California Court of Appeal Dec 11, 2014 No. E059207Unpublished
Filed 12/11/14 Estate of Bevacqua CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
Estate of JOE BEVACQUA, Deceased.
GUADALUPE FERNANDEZ DE GUTIERREZ, E059207
Petitioner and Respondent, (Super.Ct.No. PROPS1200012)
v. OPINION
MERCEDES SANCHEZ,
Objector and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cynthia Ann
Ludvigsen, Judge. Affirmed.
Mercedes Sanchez, in pro. per., for Objector and Appellant.
Robbins & Holdaway, Richard E. Holdaway and Diane E. Robbins for Petitioner
and Respondent.
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I
INTRODUCTION
This case arises from a probate court contest over two competing wills. In 2009,
Joe Bevacqua executed a will prepared by his attorney (2009 will). Bevacqua’s neighbor
and friend, respondent Guadalupe Fernandez de Gutierrez (Fernandez) was named as
executor and sole beneficiary. Following Bevacqua’s death, his live-in caregiver,
No such extraordinary circumstances are present here.
In addition, there is no evidence in the record that Sanchez has any legal or
equitable rights to Bevacqua’s residence, from which she claims she was wrongfully
evicted. Therefore Sanchez has not established any right to continue residing at
Bevacqua’s residence. Under the trial court’s findings and judgment, Fernandez was
entitled to the entirety of Bevacqua’s estate under the 2009 will, as Bevacqua’s sole heir.
Eviction of Sanchez from property inherited by Fernandez therefore did not violate
Sanchez’s property rights, since she did not have any right to reside there.
IV
ORDER SETTING ASIDE THE 2010 WILL AS A FORGERY
Sanchez argues the trial court erred in finding the 2010 will was a forgery. She
contends her due process rights were violated by the trial court misinterpreting and
overlooking applicable law, and disregarding evidence favorable to Sanchez. Sanchez
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notes there was conflicting expert testimony. She complains that the trial court relied on
Fernandez’s expert testimony even though Sanchez’s expert was more qualified. In
addition, Fernandez maintains there was no evidence refuting that the 2010 will was
witnessed by two attesting competent witnesses. Sanchez asserts that the trial court was
biased against her, based on the trial court requiring a bond when she was appointed
administrator of the estate, whereas a bond was not required when Fernandez was
appointed special administrator. Sanchez concludes this court should review the matter
de novo because there is conflicting evidence which this court should consider in
reviewing the will dispute.
We agree Sanchez’s arguments, challenging the trial court’s finding that the 2010
will was a forgery, are founded on factual determinations in which there were conflicting
facts, but disagree the standard of review is de novo. Rather, the substantial evidence
standard of review applies and we cannot reweigh the evidence. We are limited to
determining whether there was substantial evidence supporting the trial court’s factual
findings. On appeal, we consider “whether, upon review of the entire record, there is
substantial evidence of solid value, contradicted or uncontradicted, which will support the
trial court’s decision[,] . . . giv[ing] great deference to the trial court and resolv[ing] all
inferences and intendments in favor of the judgment. Similarly, all conflicting evidence
will be resolved in favor of the decision.” (People v. Kurey (2001) 88 Cal.App.4th 840,
848-849, fns. omitted.) “The reviewing court does not act de novo . . . the trial court’s
determination . . . ‘is entitled to great weight’ because it is bound by the ‘more
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demanding test of weighing conflicting evidence than our standard of review under the
substantial evidence rule . . . .’ [Citation.] All presumptions favor the trial court’s
determination . . ., and we review the record in the light most favorable to the judgment
. . . . [Citations.]” (Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 259, italics
added.)
Unfortunately, Sanchez has not provided this court with any evidence to review,
since the record on appeal does not include the reporter’s transcript. The clerk’s
transcript alone does not provide any basis for concluding the trial court’s findings and
judgment were not supported by substantial evidence.
Furthermore, there is a presumption under section 21380 that a will prepared by a
caregiver or “care custodian,” as defined by section 21362, subdivision (a),2 is the result
of fraud and undue influence. Section 21380 in relevant part provides: “(a) A provision
of an instrument making a donative transfer to any of the following persons is presumed
to be the product of fraud or undue influence: [¶] (1) The person who drafted the
instrument. [¶] . . . [¶] (3) A care custodian of a transferor who is a dependent adult, but
only if the instrument was executed during the period in which the care custodian
2 “‘Care custodian’ means a person who provides health or social services to a dependent adult, except that ‘care custodian’ does not include a person who provided services without remuneration if the person had a personal relationship with the dependent adult (1) at least 90 days before providing those services, (2) at least six months before the dependent adult’s death, and (3) before the dependant adult was admitted to hospice care, if the dependent adult was admitted to hospice care. As used in this subdivision, ‘remuneration’ does not include the donative transfer at issue under this chapter or the reimbursement of expenses.” (§ 21362, subd. (a).)
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provided services to the transferor, or within 90 days before or after that period. [¶] . . .
[¶] (b) The presumption created by this section is a presumption affecting the burden of
proof. The presumption may be rebutted by proving, by clear and convincing evidence,
that the donative transfer was not the product of fraud or undue influence. [¶] (c)
Notwithstanding subdivision (b), with respect to a donative transfer to the person who
drafted the donative instrument, . . . the presumption created by this section is
conclusive.” (Italics added.)
There are exceptions under sections 21382 or 21384 to the section 21380
presumption but they do not apply here. Under section 21382, “[s]ection 21380 does not
apply to any of the following instruments or transfers: [¶] (a) A donative transfer to a
person who is related by blood or affinity, within the fourth degree, to the transferor or is
the cohabitant of the transferor. [¶] (b) An instrument that is drafted or transcribed by a
person who is related by blood or affinity, within the fourth degree, to the transferor or is
the cohabitant of the transferor.” Under section 21384, “(a) A gift is not subject to
Section 21380 if the instrument is reviewed by an independent attorney who counsels the
transferor, out of the presence of any heir or proposed beneficiary, about the nature and
consequences of the intended transfer, including the effect of the intended transfer on the
transferor’s heirs and on any beneficiary of a prior donative instrument, attempts to
determine if the intended transfer is the result of fraud or undue influence, and signs and
delivers to the transferor an original certificate . . . .”
In the instant case, the exceptions under section 21382 do not apply because
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Sanchez has not cited evidence on appeal refuting the trial court finding that Sanchez was
Bevacqua’s live-in caregiver and employee, and was not a cohabitant under section
21382. Also, the record indicates that, in response to requests for admission, Sanchez
admitted there did not exist a section 21384 declaration excluding the 2010 will from the
section 21380 presumption the 2010 will was the result of fraud and undue influence.
The Legislature’s purpose in enacting section 21380 (formerly section 21350) was
“‘to prevent unscrupulous persons in fiduciary relationships from obtaining gifts from
elderly persons through undue influence or other overbearing behavior.’ [Citation.] In
enacting the statute, the Legislature sought to strike a balance between ‘protecting
prospective transferors from fraud, menace, or undue influence, while still ensuring the
freedom of transferors to dispose of their estates as they desire and reward true “good
Samaritans.”’ [Citation.]” (Estate of Winans (2010) 183 Cal.App.4th 102, 113-114.)
Since Sanchez has not cited any evidence in the record on appeal rebutting the trial
court’s findings that the 2010 will was a forgery and the result of fraud and undue
influence under the section 21380 presumption, this court must give deference to the trial
court findings and affirm the judgment.
V
DISPOSITION
The judgment is affirmed. The parties shall bear their own costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS CODRINGTON J.
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We concur:
McKINSTER Acting P. J.
KING J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment that a 2010 will was a forgery and the product of fraud and undue influence, noting the appellant failed to provide a reporter's transcript to challenge the factual findings.
Issues
Whether the trial court erred in finding the 2010 will was a forgery and the product of fraud or undue influence.
Whether the appellant's eviction from the decedent's residence violated her constitutional due process rights.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the trial court found that the 2010 will was a forgery, ordered the 2010 will stricken, and reinstated Fernandez as executor and sole beneficiary under the 2009 will.”