Filed 12/16/15 Shook v. LaFarre CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                DIVISION THREE


JOSEPHINE SHOOK, an Incompetent
Person, etc., et al.,
          Plaintiffs and Respondents,                                    A142993
v.
                                                                         (San Mateo County
CYRUS LAFARRE,                                                            Super. Ct. No. CIV524311)
          Defendant and Appellant.


          This is an appeal from judgment after a jury found defendant Cyrus LaFarre liable
for financial elder abuse and breach of fiduciary duty against Rudolph Cook, the
deceased brother of plaintiff Josephine Shook1 and uncle of plaintiff Virginia
Williamson. LaFarre challenges the judgment on grounds that include improper jury
instruction on the burden of proving undue influence, erroneous admission of evidence,
lack of substantial evidence that LaFarre was a fiduciary or care custodian with respect to
Cook, and erroneous grant of plaintiffs’ motion to advance the trial in this case ahead of
an already-scheduled trial in Cook’s probate proceedings. For reasons stated below, we
affirm.




1
     On September 26, 2013 a petition and order appointing guardian ad litem Virginia
Lee Williamson for Josephine Shook was filed in San Mateo County Superior Court.


                                                             1
                  FACTUAL AND PROCEDURAL BACKGROUND
       On March 15, 2013, Cook passed away at age 89 in his San Francisco home while
under hospice care.2 Cook, born in Ohio, moved to San Francisco in his youth. Cook
had seven siblings, none of whom lived in California, and all but one of whom (plaintiff
Shook) predeceased him. Cook never married and had no children, but lived in his home
on Lunado Way for over 38 years with his life partner, Richard Pence, who passed away
in 2012. Defendant LaFarre moved into the house across the street from Cook and Pence
in 2003, with his wife and two young daughters.3 LaFarre cared for Cook before his
death and was with him when he passed away.
       Upon his death, Cook left behind a trust, dated August 1, 2012, that was an
amended version of his original trust, dated February 20, 2001 (hereinafter, the amended
trust or 2012 amended trust). Pursuant to this amended trust, Cook designated LaFarre as
his trustee and primary beneficiary, and his longtime friend, Joanne Chevrette, as
alternate trustee and beneficiary of a $75,000 gift. This amended trust differed from
Cook’s original trust in several ways. Most significant for our purposes, the original trust
designated Chevrette as trustee, with his nephews, Thomas Cook and Kenneth Cook, as
alternate trustees. Further, after making charitable gifts to designated organizations, the
original trust provided that all remaining trust assets would be distributed equally among
Cook’s seven siblings or their living issue. The amended trust, to the contrary, named
LaFarre as sole beneficiary of remaining trust assets after outright gifts of $75,000 were
made to Joanne Chevrette and four of Cook’s relatives (to wit, plaintiffs Williamson and
Shook, and nephews Thomas Cook and Kenneth Cook).4 Thus, as a result of these

2
        Unless otherwise stated, all statutory citations herein are to the Welfare and
Institutions Code.
3
       LaFarre and his first wife are divorced, and he has since remarried.
4
       The charitable gifts set forth in the original trust were: (1) Cleveland Orchestra
Heritage Society ($100,000); (2) San Francisco Opera ($25,000); (3) San Francisco
Symphony ($25,000); and (4) San Francisco Opera Super Committee ($10,000). In the
amended trust, these charitable gifts remained the same with one exception: the gift to
Cleveland Orchestra Heritage Society was reduced to $75,000.


                                              2
amendments, LaFarre, not named in the original trust, was to receive nearly $1.5 million
from Cook’s estate that otherwise would have gone to Cook’s family members.
       After learning of the amended trust, plaintiff, Cook’s 92 year-old sister, by and
through her guardian ad litem, plaintiff Williamson, filed this civil lawsuit, asserting
causes of action for financial elder abuse under the Elder Abuse and Dependant Adult
Protection Act, section 15600 et seq., and breach of fiduciary duty. Williamson, who is
Shook’s daughter and Cook’s niece, was also named as individual plaintiff in this
lawsuit. Together, plaintiffs sought compensatory and punitive damages, as well as other
forms of relief.5
       After extensive discovery, a jury trial commenced March 18, 2014. Over 30
witnesses were ultimately called, revealing the following evidence.

I.     Plaintiffs’ Case.
       Chevrette, designated in the amended trust as alternate trustee and beneficiary of a
$75,000 gift from Cook, testified that she did not believe Cook intended to make this gift
to her. To the contrary, Cook had mentioned to her numerous times over the years that
he intended for her to serve as trustee of his estate. She further testified that Cook never
mentioned to her in their frequent interactions that he amended his trust and, in fact, told
her the opposite after the purported amended trust was made. Specifically, according to
Chevrette, Cook told her on March 2, 2013, just before he died, that she was named as his
trustee. According to Chevrette, even after reviewing the 2012 amended trust, she “never
believed” Cook instructed his attorney to make these changes.
       Another longtime friend, Karen Bird, Cook’s employer at California Saw and
Knife for over 40 years, testified that, in the fall of 2012, she spoke to Cook about who
would handle his affairs should something happen to him. Cook responded that an “old


5
        In addition to this civil lawsuit, a legal challenge to the validity of the amended
trust has also been filed in probate court. This probate matter, by which removal of
LaFarre as trustee is also sought, was originally set for trial on February 24, 2014.
However, the probate court vacated this trial date in light of LaFarre’s failure to timely
submit an accounting.


                                              3
family friend” named Joanne Chevrette would be his trustee, and told Bird he would give
her Chevrette’s contact information next time they met. Bird next saw Cook at a
January 2013 shareholder meeting, at which time he gave her a piece of paper with
Chevrette’s contact information that identified her as trustee of his estate.
       Consistent with Chevrette’s and Bird’s testimony, Virginia Williamson, Cook’s
niece, testified that her uncle told her in mid-February 2013 to contact Chevrette because
she was his trustee and would need Williamson’s help to distribute his estate among
family members after he died. Williamson also produced a handwritten note from Cook,
given to her at this February meeting that had Chevrette’s contact information.
       Similarly, Julie Lenhardt, the former girlfriend of Cook’s great nephew who
visited Cook several times in that capacity, testified that she recalled a conversation with
Cook shortly after Pence’s death during which Cook described his own estate plans as
“iron clad.” Specifically, Cook told Lenhardt his executor would be Chevrette, his estate
would be divided among his living siblings or their issue, and several organizations
would receive charitable gifts.
       Finally, Dr. Marvin Firestone, an expert in neuropsychiatry, testified that, during
the summer of 2012, when the trust amendments were made, Cook was “dependent as
well as debilitated and depressed.” In addition to the emotional toll of having recently
lost his life partner, Cook had experienced several “unconscious episodes” requiring
multiple trips to the hospital. According to Dr. Firestone, these emotional and physical
strains would have impacted Cook’s ability to withstand undue influence by others,
particularly those he relied upon for care.

II.    Defendant’s Case.
       LaFarre became friends with Cook and Pence shortly after moving to a nearby
house on Lunado Way in 2003. LaFarre’s two young daughters were also close to Cook.
For a time after LaFarre and his first wife separated, Cook facilitated the custody
exchanges of their two minor daughters. Among other things, Cook shared numerous
meals and holidays, including birthdays, with LaFarre and his family. Once, Cook gave
LaFarre a card stating: “You are my son!” LaFarre described Cook as an exceedingly

                                              4
generous person, often making gifts, including cash gifts and loans, to friends and
relatives. In fact, both LaFarre and Chevrette were recipients of several such gifts over
the years.
       LaFarre spent much time with Cook during the last months of his life, and was
with him when he died. Afterward, LaFarre helped Chevrette clean out Cook’s house.
On March 17, 2013, when he was cleaning out Cook’s house by moving a trash bin full
of papers to the curb for scavenger pickup, some of the papers spilled out. A collection
of folded, cream-colored papers caught LaFarre’s attention. Upon taking a closer look,
LaFarre realized these papers were Cook’s 2012 amended trust and a revised schedule A.
LaFarre had no idea who placed these papers in the bin; however, he called Chevrette and
requested that she return to the house with the 2001 trust documents from Cook that she
possessed. She complied on March 19, 2014. Upon comparing the two sets of
documents, Chevrette told LaFarre: “I guess you are in the driver’s seat now.”
       DeWayne Byrd, a hospice worker who spent several of Cook’s last days with
Cook, testified at trial that, on March 13, 14 and 15, 2013, Chevrette and other
individuals were at Cook’s house, throwing away massive amounts of papers over
Cook’s protestations. Byrd described a large debris box set up outside Cook’s home into
which Chevrette and the others were throwing Cook’s papers. However, while Byrd
insisted he was “quite certain” this large debris box was at Cook’s home on March 14,
Greg Wilhelm, owner of Green Hauling, testified that the debris box delivered to Cook’s
residence was picked up on March 12, 2013. In addition, Chevrette testified that she
made sure the debris box, which was delivered to Cook’s home during his last
hospitalization, was removed before Cook returned home for hospice care because she
did not want its presence to upset Cook.
       LaFarre also claimed to have later found among Cook’s papers a type-written
letter, dated February 17, 2013, from Cook to his close friend, Kim Freiberg. This letter,
which was never sent, mentioned the tension that arose among Pence’s relatives after his
death over Pence’s estate, and also expressed Cook’s unhappiness with certain of his own



                                             5
relatives, including Williamson, who, according to the letter, was being “pushy” about his
own estate plans.6
       In addition, LaFarre produced a letter prepared on a computer, dated July 10, 2012
and signed by Cook, to David Hill, the attorney who drafted his 2001 trust. This letter
instructed Hill to prepare a new trust with several key changes from the 2001 trust,
including the removal of his siblings as beneficiaries and the designation of LaFarre as
executor and beneficiary of the balance of the trust once specified gifts were made. This
was the only document produced at trial drafted by Cook on a computer rather than by
hand or by old-fashioned typewriter.
       At trial, Hill confirmed receiving Cook’s July 10, 2012, letter, and also talking to
him on the telephone before preparing the 2012 amended trust and other documents
(including a codicil, a durable power of attorney naming LaFarre and Chevrette, and an
advanced health care directive naming LaFarre and Chevrette). According to Hill, he
questioned Cook on the telephone as to why he wanted to leave the bulk of his estate to
LaFarre, and suggested that perhaps a specific bequest to LaFarre would be better;
however, Cook rejected this suggestion, telling Hill he “valued [Cyrus’s] friendship more
than that.” Hill acknowledged, however, that he did not meet with Cook in person to
discuss the proposed amendments, and he did not know whether anyone else was present
during their call. Hill further testified there was nothing distinct about Cook’s voice
when they talked on the telephone, even though it was undisputed Cook, who underwent
a laryngectomy and spoke with a voice box, had a quite distinctive voice.
       Expert legal witness, Stevan Luzaich, subsequently testified for plaintiffs that a
trust and estate attorney’s failure to meet an elderly client in person to discuss proposed
amendments, and to confirm the client was making the amendments while of sound mind
and under no undue influence, would fall below minimal standards of professional care.
       Deepti Nigam, a notary employed by the UPS Store, testified that, according to her
log book, on August 1, 2012, she notarized four documents for an individual identified as


6
       Freiberg, along with Cook, was a beneficiary of Pence’s will.


                                              6
Rudolph Cook: a will, durable power of attorney, schedule A, and advanced healthcare
directive. Nigam acknowledged having no independent memory of meeting Cook or
notarizing his documents, and could not say whether Cook had been alone at the time.
       Dr. James Missett provided expert medical testimony on behalf of LaFarre that, in
August 2012, there was no indication in the medical records he reviewed that Cook
would subjugate his will to that of someone else. Dr. Missett further testified Cook was
capable of making his own decisions as late as March 11, 2013, when he declined a
feeding tube and requested hospice care. Dr. Missett provided no opinion as to whether
Cook “possessed testamentary capacity to make the amendment.”
       Finally, several of Cook’s and LaFarre’s friends and neighbors testified on behalf
of LaFarre. These witnesses largely confirmed LaFarre had a close relationship with
Cook and provided much care to him during the last years of his life. None, however,
had any knowledge of Cook amending his trust to designate LaFarre as trustee and
principle beneficiary.

III.   The Jury Verdict, Damages, and Post-Trial Motions.
       Following the presentation of evidence, the jury found that LaFarre committed
financial abuse of an elder and breach of fiduciary duty. In addition, the jury found that
LaFarre failed to prove by clear and convincing evidence that the 2012 trust amendment
was not the result of undue influence while he was acting as Cook’s care custodian.
Following a bifurcated bench trial on the issue of damages, the trial court awarded
plaintiffs monetary damages in the amount of $169,622.95. The trial court also awarded
attorney fees and costs to plaintiffs in the amount of $789,348.70. The trial court denied
LaFarre’s motion for new trial. This timely appeal followed.

                                      DISCUSSION
       LaFarre raises the following issues for our review. (1) Was the jury properly
instructed regarding the issue of whether he exerted undue influence on Cook while
acting as his care custodian? (2) Did the trial court abuse its discretion in admitting
evidence relating to the probate accounting prepared by LaFarre? (3) Was there



                                              7
substantial evidence supporting the jury’s findings that: (a) LaFarre was Cook’s “care
custodian” within the meaning of the Probate Code 21362, and (b) owed him a fiduciary
duty? (4) Did the trial court abuse its discretion by granting plaintiffs’ motion to advance
trial ahead of the probate proceedings? We address each issue in turn below.

I.     Was the Jury Properly Instructed Regarding Undue Influence
        By a Care Custodian?
       LaFarre contends it was prejudicial error to instruct the jury pursuant to Probate
Code section 21380 that he, as Cook’s “care custodian” (Prob. Code, § 21362, subd. (a)7),
had the burden to prove by clear and convincing evidence that he did not exert undue
influence. (See Prob. Code, § 86 [“ ‘Undue influence’ has the same meaning as defined
in Section 15610.70 of the Welfare and Institutions Code. It is the intent of the
Legislature that this section supplement the common law meaning of undue influence
without superseding or interfering with the operation of that law”].)8 As LaFarre points


7
       Probate Code section 21362 provides in relevant part:
“(a) ‘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.
“(b) For the purposes of this section, ‘health and social services’ means services provided
to a dependent adult because of the person’s dependent condition, including, but not
limited to, the administration of medicine, medical testing, wound care, assistance with
hygiene, companionship, housekeeping, shopping, cooking, and assistance with
finances.”
8
       Section 15610.70 provides:
“(a) ‘Undue influence’ means excessive persuasion that causes another person to act or
refrain from acting by overcoming that person’s free will and results in inequity. In
determining whether a result was produced by undue influence, all of the following shall
be considered:
 “(1) The vulnerability of the victim. Evidence of vulnerability may include, but is not
limited to, incapacity, illness, disability, injury, age, education, impaired cognitive

                                             8
out, in probate court, the judge, not the jury, decides whether undue influence was
exerted on a dependant adult for purposes of Probate Code section 21380. (Prob. Code,
§ 8252, subd. (b) [“The court shall try and determine any contested issue of fact that
affects the validity of the will”]; see also Prob. Code, § 21366, subd. (a).) Also in probate
court, the party contesting the testamentary instrument has the burden to prove undue
influence by a preponderance of the evidence unless there is a presumption of undue
influence that operates to shift the burden of proof to the proponent to show the absence
of undue influence. (Prob. Code, § 8252, subd. (a); Estate of Auen (1994) 30 Cal.App.4th
300, 308.) According to LaFarre, since the jury rather than the trial court was permitted
to decide the issue of undue influence in his case, it was prejudicial error to give him the
burden to prove lack of undue influence by clear and convincing evidence since the elder
abuse statutes do not require such burden shifting or heightened standard of proof.
LaFarre reasons: “That both the Elder Abuse claim under the Welfare and Institutions
Code and the care custodian claim under the Probate Code use the same term ‘undue

function, emotional distress, isolation, or dependency, and whether the influencer knew
or should have known of the alleged victim’s vulnerability.
 “(2) The influencer’s apparent authority. Evidence of apparent authority may include,
but is not limited to, status as a fiduciary, family member, care provider, health care
professional, legal professional, spiritual adviser, expert, or other qualification.
 “(3) The actions or tactics used by the influencer. Evidence of actions or tactics used
may include, but is not limited to, all of the following:
  “(A) Controlling necessaries of life, medication, the victim’s interactions with others,
access to information, or sleep.
  “(B) Use of affection, intimidation, or coercion.
  “(C) Initiation of changes in personal or property rights, use of haste or secrecy in
effecting those changes, effecting changes at inappropriate times and places, and claims
of expertise in effecting changes.
 “(4) The equity of the result. Evidence of the equity of the result may include, but is not
limited to, the economic consequences to the victim, any divergence from the victim’s
prior intent or course of conduct or dealing, the relationship of the value conveyed to the
value of any services or consideration received, or the appropriateness of the change in
light of the length and nature of the relationship.
“(b) Evidence of an inequitable result, without more, is not sufficient to prove undue
influence.” (§ 15610.70; accord Civil Code, § 1575.)


                                              9
influence’ as an essential element necessarily resulted in the jury applying what is the
wrong burden of proof at the wrong level of proof to the defendant on both claims.”
         Turning to the record at hand, LaFarre correctly notes the jury in this case was
given three separate verdict forms: (1) the first verdict form relating to plaintiffs’
financial elder abuse claim; (2) the second relating to their breach of fiduciary duty claim;
(3) and the third relating to the factual issue of whether LaFarre exerted undue influence
on Cook while acting as his “care custodian” within the meaning of Probate Code section
21380.
         With respect to plaintiffs’ first cause of action, the Elder Abuse and Dependant
Adult Civil Protection Act (hereinafter, the Act) broadly defines financial abuse as
occurring “ ‘when a person or entity . . . [¶] . . . [t]akes, secretes, appropriates, obtains, or
retains real or personal property of an elder . . . for a wrongful use or with intent to
defraud, or both’ (§ 15610.30, subd. (a)(1), italics added) or ‘by undue influence.’
(§ 15610.30, subd. (a)(3).)” (Bounds v. Superior Court (2014) 229 Cal.App.4th 468,
478.) Further, “A taking is for a ‘wrongful use’ when a party ‘knew or should have
known that [its] conduct is likely to be harmful to the elder . . . adult.’ ” (§ 15610.30,
subd. (b).) “For purposes of this section, a person or entity takes, secretes, appropriates,
obtains, or retains real or personal property when an elder . . . 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.” (§ 15610.30, subd. (c).)
         Thus, in accordance with this statutory law, the jury in this case was instructed that
LaFarre could be found liable for financial elder abuse if plaintiffs proved by a
preponderance of the evidence each of the following:
“1.      That . . . LaFarre took/appropriated/obtained or retained . . . Cook’s property;
“2.      That . . . Cook was 65 years of age or older at the time of the conduct;
“3.      That . . . LaFarre took/appropriated/obtained or retained the property for a
wrongful use or with the intent to defraud or by undue influence;
“4.      That [plaintiff Shook] and/or . . . Cook was harmed; and


                                               10
“5.    That . . . LaFarre’s conduct was a substantial factor in causing that harm.”
       The jury was further instructed that, “One way Plaintiff can prove . . . LaFarre
took/appropriated/obtained or retained the property for a wrongful use is by proving [he]
knew or should have known that his conduct was likely to be harmful to [plaintiff] or . . .
Cook. [¶] . . . LaFarre took/appropriated/obtained or retained property if [plaintiff] was
deprived of the property by an agreement, gift, will or trust.”
       LaFarre does not directly challenge the correctness of these instructions, or the
jury’s subsequent finding that he committed financial elder abuse against Cook. Nor
could he. These instructions accurately reflect the law, and the jury’s subsequent verdict
finds ample evidentiary support in the record. For example, Joanne Chevrette, a close
friend of Cook’s for 37 years and named as trustee under his 2001 trust, testified against
her own interests that she did not believe Cook intended to make a $75,000 gift to her, as
provided for in the amended trust. She further testified that Cook never mentioned to her
that he amended his trust and, in fact, told her the opposite after the purported
amendments were made — to wit, Cook told Chevrette on March 2, 2013, just before he
died, that she was designated as his trustee, a statement he likewise made to another
longtime friend, Karen Bird, in January 2013.9 Similarly, Virginia Williamson testified
that her uncle told her in mid-February 2013 to contact Chevrette because she was his
trustee and would need help to distribute his estate among family members. This
evidence, without a doubt, constitutes substantial evidence of financial elder abuse.
(Greenwich S.F., LLC v. Wong (2010) 190 Cal.App.4th 739, 767-768 [testimony from a
single witness may constitute substantial evidence]; see also Lintz v. Lintz (2014) 222
Cal.App.4th 1346, 1354-1355 [“while pressure must be brought to bear directly on the
testamentary act, the pressure, or undue influence, may be established by circumstantial
evidence”].)


9
       Bird, like Chevrette, testified for plaintiff at trial. Bird, who was Cook’s employer
for over 40 years, described meeting Cook in person in January 2013, at which time he
told her Chevrette would be trustee and gave her a piece of paper with Chevrette’s
contact information.


                                             11
       Compared to the credible testimony of these witnesses, there were evident holes in
LaFarre’s account of “finding” Cook’s amended trust. According to LaFarre, he found
this instrument in a trash bag after Cook’s death while cleaning and organizing Cook’s
house. LaFarre insisted, however, that Cook never mentioned to him (or to anyone else)
having amended his trust, much less having designated LaFarre as trustee. Moreover,
this instrument, which LaFarre gave to Chevrette after she told him she had scheduled a
meeting with her attorney, was missing a key page – to wit, the page identifying Cook’s
intended gift recipients (including Chevrette).
       Further, Hill, the attorney who prepared the amended trust admitted that he never
met with Cook in person to discuss the amendments, and did not recall that Cook had a
distinctive voice when they talked by telephone. Yet, it was undisputed that Cook
required a voice box to converse, which produced a quite distinctive sound. The jury had
every right to disbelieve LaFarre’s testimony, and we decline to second-guess this
credibility finding on appeal. (See Lenk v. Total-Western, Inc. (2001) 89 Cal.App.4th
959, 968 [reviewing court must defer to the trier of fact’s credibility determinations].)
       Given this record, we conclude the judgment may be affirmed based on the
financial elder abuse verdict alone: “ ‘If the decision of a lower court is correct on any
theory of law applicable to the case, the judgment or order will be affirmed regardless of
the correctness of the grounds upon which the lower court reached its conclusion.’
[Citation.] ‘No rule of decision is better or more firmly established by authority, nor one
resting upon a sounder basis of reason and propriety, than that a ruling or decision, itself
correct in law, will not be disturbed on appeal merely because given for a wrong reason.
If right upon any theory of the law applicable to the case, it must be sustained regardless
of the considerations which may have moved the trial court to its conclusion.’ [Citation.]”
(David v. Hermann (2005) 129 Cal.App.4th 672, 685.) However, because LaFarre insists
the jury’s financial elder abuse verdict was somehow tainted by its confusion with respect
to the instructions provided with respect to the separate factual issue of whether LaFarre
exerted undue influence while acting as Cook’s “care custodian,” we briefly address this
issue. In doing so, we keep in mind that a challenge on appeal to the propriety of a jury


                                             12
instruction is a question of law subject to de novo review. (Miller v. Weitzen (2005) 133
Cal.App.4th 732, 736, fn. 3.) Moreover, a jury charge must be assessed on appeal based
upon the entirety of the charge rather than a single instruction. (People v. Frye (1998) 18
Cal.4th 894, 957; see also People v. Laskiewicz (1986) 176 Cal.App.3d 1254, 1258
[“Instructions should be interpreted, if possible, so as to support the judgment rather than
defeat it if they are reasonably susceptible to such interpretation”].)
       Relevant to this challenge, the jury was specially instructed pursuant to Probate
Code section 21380 that: “A provision of a trust providing benefits to a care custodian of
a donor who is a senior citizen is presumed to be the product of undue influence if the
instrument was executed during the period in which the care custodian provided services
to the transferor, or within 90 days before or after that period. [¶] The presumption
created by this section is a presumption affecting the burden of proof. A care custodian
may rebut this presumption by proving, by clear and convincing evidence, that the
donative transfer was not the product of undue influence.”
       Again, LaFarre does not challenge the substance of these instructions. He thus
implicitly acknowledges the general presumption under California law that a defendant
named in an instrument as the recipient of a donative transfer exerted undue influence on
the donor if, at the time (or within 90 days) of the instrument’s execution, the defendant
was acting as the donor’s care custodian. He also concedes that this presumption
operates to impose upon the defendant the burden to prove by clear and convincing
evidence the absence of undue influence. LaFarre argues, however, that this issue should
have been decided by the trial court rather than the jury, and that the verdict was likely
the product of jury confusion, given that, with respect to the financial elder abuse verdict
form, the jury was instructed that plaintiff had the burden to prove abuse (which abuse
could or could not include undue influence) by a preponderance of the evidence.
       We acknowledge that, pursuant to Probate Code section 8252, subdivision (b),
“The court shall try and determine any contested issue of fact that affects the validity of
the will.” However, neither party has directed us to any legal authority, nor do we know
of any, prohibiting a jury from deciding the issue of undue influence by a care custodian


                                              13
in a civil case, such as this one, for elder abuse. Moreover, the case law suggests
otherwise. (See Heiser v. Superior Court (1979) 88 Cal.App.3d 276, 280, citing Estate of
Beach (1975) 15 Cal.3d 623, 643 [“jury trials are not available in probate proceedings
when such would risk undermining the probate court’s supervisorial responsibilities or
when the issue resembles an accounting wherein it is impractical for a jury to wade
through a mass of figures. Jury trials are appropriate however when the issues involve
such things as standard of conduct, mental capacity [citations], or credibility of
witnesses”].)
       In any event, there is no basis on this record for presuming the trier of fact’s
finding of undue influence by a care custodian was the product of confusion, or otherwise
prejudicial error for several different reasons. First, LaFarre’s argument disregards that
the law requires us to presume the jury, composed of sensible men and women from the
community, is capable of discharging its duty to follow the law as set forth in the court’s
instructions. (People v. Guerra (2006) 37 Cal.4th 1067, 1148-1149.) Moreover, this
presumption that the jury competently discharged its legal duty exists even where, as
here, the jury is told to apply one burden of proof to one issue of fact and another burden
of proof to a separate issue. (People v. Reliford (2003) 29 Cal.4th 1007, 1016 [“ ‘we will
presume here that jurors can grasp their duty—as stated in the instructions—to apply the
preponderance-of-the-evidence standard to the preliminary fact identified in the
instruction and to apply the reasonable-doubt standard for all other determinations’ ”].)
Thus, reviewing the instructions as a whole and assuming, as we must, that the jurors
were fully capable of understanding and correlating the instructions (People v. Guerra,
supra, 37 Cal.4th at pp. 1148-1149), there is no reasonable likelihood in this case the
instructions relating to undue influence by a care custodian resulted in a verdict against
LaFarre on the distinct financial elder abuse claim.10


10
       LaFarre insists “[t]wo conflicting instructions on the same term (‘undue
influence’) could have only caused, not dispelled, jury confusion.” However, the jury
instructions made clear that a verdict against LaFarre on the financial elder abuse claim
did not require a finding of undue influence. (§ 15610.30.) Moreover, LaFarre’s

                                             14
       Second, even assuming for the sake of argument that the jury was confused by the
burden-shifting instruction set forth in the third verdict form, or by its more stringent
evidentiary standard, the fact remains that plaintiffs made an affirmative showing of
undue influence at trial, notwithstanding the presumption arising under Probate Code
section 21380. For example, plaintiffs presented substantial evidence, including expert
testimony, that Cook was depressed and frail at the time of the 2012 trust amendments
due to several recent significant losses in his life, including the death of his life partner,
and due to his failing health. According to Dr. Marvin Firestone, an expert in
neuropsychiatry, these emotional and physical strains would have impacted Cook’s
ability to withstand undue influence by others, particularly those he relied upon for care.
In addition, there was evidence LaFarre, who had received large loans from Cook in the
past on very favorable (if not unfair) terms, had been under significant financial stress for
some time when the purported trust amendments were made, circumstantial evidence of
his motivation for pressuring Cook to transfer property to him.11 Among other things, on
January 9, 2013, a judgment was recorded on LaFarre’s home by the State of California.
In addition, it appears LaFarre had lost a significant amount of money in one or more
risky business ventures.
       Moreover, there was evidence from plaintiffs that LaFarre was being compensated
for helping Cook take care of his personal and medical needs around the time of the
purported trust amendment, another legal requirement for finding a defendant liable as a
care custodian. (Prob. Code, § 21362, subd. (a).) Three witnesses, Virginia Williamson,
Dr. Eric Williamson and Gary Williamson, testified that Cook told them LaFarre was
being paid for providing care to him. In addition, as mentioned above, there was
evidence LaFarre and his wife received loans from Cook in the summer of 2012 totaling
$170,000, with no security and minimal interest, at least one of which appears to have


argument that the jury misunderstood or misapplied the appropriate legal standard is
speculative. He makes no affirmative showing whatsoever of jury confusion or error.
11
       LaFarre and his wife also borrowed about $170,000 from Cook in June and
August 2012, when Cook was 89 years old and was twice hospitalized.


                                               15
been forgiven. Finally, there was evidence that LaFarre, after becoming trustee of
Cook’s estate, paid himself generous fees from the trust for his services, including
$77,000 for services rendered between mid-March 2013 and November 2013.
       Thus, on this record, even without giving plaintiffs the benefit of the statutory
presumption, the jury’s finding that LaFarre exerted undue influence on Cook while
acting as his care custodian was amply supported by the evidence. (See, e.g., In re
Gregory A. (2005) 126 Cal.App.4th 1554, 1562 [where clear and convincing evidence is
required, the standard of review is whether the record contains substantial evidence from
which the trier of fact could find clear and convincing evidence of the underlying fact];
see also Lintz v. Lintz, supra, 222 Cal.App.4th at pp. 1354-1355 [undue influence may be
established by circumstantial evidence].) Accordingly, whether or not there was
instructional error with respect to which party had the burden of proof on this issue, for
all the reasons stated, including the overall sufficiency of the evidence establishing that
LaFarre committed financial elder abuse and undue influence as a care custodian, there
was no prejudice from such error, even when assessed under the stringent federal
constitutional standard of harmless beyond a reasonable doubt. (Chapman v. California
(1967) 386 U.S. 18; see People v. Ayers (2005) 125 Cal.App.4th 988, 998.) Under the
totality of circumstances of this case, there is simply no basis for disturbing the trier of
fact’s well-supported verdicts in favor of plaintiffs and against LaFarre. (See People v.
Sanchez (2001) 26 Cal.4th 834, 851 [if a jury is instructed on two alternative theories of
liability, one of which is legally sufficient and one of which is not, we will affirm unless
the record affirmatively demonstrates the jury relied on the unsupported ground]; see also
In re Estate of Hansen (1940) 38 Cal.App.2d 99, 117 [where there is substantial evidence
to support the finding of a jury on any material issue, the jury’s determination of that
issue will be upheld on appeal].)

II.    Did The Trial Court Properly Admit Evidence Relating To The Accounting
        Submitted In Cook’s Probate Case?
       LaFarre next contends the trial court erred by admitting certain evidence of the
accounting he submitted in probate court that, he says, was relevant in this civil case only


                                              16
for the purpose of “attacking [his] character.” This evidentiary challenge is, of course,
reviewed only for abuse of discretion. (Donlen v. Ford Motor Co. (2013) 217
Cal.App.4th 138, 148 [trial courts have broad discretion to determine the relevancy of
evidence].)
          We conclude LaFarre has failed in his burden to prove any such abuse of
discretion. The trial court admitted these documents as relevant to plaintiffs’ theory that
LaFarre targeted Cook and sought to take control of his estate as a way to alleviate his
own financial concerns. This ruling, wholly reasonable in light of the record created at
trial, was within the proper scope of the court’s discretion. (Evid. Code, § 210 [“
‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action”].) The ruling thus
stands.

III.      Does Substantial Evidence Support The Jury’s Findings That Lafarre Was
           a “Care Custodian” and Fiduciary With Respect To Cook?
          LaFarre also contends the jury’s findings that he was Cook’s care custodian and
owed him a fiduciary duty are not supported by substantial evidence. “When determining
whether there is sufficient evidence to support the trial court’s finding of [fact], we
follow established rules of appellate review: We view factual matters most favorably to
the prevailing party and in support of the judgment. We defer issues of credibility to the
trier of fact. Additionally, we resolve all conflicts in the evidence in favor of the
respondents. [Citation.] Our power ‘begins and ends with a determination as to whether
there is any substantial evidence, contradicted or uncontradicted, which will support the
conclusion’ reached by the trier of fact. [Citation.]” (Estate of Auen, supra, 30
Cal.App.4th at p. 311.) More specifically, “In viewing the evidence, we look only to the
evidence supporting the prevailing party. [Citation.] We discard evidence unfavorable to
the prevailing party as not having sufficient verity to be accepted by the trier of fact.
[Citation.] Where the trial court or jury has drawn reasonable inferences from the
evidence, we have no power to draw different inferences, even though different


                                              17
inferences may also be reasonable. [Citation.] The trier of fact is not required to believe
even uncontradicted testimony.” (Rodney F. v. Karen M. (1998) 61 Cal.App.4th 233,
241.)
        Having reviewed this record, we conclude there is indeed substantial evidence
supporting the jury’s finding that LaFarre was acting as Cook’s care custodian at the time
he financially abused him. In fact, much of this evidence has already been discussed.
We thus only briefly summarize it here. First, LaFarre himself acknowledged that he
regularly provided Cook transportation to medical appointments and to the YMCA
(among other places), regularly took his trash cans to the curb for pickup, and regularly
cooked meals for him. In addition, there was evidence LaFarre received compensation
for these services, including testimony from the Williamsons that Cook told them as
much. And there was evidence of favorable loans Cook provided LaFarre and his wife
(one of which LaFarre acknowledged never fully repaying).12 Finally, there was
evidence Cook qualified as a dependent adult at the time LaFarre rendered these services
to him, including testimony from medical experts that Cook’s mental and physical health
were in significant decline, making him susceptible to undue influence. No further
evidentiary showing was required under California law. (See Prob. Code, § 21362 [a
“care custodian” is one who provides “health and social services,” meaning “services
provided to a dependent adult because of the person’s dependent condition, including, but
not limited to, . . . assistance with hygiene, companionship, housekeeping, shopping,
cooking, and assistance with finances”]; Prob. Code, § 21366, subd. (a) [a “dependant
adult” is one who is: “65 years of age or older and satisfied one or both of the following
criteria: [¶] (1) The person was unable to provide properly for his or her personal needs
for physical health, food, clothing, or shelter. [¶] (2) Due to one or more deficits in the
mental functions [see Prob. Code, § 811, subd. (a)(1)-(4)] . . . the person had difficulty
managing his or her own financial resources or resisting fraud or undue influence”].)

12
        LaFarre argues these types of loans are not the type of payment for services
contemplated under Probate Code section 21380. However, he offers no legal authority
for his argument, and we reject it.


                                             18
       Much of this same evidence relating to LaFarre’s regular provision of health and
human services to Cook during a time in which Cook was becoming increasingly
dependent on others for his daily needs also supports the jury’s finding that LaFarre owed
Cook a fiduciary duty.13 As one well-known treatise aptly explains: “Those who oversee
the day-to-day needs of the aged in facilities for their care, and whom the aged perceive
as controlling their continued peaceful enjoyment of the care and comfort they receive,
are in a confidential and controlling relationship.” (79 Am.Jur.2d Wills, § 367; see also
Stevens v. Marco (1956) 147 Cal.App.2d 357, 374 [“this rule [of fiduciary obligation]
does not apply merely to those who bear a formal relation of trust to those with whom
they deal — not only to attorneys, physicians, trustees, clergymen, kinsmen, and others
who by the very force of their occupations or relationship are presumed to be in the class
of persons bound to act with the utmost good faith. It applies in every case where there
has been a confidence reposed which invests the person trusted with an advantage in
treating with the person so confiding”].) Applying this legal standard here, we conclude
no further evidentiary showing was required by plaintiffs. Accordingly, the jury’s
findings must stand.

IV.    Did The Trial Court Properly Grant Plaintiffs’ Motion To Advance Trial?
       Finally, LaFarre challenges as an abuse of discretion the trial court’s grant of
plaintiffs’ request to proceed to trial in this case in advance of the pending trial in probate




13
        The jury was instructed as follows with respect to plaintiff’s cause of action for
breach of fiduciary duty: “A fiduciary relationship is created where a confidence is
reposed by one person in the integrity of another and the party in whom the confidence is
reposed voluntarily accepts or assumes to accept the confidence. A fiduciary duty
imposes on that person a duty to act with the utmost good faith in the best interest of the
person in his or her care and that person can take no advantage from his acts relating to
the interest of the other party without the latter’s knowledge or consent. A fiduciary
relationship is founded upon the trust or confidence reposed by one person in the integrity
and fidelity of another, and precludes the idea of profit or advantage resulting from the
dealings of the parties and the person in whom the confidence is reposed.” LaFarre has
not challenged the validity of this instruction.


                                              19
court to determine the validity of Cook’s amended trust. This request was made in light
of Ms. Shook’s advanced age (92 years old) and serious medical infirmities.
       In response to LaFarre’s arguments in his opening brief, plaintiffs have submitted
to this court a request for judicial notice of an official trial court order, dated January 30,
2014, establishing that the original trial date in probate court of February 24, 2014, was in
fact vacated sua sponte by the probate court judge because LaFarre had failed to file a
timely accounting. We agree with plaintiffs this undisputed fact undermines LaFarre’s
claim that the trial court here abused its discretion by proceeding to trial on their civil
claims before resolution of the related probate matter. We thus grant plaintiffs’ request
for judicial notice of this record (Evid. Code, § 452, subds. (c), (d)), and reject LaFarre’s
final contention.

                                       DISPOSITION
       The judgment is affirmed. Plaintiffs shall recover costs on appeal.



                                                   _________________________
                                                   Jenkins, J.


We concur:


_________________________
Pollak, Acting P. J.


_________________________
Siggins, J.




Josephine Shook, an Incompetent Person, etc., et al., v. Cyrus LaFarre, A142993




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