PETER HALL v. SOFIYA KAZARYAN (2010)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Peter G. Hall (Hall) appeals the denial of his petition challenging donative transfers from his deceased aunt, Geraldine Schultheis (Schultheis), to Sofiya Kazaryan (Kazaryan).   Relying on Probate Code section 21350, subdivision (a)(6),¹ he contends:  (1) the undisputed evidence establishes that Schultheis was a “dependent adult” because her physical abilities had diminished due to age, and the law and evidence do not support the probate court's contrary factual findings;  (2) Kazaryan was a “care custodian” and the probate court should have made that determination;  and (3) based on the foregoing, the donative transfers were invalid.

We find no error and affirm.

FACTS

Facts stipulated by the parties prior to trial

Schultheis was born on January 2, 1918.   In 1992, she established the Schultheis Trust dated April 7, 1992 (1992 Trust).   Hall was named as the successor trustee and his sister, Patricia Hall Soule (Soule), was named as alternate successor trustee.   The sole beneficiary was Schultheis's sister, Barbara Hall.

Beginning in 2000, Kazaryan worked part-time for Pegasus Health Care Services, Inc. (Pegasus), a company that provides private health care services to adults who require assistance in their homes.   In 2001, Schultheis spent time in a hospital and needed care when she got out.   Her great nephew, Richard Peter Parks (Parks), hired Kazaryan through Pegasus to provide care to Schultheis, including bathing Schultheis and hooking her up to oxygen every two hours.

Schultheis canceled her home care through Pegasus in July 2001.   She and Kazaryan, however, maintained a relationship.

In April 2002, Schultheis hired attorney Christopher E. Overgaard (Overgaard) to amend the 1992 Trust.   She executed an Amended Declaration of Trust on May 6, 2004 (2004 Trust).   Kazaryan was named as the successor trustee and Soule was named as the alternate successor trustee.   The 2004 Trust provided that upon Schultheis's death, all furnishings, jewelry and other tangible personal property were to be distributed to Soule;  $20,000 and Schultheis's condominium (condo) located in Glendale, California were to be distributed to Kazaryan;  and the residue was to be distributed to Soule, Hall, Robin Hall and Lea Cohen equally.

Schultheis died on September 2, 2006, and the 2004 Trust became irrevocable.   As trustee, Kazaryan transferred the condo to herself.   She then transferred the condo to her son, Gary Kazaryan (Gary).   Kazaryan and her family moved into the condo.   A trust distribution check was mailed to Hall and he cashed it.   In June 2007, Gary took a loan of $150,000 out against the condo.   He later refinanced and borrowed $250,000.

Hall filed a petition for order disallowing distribution and removing disqualified trustee (petition).   He alleged that the donative transfers of the condo and $20,000 to Kazaryan were invalid because Schultheis was a “dependent adult” and Kazaryan was a “care custodian,” and also that section 15642, subdivision (b)(6) required the removal of Kazaryan as trustee.

Trial

Dr. Lim L. Taw was the first witness.   He testified that he treated Schultheis from 1994 until her death.   She was admitted to a hospital in 2001 for acute congestive heart failure, chronic obstructive pulmonary disease and chronic arterial fibrillations.   She was admitted to the hospital in early 2002 for the same reason.   He believed Schultheis needed care and assistance and should not be alone with her oxygen because she was a smoker.   Schultheis suffered from urinary incontinence and did not drive.   But still, in 2002, she was capable of feeding herself, getting dressed and arranging for the acquisition of groceries.   At no time did Dr. Taw believe that Schultheis was mentally incompetent.

Next, Hall called Parks to the stand.   At some point, he received phone calls from Kazaryan and Schultheis saying that Schultheis wanted to cancel the contract with Pegasus.   He met with them, and together they decided that Schultheis would hire Kazaryan outside of Pegasus and remain on the same payment plan for the rest of Schultheis's life.   Due to Schultheis's diminished capacity, she could not write checks or sign her own name.   Kazaryan started signing Schultheis's checks and paying Schultheis's bills.   When he went to Schultheis's home around the time the Pegasus contract was canceled, he saw that Kazaryan had moved in some furniture.   It was apparent to Parks that Kazaryan had been spending time there overnight.   Parks did not have much more contact with Schultheis because he was busy, she was “very, very busy doing other things,” and she was less able to communicate.   But he knew that she liked to go to casinos with Kazaryan up through 2004.

Schultheis's hairstylist, Peter Ralph Cortez (Cortez), testified that he had an appointment with her every Saturday at 1:30 p.m. from 2002 until a week before she passed away.   They frequently spoke about Kazaryan.   Schultheis said she loved Kazaryan, who was like a daughter, and that she felt like she was part of Kazaryan's family.   Schultheis stated that she enjoyed going to casinos and spending holidays with Kazaryan's family, and that she wanted Kazaryan to have the condo when Schultheis died.   To pay for Cortez's services, Schultheis wrote a check.   Cortez opined that it would be impossible for Kazaryan to influence Schultheis because she “was a very strong lady and she had ․ her strong feelings of how she wanted things done.”

Kazaryan also testified.   She worked as a certified nurse assistant and had training in caring for elderly patients.   From March to July of 2001, she provided health care services to Schultheis.   Afterwards, they spent “a lot of time” together.   At first, Kazaryan did not receive any money.   Kazaryan said she would be responsible for Schultheis, and that Schultheis did not have to worry about being placed in a nursing home.

Kazaryan was working 12 hours a day, so she could not take care of Schultheis.   But she dropped by Schultheis's home seven days a week to check up on her.   At some point, probably in 2003, Schultheis lost her balance and fell in a parking lot.   She was hospitalized.   After she got out, she stopped driving and began paying Kazaryan $900 a month.   When Kazaryan was asked what she did with the money, she stated that she used it to buy medicine for Schultheis and pay an acquaintance named Marina to help Schultheis.   In May 2004, Schultheis gave Kazaryan health care power of attorney because Schultheis wanted to avoid being placed in a nursing home by her family.   From 2001 through 2004, Kazaryan went shopping for or with Schultheis.   Sometimes Kazaryan or Marina prepared meals for Schultheis, but Schultheis did not need their help.   Also, Kazaryan helped Schultheis with her medication and took her to doctor's appointments and the bank and sometimes, if asked, took her on errands.   Still, Schultheis always bathed and dressed herself, and she did her own laundry.   Sometimes Schultheis went to Kazaryan's apartment for dinner and spent the night.   Other times, Schultheis would stay at Kazaryan's apartment for a week.

On cross-examination, Kazaryan testified that after July 2001, Schultheis no longer needed a caregiver.   Kazaryan described her relationship to Schultheis as a friendship.   They went on vacations together, and Schultheis celebrated holidays with Kazaryan's family.   Schultheis hosted pool parties for Kazaryan's daughter.   When Schultheis died, Kazaryan and her family organized the funeral and services.   In 2004, Kazaryan made no medical decisions for Schultheis.   In the five years that Kazaryan knew Schultheis, she often spent time alone.   According to Kazaryan, “Marina only went to see her for four hours;  otherwise, she didn't really need it.”

Last to testify was Overgaard.   When he met with Schultheis in 2004 to discuss changing the 1992 trust, she was “very lucid at that time and very clear.”   Schultheis said she was very close to Kazaryan and her family, and that Kazaryan was like a daughter.   Overgaard asked if Kazaryan was a caregiver, and he explained why the question was relevant.   Schultheis said that Kazaryan was not a caregiver, she was a friend.   He recommended that Schultheis obtain a certificate of independent review, but he did not think it was absolutely necessary.

Denial of Hall's petition

The probate court denied Hall's petition on the grounds that Schultheis was not a dependent adult.   In ruling, the probate court stated:  “I believe she was limited.   I don't think she drove and she did need full-time care from March of 2001 until July of 2001.[¶]  [Schultheis] was dependent on [Kazaryan] perhaps in a social way, but she wasn't dependent on her for her food, she wasn't dependent on her for her medication, she wasn't dependent on her to dress.   The testimony is that [Schultheis] was able to cook for herself, dress herself, bathe herself, and that she didn't need assistance with her activities of daily living.”

This timely appeal followed.

DISCUSSION

Hall challenges the legal basis for the probate court's ruling as well as the sufficiency of the evidence.   We review issues of statutory interpretation de novo.  (Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 219.)   In addition, we review the probate court's factual findings under the substantial evidence test.  (Romo v. Ford Motor Co. (2002) 99 Cal.App.4th 1115, 1139.)

A. The statutory scheme.

Section 21350, subdivision (a)(6) provides that no provision of any instrument shall be valid to make any donative transfer to “[a] care custodian of a dependent adult who is the transferor.” ²  The term dependent adult has the meaning set forth in Welfare and Institutions Code section 15610.23 “and also includes those persons who (1) are older than age 64 and (2) would be dependent adults, within the meaning of [Welfare and Institutions Code] [s]ection 15610.23, if they were between the ages of 18 and 64.” (§ 21350, subd. (c).)  A dependent adult means “any person between the ages of 18 and 64 years who resides in this state and who has physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights, including, but not limited to, persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.”  (Welf. & Inst.Code, § 15610.23, subd. (a).)

According to Hall, there are two tests for whether a person is a dependent adult.   The first test is whether a person has physical or mental limitations.   The second test is whether a person's physical or mental abilities diminished due to age.   Hall maintains that the second test is easier to meet than the first and is designed to protect the elderly.³  He does not distinguish between the two tests, but by implication he suggests that diminished abilities make any elderly person a dependent adult even if he or she can fully engage in normal activities.   We turn to this issue.

When interpreting a statute, we must “ ‘ascertain the intent of the Legislature in order to effectuate the purpose of the law․’ ”  (Klajic v. Castaic Lake Water Agency (2001) 90 Cal.App.4th 987, 997.)   We look to the words of the statute and try to give effect to the usual, ordinary import of the language.  (Ibid.) If the words are unambiguous, courts need not engage in interpretation.  “However, despite the general rule that ambiguity is a condition precedent to interpretation, ‘ “[the] literal meaning of the words of a statute may be disregarded to avoid absurd results or to give effect to manifest purposes that, in the light of the statute's legislative history, appear from its provisions considered as a whole.” ’  [Citation.]”  (California Ins. Guarantee Assn. v. Liemsakul (1987) 193 Cal.App.3d 433, 439.)

“When the plain meaning of the statutory text is insufficient to resolve the question of its interpretation, the courts may turn to rules or maxims of construction ‘which serve as aids in the sense that they express familiar insights about conventional language usage.’  [Citation.]”  (Mejia v. Reed (2003) 31 Cal.4th 657, 663.)   Thus, “when the statutory language is ambiguous and susceptible to more than one reasonable interpretation, ‘we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.’  [Citation.]”  (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 205.)   In addition, we can consider, “the consequences that will flow from a particular interpretation.”  (Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)

We perceive no reason to go beyond the plain language of Welfare and Institutions Code section 15610.23, subdivision (a).   It defines a dependent adult as a person with physical or mental limitations that restrict his or her ability to carry out normal activities or protect her rights.   That is the sole test.   The statute establishes that different types of persons might satisfy this test, “including, but not limited to persons who have physical or developmental disabilities, or whose physical or mental abilities have diminished because of age.”  (Welf. & Inst.Code, § 15610.23, subd. (a).)  In other words, physical or developmental disabilities, or age-related loss of physical or mental abilities, are just two examples of reasons why a person may have “physical or mental limitations that restrict his or her ability to carry out normal activities or to protect his or her rights.”  (Welf. & Inst.Code, § 15610.23, subd. (a).)  Thus, not any physical or developmental disability or any age-related loss of physical or mental disabilities renders a person a dependent adult.   Those categories of people are dependent adults only if their disabilities or diminished abilities restrict normal activities or the ability to protect personal rights.   If not for this qualifier, every elderly person would be a dependent adult because age diminishes everyone in some respect.

Even if we concluded that the statute was ambiguous, which is not the case, we would nonetheless hold on policy grounds that there is but one test.   The only reason to have two tests is if there are two categories of dependent adults, each category requiring a different level of mental or physical limitation.   One category of persons would have greater protection and more difficulty in making successful donative transfers than the other category, which would be an absurd result.   Under Hall's reasoning, an elderly person with diminished sight due to age would fall within the protection of section 21350 even if he or she was not restricted in normal activities.   A similarly situated young person with limited sight due to an injury would not be protected and burdened by section 21350.   We do not accept this construction.

The last question presented is the practical meaning of the statute.   The answer was provided in People v. Matye (2008) 158 Cal.App.4th 921.   It interpreted Penal Code section 368, subdivision (h), which defined a dependent adult in the same manner as Welfare and Institutions Code section 15610.23, subdivision (a) and held that the “word ‘restrict’ is not synonymous with ‘preclude.’   Therefore, it is not necessary to prove the person is incapable of carrying out normal activities or of protecting the person's rights;  it is sufficient that the person's ability to do so is limited in some significant way.”  (People v. Matye, supra, 158 Cal.App.4th at p. 923.)

B. Schultheis was not a dependent adult.

After reviewing the record, we conclude that the evidence supports the probate courts factual findings.

Dr. Taw testified that in 2002, Schultheis was capable of feeding herself, getting dressed and arranging for the acquisition of groceries.   In 2004, according to Parks, he did not communicate with Schultheis, in part, because she was so busy doing other things.   Schultheis kept her 1:30 p.m. hair appointments with Cortez up until a week before she passed away.   He described her as a very strong lady who had strong opinions about the way she wanted things done.   Kazaryan testified that after 2001, Schultheis no longer needed a care giver.   Though Kazaryan and Marina sometimes prepared meals for Schultheis, she did not need it.   Schultheis bathed and dressed herself, and she did her own laundry.   Indeed, she spent much time alone from 2001 to 2006 and did not need to be supervised.   In Overgaard's opinion, Schultheis was very lucid and very clear.   The foregoing evidence supports a reasonable inference that Schultheis's physical ability was not limited in a significant way in May 2004 because she was able to take care of herself and engage in an active social life.   The further inference is that to the degree her physical ability was significantly limited due to any hospitalizations, any such limitation was temporary and did not persist in 2004.

Hall complains that the probate court improperly glossed over and ignored the following:  (1) Dr. Taw testified that he determined that Schultheis needed care and assistance after she was hospitalized with acute congestive heart failure and chronic obstructive lung disease because she was discharged from the hospital with oxygen.  (2) Schultheis was hospitalized a second time for the same heart and lung problems.  (3) Dr. Taw told Parks that Schultheis was unable to live alone.  (4) Schultheis suffered from urinary incontinence.  (5) Dr. Taw opined that Schultheis relied on Kazaryan for assistance.  (6) Schultheis stopped driving in 2003.(7)  Kazaryan went shopping with or for Schultheis.  (8) Kazaryan helped prepare food for Schultheis.  (9) Kazaryan helped with organizing Schultheis's medications and making sure they were taken when required.  (10) Kazaryan always took Schultheis to her appointments with Dr. Taw and he told Schultheis she was very lucky to have Kazaryan.  (11) Kazaryan took Schultheis to the bank, errands, casinos, outings and visits to Kazaryan's home.  (12) Marina was paid by Kazaryan with Schultheis's money to take care of Schultheis every day.  (13) Schultheis had two hospitalizations from 2001 to 2004 for acute congestive heart failure.

It is true that we could deduce from this evidence that Schultheis's physical ability was limited in a significant way in 2004.   But this evidence, and the reasonable inferences arising from it, conflict with the evidence and inferences supporting the probate court's ruling and, simply put, we are not empowered to reweigh the evidence.   Our obligation is to resolve all conflicts in the evidence in favor of the prevailing parties.   In doing so, we must draw all reasonable inferences in a manner that supports the challenged ruling.   (Holmes v. Lerner (1999) 74 Cal.App.4th 442, 445;  Kuhn v. Department of General Services (1994) 22 Cal.App.4th 1627, 1632-1633;  Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873-874 [“When a trial court's factual determination is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is substantial evidence, contradicted or uncontradicted, which will support the determination, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the trial court.”   (Italics omitted.) ].)

We have the power to reverse for insufficient evidence only when a ruling is based solely upon unreasonable inferences, speculation or conjecture.  (In re H.B. (2008) 161 Cal.App.4th 115, 120.)   This rule offers Hall no aid.   The evidence underlying the probate courts ruling was solid, and the inferences were reasonable.   Thus, we have no cause to second guess the trier of fact.

Halls presents us with an alternative attack.   He contends that the probate court misapplied the law because it failed to consider Schultheis's age.   But her age was only relevant to whether her physical ability had diminished in some significant way.   The probate court impliedly found that she could carry on the activities of daily living.   In our view, nothing more was required.

Having concluded that the probate court permissibly found that Schultheis was not a dependent adult, we forego analyzing whether the evidence established that Kazaryan was a care custodian.

DISPOSITION

The order denying Hall's petition is affirmed.

Kazaryan is entitled to her costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Probate Code unless otherwise indicated..  FN1. All further statutory references are to the Probate Code unless otherwise indicated.

FN2. Exceptions are set forth in section 21351.   For example, section 21350 does not apply if “[t]he court determines, upon clear and convincing evidence, but not based solely upon the testimony of any person described in subdivision (a) of [s]ection 21350, that the transfer was not the product of fraud, menace, duress, or undue influence.” (§ 21351, subd. (d).).  FN2. Exceptions are set forth in section 21351.   For example, section 21350 does not apply if “[t]he court determines, upon clear and convincing evidence, but not based solely upon the testimony of any person described in subdivision (a) of [s]ection 21350, that the transfer was not the product of fraud, menace, duress, or undue influence.” (§ 21351, subd. (d).)

FN3. Under Hall's reasoning, there would be three tests, the third encompassing people with physical or developmental disabilities..  FN3. Under Hall's reasoning, there would be three tests, the third encompassing people with physical or developmental disabilities.

_, P.J. BOREN _, J. DOI TODD