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Case of the Month (from CFLR Monthly)

April 2024

Daughter exerted undue influence over mother when persuading mother to the transfer ownership of her home to daughter. . .


In partial affirmance, the First District held the trial court did not err by issuing a two-year restraining order per the Elder Abuse and Dependent Adult Civil Protection Act, where restrained party exerted undue influence over her 86-year-old mother in order to obtain deed to mother's home; however, the trial court did err by barring restrained party from the home in question since legal title to the property was in restrained party's name and, additionally, the trial court did not have authority to order the transfer deed void ab initio.


Newman v. Casey

(January 30, 2024)

California Court of Appeal 1 Civ A165210 (Div 1), 99 Cal.App.5th 359, 317 Cal.Rptr.3d 706, 2024 FA 2117, per Banke (Humes, P.J., and Castro, J., concurring). San Mateo County's Novak, J., partially affirmed. For Marina Casey (Appellant): Eric D. McFarland. For Gracia Bovis (Respondent): Joseph Michael Goethals and Myron Moskovitz. CFLP §§C.2.1.0, C.12.5.


In February 2022, Gracia Bovis filed a request for a restraining order against her daughter, Marina Casey, pursuant to the Elder Abuse and Dependent Adult Civil Protection Act. In her request, Bovis alleged Casey tricked her into signing documents that transferred ownership in her house to Casey.

Casey's response to her mother's request for a restraining order included a declaration by Casey's attorney that averred that the transfer "'was made because of Proposition 19, and to avoid reassessment of property that would otherwise be triggered by an intergenerational transfer.'" The declaration further stated that Proposition 19 "'added new restrictions'" on the change of ownership that "'prompted a rush on parent-child transfers to beat the deadline for filing reassessment exclusion forms on or before February 15, 2021.'"

At the hearing on Bovis's request for a restraining order, Bovis testified that she lived in her house for over 50 years and that Casey "'tricked me into signing papers'" so she "'would not get higher taxes'" under Proposition 19. Bovis further testified that she did not read the papers that she signed, felt confused and pressured to sign the deed, and only later discovered that the documents transferred title to Casey. Bovis also said that Casey had threatened to put her "'in an old folk's home'" and was '"abusive to me.'" Bovis wanted Casey "'out of my life'" and wanted her house back. On cross-examination, Bovis said that Casey selected the attorney who prepared the transfer deed and that it was never Bovis's "'intention to give [her] house to [Casey] during [her] lifetime.'"


Family matters. . .
In turn, Casey testified that she discussed estate planning documents with Bovis and denied pressuring Bovis into signing the documents. She said that Casey and Bovis twice met with the attorney who prepared the transfer deed. During the first meeting, they spoke about "'[m]oving the house out of [Bovis's] name'" to "'protect the Prop 13 property tax base.'" During the second meeting, Bovis signed the deed and the attorney "'told [Bovis] she would no longer own her own home.'" Casey denied confusing Bovis into signing the deed and accused her brother of exerting undue influence on Bovis. Casey said that Bovis did not start complaining about the transaction until her brother accused Casey of taking her house. Casey acknowledged that Bovis asked her to return the house several times. Due to concern about possible tax implications as well as the potential for her brother to misuse the property, Casey sought advice from an attorney. Her attorney advised Casey to transfer the house back to Bovis through an irrevocable trust. Casey testified that she was just "'waiting for my lawyer to tell me when I can sign it.'"

At the conclusion of the hearing, the trial court found that Bovis "'did not understand fully what was ongoing when she signed the deed. She was taken to the attorney's office by Ms. Casey. Ms. Casey selected the attorney. And Ms. Bovis's responses to many questions throughout the course of this hearing are demonstrative of her confusion over a variety of issues.'" The trial court (San Mateo County's Novak) issued a two-year restraining order that prohibited Casey from, among other things, financially abusing or contacting Bovis as well as prohibited Casey from coming within 100 yards of Bovis or her home. The trial court also ordered the transfer deed void ab initio. Casey appealed, and the First District affirmed in part and reversed in part.

The panel began its analysis by giving an overview of the Elder Abuse and Dependent Adult Civil Protection Act, W&I C §§15600 et seq., which provides that financial abuse occurs when a person secrets, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud or that is committed by undue influence. Undue influence, in turn, means excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity. Undue influence is governed by several factors, including (1) the vulnerability of the victim; (2) the influencer's apparent authority; (3) the actions or tactics used by the influencer; and (4) the equity of the result.


Casey exerted undue influence over her mother. . .
With this legal framework in mind, the justices held that the trial court did not err by issuing the two-year restraining order. In so holding, the justices found each of the four undue influence factors present in this case. First, Bovis's vulnerability was demonstrated by the fact that she did not fully understand what she was told by Casey or the attorney who prepared the deed. As the trial court noted, Bovis's responses during trial indicated her "'confusion over a variety of issues.'" Second, per W&I C §15610.70(a)(2), the influencer's apparent authority may be shown by the influencer's status as a fiduciary, family member, care provider, health care professional, spiritual adviser, expert, or other qualification. Here, the justices found this factor present since Casey is Bovis's daughter. Third, per W&I C §15610.70(a)(3)(C), the influencer's actions or tactics may be demonstrated by the "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." Here, the justices found this factor present, although not by an abundant amount of evidence, since the transfer was made with urgency due to the Proposition 19 deadline and since Casey made arrangements with an attorney other than Bovis's estate planning attorney to prepare the transfer deed. And finally, per W&I C §15610.70(a)(4), evidence of the equity of the result may include "economic consequences to the victim, any divergence from the victim's prior intent, or course of conduct or dealing, [and] the relationship of the value conveyed to the value[.]" Here, the deed transferred Bovis's title to her daughter for no consideration. Thus, Bovis was not financially compensated and incurred an economic loss as a result of the transaction. Bovis also testified that it was not her intent to give Casey her house during her lifetime. For these reasons, the panel concluded the trial court did not err by issuing the two-year restraining order based on its finding of financial abuse.

Next, the justices held that the trial court erred by barring Casey from the home in question. On this point, Casey argued the trial court exceeded its authority under W&I C §15657.03 [authorizing restraining orders to protect elder and dependent adults] by voiding the transfer deed. Turning first to the plain language of the statute, the justices noted that none of the enumerated restraining orders authorize an order declaring a document void ab initio. In fact, "the entirety of [W&I C 15657.03] is focused on restraining orders to prevent further acts of abuse." The justices also found the order declaring the deed void ab initio at odds with the durational provisions in the act, and, indeed, at odds with the two-year duration imposed by the trial court in this case, since the order declaring the deed void ab initio "is a permanent pronouncement."

The justices also found the legislative history of W&I C §15657.03 supports their conclusion that the trial court exceeded its authority under the statute. In 1999, the Legislature added W&I C §15657.03 to the Elder Abuse and Dependent Adult Protection Act. The express purpose of this addition was to close a gap in protection for elderly persons under the Domestic Violence Prevention Act (DVPA). Specifically, the Assembly Committee on Aging and Long Term Care reported that under the DVPA, "abusive roommates or caregivers cannot be forced to leave the home of the victim and to stay away." Thus, the legislative history makes clear that the restraining order provision of the Act serves a specific purpose to secure the immediate safety of an elder from any further act of abuse. Moreover, the justices noted the Legislature added a private enforcement provision to the Act. Specifically, W&I C §15657.5 authorizes an elder or dependent adult to bring a civil action when real or personal property has been taken for wrongful use or with an intent to defraud. The justices reasoned this enactment further supports their conclusion that W&I C §15657.03 does not authorize the recovery of such property.

For these reasons, the First District reversed the stay-away component of the restraining order that bars Casey from the property on which Bovis resided and affirmed the restraining order in all other respects.





On appeal, Casey argued that there was nothing nefarious about her actions. Instead, she claimed to be a "'dutiful daughter who helped her mother get around.'" According to Casey, her concern for her mother's property was twofold. First, she wanted to avoid reassessment of the property under Proposition 19. Second, she wanted to protect the property from misuse by her brother, Nicholas Bovis, who had been convicted of fraud. In her declaration, Casey attached a copy of a revocable trust agreement executed by their mother, which read in part "'The Surviving Settlor intends to make no provisions in this trust for Nicholas J. Bovis in that, in the Settlor's view, Nicholas J. Bovis has certain criminal issues and the Settlor does not wish [to] provide any financial support or distribution to him as a result.'" Although Nicholas had been disinherited, Casey was concerned that her brother had started spending significant time with their mother and believed he was exercising undue influence over her. One of the reasons she did not return the property in question was she was afraid Nicholas would use it for "'improper purposes,'" noting that he had done the same with "'other properties that belonged to his mother.'" The justices "agree[d] [Casey] provided a logical explanation for the transfer of property, and, in our view, this was an exceedingly close case even under the preponderance of the evidence standard." However, the justices noted that under the substantial evidence standard they must defer to the trier of fact regarding determinations of the credibility of witnesses.


Library References
6 Witkin, Summary of Cal. Law (11th ed. 2023) Torts § 1773
Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group), ¶ 5:89



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