being unduly influenced by anyone close to him. Gloria Tedesco, Thomas's second wife, began denying White and her sisters access to their father, causing him to believe that they were stealing from him. Wear assisted Gloria, her mother, in unduly influencing Thomas via contacting, or facilitating access to, attorneys in order to change Thomas's estate plan to disinherit his biological family in favor of Gloria and her family. Thus, on August 13, 2015, a permanent conservator of Thomas's estate was appointed.

Despite the existence of the conservatorship, Wear continued to assist Gloria in taking actions to unduly influence Thomas to change his 30-plus-year estate plan. Consequently, upon White's petition, the superior court issued an elder abuse restraining order (EARO), restraining Wear for three years from, among other things, financially abusing Thomas, contacting him (either directly or indirectly), facilitating any change to his estate plan, coming within 100 yards of him, and possessing any guns, other firearms, and ammunition. ( Welf. & Inst. Code,⁴ § 15657.03.) Wear contends the EARO is void because (1) the judge was disqualified and (2) he violated due process by substantially amending the allegations in the petition and prohibiting her from possessing firearms and ammunition. She further asserts the petition fails to state a cause of action for elder financial abuse. We agree the court erred in including a firearms and ammunition restriction in the EARO and direct the court to strike it. Otherwise, we affirm.⁵

I. PROCEDURAL BACKGROUND AND FACTS

A. Background History of the Parties.

Thomas obtained his wealth through the sale of the family business and the purchase of commercial properties. In 1988, he and his late wife Wanda created an estate plan to benefit their three daughters, White, Sandra Kay, and Julie Bas, and their grandchildren. In 1993, Thomas and Wanda created TW Tedesco Properties, L.P., a California limited partnership, and the partnership interests were subsequently transferred to the Tedesco Family Trust. Wanda died in 2002, and the Tedesco Family Trust was divided into five separate trusts, including a survivor's trust, which was renamed the Thomas S. Tedesco Living Trust (the Living Trust). ( Conservatorship , E070316.)

On March 25, 2007, Thomas married Gloria (nee Basara) who had two daughters from a prior relationship, Wear and Wendy Basara (Wendy). Their marriage was subject to prenuptial and postnuptial agreements because both Thomas and Gloria entered the marriage with multi-million dollar estates. On February 11, 2011, Thomas appointed his three daughters as his "true and lawful attorneys in fact ... to act in any lawful way for [him] and in [his] name, place and stead and for [his] use and benefit as authorized." Thomas's three daughters were authorized to transfer trust assets and file any necessary tax returns, and if a conservatorship was needed, Thomas nominated them to serve, acting by majority vote. In September 2012, W. Mae, LLC, a California limited liability company (W. Mae), was created and Thomas gifted the Living Trust's general partner's interest in TW Tedesco Properties, L.P. to W. Mae. On June 5, 2013, Thomas resigned as trustee of the Living Trust, and his three daughters began to serve as successor cotrustees. ( Conservatorship , E070316.) On June 29, 2013, Thomas signed an amendment to the Living Trust, prepared by his family/estate plan attorney Burton A. Mitchell (Mitchell), which made the Living Trust irrevocable and unmodifiable unless Thomas and his daughters consented in writing.

During the first six years of Thomas and Gloria's marriage, no issues were raised regarding Thomas's estate plan, which favored his biological heirs. However, in Fall 2013, after undergoing multiple surgeries, Thomas became intellectually impaired and susceptible to being unduly influenced. He ended the decades-long relationship with Mitchell, who stated: "[I]t was very difficult to communicate with his client [(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." At the same time, White and her sisters were denied access to their father. A housekeeper, Virginia Winn, 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 photographs of them. 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.

B. The Conservatorship.

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. Undeterred by White's petition for conservatorship of Thomas's estate, Gloria and Wear continued to influence Thomas to change his estate plan. Thus, on January 14, 2015, White applied for a restraining order against Wear on the grounds that she was " ‘scheming to sabotage [Thomas's] relationship with his daughters, attempting to have [Thomas] amend his estate plan to favor Gloria, and trying to have [Thomas's] daughters removed as trustees of the relevant trusts.’ " On January 15, 2015, White obtained a temporary restraining order (TRO) against Wear requiring her to refrain from discussing the issues of the conservatorship or Thomas's estate plan, or facilitating his access to any bank, accountant, attorney, or financial planner regarding the conservatorship or his estate plan. However, because Wear did not accept service of the TRO, service of process was not completed and, as a result, there was no hearing on the restraining order.⁷

On June 15, 2015, after a contested trial, the probate court concluded a temporary conservator of Thomas's estate was necessary because Thomas was mentally deficient and "very susceptible to being unduly influenced."⁸ Thus, it appointed Kenneth F. Jenkins as the temporary conservator of Thomas's estate A permanent conservator of Thomas's estate was appointed on August 13, 2015. Nonetheless Wear, a paralegal for Russell Davis (R. Davis), facilitated Thomas's communications with R. Davis who repeatedly requested to be appointed counsel for Thomas. ( Conservatorship , E070316.) Each of R. Davis's requests for appointment were denied by the probate court, which explained that the " ‘history of this case reflects a crucial need that independent counsel represent [Thomas], meaning that counsel be not related with or retained by family members who may have or might be involved in influencing the conservatee and retained counsel.’ "⁹ ( Conservatorship , E070316.)

By 2017, R. Davis requested authority for Thomas to engage the services of the Herzog, Yuhas, Ehrlich & Ardell (The Herzog firm) and Joseph Davis (J. Davis).¹⁰ ( Conservatorship , E070316.) The Herzog firm and R. Davis have repeatedly requested the probate court terminate the conservatorship, and they have initiated several actions against Thomas's biological family members and in-laws accusing them of misappropriating his assets. ( Conservatorship , E070316.) Moreover, Wear has remained close to Thomas, including attending, and sitting next to him at, his depositions. In Thomas's September 11, 2018 deposition, Thomas described Wear as his "sweetheart" and claimed to have borrowed $40,000 or $50,000 from her.

C. The Petition for an Elder Abuse Restraining Order.

On April 27, 2020, White, as a cotrustee of the Living Trust, petitioned the superior court for the EARO against Wear and several others,¹¹ based on their continued efforts to unduly influence Thomas to change his estate plan for their benefit. Their latest action involved the creation of a purported amendment to the Living Trust, which was signed on January 20, 2020, without notice to, or approval of, the conservator of Thomas's estate, the probate court, or the trustees of the Living Trust. The purported amendment provides that Thomas is disinheriting his biological children and grandchildren in favor of Gloria and her daughters, Wear and Wendy.¹²

On March 12, 2020, R. Davis sent a letter¹³ to Thomas's daughters and their attorney to inform them that Thomas had changed the designated beneficiaries of the Living Trust. According to the purported 2020 amendment, 75...