Estate of Donald Hollenbach

At the outset, the court notes that it is not clear whether the challenged beneficiary, Jarrod Michael Davis (“Davis”), has been served with the instant motion. There is a “service list” attached to the notice of motion showing an incomplete address for Davis.1 It is not signed under penalty of perjury and does not note the method of service. “Proof of service of the moving papers must be filed no later than five court days before the time appointed for the hearing.” (Cal. Rules of Court, rule 3.1300(c).) Here, no actual proof of service has been filed. Without proper notice to a potential beneficiary, the court cannot make orders affecting that potential beneficiary’s rights. (See, generally, Estate of Sigourney (2001) 93 Cal.App.4th 593, 601.) II.

Analysis

Even assuming proper notice has been given to Davis, the court finds that insufficient evidence has been presented to disqualify him at this time. Petitioner seeks an order

1 The court also notes that it is possible Davis is in custody so it is not clear that his home address is the appropriate address for service. 2 disqualifying Jarrod Michael Davis due to his alleged elder abuse of and potential killing of Decedent. Petitioner asserts that she is Decedent’s niece and sole heir. (See Declaration of Tricia Luckabaugh in Support of Motion [], ¶ 2.) She further contends that Decedent was allegedly found deceased in his home in December 2024 by a “vagrant” who stole items from the home and buried the body. (Id. at ¶ 5.) Petitioner declares that Davis has been arrested by police and admitted to burying Decedent’s body and stealing his identity and his possessions. (Id. at ¶ 6.)2 Davis is listed as a designated beneficiary on a Fidelity account belonging to Decedent. (Id. at ¶ 9.) i. Disqualification Based on the Slayer Statutes As Petitioner points out, a person who feloniously killed the decedent is not entitled to receive property owned by the decedent even if that person is a named beneficiary. (See Prob. Code, §§ 250, 252.) Probate Code section 252 provides, “A named beneficiary of a bond, life insurance policy, or other contractual arrangement who feloniously and intentionally kills the principal obligee or the person upon whose life the policy is issued is not entitled to any benefit under the bond, policy, or other contractual arrangement, and it becomes payable as though the killer had predeceased the decedent.” “A final judgment of conviction of felonious and intentional killing is conclusive for purposes of this part.” (Prob. Code, § 254, subd. (a).) “In the absence of a final judgment of conviction of felonious and intentional killing, the court may determine by a preponderance of evidence whether the killing was felonious and intentional for purposes of this part. The burden of proof is on the party seeking to establish that the killing was felonious and intentional for the purposes of this part.” (Prob. Code, § 254, subd. (b).) Here, there is no evidence that Davis has been convicted of any crime. Accordingly, the court must determine whether he has intentionally and feloniously killed Decedent by a preponderance of the evidence. (Prob. Code, § 254, subd. (b); see also, Estate of Kramme (1978) 20 Cal.3d 567, 571-572 [“if there has been neither a conviction nor an acquittal of murder or voluntary manslaughter, the task of the probate court is to determine whether the

2 The police report provided does not support the assertion that Davis admitted to stealing Decedent’s identity and possessions. 3 claimant unlawfully and intentionally caused the decedent's death.”], fn. omitted.) “[O]ur Supreme Court stated the preponderance of the evidence standard simply requires the trier of fact to believe that the existence of a fact is more probable than its nonexistence. [Citations.] The preponderance of the evidence standard also has been described as the weight of the evidence, i.e., more than 50 percent proof. [Citation.]” (Bichai v. DaVita, Inc. (2021) 72 Cal.App.5th 1126, 1139, internal citations and quotation marks omitted.) Petitioner has provided a police report detailing the findings made by the investigating officers attached to the declaration of Petitioner’s counsel as Exhibit A. The police report states that Decedent had not been seen in months when a welfare check was requested on September 9, 2024. Police called Decedent’s cell phone and a person named Michael, claiming to be Decedent’s godson, answered the phone. The phone number was “associated” with Davis and Davis’s address was listed as a residence less than one mile from Decedent’s home. Decedent’s ex-wife told police that Decedent did not have a godson and that Decedent suffered from schizophrenia and alcoholism. When police arrived at Decedent’s residence, they could smell a strong odor that officers believed resembled the smell of a dead body. A garage side door was open and officers observed a large hole in the garage wall leading into the residence. In the living room, officers observed “large dark stains . . . that was possibly blood and appeared to be in the shape of a body.” Officers spoke to neighbors, who relayed that they had not seen Decedent in months. One neighbor stated that Decedent had been taken away via ambulance but there was no record of Decedent being transported to the hospital and no report of Decedent’s death. Crime Scene investigators determined there was a large amount of human blood in the Decedent’s living room and the “blood pattern had a silhouette of human body consistent with Donald Galen Hollenbach height and body size.” Officers also received information that someone had made large deposits into Decedent’s Citibank account on August 1, 2024 and deposits followed by withdrawals on August 9, 2024. Someone had changed the phone number on Decedent’s account. Citibank employees informed officers that they first noticed suspicious activity involving Decedent’s account in February 2024. Citibank employees also noticed that a Hispanic male with a 4 mustache had been making deposits and withdrawals using Hollenbach’s identity. Police reviewed surveillance pictures and determined that the same male, whom they have identified as Davis, made several of the withdrawals. After his arrest, Davis made a statement to police and that he told police the locations of Decedent’s body and that he had placed the body there with two Hispanic males he knew as “Rhino” and “Oso.” The report also states that a witness Enrique Montelongo told police that Davis told him about the death of Decedent and the “fraud activity” on Decedent’s accounts and that Montelongo allowed Davis to place “debris” into Montelongo’s self-made landfill. When confronted with the information from Montelongo, Davis told police that Montelongo assisted him in burying the body. Decedent’s body was found, badly decomposed, where Davis stated it would be. The autopsy remained pending at the time of the report. The investigation remains pending and “Detectives believe additional suspects assisted Jarrod Davis in committing the crimes of elder fraud, illegal removal of a corpse, and possibly murder.” While surely suspicious, the above does not establish that Davis feloniously killed Decedent by a preponderance of the evidence. In the context of a related statute, the former version of Probate Code section 258, the California Supreme Court has determined that the word “intentionally” in the phrase “intentionally caused the death of the decedent” applies to “only those persons who intended to cause a decedent’s death. Individuals who intentionally commit an act which unintentionally brings about a decedent’s death are not covered.” (Estate of Kramme, supra, 20 Cal.3d at pp. 572-573.) In that same case, the court declined to apply Probate Code section 258 to bar a man who shot his wife from succeeding to her estate where the probate court found there was no evidence he intended to shoot, let alone, kill his wife, nor was there evidence he knew with a substantial certainty his actions would result in her death. (Id. at p. 274.) Here, the court has very little evidence to establish that Decedent was killed by Davis at all, let alone intentionally killed by Davis. As the police report establishes in its reference to only a possible murder, a myriad of other possibilities exist, including: that Decedent had already passed away when Davis discovered his body, that Decedent died naturally, that Decedent committed suicide, that Davis committed some unknown act but did 5 not intend to murder decedent, or that someone else murdered Decedent. As noted above, the coroner has not yet completed the autopsy to determine any cause of death. Petitioner asks the court to make a finding that Davis feloniously and intentionally killed Decedent but she provides little discussion to assist the court regarding this issue. She does not, for example, compare this case to other appellate cases in which such evidence was found sufficient to demonstrate why the court should rule in her favor on such a meager evidentiary showing. For these reasons, the court DENIES the motion without prejudice to the extent it asks for a finding that Davis is disqualified as a beneficiary under the slayer statutes. ii. Disqualification Based on Elder Abuse Petitioner also asks the court to find that Davis is disqualified from his status as a beneficiary due to his alleged commission of elder abuse. Probate Code section 259 provides for disqualification of a beneficiary where the beneficiary has committed elder abuse. Subdivision (a) of Probate Code section 259 provides: (a) Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) where all of the following apply: (1) It has been proven by clear and convincing evidence that the person is liable for physical abuse, neglect, or financial abuse of the decedent, who was an elder or dependent adult. (2) The person is found to have acted in bad faith. (3) The person has been found to have been reckless, oppressive, fraudulent, or malicious in the commission of any of these acts upon the decedent. (4) The decedent, at the time those acts occurred and thereafter until the time of his or her death, has been found to have been substantially unable to manage his or her financial resources or to resist fraud or undue influence. Probate Code section 259, subdivision (b) provides, “Any person shall be deemed to have predeceased a decedent to the extent provided in subdivision (c) if that person has been convicted of a violation of Section 236 of the Penal Code or any offense described in Section 368 of the Penal Code.” Again, the court cannot make the required findings for disqualification under Probate Code section 259 based on what has been presented. As detailed above, Davis appears to have been involved in withdrawing funds from Decedent’s bank account and his name was added to 6 Decedent’s Fidelity account during the time Decedent was missing.3 But it is not clear that Decedent was still living at that time. In Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 411, the Court of Appeal upheld the trial court’s decision to deny a plaintiff leave to amend a pleading to add the fact that the defendant falsified the decedent’s death certificate. The court reasoned “the falsification of the death certificate obviously did not injure Grant, who was already dead (see Welf. & Inst. Code, § 15610.07, subd. (a) [for conduct to qualify as elder abuse, it must cause elder to suffer physical harm, pain or mental suffering]).” This reasoning applies equally to a claim of financial elder abuse. Welfare and Institutions Code section 15610.07, subdivision (a) provides, “ ‘Abuse of an elder or a dependent adult’ means any of the following: (1) Physical abuse, neglect, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering. (2) The deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering. (3) Financial abuse, as defined in Section 15610.30.” (Formatting altered.) “ ‘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, as defined in Section 15610.70.” (Welf. & Inst. Code, § 15610.30, subd. (a).) Under all three definitions, the abuser must have taken property of the elder adult. The statute makes no provision for taking property from an estate. Further, Probate Code section 259, subdivision (a) requires that the decedent had to have been substantially unable to manages his financial

3 Notably, Petitioner declares that Davis admitted to stealing Decedent’s identity and possessions but the police report attached to the declaration does not support this. The police report only indicates that Davis gave a statement to police; it does not relay the content of the statement. In any event, assuming that Davis admitted to stealing Decedent’s identity and possessions, it is not clear that he did so while Decedent was alive. 7 resources or to resist fraud or undue influence “at the time those acts occurred and thereafter until the time of his or her death[.]” (Prob. Code, § 259, subd. (a)(4).) Here, the evidence does not establish that Decedent was alive at the time Davis’s actions occurred. In fact, the badly decomposed state of the body and the fact that neighbors had not seen Decedent for months when the police contacted them in September 2024, appears to weigh against a finding that Decedent was alive at the time Davis used his accounts. Again, Petitioner requests a finding that Davis committed financial elder abuse of Decedent while he was alive but she does not provide any authority from which the court could make such a finding on this record. The motion is DENIED to the extent it requests an order finding that Davis is disqualified as a beneficiary due to financial elder abuse. The denial of the motion is without prejudice to seeking the same order with additional evidence or bringing any other appropriate noticed petition or motion seeking disqualification on other grounds. iii. Additional Order Although the court has concluded that insufficient evidence has been presented to disqualify Davis as a beneficiary at this time and that the notice issues prevent the court from making the requested order, there is more than sufficient evidence for the court to order Fidelity not to pay any funds to Davis pending further order of this court. CONCLUSION The motion is DENIED without prejudice to seeking the same order with additional evidence or bringing any other appropriate noticed petition or motion seeking disqualification on other grounds. Fidelity is ordered not to pay any funds to Jarrod Michael Davis from any account associated with Donald Galen Hollenbach pending further order of this court. Petitioner is ordered to serve Fidelity with a copy of this order.