Butler v. LeBouef

John F. LeBouef, an attorney, appeals a probate judgment invalidating a will and living trust purportedly executed by John Patton on December 22,

Appellant was Patton's social acquaintance. After Duval died, appellant took an active interest in Patton and frequently drove up from Los Angeles to visit and stay the night. Appellant's life partner, Mark Krajewski, accompanied appellant on many of the visits. Krajewski was also appellant's business partner. They owned property in Los Angeles and Buenos Aires, maintained joint checking and investment accounts, shared a cell phone plan, and used the same post office box.

As Patton's health deteriorated, appellant and Krajewski visited more frequently. Patton complained that appellant was overbearing and visited too often. In 2010, Patton told his assistant, Neely Bermant, that he was losing control of his finances and that appellant had moved his money around.

On December 22, 2006, Patton allegedly changed his will and created a trust naming appellant principal beneficiary. He gifted a vintage car to Donald Pooler, appellant's

Rick Jong, Cook's friend and accountant, testified that Cook did not know Krajewski and would have never gifted $1 million to a stranger. Jong was Cook's trustee and learned about the trust amendment removing him as trustee after Cook died. Appellant told Cook that Pooler was a retired judge who specialized in trustee work. Pooler was actually an insurance investigator and good friends with appellant and Krajewski. Pooler lived next door to appellant for a number of years and before that, lived in an apartment building owned by Krajewski. The building was gifted to Krajewski pursuant to the James Gravett Trust that was drafted by appellant.

Sandra Homewood, a forensic document examiner, testified that the same idiosyncrasies (misspelled words, unusual sentence structure, grammatical and punctuation errors, font irregularities) were in the Cook and Patton Trust instruments. Homewood opined that it was virtually certain that the Patton trust was produced by the same "entity" that produced the Cook trust.

Staged Burglary-Loss of Original Trust Document

Appellant defended on the theory that Patton's will and trust were drafted by an attorney whose identity was unknown. Alice Bennett, an attorney and Los Angeles Superior Court mental health referee, was a friend of both appellant and Patton. Patton asked her to prepare estate planning documents but Bennett recommended that he use a Santa Barbara attorney. In 2009, Patton mailed Bennett some estate planning documents for safekeeping. Bennett

As to the "missing trust" document, the trial court said that it was "key evidence" and instrumental in understanding appellant's involvement in Patton's estate plan. Examination of the original Trust "could have laid considerable concerns to rest, including one of particular importance: whether a single page ... containing the disposition of the assets in the trust, had at some point been substituted." It said that the trust document and appellant's laptop "went missing in the course of a very peculiar burglary from a house filled with valuable objects, wherein only a handful of random items were taken, including said laptop, and an unsecured plastic box of random documents, that just happened to include the items necessary to a full understanding of the facts of this matter."

Prior Bad Acts Evidence

Appellant contends that the trial court erred in receiving evidence concerning the Grant and Cook Trusts to show common plan or scheme. (Evid.Code, § 1101, subd. (b).) In each trust matter, appellant befriended an elderly person and drafted or helped draft a trust that benefited himself or his associates. Prior bad acts evidence is admissible to show a common plan or scheme if the probative value of the evidence outweighs the potential for prejudice. (Evid.Code, §§ 1101, subd. (b) ; 352; People v. Hovarter (2008) 44 Cal.4th 983 , 1002, 81 Cal.Rptr.3d 299 , 189 P.3d 300 ; Hassoldt v. Patrick Media Group, Inc. (2000) 84 Cal.App.4th 153 , 165, fn. 11, 100 Cal.Rptr.2d 662 [rule applies in civil and criminal cases].)

In Estate of Zalud (1972) 27 Cal.App.3d 945 , 104 Cal.Rptr. 329 ( Zalud ), a will contest, defendant was named as the principal beneficiary on a printed will executed by an elderly woman, Pearle Zalud. Although defendant was not related to Zalud, the will was witnessed by defendant's brother and nephew. ( Id., at p. 949, 104 Cal.Rptr. 329 .) None of Zalud's prior wills were written on a printed form or named defendant as a beneficiary. ( Id., at p. 953, 104 Cal.Rptr. 329 .) Over defendant's objection, evidence was received that defendant and his brother were principal beneficiaries in wills executed by two other elderly women, Winifred Wells and Florence Sammons. ( Id., at p. 955, 104 Cal.Rptr. 329 .) Defendant denied knowing how the wills were prepared even though they were typed on the same

The trial court reasonably concluded that the probative value of the prior acts evidence substantially outweighed the potential for prejudice. "The weighing process under [Evidence Code] section 352 depends upon the trial court's consideration of the unique facts and issues of each case, rather than upon the mechanical application of automatic rules. [Citations.]

Appellant argues that the evidence does not support the finding that Patton's will and trust was the product of fraud or undue influence. The power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, that supports the judgment. ( Bowers v. Bernards (1984) 150 Cal.App.3d 870 , 873-874, 197 Cal.Rptr. 925 ; see also In re Marriage of Martin (1991) 229 Cal.App.3d 1196 , 1200, 280 Cal.Rptr. 565 .)

Section 21380 prohibits donative transfers to broad categories of persons who, because of their relationship with the settlor/trustor, might exercise undue influence. Undue influence is presumed where the donative transfer is in favor of the person who drafted the instrument or where the person who transcribed it or caused it to be transcribed had a fiduciary relationship with the settlor/trustor. (§ 21380, subd. (a)(1)-(2).) The presumption may be rebutted by clear and convincing evidence that the donative transfer was not the product of fraud or undue influence. (§ 21380, subd. (b).) Where the donative transfer is to the person who drafted the donative instrument, the presumption is conclusive. (§ 21380, subd. (c) ; see Rice v. Clark, supra, 28 Cal.4th at p. 98, 120 Cal.Rptr.2d 522 , 47 P.3d 300 [discussing former section 21351; "if an attorney

Appellant's claim that another attorney drafted Patton's will and trust was refuted in other ways. Like Sherlock Holmes' "dog in the night" that failed to bark (2 Doyle, Silver Blaze, The Annotated Sherlock Holmes (Baring-Gould, ed.1967) pp. 277, 280), the absence of estate planning documents showed that something was amiss. (See e.g., Gentry v. City of Murrieta (1995) 36 Cal.App.4th 1359 , 1380, 43 Cal.Rptr.2d 170 .) Assuming that Patton hired another lawyer to draft the will and trust, one would expect to see billings, correspondence, a check for legal services, an estate planning questionnaire, and the lawyer's name on the estate planning documents. Lawyers who draft trusts typically put page numbers on the trust instrument. Patton's trust, like the Cook trust amendment, was not paginated and contained the same misspellings and punctuation errors.

Because the gift to appellant would have been disallowed under the Probate Code, any competent attorney drafting the trust would have had a second attorney review the trust and talk to Patton, and sign a certificate of independent review. (§ 21384, subd. (a); see Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128 , 1137, 179 Cal.Rptr.3d 304 .) Appellant's probate expert, Attorney Marilyn Anticouni, testified that a certificate of independent review "is a simple solution to a problem with big consequences."

Appellant testified at his deposition that he did not know what a certificate of independent review was. This bolstered respondents' claim that appellant drafted Patton's trust. At trial, appellant altered his testimony and said he was familiar with certificates of independent review. The trial court found the testimony "disingenuous" and concluded that appellant had a significant hand in the preparation of Patton's will and trust. If appellant "was aware of the concept ..., why would he be filling out beneficiary designation forms, direct testamentary documents, without independent review? If [appellant] was

Appellant's Trustee Fees, Attorney Fees and Out-of-Pocket Costs

Appellant contends that the trial court abused its discretion in denying his request for trustee's fees and attorney fees and not reimbursing him for out-of-pocket costs. Although the trust provides for the payment of reasonable trustee's fees, the trust is void. Section 15681 provides that "[i]f the trust instrument does not specify the trustee's compensation, the trustee is entitled to reasonable compensation under the circumstances." Where the trustee commits a breach of trust, the trial court may deny the trustee all compensation. ( Estate of Gump (1991) 1 Cal.App.4th 582 , 597, fn. 16, 2 Cal.Rptr.2d 269 ;

The trial court reasonably concluded it would be inequitable to award appellant trustee fees and attorney fees for services that benefited no one other than appellant. (See e g., Terry v. Conlan (2005) 131 Cal.App.4th 1445 , 1461, 33 Cal.Rptr.3d 603 .) The fees, costs, and expenses spring from appellant's fraud, concealment, and misconduct. "No one can take advantage of his own wrong." (Civ.Code, § 3517.)

Appellant complains that the trial court erred in not reimbursing him for out-of-pocket expenses and property management services. None of the expenses were documented with billings, invoices, canceled checks, or specific check account numbers. ( Estate of McCabe (1950) 98 Cal.App.2d 503 , 505, 220 P.2d 614 [any doubt arising from trustee's failure to keep proper records, or from the nature of the proof he produces, must be resolved against trustee].) The out-of-pocket expenses include $1,961.16 in funeral costs purportedly paid in cash, $3,800+ in "Sea Grass uppers" (carpet) for an unknown address, the $854.21 cash purchase of a dishwasher, and a $622.29 gas range. Appellant requested $15,519.75 for managing two rental properties over a three year period and $5,400 for the "management" of Patton's residence ($150 per month x 36 months). Appellant used the house rent free for three years. The trial court did not err in disallowing the claim for out-of-pocket expenses and property management services. ( Estate of Vokal (1953) 121 Cal.App.2d 252 , 260-261, 263 P.2d 64 [award for fees for services to a trust will

Appellant's remaining arguments have been considered and merit no further discussion. The judgment, and the postjudgment order, are affirmed. Respondents are awarded costs on appeal and reasonable attorney fees in an amount to be determined, on noticed motion, by the trial court. The clerk is directed to forward a copy of this opinion to the California State Bar (Bus. & Prof.Code, § 6103.6 ) and the district attorney for the County of Santa Barbara. We express no opinion on discipline and/or the decision to initiate criminal prosecution.

We concur:

GILBERT, P.J.

PERREN, J.

In a postjudgment order, the trial court approved appellant's trust accounting but denied his request for trustee fees, attorney fees, and reimbursement for out-of-pocket expenses and property management services. It ruled that an award for fees, costs, services, and out-of-pocket expenses would be inequitable and reward appellant for his misconduct. We affirm this order.

Facts and Procedural History

Kim Butler and Julie Butler Black are the nieces and last known heirs-at-law of John A Patton. After Patton passed away in 2011, Butler, Black, and Carol Archer filed a petition to invalidate a $5 million donative transfer to appellant (Prob.Code, §§ 17200, 6104, 15642) and remove appellant as trustee of the John A. Patton Revocable Trust, dated December 22, 2006. Respondents claimed that appellant, an attorney, drafted or transcribed Patton's will and trust to enrich himself.

John Patton, a renowned interior designer, died in Santa Barbara on June 18, 2011. He was 73 years old, in poor health, and suffering from depression, alcohol abuse, hepatitis, diabetes, high blood pressure, gout, and incontinence. Patton's housekeeper testified that he was more often drunk than sober during the last six months of his life. He would drink heavily, howl like a dog, and fall down and injure himself. Neighbors had to pick him off the

Prior Questionable Estate Plans and Administrations

Respondents argued that it was not the first time that appellant befriended an elderly person and drafted a will or trust naming himself or his partner, Krajewski, principal beneficiary. Respondents claimed there were eight prior incidents. Pursuant to Evidence Code section 1101, subdivision (b), the trial court exercised its discretion and limited the prior acts evidence to two trust matters (the Irene Grant Trust and Audrey Cook Trust). Appellant drafted both trust instruments.

In 1999, appellant helped Irene Grant inherit $2.5 million from Walter Pick. Grant was Pick's caretaker. Pick's will, which was drafted by appellant, gifted the estate to Grant. After Pick died, appellant married Grant who was 20 years older and managed the inheritance. Before Grant passed away in 2006, appellant drafted Grant's trust naming himself principal beneficiary. Appellant received the bulk of the estate on Grant's death and gave $800,000 to $1 million to Grant's niece in Buenos Aires. The niece was told that Grant wanted her to receive the entire estate but appellant kept some estate assets. Appellant also collected Grant's social security benefits for the next seven years.

Trial Court Findings

In a 56-page statement of decision, the trial court rejected the defense theory at trial based upon appellant's testimony. It factually found: 1.

Like Zalud, the Pick and Cook trusts were admissible to show a common plan or scheme and to impeach appellant's testimony that he did not know who drafted Patton's will and trust. The Patton trust, like the Grant and Cook trusts, named appellant or Krajewski primary beneficiary. Pick's will, which was drafted by appellant, named Grant (Pick's caregiver) as the beneficiary and appellant as executor. Appellant married Grant, managed her finances, and drafted Grant's trust naming himself beneficiary. Appellant's long time friend, Donald Pooler, assisted in the administration of the Pick estate and received Grant's Mercedes Benz after Grant passed away.

Pooler and Krajewski were key players in the Cook trust. The fourth trust amendment, which was drafted by appellant, named Krajewski as principal beneficiary and Pooler as successor trustee. Before Pooler and Krajewski were sued by the family, Pooler sold the Cook family residence and distributed the sale proceeds ($1.3 million) to Krajewski.

Appellant used other friends to witness and safe keep Patton's will and trust. Appellant's friend, Miriam Olivares, stated that she just happened to drive up from Los Angeles and witness Patton's will on December 22, 2006. The trial court found that Olivares' testimony had a rehearsed quality and the whole scenario of Olivares making a spontaneous trip to Santa Barbara to witness the will was "rather improbable...."

Appellant continued to utilize friends and associates in his estate planning. Patton allegedly signed the trust the same day (December 22, 2006) but his signature was not acknowledged by a notary until July 25, 2008, 19 months later. Alice Bennett, another of appellant's associates, purportedly kept the

2006 was a busy year for appellant marked by an unusual confluence of estate planning. The Grant Trust came to fruition in 2006 when Grant died and appellant was gifted the trust money. Appellant also drafted Cook's fourth trust amendment in 2006, naming Krajewski as principal beneficiary. Patton's will and trust were written and purportedly signed in 2006, "gifting" the bulk of the estate to appellant. The physical similarities between the Cook Trust and Patton Trust were striking. The trial court found that the Patton Trust was drafted "much in the image of the Audrey Cook Trust."

Even without the admission of the facts relating to the Grant and Cook prior acts evidence, it is not reasonably probable that appellant would have received a more favorable result. ( Taylor v. Nabors Drilling USA, LP (2014) 222 Cal.App.4th 1228 , 1244-1246, 166 Cal.Rptr.3d 676 .) This is so because the forensic document examiner, Homewood, considered, without objection, the Cook Trust as an exemplar of appellant's work. Homewood was "virtually certain" that the Cook and Patton Trusts were prepared by the same person. Homewood explained that the degree of certainty was equivalent to the "beyond a reasonable doubt" standard used in criminal cases. Because it was uncontroverted appellant drafted the Cook Trust, it took no leap in logic for the trial court to factually find that appellant drafted or transcribed the Patton Trust. We are bound by this "adverse factual finding." ( In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095 , 1099, 125 Cal.Rptr.3d 238 .)

Before his death, Patton told friends and neighbors who was getting what when he died. Wendy Greenstein, a close friend, telephoned Patton daily. Patton said that he was leaving one of his Santa Barbara homes to Greenstein. Patton made similar statements to his assistant, Neely Bermant, who worked for Patton in 2008 and 2009. In 2009, Patton told Bermant that he had "just signed documents" gifting his home to appellant and everything else to Bermant, Butler, and Greenstein. "Everything else" included two other homes, bank and stock accounts, and valuable jewelry and art. In March 2010, Patton asked Bermant to make a list of all the property in the house and told her who would get what. Bermant prepared the list and Patton signed it.

Appellant contends that "drafters" are not liable for attorney fees but that would undermine section 21380, subdivision (d). The drafter who benefits from a donative transfer is held to the strictest standard because he or she has the greatest opportunity to exercise undue influence. Former 21350, subdivision (e) provided that the fee provision did not apply to a person who drafts the donative instrument but the rule changed in 2011 with the enactment of section 21380. (Stats.2010, ch. 620, § 7.) Subdivision (d) states, without exception, that a beneficiary who is unsuccessful in rebutting the presumption, "shall bear all costs of the proceeding, including reasonable attorney fees." It matters not whether the presumption affecting the burden of proof is rebuttable or conclusive. In construing the statute, we "apply reason, practicality, and common sense to the language at hand. If possible, the words should be interpreted to make them workable and reasonable. [Citations.]" ( Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233 , 1239, 8 Cal.Rptr.2d 298 .)

Excessive Fees

Appellant claims that the $1,256,971 fee award is excessive because two attorneys on respondents' trial team were inexperienced and billed for duplicative work. The trial court reduced the fees by 20 percent to account for duplicated services and services that could have been done by a paralegal. Appellant makes no showing that the trial court erred in not reducing the fee award further. The case was complicated and contentious, involved three years of litigation, a five week trial, more than thirty-five witnesses, and two statements of decision.

Appellant complains that co-counsel, attorney Andrea Hurd, was a new attorney and billed at the rate of $250 an hour. The trial judge had ample opportunity to observe Hurd's performance and gauge the value of her services. Appellant cites no specific evidence that a 20 percent reduction in fees is too little or that Hurd's services were not worth $250 an hour. (See

The evidence shows that appellant enriched himself at the expense of the trust and pursued litigation to promote his own self-interest. (See e.g., Estate of Vokal (1953) 121 Cal.App.2d 252 , 259-260, 263 P.2d 64 .) As trustee, appellant used Patton's home rent free for three years (a $200,000 loss in rental value), failed to maintain property insurance on three houses, ran up gardening and repair costs ($50,000), spent $14,000 of trust money to pay his own utility bills, and spent $503,000 of estate funds on his own defense. When Patton's assistant, Neely Bermant, made a creditor's claim for