Tepper v. Wilkins

Filed 4/19/17
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

BELINDA WILKINS TEPPER, B269900

Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC511863)
v.

MARTHA WILKINS,
Individually and as Trustee
etc., et al.,

Defendants and
Respondents.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Suzanne G. Bruguera, Judge. Affirmed.
Freeman, Freeman & Smiley, Stephen M. Lowe and
Thomas C. Aikin for Plaintiff and Appellant.
Oldman, Cooley, Sallus, Birnberg & Coleman, Marc L.
Sallus, Marshal A. Oldman and Susan B. Rosenblat for
Defendant and Respondent Martha Wilkins, Individually and as
Co-Trustee, etc.
Edward H. Stone for Defendant and Respondent Eileen N.
Wilkins, Individually and as Co-Trustee, etc.
 No appearances by Defendants and Respondents Geoffrey
Wilkins and Derek Wilkins.
___________________
Belinda Wilkins Tepper sued her three siblings, Geoffrey
Wilkins, Martha Wilkins and Derek Wilkins, on behalf of her 88-
year-old mother, Eileen Wilkins, claiming her siblings’ actions
1
individually and while serving as trustees of Eileen’s revocable
living trust constituted financial abuse of an elder or dependent
adult. Tepper’s siblings demurred to her first amended
complaint, asserting Tepper lacked standing to pursue an action
on Eileen’s behalf. Eileen, separately represented by counsel,
intervened in the action and joined the demurrer to Tepper’s
amended complaint. The court sustained the demurrer without
leave to amend and dismissed Tepper’s elder abuse action on
standing grounds. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Original and First Amended Complaints
a. The original complaint
On June 12, 2013 Tepper filed an elder abuse action
against Geoffrey, Derek and Martha alleging each of them,
individually, and while serving together with Eileen as co-
trustees of Eileen’s revocable living trust, had taken and/or
mismanaged Eileen’s assets to Eileen’s detriment. Tepper, who
was not a trustee of Eileen’s revocable trust, alleged she had
standing as Eileen’s child to pursue the action on Eileen’s behalf
to protect her mother from financial abuse. Tepper did not allege

1
Because Eileen and three of her four children share the
same surname, we refer to them by their first names for clarity
and convenience.

2
that she had been personally aggrieved by the actions of her
siblings or that she possessed the ability to file suit as Eileen’s
conservator or attorney-in-fact under a power of appointment. In
her prayer for relief Tepper sought compensatory and punitive
damages and reasonable attorney fees.
b. Eileen’s motion to intervene
On September 18, 2013 Eileen, represented by separate
counsel, moved to intervene in the action. On February 5, 2014
the court granted Eileen’s motion; and Eileen filed a complaint in
intervention alleging she was the real party in interest and
Tepper lacked standing to file this, or any, lawsuit on her behalf.
c. Martha, Geoffrey, Derek and Eileen’s motion for
judgment on the pleadings
Martha, Derek, Geoffrey and Eileen filed answers to
Tepper’s complaint. On March 5, 2014 Martha, individually and
in her capacity as a co-trustee of Eileen’s revocable living trust,
moved for judgment on the pleadings asserting Tepper lacked
standing to bring the elder abuse action on Eileen’s behalf.
Geoffrey, Derek and Eileen filed notices of joinder in Martha’s
motion. On August 20, 2014 the court granted the motion, but
granted Tepper leave to amend her complaint.
d. Tepper’s first amended complaint
On September 19, 2014 Tepper filed a first amended
complaint substantially repeating the allegations of elder
financial abuse. As to standing Tepper added, “Plaintiff brings
this action in the name of Eileen, the real party [in] interest, who
is incapable of bringing the action herself. Eileen has no
awareness of her finances or how her continued trust in
Defendants is harming her financial security. Defendants are
Eileen’s other three children and they are or have been trustees

3
of various Trusts established by Eileen and her late husband . . . .
While Eileen is nominally a Co-Trustee [of her revocable living
trust], it is clear she has entirely delegated control of her finances
to the Defendants. This action became necessary after the
Defendants failed to respond to requests for an accounting and
information about expenditures from Eileen’s trusts after Eileen’s
professional advisers became concerned that she would shortly
2
run out of money.[ ] [¶] . . . A formal conservatorship action is
not required to act on behalf of Eileen because it would
unnecessarily involve her in proceedings primarily concerned
with her capacity rather than the actions being taken by her
fiduciaries and would create additional expense for her. A
conservatorship would focus the legal action as an attack on
Eileen’s capacity, rather than an attempt to protect her from her
children/trustees who are endangering her financial security.”
Tepper further alleged Eileen’s “lack of understanding of
her situation” was supported by numerous statements Eileen had
made during her deposition including: She does not sign her own
checks, does not have a budget and does not know specifically
how her money is being spent; she relied on her lawyer to
produce documents at her deposition; she could not
independently describe the extent of gifts being made from her
assets by her three co-trustees; and she was under the “mistaken
impression” that Tepper was suing her. Tepper attached
transcripts from Eileen’s deposition as exhibits to support these
allegations. This time, in her prayer for relief Tepper sought

2
Tepper’s separate petitions in the probate court seeking
accountings for Eileen’s revocable living trust were dismissed by
the probate court without prejudice.

4
compensatory and punitive damages “payable to Eileen Wilkins
or her designated trust,” as well as Tepper’s reasonable attorney
fees.
On February 26, 2015 Martha, individually and as co-
trustee, demurred to the amended complaint asserting,
primarily, Tepper’s lack of standing to pursue the elder financial
abuse action on Eileen’s behalf. Eileen, Geoffrey and Derek
joined in Martha’s demurrer.
On November 24, 2015 the court sustained without leave to
amend the Wilkinses’ demurrer to Tepper’s complaint, ruling
Tepper “did not allege facts showing she has standing to assert
the financial elder abuse claim on behalf of Eileen Wilkins.”
After this court advised her counsel that an order sustaining a
demurrer was not an appealable order, Tepper obtained an order
dismissing her complaint with prejudice; and judgment was
entered for the defendants on February 2, 2017.
DISCUSSION
1. Standard of Review
A demurrer tests the legal sufficiency of the factual
allegations in a complaint. We independently review the superior
court’s ruling on a demurrer and determine de novo whether the
pleading alleges facts sufficient to state a cause of action or
discloses a complete defense. (Loeffler v. Target Corp. (2014)
58 Cal.4th 1081, 1100; McCall v. PacifiCare of Cal., Inc. (2001)
25 Cal.4th 412, 415.) We assume the truth of the properly
pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded and matters of which judicial notice
has been taken. (Evans v. City of Berkeley (2006) 38 Cal.4th 1,
20; Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074,
1081.) However, we are not required to accept the truth of the

5
legal conclusions pleaded in the complaint. (Zelig v. County of
Los Angeles (2002) 27 Cal.4th 1112, 1126; Yhudai v. IMPAC
Funding Corp. (2016) 1 Cal.App.5th 1252, 1257.) We liberally
construe the pleading with a view to substantial justice between
the parties. (Code Civ. Proc., § 452; Gilkyson v. Disney
Enterprises, Inc. (2016) 244 Cal.App.4th 1336, 1340; see
Schifando, at p. 1081 [complaint must be read in context and
given a reasonable interpretation].)
2. The Court Did Not Err in Ruling Tepper Lacked
Standing To Bring the Elder Abuse Action
a. Governing law
The Elder Abuse and Dependent Adult Civil Protection Act
3
(Elder Abuse Act) (Welf. & Inst. Code, § 15600 et seq.) was
enacted in 1982 to “protect a particularly vulnerable portion of
the population from gross mistreatment in the form of abuse and
custodial neglect.” (Delaney v. Baker (1999) 20 Cal.4th 23, 33;
accord, Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th
771, 779.) Among other things, the Elder Abuse Act provides
that any person who takes, secretes, appropriates, obtains or
retains real or personal property of “an elder”—a person residing
in this state who is 65 years or older (§ 15610.27)—for a wrongful
use or with the intent to defraud or by undue influence is liable
for elder financial abuse. (§ 15610.30, subd. (a); see §§ 15657.5
[authorizing action for damages and recovery of enhanced
remedies in certain circumstances], 15657.6 [return of property].)
Special standing rules apply in certain circumstances for
actions under the Elder Abuse Act. Generally, an action must be

3
Statutory references are to this code unless otherwise
stated.

6
prosecuted by the real party in interest, that is, the person
aggrieved by the alleged conduct or otherwise “beneficially
interested” in the controversy. (See Code Civ. Proc., § 367
[“[e]very action must be prosecuted in the name of the real party
in interest, except as otherwise provided by statute”]; Carsten v.
Psychology Examining Com. (1980) 27 Cal.3d 793, 796 [a real
party in interest is one who is beneficially interested in the
controversy, that is, one who has “some special interest to be
served or some particular right to be preserved or protected”];
Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin
American Dist. of the Assemblies of God (2009) 173 Cal.App.4th
420, 445 [same].) The Elder Abuse Act, however, authorizes an
action to be brought not only by the elder, but also by the elder’s
“personal representative” when the elder is alive but “lacks
capacity under section 812[ ] of the Probate Code, or is of unsound
4

mind, but not entirely without understanding, pursuant to
[section 38] of the Civil Code[ ] . . . .” Under those circumstances
5

4
Probate Code section 812 provides in part, “[A] person lacks
the capacity to make a decision unless the person has the ability
to communicate verbally, or by any other means, the decision,
and to understand and appreciate, to the extent relevant, all of
the following: [¶] (a) The rights, duties, and responsibilities
created by, or affected by the decision[;] [¶] (b) [t]he probable
consequences for the decisionmaker and, where appropriate, the
person affected by the decision[;] [¶] (c) [t]he significant risks,
benefits, and reasonable alternatives involved in the decision.”
5
Civil Code section 38 provides, “A person entirely without
understanding has no power to make a contract of any kind, but
the person is liable for the reasonable value of things furnished to
the person necessary for the support of the person or the person’s
family.”

7
the elder’s personal representative may demand return of
property on the elder’s behalf and, if unsuccessful, may bring an
action for damages and other relief. (§ 15657.6.) “Personal
representative” is defined as “a person or entity that is either”
“(1) [a] conservator, trustee, or other representative of the estate
of an elder or dependent adult” or “(2) [a]n attorney-in-fact of an
elder or dependent adult who acts within the authority of the
power of attorney.” (§ 15610.30, subd. (d); see § 15657.6
[adopting definition of personal representative contained in
section 15610.30, subdivision (d)].)
An action may also be brought by the elder’s personal
representative after the elder’s death. (See § 15657.3, subd. (d)(1)
[“after the death of the elder or dependent adult, the right to
commence or maintain an action shall pass to the personal
representative of the decedent”].) When there is no personal
representative, or the personal representative refuses to
commence or maintain an action, the right to prosecute the action
after the elder’s death passes to the following: “(A) An intestate
heir whose interest is affected by the action. [¶] (B) The
decedent’s successor in interest, as defined in Section 377.11 of
the Code of Civil Procedure; [¶] (C) An interested person, as
defined in Section 48 of the Probate Code,” except for “a creditor
or a person who has a claim against the estate and who is not an
heir or beneficiary of the decedent’s estate.” (§ 15657.3,
subd. (d)(1)(A)-(C), (d)(2); see Estate of Lowrie (2004)
118 Cal.App.4th 220, 228-230 [discussing standing to bring elder
abuse lawsuit after death of elder].)
b. Tepper’s lack of standing
Tepper concedes she has not been personally aggrieved by
her siblings’ actions. However, Tepper contends as Eileen’s

8
daughter she is an interested person with standing to prosecute
this action on Eileen’s behalf under section 15600, subdivision (j),
part of the Elder Abuse Act, and Probate Code section 48.
Neither statute, whether considered separately or together, aids
Tepper.
Section 15600, subdivision (j), states, “It is the further
intent of the Legislature in adding Article 8.5 (commencing with
Section 15657) to this chapter to enable interested persons to
engage attorneys to take up the cause of abused elderly persons
and dependent adults.” This declaration neither defines
“interested person” nor extends standing beyond the specific
provisions of the Elder Abuse Act. Rather, it provides the
legislative justification for the expansive remedies and more
liberal standing rules expressly stated in the Elder Abuse Act.
(See Delaney v. Baker, supra, 20 Cal.4th at pp. 33-34 [§ 15600,
subd. (j)’s declared purpose—to “‘enable interested persons to
engage attorneys to take up the cause of abused elderly persons
and dependent adults’”—is accomplished by “‘authorizing the
court to award attorney’s fees in specified cases [and by] allowing
pain and suffering damages to be awarded when a verdict of
intentional and reckless abuse was handed down after the abused
elder dies’”], quoting Sen. Rules Com. Analysis of Sen. Bill
no. 679 (1991-1992 Reg. Sess.) as amended May 8, 1991, p. 3; see
also Covenant Care, Inc. v. Superior Court, supra, 32 Cal.4th at
pp. 779-780 [“‘to enable interested persons to engage attorneys to
take up the cause of abused elderly persons and dependent
adults’ (Welf. & Inst. Code, § 15600, subd. (j)), the Legislature
added . . . section 15657 to the Act[, which] makes available, to
plaintiffs who prove especially egregious elder abuse to a high

9
standard, certain remedies ‘in addition to all other remedies
otherwise provided by law’”].)
Tepper, however, contends section 15600, subdivision (j),
must be read together with Probate Code section 48, which
defines “interested person” as “[a]n heir, devisee, child, spouse,
creditor, beneficiary, and any other person having a property
right in or claim against a trust estate or the estate of a decedent
which may be affected by the proceeding.” Jointly, she argues,
these provisions afford her standing as Eileen’s child to bring this
elder abuse action on Eileen’s behalf.
Tepper misapprehends the scope and purpose of Probate
Code section 48. At the threshold there is a serious question
whether Probate Code section 48, which defines an “interested
person” by his or her relationship to a “decedent,” is properly
invoked in a proceeding when the elder is still alive. (Cf. Estate
of Lowrie, supra, 118 Cal.App.4th at pp. 229-230 [grandchild with
contingent financial interest in deceased elder’s estate had
standing to bring action for elder financial abuse].) That issue
aside, simply being Eileen’s child is not sufficient to confer
standing under this statute. By its terms Probate Code
section 48 defines an “interested person” as a child with an
interest in a trust estate or estate of the decedent that may be
affected by the proceeding. (See Estate of Sobol (2014)
225 Cal.App.4th 771, 783 [rejecting application of last antecedent
rule and holding, to be an interested person under Probate Code
section 48, child, spouse or beneficiary must also have a “property
right in or claim against a trust estate”]; Lickter v. Lickter (2010)
189 Cal.App.4th 712, 728-729 [same].) As discussed, Tepper does
not claim to have any legally cognizable interest in her mother’s
revocable living trust; and, even if she were named as a

10
 6
beneficiary, she would not have one. (See Steinhart v. County of
Los Angeles (2010) 47 Cal.4th 1298, 1319 [“[a]ny interest that
beneficiaries of a revocable trust have in trust property is ‘merely
potential’ and can ‘evaporate in a moment at the whim of the
[settlor]’”]; Estate of Giraldin (2012) 55 Cal.4th 1058, 1065
[same]; see also Babbitt v. Superior Court (2016) 246 Cal.App.4th
1135, 1145 [“[b]ecause assets held in a revocable trust essentially
belong to the settlor, the settlor may dispose of the trust’s assets
and effectively eliminate the beneficiaries’ interest altogether
‘with no need to justify or explain’ his or her actions”].)
Tepper emphasizes she brought her claim on Eileen’s
behalf, not her own, and insists she has adequately pleaded in
the amended complaint that Eileen lacked capacity to understand
that her three other children were abusing their position as her
fiduciaries. If Tepper had also pleaded she was Eileen’s personal
representative as defined under the Elder Abuse Act—that is,
Eileen’s conservator, trustee of her estate, or her attorney-in-fact
under a power of appointment (§ 15610.30, subd. (d)(1) & (2))—
those allegations concerning Eileen’s lack of understanding would
be sufficient to withstand demurrer. (See § 15657.6 [authorizing
action by elder’s personal representative to proceed on elder’s
behalf for return of property and damages when elder lacks
capacity].) But Tepper does not occupy any of those roles on
behalf of Eileen, and her amended complaint alleged facts
directly to the contrary.
Tepper’s reliance on Estate of Giraldin, supra, 55 Cal.4th
1058 is entirely misplaced. William Giraldin created a revocable

6
Tepper does not allege, and nothing in the record suggests,
Tepper was named a beneficiary of Eileen’s revocable living trust.

11
living trust and made his son Timothy trustee. William was the
sole beneficiary while he was alive; his wife Mary was the
remainder beneficiary for as long as she lived. After both
William and Mary died, the remainder of the trust assets would
go to their nine children. The trust document provided the
trustee had no duty after William died to disclose assets to
anyone other than Mary. After William died, but while Mary was
still alive, four of William’s children sued Timothy, claiming,
among other things, Timothy’s breach of duty to William during
William’s lifetime had depleted trust assets and harmed their
contingent interests. Timothy argued his siblings lacked
standing because his sole duty during William’s lifetime was to
William and then, after William died, to Mary. The Supreme
Court agreed Timothy had no duty to William’s contingent
beneficiaries during William’s lifetime. But, to the extent
Timothy violated his fiduciary duty to William, the beneficiaries
affected by that violation had standing to sue after William’s
death when the trust was no longer revocable. The Court
explained: “[T]he trustee owes no duty to the beneficiaries while
the settlor is alive and competent, and this lack of a duty does not
retroactively change after the settlor dies. But after the settlor
has died and can no longer protect his own interests, the
beneficiaries have standing to claim a violation of the trustee’s
duty to the settlor to the extent that violation harmed the
beneficiaries’ interests. A trustee . . . cannot loot a revocable
trust against the settlor’s wishes without the beneficiaries having
recourse after the settlor has died.” (Id. at p. 1071.)
The holding in Estate of Giraldin is limited to confirming
the standing of beneficiaries of a formerly revocable trust to sue a
trustee after the death of a settlor for breaching his or her duty to

12
the settlor during the settlor’s lifetime. Tepper appears to
recognize that holding does nothing to support her argument for
standing in this case. Nevertheless, quoting a sentence from the
opinion that suggested someone in William’s position potentially
7
had a claim for elder financial abuse against Timothy and that
indicated Timothy’s siblings might have been able to continue
such an action following William’s death under the provisions of
Code of Civil Procedure section 377.30, Tepper contends, “The
thrust of the Giraldin opinion is that the Supreme Court
supports expansion of remedies to protect the elderly from
financial abuse.”
Estate of Giraldin does nothing of the sort. The case was
not addressed to the Elder Abuse Act. Its passing reference to a
potentially viable claim under the Act to refute one of Timothy’s
arguments simply acknowledged that a settlor’s personal
representative has standing to pursue a trustee for breach of
fiduciary duty to the settlor following the settlor’s death and that,
if the personal representative will not maintain the action,
certain defined interested parties may do so, as expressly
provided by statute. (See § 15657.3, subd. (d)(1) & (d)(2).)
Nothing in that case suggests a person without a financial

7
The Supreme Court, responding to Timothy’s argument
that recognizing his siblings’ standing in the case was not
necessary because other remedies existed for the alleged breach
of fiduciary duty he owed to their father, observed, “A claim for
elder abuse under Welfare and Institutions Code section 15600
et seq. might be a possible remedy under appropriate
circumstances. But nothing in the Welfare and Institutions Code
suggests that such a claim replaced all possible actions.” (Estate
of Giraldin, supra, 55 Cal.4th at p. 1075.) Tepper quotes the first
sentence, not the second.

13
interest has standing to sue the elder’s trustee against the wishes
of the elder during the elder’s lifetime. To the contrary, if
anything, Estate of Giraldin reinforces the well-established
proposition that the cause of action for breach of fiduciary duty or
elder abuse belongs to the settlor, unless or until, the settlor
becomes incapacitated or dies.
Tepper also asserts the “greater purpose” of the Elder
Abuse Act is to permit interested persons to protect an elder from
abuse during the elder’s lifetime and complains it would be
inconsistent with that purpose to prevent her from proceeding on
her mother’s behalf when her mother’s personal representatives
are the ones alleged to be committing the abuse. According to
Tepper, unless claims such as hers are recognized, a personal
representative could commit financial abuse with impunity
without any remedy or repercussions during the elder’s lifetime.
This proposition sweeps too broadly.
If Tepper truly believes her mother lacks capacity to
manage her affairs, she may seek appointment as Eileen’s
conservator. Alternatively, she may seek to proceed on Eileen’s
behalf in this action as a guardian ad litem, subject to the
appropriate protections for Eileen inherent in those procedures.
(See Code Civ. Proc., § 372, subd. (a)(1) [when a person “who
lacks legal capacity to make decisions . . . is a party, that person
shall appear either by a guardian or conservator of the estate or
by a guardian ad litem appointed by the court in which the action
or proceeding is pending, or by a judge thereof, in each case”];
Code Civ. Proc., § 373 [procedures for seeking appointment as
guardian ad litem for adult lacking capacity]; Sarracino v.
Superior Court (1974) 13 Cal.3d 1, 11-13 [facts supporting
appointment as guardian ad litem may be established at

14
proceeding in which guardian seeks to appear]; see also
Conservatorship of John L. (2010) 48 Cal.4th 131, 143 [discussing
procedural protections afforded conservatee in proceeding to
establish conservatorship]; Conservatorship of Tian L. (2007)
149 Cal.App.4th 1022, 1028 [same].)
Tepper, however, has affirmatively stated in her amended
complaint and on appeal that she does not seek appointment as
Eileen’s conservator or guardian ad litem. And she does not have
Eileen’s consent to pursue the action on her behalf through a
power of appointment. Thus, the cause of action for elder
financial abuse belongs to Eileen as the real party in interest.
The court did not err in sustaining the demurrer without leave to
amend. (See Martin v. Bridgeport Community Assn., Inc. (2009)
173 Cal.App.4th 1024, 1031 [“standing is the threshold element”
of a cause of action and may be the basis for sustaining a
demurrer without leave to amend].)
DISPOSITION
The judgment is affirmed. Martha Wilkins and Eileen
Wilkins are to recover their costs on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J. SMALL, J.*

* Judge of the Los Angeles County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

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