MARTIN NUBAR SHIRINYAN v. MARI DAVTIAN (2011)

Oldman, Cooley, Sallus, Gold, Birnberg & Coleman and David Coleman for Objector and Respondent.

In this probate case, an heir filed a will contest more than 120 days after the will was admitted to probate, alleging the sole beneficiary had exerted undue influence in persuading the testator to bequeath everything to the beneficiary four days before the testator's death.   The probate court dismissed the will contest on demurrer, concluding it was time-barred.  (See Prob.Code, § 8270, subd. (a).)  No appeal was taken.

The heir then filed another petition in the probate case, alleging the beneficiary's exertion of undue influence over the testator violated the Elder and Dependent Adult Civil Protection Act (Elder Abuse Act) (Welf. & Inst.Code, §§ 15600-15660).   On demurrer, the probate court dismissed the petition in part, concluding that the validity of the will was conclusively presumed and could not be collaterally attacked.   The heir, although given leave to amend in other respects, declined to do so and allowed judgment to be entered.   He appealed.

We conclude that, even if the Elder Abuse Act provides relief where a beneficiary has exerted undue influence on a testator in the making of a will such that the will does not reflect the testator's wishes, the elder abuse claim is expressly barred by statute if it is raised more than 120 days after the will is admitted to probate.  (See Prob.Code, §§ 8270, subd. (a), 8226, subd. (a), 8007.)

I

BACKGROUND

The facts and allegations in this appeal are taken from the record in the prior will contest and the evidence submitted in connection with the subsequent petition under the Elder Abuse Act.

A. Will Contest

On February 17, 2008, Alice Kahanabetian executed a will bequeathing her entire estate to Mari Davtian and nominating Davtian as executrix.   The will recited that Kahanabetian was not married and had no living or deceased children or other issue.   Four days after executing the will, Kahanabetian died in Kaiser Permanente Hospital in Los Angeles, California.

On March 10, 2008, Davtian filed a petition to probate the will and for letters testamentary as well as authorization to administer the estate under the Independent Administration of Estates Act (Prob.Code, §§ 10400-10592).   On April 23, 2008, Davtian filed a supplement to the petition, stating that Kahanabetian was survived by six cousins once removed, including Davtian herself, who lived in San Jose, California, two others who lived in the United States, and three who lived in Armenia.   Notice of the petition to administer Kahanabetian's estate was served on the heirs, including those in Armenia.   The hearing on the petition was ultimately set for June 30, 2008.

After the hearing, the probate court, Judge Aviva K. Bobb presiding, issued an order on July 7, 2008, appointing Davtian as executrix, granting her authority under the Independent Administration of Estates Act, and issuing letters testamentary.   The order stated that the will had been admitted to probate by minute order dated June 30, 2008.  (On appeal, Davtian asserts that the will was admitted to probate by the July 7, 2008 order.)

On October 24, 2008, Davtian filed an inventory and appraisal of the estate, valued at $771,548.52.   The record does not indicate if or when the estate, or any part of it, was distributed.

Davtian filed a demurrer to the will contest, arguing the contest was barred because it was not filed within 120 days after the will had been admitted to probate, that is, within 120 days after June 30, 2008 (based on the admission date stated in the probate court's July 7, 2008 order) or 120 days after the July 7, 2008 order (based on Davtian's contention).   Either way, at the latest, Shirinyan had to file a will contest no later than November 4, 2008.  (See Prob.Code, § 8270, subd. (a).)  As noted, he filed the will contest on December 22, 2008.

By order dated March 13, 2009, the probate court sustained the demurrer without leave to amend and, on May 8, 2009, entered judgment against Shirinyan.   Shirinyan did not appeal, although he had that right.  (See Prob.Code, § 1303, subd. (b).)

B. Elder Abuse Act

On February 20, 2009, Shirinyan filed a second petition (Shirinyan v. Davtian (Super.Ct.L.A.County, 2009, No. BP115136)) in the Kahanabetian probate case - the petition at issue on appeal.   Shirinyan relied on the same factual allegations as before but used them to support a claim under the Elder Abuse Act. In addition, the petition alleged Davtian had improperly taken possession of certain items of Kahanabetian's personal property during her lifetime that should be returned to the estate.   The petition accused Davtian of having committed financial abuse within the meaning of the Elder Abuse Act. The petition sought damages according to proof, punitive damages, and attorney fees.   Shirinyan also alleged a cause of action for “interference with [his] right to inherit.”

Davtian responded with a demurrer, contending:  (1) Shirinyan did not have standing under the Elder Abuse Act;  (2) a claim under the Elder Abuse Act did not exist independently of the probate case;  (3) Davtian's alleged conduct was not actionable under the Elder Abuse Act;  and (4) California did not recognize a claim for interference with the right to inherit.   Davtian also requested that the probate court consolidate the will contest with the Elder Abuse Act petition.

By order dated June 4, 2009, the probate court sustained the demurrer to the elder abuse claim with “leave to amend as to property not to be received by [Davtian].”   The court sustained the demurrer without leave to amend on the claim for interference with the right to inherit.   Finally, the court deemed the will contest and the elder abuse petition related but did not consolidate them.

Shirinyan filed a first amended petition, dropping the claim for interference with the right to inherit and requesting that Davtian not receive any portion of the estate awarded to Shirinyan as a result of the claim under the Elder Abuse Act.

Davtian filed another demurrer, reasserting the previous points.   She also filed a motion to strike specified portions of the first amended petition that were inconsistent with the validity of the will.   Shirinyan filed papers opposing the demurrer and the motion to strike.

By order filed February 26, 2010, the probate court, Judge Michael I. Levanas presiding, granted the motion to strike in all but a few minor respects.   On March 4, 2010, Judge Levanas, by order, sustained the demurrer to the first amended petition as to all issues concerning the validity of the will.   The order recited:  “Issues and facts alleged in the First Amended Petition pertaining to the procurement and validity of the testator's Will do not support an independent cause of action against [Davtian].”   Further, the court found that Shirinyan did not have standing to bring “any action” that would collaterally attack the will, but he could bring suit with respect to “property that was converted from [Kahanabetian] during her lifetime and that may be recovered or repatriated to [her] probate estate.”   The demurrer was sustained with 10 court days to amend.

Shirinyan decided to stand on the first amended petition without further amendment and did not file a second amended petition by the deadline.   On April 27, 2010, Judge Levanas entered judgment on the first amended petition in Davtian's favor.   Shirinyan appealed from the judgment.

II

DISCUSSION

“In reviewing the ruling on a demurrer, ‘we are guided by long-settled rules.  “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law․  We also consider matters which may be judicially noticed.”  ․ When a demurrer is sustained [without leave to amend], we determine whether the [petition] states facts sufficient to constitute a cause of action.’ ”  (August Entertainment, Inc. v. Philadelphia Indemnity Ins. Co. (2007) 146 Cal.App.4th 565, 573.)

For purposes of appeal, we assume without deciding that the Elder Abuse Act provides some type of relief where a person, through “financial abuse,” causes an elder to make a will that does not reflect his or her testamentary wishes.   (See Welf. & Inst.Code, § 15657.5.) In 2008, at the time of Kahanabetian's death, “financial abuse,” as statutorily defined, “occur[red] when a person or entity [did] any of the following:  [¶] (1) Takes, secretes, appropriates, or retains real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both.  [¶] (2) Assists in taking, secreting, appropriating, or retaining real or personal property of an elder or dependent adult to a wrongful use or with intent to defraud, or both. [¶] (b) A person or entity shall be deemed to have taken, secreted, appropriated, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates or retains possession of property in bad faith.”   (Stats.2000, ch. 442, § 5.)

Later in 2008, after Kahanabetian's death, the Legislature amended the statute defining “financial abuse” to read as follows:  “(a) ‘Financial abuse’ of an elder or dependent adult occurs when a person or entity does any of the following:  [¶] (1) Takes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.  [¶] (2) Assists in taking, secreting, appropriating, obtaining, or retaining real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.  [¶] (3) Takes, secretes, appropriates, obtains, or retains, or assists in taking, secreting, appropriating, obtaining, or retaining, real or personal property of an elder or dependent adult by undue influence ․ [¶] (b) A person or entity shall be deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult. [¶] (c) For purposes of this section, a person or entity takes, secretes, appropriates, obtains, or retains real or personal property when an elder or dependent adult is deprived of any property right, including by means of an agreement, donative transfer, or testamentary bequest, regardless of whether the property is held directly or by a representative of an elder or dependent adult.”  (Stats.2008, ch. 475, § 1, codified as Welf. & Inst.Code, § 15610.30, subds. (a)-(c), italics & boldface added.)

According to the legislative history of the 2008 amendments, the changes were intended to “clarify certain ․ ambiguities in the financial abuse provisions of [the Elder Abuse Act].” (Sen. Com. on Judiciary, Analysis of Sen. Bill No. 1140 (2007-2008 Reg. Sess.) as amended Mar. 10, 2008, pp. 3, 11.)

Here, the parties debate (1) whether Davtian's alleged conduct constituted a violation of the Elder Abuse Act as it existed at the time of Kahanabetian's death, (2) whether the subsequent 2008 amendments were substantive, and thus not retroactive, or merely clarifying of existing law and thus applicable to this case, and (3) whether Shirinyan's elder abuse petition stated a claim for undue influence or fraud under the Elder Abuse Act as it was written at the time of Kahanabetian's death or as it was later amended in 2008.

Shirinyan also argues that the probate court has concurrent jurisdiction over elder abuse claims, thereby indicating that he can maintain a will contest and an elder abuse claim in Kahanabetian's probate case.  (See Welf. & Inst.Code, § 15657.3, subds. (a), (b).)  Under his analysis, a will contest has a 120-day limitations period (Prob.Code, § 8270, subd. (a)) - which he missed - while a claim under the Elder Abuse Act is subject to a four-year statute of limitations (Welf. & Inst.Code, § 15657.7) - under which his elder abuse claim would be timely.   But Shirinyan's view of the probate court's concurrent jurisdiction is overbroad:  The probate court may hear an elder abuse claim only if a conservator has been appointed for the elder.   (Welf. & Inst.Code, § 15657.3, subds. (a), (b);  Ross, Cal. Practice Guide:  Probate (The Rutter Group 2010) ¶ 1:157.5, pp.1-76 to 1-77 (rev.# 1, 2010).)   A conservator was not appointed in this case, making concurrent jurisdiction a nonissue.

The Legislature knows how to lengthen the limitations period under the Probate Code when special circumstances warrant more time to initiate a will contest.   (See, e.g., Prob.Code, § 21356, subd. (a) [will contest may be brought at any time before an order of final distribution is made if will was drafted by certain persons, including person who is a beneficiary];  id., § 8270, subd. (b) [a minor or incompetent person may petition court to revoke probate of will before order of final distribution if he or she had no guardian or conservator when will was admitted to probate].)   It would make little sense for the Probate Code to permit narrow exceptions to the 120-day limitations period but fail to provide a longer period for elder abuse claims unless it wanted such claims to be subject to the standard 120 days.   The four-year statute of limitations on an elder abuse claim is part of the Elder Abuse Act;  the Probate Code sets forth separate limitations periods for proceedings in the probate court.

Assuming that the allegations of Shirinyan's elder abuse claim could state a viable claim under the Elder Abuse Act and that Shirinyan had standing to bring it, the claim would nonetheless be time-barred.  “Within 120 days after a will is admitted to probate, any interested person, other than a party to a will contest and other than a person who had actual notice of a will contest in time to have joined in the contest, may petition the court to revoke the probate of the will.”  (Prob.Code, § 8270, subd. (a).)  “If no person contests the validity of a will or petitions for revocation of probate of the will within the time provided in this chapter, admission of the will to probate is conclusive, subject to Section 8007.”  (Prob.Code, § 8226, subd. (a).)  As stated in Probate Code section 8007:  “(a) Except as provided in subdivision (b), an order admitting a will to probate or appointing a personal representative, when it becomes final, is a conclusive determination of the jurisdiction of the court and cannot be collaterally attacked. [¶] (b) Subdivision (a) does not apply in either of the following cases:  [¶] (1) The presence of extrinsic fraud in the procurement of the court order.  [¶] (2) The court order is based on the erroneous determination of the decedent's death.”   Because neither the extrinsic fraud nor the erroneous death exception applies here, Shirinyan's elder abuse claim is barred.   The validity of the will is deemed conclusive.  (See Estate of Caruch (1956) 139 Cal.App.2d 178, 182;  O'Brien v. Markham (1940) 37 Cal.App.2d 381, 388-389.)

In short, “ ‘the due execution and validity of the will are determined at the time the will is admitted to probate.   If no contest is filed within the [120-day] time set forth in section [8270, subdivision (a) ] of the Probate Code, those determinations are final and conclusive.’ ”  (Estate of Neubauer (1958) 49 Cal.2d 740, 747.)

As the Court of Appeal explained in applying the predecessor statute to Probate Code section 8270, subdivision (a):  “About a century ago the California Supreme Court explained ‘the policy of the law is to facilitate, and not to delay, the settlement of the estates of deceased persons.’  ․ If anything the intervening years have reinforced that policy.   It is clear that there is a pervasive and dominant judicial and legislative theme that probate matters must be expeditiously handled to effect a prompt distribution of property to the decedent's designated beneficiaries and to avoid unnecessary delay and expense․  In this context it is understandable why the Legislature limited the time within which will contests can be filed to relatively short periods․  The Legislature was undoubtedly aware that longer limitations periods heighten uncertainty over the validity of the will and result in increased expense to the parties.  [¶] The date on which the will is admitted to probate serves as the bright line for the commencement of the 120-day period within which a [will] contest can be filed.”  (Estate of Horn (1990) 219 Cal.App.3d 67, 71-72, citations omitted.)

We express no opinion as to the use of the Elder Abuse Act to challenge the validity of a will in the absence of a probate proceeding, for example, where the testator is alive, or where a will has been admitted to probate and the elder abuse claim is filed before the 120-day limitations period to contest the will has expired.   Those circumstances are not presented here.

III

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

We concur:

MALLANO, P. J.

CHANEY, J. JOHNSON, J.