Filed 7/18/22
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
LISA ROYALS, as Trustee, etc.,
Plaintiff and Respondent, A160985
v. (Contra Costa County Super. Ct.
MENG JING LU, No. MSP19-01563)
Defendant and Appellant.
Meng Jing Lu appeals from a pretrial right to attach order (RTAO)
issued against her and in favor of Lisa Royals under section 15657.01 of the
Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act
or the Act) (Welf. & Inst. Code, § 15600 et. seq.).
The underlying dispute in this probate action centers on the
testamentary intent and capacity to make certain estate planning decisions
of Royals’s late father and Lu’s late husband, Chambers Daniel Adams, who
died at age 99. By petition and cross-petition, Royals and Lu pursue
competing claims of financial elder abuse. Each alleges that the other
engaged in a scheme to manipulate Adams in his waning years, with the
objective of enriching herself at the expense of the other’s expected
inheritance.
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this
*
opinion is certified for publication with the exception of part II.C. of the
Discussion.
1
The primary question raised by the appeal, presented as a matter of
first impression, is whether the prospect of punitive recovery on a financial
elder abuse claim—in the form of exemplary damages or statutory
penalties—may be secured by the extraordinary remedy of pretrial
attachment. In the published portion of this opinion, we answer that
question no.
A financial elder abuse claimant may obtain an attachment for
potential compensatory damages and an award of attorney fees and costs
associated with those damages, but only if the request for it complies with all
applicable provisions of the statutory scheme governing pretrial attachments
(the Attachment Law) (Code Civ. Proc., § 481.010 et. seq.). We conclude that
Royals’s attachment application did not comply with four provisions of the
Attachment Law, namely that an attachment request (i) must be supported
by competent evidence (id., § 482.040), (ii) must rest on an attachable
“amount” (id., § 484.020, subd. (b)), (iii) must be based on a claim “upon
which an attachment may be issued” (id., § 484.020, subd. (a)), and (iv) must
be measured by the defendant’s claimed “indebtedness” to the plaintiff (id.,
§ 483.015, subd. (a)(1)).
No attachment was warranted here, for any of the relief requested,
because Royals failed to support her prayer for compensatory damages with
competent evidence. (Code Civ. Proc., § 482.040.) And to the extent she
sought an attachment for prospective recovery of punitive damages and
statutory penalties in addition to compensatory damages, her attachment
request also failed to comply with some or all of the attachable amount (id.,
§ 484.020, subd. (b)), attachable claim (id., § 484.020, subd. (a)), and claimed
indebtedness (id., § 483.015, subd. (a)(1)), requirements. Accordingly, the
RTAO will be reversed.
2
I. BACKGROUND
After Adams passed away October 14, 2019, Royals became the
successor trustee and sole beneficiary of the Adams Trust (the Adams Trust
or the Trust), a living trust established in the early 1990’s by Adams and his
former wife of 56 years, Cornelia Adams, who passed away in 2008. 1 Lu,
Adams’s second wife, was 59 years old when she married Adams, then 95
years old, in 2015. According to Lu, Royals never accepted the marriage and
saw it as a threat to her inheritance. Royals alleges that Adams intended to
leave none of his assets to Lu. Lu denies that allegation and claims Adams
intended to provide for her support by depositing certain funds in certain
accounts under Lu’s control outside of the Trust.
A. Petition, Demurrer, and Motion To Strike
Once Royals became trustee of the Adams Trust following her father’s
death, she filed a verified petition against Lu for return of trust assets, for
breach of spousal fiduciary duty, and for financial elder abuse. 2 According to
1 About the structure of the Adams Trust, Royals alleges that “[t]he
Trust names Mr. and Mrs. [Cornelia] Adams as the original co-trustees of the
Trust . . . , and, following their deaths, names [Royals] as the successor
trustee. . . . [¶] . . . Upon the death of the first spouse, the Trust splits into
two subtrusts: a revocable Survivor’s Trust and an irrevocable Family Trust.
. . . [¶] [Royals] is named as the sole beneficiary of both subtrusts upon the
death of the second spouse.”
2 Under section 15610.30 of the Elder Abuse Act, “ ‘Financial abuse’ of
an elder . . . occurs when a person or entity does any of the following: [¶]
(1) Takes, secretes, appropriates, obtains, or retains real or personal property
of an elder or dependent adult for a wrongful use or with intent to defraud, or
both. [¶] (2) Assists in taking, secreting, appropriating, obtaining, or
retaining real or personal property of an elder or dependent adult for a
wrongful use or with intent to defraud, or both. [¶] (3) Takes, secretes,
appropriates, obtains, or retains, or assists in taking, secreting,
appropriating, obtaining, or retaining, real or personal property of an elder or
3
the petition, Adams had no need for cash late in his life, but nonetheless
suddenly encumbered his home in Orinda with a second mortgage, sold a
vacation property in Sea Ranch, and deposited the proceeds into accounts
controlled by Lu. Royals alleged that, contrary to Adams’s testamentary
intent, the proceeds from the Orinda second mortgage and from the Sea
Ranch sale are actually assets of the Adams Trust. Adams diverted these
funds from the Trust, Royals alleged, while acting under the undue influence
of Lu and in a state of cognitive decline. In essence, Royals’s theory is that
her father intended to leave all assets of his estate to her and nothing to his
wife, Lu, but that Lu thwarted his plan by misappropriating his assets before
his death.
Royal’s petition alleged on information and belief that the total amount
of the misappropriated funds was “at least $1,095,000.” In addition to
recovery of that amount, her third cause of action for financial elder abuse
sought punitive damages, trebled under Civil Code section 3345,
subdivision (b) 3 plus attorney fees and costs. She made no mention of any
other basis for relief in her financial elder abuse cause of action, but in her
dependent adult by undue influence as defined in Section 15610.70 [of the
Act].” (Welf. & Inst. Code, §§ 15610.30, subd. (a), 15610.70.)
3 Civil Code section 3345 provides in pertinent part that “in actions
brought by, on behalf of, or for the benefit of senior citizens or disabled
persons . . . to redress unfair or deceptive acts or practices or unfair methods
of competition” (id., subd. (a)), a remedy up to “three times greater than
authorized by the statute” is available if “the trier of fact makes an
affirmative finding in regard to one or more of the following factors . . . ” (id.,
subd. (b)). These factors include whether the plaintiff acted with knowledge
that she was directing her conduct toward a protected person (id.,
subd. (b)(1)), caused the plaintiff to suffer certain losses (id., subd. (b)(2)), and
how vulnerable the protected person was relative to other members of the
public based on their poor physical or mental health (id., subd. (b)(3)).
4
general prayer for relief on all causes of action she included a demand under
Probate Code section 859 4 for double the value of her compensatory damages.
B. Application for a Writ of Attachment
On the same day Royals filed her petition, she applied for a pretrial
writ of attachment in the amount of $3,440,000. Her attachment application,
filed on Judicial Council form AT-105, checked a box indicating that “the
facts showing [she] is entitled to a judgment on the claim up on [sic] which
the attachment is based are set forth with particularity in the [¶] . . . verified
complaint.” Other than that, there was no evidentiary support for the
requested attachment. Nor was there any explanation detailing why she
sought an attachment in the amount of $3,440,000, how she calculated that
amount, or what the amount was based upon.
Lu made a detailed evidentiary showing in opposition to the RTAO.
She submitted seven declarations, including her own. These declarations,
collectively, describe Adams’s courtship of Lu, which began in 2011, several
years before their marriage; Lu’s decision to move from Las Vegas to Orinda
to cohabitate with Adams; his proposal of marriage and her decision to accept
the proposal in 2015; and the observations of people who knew the couple
about the genuineness of Adams’s affection for Lu and the transformation in
his demonstrated level of contentment after he met her late in his life.
4 Probate Code section 859 provides in pertinent part that “[i]f a court
finds that a person has in bad faith wrongfully taken, concealed, or disposed
of property belonging to a conservatee, a minor, an elder, a dependent adult,
a trust, or the estate of a decedent, or has taken, concealed, or disposed of the
property by the use of undue influence in bad faith or through the
commission of elder or dependent adult financial abuse, as defined in Section
15610.30 of the Welfare and Institutions Code, the person shall be liable for
twice the value of the property recovered by an action under this part.”
5
Lu attached to her declaration 32 documentary exhibits, including
extensive, detailed correspondence between Royals and Adams discussing his
testamentary intent. Also included in this opposition evidence are
statements from Adams’s doctor, dentist, a real estate broker and others who
dealt with him in the year before he died, all of whom attest to his full
cognitive acuity until his death, despite his physical decline. Suffice it to say
that the portrayal of Adams that we glean from Lu’s evidence opposing the
issuance of a writ of attachment—showing his mental condition in his final
years, his intentions in disposing of his property after his death, and his
desire to make financial provision for Lu—contrasts sharply with the
portrayal of Adams that Royals offers in her petition.
Some of the evidence Lu presented in opposition to Royals’s attachment
application suggests that, because Adams made gifts to Lu during his
lifetime, the Adams Trust does not encompass all of the assets Royals now
claims are assets of the Trust. It also suggests that Adams was, in fact, in
need of cash to put aside in accounts outside the Adams Trust for Lu’s
benefit; that he told Royals she could expect to inherit the Orinda home
subject to any encumbrances put on it; and that he felt Royals and her
husband were sufficiently well off that they might wish to consider a second
home other than the home in Sea Ranch. In its totality, this evidence
suggests, contrary to Royals’s allegations, that Adams did not intend to leave
all of his assets solely to Royals, and that instead he wished to leave enough
to Lu so that she could support herself after his death.
As shown by various handwritten notes and emails exchanged between
Adams and Royals, and a few from Adams to Lu, there appear to have been
unresolved disagreements between father and daughter over two issues:
(1) Adams’s desire to leave money to Lu for Lu’s support following his death,
6
a plan Royals apparently declined to assist him in carrying out; and
(2) Royals’s request that she be allowed to become co-trustee of the Adams
Trust during Adams’s lifetime, an entreaty Adams firmly rejected, with
reminders to her that he wished to remain in full control of his assets until he
died. If these communications are credited, this is a man who insisted upon
his financial autonomy to the end, and in his late nineties showed an ability
to engage in fairly sophisticated financial planning. 5
In both tone and substance, it is striking how rational and cogent
Adams’s writings are, while also displaying a mixture of sanguine acceptance
of his coming demise and a level of irritation that seems to stem from
disagreements with Royals. Adams felt neglected by Royals, he explained to
her, and he was upset with her for arranging to have him sign two
testamentary instruments—an amendment to the Trust, and a will—that he
later concluded failed to reflect his true testamentary intent. He told Royals
these two instruments had been drafted by a lawyer he believed was
pursuing her interests, not his, and he seems to have decided to sell the Sea
5According to Lu, as early as 2016, Adams developed a specific plan to
generate income from a corpus of funds after his death sufficient to provide
ongoing support for Lu. He told Royals he established a goal of setting aside
$600,000 for this, of which seed amounts of $100,000 would come from a CD
account maturing in August 2016 (an account held jointly with Royals) and
$100,000 would come from Adams’s savings over time. The plan required
Royals’s cooperation because it was founded on money to be taken from an
account he and Royals held jointly; it assumed he would live another three
years, which gave him time to build an accumulated contribution from his
current income; and in the end it assumed he would bequeath the remainder
of $400,000 to Lu via will at his death.
7
Ranch property only after trying, and failing, to enlist Royals’s help in
funding the accounts he wished to leave for Lu’s benefit. 6
Royals lodged objections to the declarations and documentary exhibits
submitted by Lu in opposition to the RTAO, but the trial court made no
ruling on the objections. At the time the RTAO issued, this evidentiary
showing stood uncontested.
C. Cross-petition, Demurrer to Cross-petition, Ruling on That
Demurrer, and Grant of the RTAO
Lu filed a response to Royals’s verified petition, denying all material
allegations, and a verified cross-petition of her own that repeated and added
more detail to the evidentiary showing she made in opposition to the RTAO.
Lu’s cross-petition alleged, among other things, a claim for financial elder
abuse against Royals.
According to the cross-petition, Royals, by fraud and deceit,
manipulated Adams into signing the Trust amendment and will with the
objective of defeating his true testamentary intent and depriving Lu of the
financial provision he intended to make for her outside of the probate process
following his death. Lu’s basic theory, countering that of Royals, is that
Royals is the one who exercised undue influence over Adams and committed
financial elder abuse.
6 Among Lu’s exhibits is a handwritten note that, if credited, shows
Adams writing to Lu on February 17, 2017—months after he signed the
disputed testamentary instruments—to confirm his gifts to her and prepare
her for how to handle the gifted money. The note begins, “My dear
Mengjing,” summarizes the sources of his income at the time, and states: “All
of the above will end after my death. Your income will then come entirely
from savings. As of now . . . our joint savings consist of the following . . . .”
Adams then lists funds in Vanguard and Bank of America accounts totaling
$557,000, and adds: “I want you to take full charge of the Vanguard and
B of A money. It will all be yours soon enough.” He closes by encouraging Lu
to consult with a financial adviser and make her own will or trust.
8
In response to Lu’s cross-petition, Royals filed a demurrer, which the
trial court sustained with prejudice on August 11, 2020. A few weeks later,
on September 4, 2020, the court granted Royals’s request for the RTAO.
Without explanation and without any indication that it had considered the
evidentiary submissions Lu made in opposition to the RTAO, the trial court
granted an attachment in the exact amount requested—$3,440,000. By
minute order entered after a brief unreported hearing, the court made a
summary “find[ing] in favor of the trustee.” The only indication in the record
as to the basis for the RTAO was a note in the minute order, “petition
approved as prayed.”
The RTAO was the second layer of security the court provisionally
granted to preserve assets for recovery on Royals’s claims. Shortly after
Royals applied for an attachment, Bank of America sought and obtained an
interpleader order permitting it to deposit with the court $250,558.14 from
various Bank of America accounts maintained in Lu’s name. We affirmed
that order in an unpublished opinion. (Royals v. Lu (Dec. 20, 2021, A160265)
[2021 WL 5998551, pp. *3–*6].) The RTAO gave Royals an additional
$3,440,000 in security on top of the frozen interpleader funds.
Lu timely appealed from the order issuing the RTAO, as well as from
orders sustaining Royals’s demurrer to Lu’s cross-petition, overruling Lu’s
demurrer, and denying Lu’s motion to strike. The RTAO, which arises out of
a claim cognizable in probate court under that department’s concurrent
jurisdiction over Elder Abuse Act claims (Welf. & Inst. Code, § 15657.3,
subds. (a)–(c)), but is not itself a probate order, is appealable under Code of
9
Civil Procedure section 904.1, subdivision (a)(5). 7 The prior orders on
Royals’s demurrer and Lu’s demurrer and motion to strike are appealable
under Code of Civil Procedure section 906. 8
II. DISCUSSION
A. Motion To Dismiss
In our opinion affirming the interpleader order, we had no occasion to
assess the merits of the claims Royals alleges in her petition, but we left no
doubt that, on the factual record presented—which is, in all material
respects, the same record the court had before it when it granted the RTAO—
we view this case as one in which the facts are sharply contested, with an
outcome in favor of Royals hardly foreordained. (Royals v. Lu, supra,
A160265 [2021 WL 5998551, pp. *2, fn. 3, * 4, fn. 7].) 9
Royals apparently took the hint. A week after we filed that opinion,
she applied ex parte in the trial court for an order vacating the RTAO, and
the trial court granted the requested vacatur the same day. Expressing a
desire to relieve us of the need to devote resources to Lu’s appeal of the
7 The Probate Code has its own appealability regime. (Eisenberg et al.,
Cal. Practice Guide: Civil Appeals & Writs (The Rutter Group 2021), ¶ 2:190
[Code of Civil Procedure section 904.1(a)(10) “defers to specific Probate Code
provisions on the appealability of orders in decedents’ estates administration,
guardianship, conservatorship and trust administration proceedings” (italics
omitted)].) Those rules do not apply here.
8 In the unpublished portion of this opinion, (1) we conclude that the
trial court erred in sustaining Royals’s demurrer to the financial elder abuse
cause of action in Lu’s cross-claim, but that it correctly sustained the
remainder of that demurrer; (2) we conclude that the trial court correctly
denied Lu’s demurrer to Royals’s petition and motion to strike certain items
of Royals’s prayer for relief; and (3) we reject Lu’s claims of judicial bias.
9 On our own motion, we take judicial notice of the opinion in this prior
appeal and the appellate record presented in it. (Evid. Code, § 452, subds.
(c)–(d).)
10
RTAO—and pointing out that “[t]he only remaining funds” attached through
the RTAO after issuance of the interpleader order consist of a modest amount
of money in a Wells Fargo bank account that is too small to warrant the
expense of further litigation—Royals then moved in this court to dismiss Lu’s
appeal of the RTAO. We issued an order deferring a ruling on Royals’s
motion to dismiss until Lu’s pending appeal was fully briefed, argued and
taken under submission.
In an apparent effort to buttress her motion to dismiss, Royals filed
(1) a motion to augment the record on appeal, (2) a request for judicial notice
of the discharge of the writ of attachment, and (3) a motion to take additional
evidence on appeal under Code of Civil Procedure section 909 so that we may
consider various email communications between counsel for the parties
concerning Royals’s offer to “release” the writ of attachment and Lu’s
acceptance of that offer. Royals’s primary argument for dismissal is
mootness, but on the strength of her Code of Civil Procedure section 909
request she also pursues an election of remedies theory under “the settled
rule that the voluntary acceptance of the benefit of a judgment or order is a
bar to the prosecution of an appeal therefrom.” (Schubert v. Reich (1950)
36 Cal.2d 298, 299; see Lee v. Brown (1976) 18 Cal.3d 110, 114.)
We grant the request for judicial notice and the motion to augment the
record as unopposed, but deny the motion to take additional evidence on
appeal. Code of Civil Procedure section 909 motions may be granted only in
“exceptional circumstances,” and nothing argued here meets that standard.
(In re Zeth S. (2003) 31 Cal.4th 396, 405, italics omitted.) Turning to the
merits of Royals’s mootness argument, we deny the motion to dismiss. The
trial court’s December 27, 2021 vacatur of the RTAO is a nullity. In general,
“[t]imely filing of the notice of appeal vests jurisdiction in the appellate court
11
and, subject to certain exceptions . . . , terminates the lower court’s
jurisdiction.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals & Writs,
supra, ¶ 3:2, citing Code Civ. Proc., § 916, italics omitted; see Hollister
Convalescent Hospital, Inc. v. Rico (1975) 15 Cal.3d 660, 666; Estate of
Hanley (1943) 23 Cal.2d 120, 123.) As a result, a trial court has no
jurisdiction to vacate, modify or otherwise change an order that is the subject
of a pending appeal. (Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1,
12 [“Until remittitur issues, the lower court cannot act upon the reviewing
court’s decision; remittitur ensures in part that only one court has
jurisdiction over the case at any one time.”].)
Once an appeal is perfected, an automatic stay goes into effect under
Code of Civil Procedure section 916 preventing all further trial court
proceedings that may undermine the effectiveness of the appeal, including
“enforcement of the judgment or order” under review. (Code Civ. Proc., § 916,
subd. (a).) The automatic stay specifically suspends the trial court’s power to
“ ‘enforce, vacate or modify’ ” the appealed judgment or order while the
appeal is pending. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th
180, 189.) The purpose of this limit on the trial court’s power—which is
fundamental to appellate procedure—“ ‘is to protect the appellate court’s
jurisdiction by preserving the status quo until the appeal is decided. The
[automatic stay] prevents the trial court from rendering an appeal futile by
altering the appealed judgment or order by conducting other proceedings that
may affect it.’ ” (Ibid.)
Pointing to an automatic stay exception specific to attachment orders
where the appellant fails to post an undertaking (Code Civ. Proc., § 917.65
[“The perfecting of an appeal shall not stay enforcement of a right to attach
order unless an undertaking is given.”]), Royals argues that Lu failed to post
12
a bond, that the trial court retained jurisdiction to enforce the RTAO, and
that as a result, the court necessarily retained jurisdiction to vacate the
RTAO as well. This logic is flawed. There is a material difference between
enforcement and vacatur. On its face, Code of Civil Procedure section 916
draws a distinction between enforcement, on the one hand, and matters that
“affect[] . . . the judgment or order appealed from,” on the other hand. While
in general, enforcement is deemed to be embraced within matters affected by
the judgment or order appealed from under Code of Civil Procedure
section 916, subdivision (a), the exception carves enforcement matters out of
this category where no bond is obtained. If the Code of Civil Procedure
section 917.65 reservation of jurisdiction were read to encompass not just
enforcement but vacatur, the exception would swallow the general rule under
Code of Civil Procedure section 916 and give trial courts unrestricted
authority to oust an appellate court of power to review any attachment order
for which an undertaking was not obtained—in effect, conditioning the right
to appeal on a bond. We reject that interpretation of these two
complementary statutes. It overreads Code of Civil Procedure section 917.65
and undermines the fundamental purpose of Code of Civil Procedure section
916.
Once our appellate jurisdiction was properly invoked by Lu’s notice of
appeal of the RTAO, we had—and still have—a duty to resolve the appeal,
absent intervening mootness. And this appeal is not moot. Whatever benefit
Lu obtained from the “release” of the RTAO was voluntarily offered by Royals
and does not change the fact that, for sixteen months, an attachment order
and writ of attachment were in place that deprived Lu of possession of
substantial assets—claimed by her to be rightfully hers—without a trial in
which Royals was put to her proof. Royals insists that only $30,229 was
13
actually attached, which she claims was plainly justified no matter what we
think of whether an attachment order exceeding that amount by more than a
hundredfold should have issued. But that is an invitation to resolve this
appeal on harmless error grounds, not an argument for dismissal based on
mootness. We decline the invitation. For the reasons explained below, no
attachment should have issued on this record—in any amount. 10
B. The RTAO
1. Standard of Review
“On appeal from an attachment order, . . . [w]e apply the same
evidentiary standard to an attachment hearing decided on affidavits and
declarations as to a case tried on oral testimony.” (Goldstein v. Barak
Construction (2008) 164 Cal.App.4th 845, 853, citation omitted.) Although
there is no dispute about that basic point, the parties take opposite positions
on the standard governing the court’s exercise of discretion in granting the
RTAO, with Royals urging review of substantial evidence and Lu urging de
novo review.
To a degree, both parties are correct. A trial court necessarily makes a
factual assessment when deciding to accept or reject the applicant’s
evidentiary showing in exercising its discretion, and that factual assessment
is reviewed for substantial evidence. (Bank of America v. Salinas Nissan,
Inc. (1989) 207 Cal.App.3d 260, 273.) But where an unsettled question of law
requires that we interpret the meaning of a statute, we review the trial
court’s interpretation de novo. (People v. Kurtenbach (2012) 204 Cal.App.4th
1264, 1276.) Because the resolution of this appeal turns on open questions of
10 The flurry of motions filed in connection with Royals’s motion to
dismiss includes a motion from Lu arguing that Royals’s effort to obtain
dismissal of this appeal on mootness grounds merits an award of sanctions
for the filing of a frivolous motion. We deny the sanctions request.
14
statutory interpretation, Lu has the better of the argument. Our review here
will be de novo.
2. Applicable Statutes
This case requires us to address the interplay of the Elder Abuse Act
and the Attachment Law. The Elder Abuse Act, a remedial scheme designed
to protect a vulnerable class of citizens, is generally construed broadly in
favor of plaintiffs seeking relief on behalf of elders (Mahan v. Charles W.
Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 860–861 (Mahan)), while
the Attachment Law, which authorizes “a harsh remedy [that] . . . causes the
defendant to lose control of his property before the plaintiff’s claim is
adjudicated” (Martin v. Aboyan (1983) 148 Cal.App.3d 826, 831), is generally
construed strictly according to the letter of its statutory terms. (Nakasone v.
Randall (1982) 129 Cal.App.3d 757, 761; J.C. Peacock, Inc. v. Hasko (1961)
196 Cal.App.2d 363, 365.) Below, we briefly summarize pertinent aspects of
these two statutory schemes, beginning with the Attachment Law.
a. The Attachment Law
“ ‘ “Attachment is an ancillary or provisional remedy to aid in the
collection of a money demand by seizure of property in advance of trial and
judgment.” ’ ” (Kemp Bros. Construction, Inc. v. Titan Electric Corp. (2007)
146 Cal.App.4th 1474, 1476, italics omitted.) Under the statutory scheme
governing attachments in California (Code Civ. Proc., §§ 481.010–493.060),
denominated by the Legislature as “The Attachment Law” (Code Civ. Proc.,
§ 482.010), plaintiffs must meet a set of detailed procedural and substantive
requirements. In 1972, our Supreme Court invalidated a predecessor statute
that allowed summary pretrial deprivation of a defendant’s assets without
notice or a meaningful opportunity to be heard. (Randone v. Appellate
Department (1971) 5 Cal.3d 536.) The Legislature “ ‘clearly had Randone in
mind’ when drafting the current attachment statutes” (Hobbs v. Weiss (1999)
15
73 Cal.App.4th 76, 79), and the “safeguards” embodied in the Attachment
Law are designed to rectify due process defects identified in Randone.
(Western Steel & Ship Repair, Inc. v. RMI, Inc. (1986) 176 Cal.App.3d 1108,
1115.)
Procedurally, the plaintiff must meet the burden of showing her claim
has “ ‘probable validity,’ ” meaning it is “more likely than not that the
plaintiff will obtain a judgment against the defendant on that claim.” (Code
Civ. Proc., § 481.190.) Substantively, the plaintiff must, among other things,
present an affidavit or a verified complaint stating “that the attachment is
sought to secure the recovery on a claim upon which an attachment may be
issued” together with a “statement of the amount to be secured by the
attachment.” (Id., § 484.020, subds. (a)–(b).) “[T]he amount to be secured by
an attachment” is “[t]he amount of the defendant’s indebtedness claimed by
the plaintiff” (id., § 483.015, subd. (a)) plus allowable costs and attorney fees
(id., §§ 483.015, subd. (a), 482.110). The statutory reference to “[t]he amount
of the defendant’s indebtedness” (id., § 483.015, subd. (a)) is consistent with
the traditional usage of pretrial attachment by commercial creditors, a
setting where damages in the event of breach may be easily calculated from
the parties’ agreement (e.g., the amount remaining due on defaulted loan
indebtedness). Hence, there is a requirement that “the total amount of the
claim or claims [must be] a fixed or readily ascertainable amount . . . .” (Id.,
§ 483.010, subd. (a).)
As a general matter, the statutory remedy of attachment is limited to
an “action on a claim or claims for money, each of which is based upon a
contract” (Code Civ. Proc., § 483.010, subd. (a)), and if the defendant is a
“natural person,” only if the contract claim for which attachment is sought
“arises out of the conduct by the defendant of a trade, business, or profession”
16
(id., subd. (c)). But there are exceptions. Outside the realm of claims for
money based on breach of contract, the remedy of pretrial attachment is
available as an aid to civil enforcement of certain statutes, 11 one of which is
the Elder Abuse Act.
b. The Elder Abuse Act
As we explained in Mahan, “civil actions may be brought under the Act
for ‘ “[p]hysical abuse” ’ ([Welf. & Inst. Code,] § 15610.63; see [id.,] § 15657),
‘[n]eglect’ ([id.,] § 15610.57; see [id.,] § 15657), or ‘ “[f]inancial abuse” ’ ([id.,]
§ 15610.30; see [id.,] § 15657.5).” (Mahan, supra, 14 Cal.App.5th at p. 858.)
To strengthen what had previously been a scheme relying on reporting by
mandated reporters (former Welf. & Inst. Code, §§ 15620–15621, Stats. 1982,
ch. 1184, § 3, pp. 4225–4226) and public enforcement by prosecutorial
authorities, in 1991 the Legislature created a remedial scheme specifically for
these private actions. (Welf. & Inst. Code, §§ 15657 [physical abuse, neglect,
abandonment], 15657.5 [financial elder abuse]; Mahan, at p. 858.)
“The template for private enforcement in cases involving physical abuse
or neglect was set by the addition of section 15657 to the Act in 1991.
[Welfare and Institutions Code] [s]ection 15657 has been amended several
times since then, but the core of it remains the same today. It sets forth a
scheme of heightened remedies—punitive damages ([Welf. & Inst. Code,]
§ 15657, subd. (c)), attorney’s fees and costs (id., subd. (a)), and exemption
11 See Welfare and Institutions Code section 15657.5 (actions for
damages in financial elder abuse cases); Civil Code section 8468 (claims by
mechanics seeking a lien upon property they have improved); Civil Code
section 3065a, (claims by loggers); Harbors and Navigation Code
section 495.1 (actions against vessels); Labor Code sections 3707, 5600
(workers’ compensation claims); Revenue and Taxation Code sections 7864,
8972, 11473, 12680, 19373, 30202, 32352 (actions for collection of delinquent
taxes); California Uniform Commercial Code section 6106.2, subdivision (c)
(creditors’ claims against the proceeds of bulk sales).
17
from certain limitations on recoverable damages in survivorship actions (id.,
subd. (b))—designed to provide incentives for ‘interested persons to engage
attorneys to take up the cause of abused elderly persons. . .’ ([Welf. & Inst.
Code,] § 15600, subd. (j)). These remedies are available only where the
plaintiff proves by clear and convincing evidence that ‘the defendant has been
guilty of recklessness, oppression, fraud, or malice in the commission of this
abuse.’ ([Welf. & Inst. Code,] § 15657.)” (Mahan, supra, 14 Cal.App.5th at
p. 858, fns. omitted.)
In 2004, the Legislature “created a new class of claims for ‘financial
abuse,’ enacting a private enforcement provision—[Welfare and Institutions
Code] section 15657.5—tailored to these claims in particular. [Welfare and
Institutions Code] [s]ection 15657.5 sets forth a scheme of heightened
remedies closely paralleling those available under [Welfare and Institutions
Code] section 15657, but with some key differences, principally that
attorney’s fee and cost awards are available for ‘financial abuse’ claims
proved by the preponderance of the evidence, while clear and convincing
evidence remains the standard applicable to fee and cost recovery for claims
of ‘physical abuse’ or ‘neglect.’ ” (Mahan, supra, 14 Cal.App.5th at p. 859, fns.
omitted.) For recovery of punitive damages, the culpability standard remains
proof by clear and convincing evidence of recklessness, oppression, fraud, or
malice. (See Welf. & Inst. Code, § 15657.5, subds. (c), (d).)
“In 2007, the Legislature, acting on reports that the intent to encourage
private claims by ‘providing for enhanced remedies . . . “has largely been
unrealized . . . ,” ’ made available the remedy of prejudgment attachment as a
way to facilitate quick recovery of losses in ‘financial abuse’ cases. ([Welf. &
Inst. Code,] § 15657.01; Stats. 2007, ch. 45, § 1, p. 191.)” (Mahan, supra,
14 Cal.App.5th at p. 859.) The purpose of making pretrial attachment
18
available to financial elder abuse actions claimants was to help claimants
“preserve the elder or dependent adult’s assets wrongfully held by defendant
until judgment is rendered.” (Sen. Com. on Judiciary, Analysis of Sen. Bill
No. 611 (2007–2008 Reg. Sess.) as amended Mar. 26, 2007, p. 4; see Assem.
Com. on Judiciary, Analysis of Senate Bill No. 611 (2007–2008 Reg. Sess.) as
amended May 31, 2007, p. 4 [“The attachment procedure is a useful tool to
prohibit the perpetrator from disposing of the elder or dependent adult’s
assets in his or her possession prior to final disposition of the case.”].)
Welfare and Institutions Code section 15657.01, the statute specifically
authorizing pretrial attachment in financial elder abuse actions, reads in
pertinent part as follows: “Notwithstanding section 483.010 of the Code of
Civil Procedure, an attachment may be issued in any action for damages
pursuant to [Welfare and Institutions Code] Section 15657.5 for financial
abuse of an elder . . . as defined in Section 15610.30. The other provisions of
the Code of Civil Procedure not inconsistent with this article [the Elder
Abuse Act] shall govern the issuance of an attachment pursuant to this
section.” Section 483.010 of the Code of Civil Procedure, as noted above, is
the limiting statute restricting the scope of the Attachment Law to contract
claims for damages, absent a statutory exception. Welfare and Institutions
Code section 15657.01 is such an exception. The first sentence of this statute
extends the remedy of attachment to financial elder abuse “action[s] for
damages” under the Act by disabling Code of Civil Procedure section 483.010
(Welf. & Inst. Code, § 15657.01), while the second sentence ensures that all
“other” procedural and substantive standards of the Attachment Law that
are consistent with the Elder Abuse Act must be met (Welf. & Inst. Code,
§ 15657.01).
19
3. Analysis
a. Uncertainty in the Basis for Attachment Amount
It is unclear what justified an attachment amount of more than three
times the actual damages that Royals pleaded on information and belief. In
her third cause of action for financial elder abuse, she pleads as follows: “The
Court should award damages according to proof, but on information and
belief at least $1,095,000, against Respondent for her financial elder abuse.
[¶] . . . Respondent acted with oppression, fraud, or malice in committing
financial elder abuse against Mr. Adams. The Court should award exemplary
damages against Respondent according to proof, trebled pursuant to Civil
Code section 3345.” Since Royals’s pleaded claim for actual damages of “at
least” $1,095,0000 plus an estimate of attorney fees and costs of $155,000 was
the sole basis of her attachment request—as incorporated by check-the-box
cross-reference—some unexplained multiple of the damages set forth in the
petition appears to account for the great bulk of the attachment amount, but
what justified that multiple is obscure.
The position Royals takes here on appeal in defense of the RTAO adds
no greater clarity. She argues in her responding brief that the $3,440,000
attachment amount “included punitive damages[] and estimated attorney’s
fees and costs,” but she provides no itemization. And she appears to back
away from any suggestion that the $3,440,000 includes statutory penalties.
Lu “provides no evidence,” Royals argues in her responding brief, “that the
attachment order included damages pursuant to Civil Code section 3345.”
Royals also argues that “the record”—a record she made—“does not indicate
if the additional damages included in the attachment amount were ordered
under Probate Code section 859 . . . .”
In response to our request for supplemental briefing asking the parties
to address the basis of the attachment amount, Royals takes a different tack.
20
Departing from the allegations of her elder abuse claim as pleaded, she
argues that the $3,440,000 figure is predicated on “simple arithmetic”
showing $1,095,000 in compensatory damages, plus $2,190,000 in statutory
penalties under Probate Code section 859 (double the amount of
compensatory damages), plus $150,000 in attorney fees and $5,000 in costs.
This calculation appears nowhere in the record of proceedings before the trial
court. Apparently, in preparing a defense to the attachment request, it was
up to Lu to discern the basis for $2,345,000 of the requested attachment
amount by picking from the menu of remedies in Royals’s general prayer for
relief, while accepting the predicate $1,095,000 as established on Royals’s
information and belief.
Royals’s elusiveness about the basis for requesting an attachment of
$3,440,000 is troubling. Having pleaded compensatory damages on
information and belief, she claimed a need for security in an amount that
added a hefty seven-figure sum to her claimed actual damages and has never
been clear about the basis for the additional increment. The trial court might
have insisted upon an evidentiary and legal foundation providing more
specifics, but in the end did not question the requested attachment amount
and simply rubber-stamped it, apparently, as we were told at oral argument,
based on representations of Royals’s counsel at the hearing on the RTAO.
For our part, we need not engage in guesswork or accept representations of
counsel at this stage. To cover all the potential bases for the requested
attachment amount, we will consider all forms of potential recovery Royals
has relied upon—as pleaded, or in her appellate briefs—and address whether
any of them, individually or together, can legally support the issuance of an
attachment order in the amount of $3,440,000.
21
We conclude that some elements of Royals’s claimed recovery can
support an attachment on a financial elder abuse claim (compensatory
damages, attorney fees and costs) and some cannot (punitive damages,
statutory penalties under Civil Code section 3345 or Probate Code
section 859), but that on this record her $3,440,000 attachment request
supports no attachable amount and should have been rejected outright. The
request was legally deficient for failure to comply with four provisions of the
Attachment Law—Code of Civil Procedure sections 482.040, 483.015,
subdivision (a)(1), and 484.020, subdivisions (a) and (b)—each of which we
address below. Royals makes no claim that any of these provisions is
inconsistent with the Attachment Law.
b. Noncompliance with the Attachment Law
First, and most basically, an attachment application must be supported
by an affidavit or an equivalent verified complaint “show[ing] affirmatively,”
based on facts “set forth with particularity,” that “the affiant, if sworn as a
witness, can testify competently to the facts stated . . . .” (Code Civ. Proc.,
§ 482.040.) In her third cause of action for financial elder abuse, Royals
pleads as follows: “The Court should award damages according to proof, but
on information and belief at least $1,095,000, against [Lu] for her financial
elder abuse.” This allegation fails to comply with Code of Civil Procedure
section 482.040. To the extent Royals’s attachment application attempted to
rely upon it, the application was not based on facts within her personal
knowledge.
Second, an application for an attachment must include a statement of
the “amount to be secured by the attachment.” (Code Civ. Proc., § 484.020,
subd. (b).) Royals pleads damages in an open-ended way and fails to explain
the seven-figure damages multiple she impliedly requests on top of her
vaguely pleaded compensatory damages and estimated attorney fees and
22
costs, either in her petition or in her attachment application. Wholly apart
from her failure to support her request with competent evidence, the
uncertainty in the requested attachment “amount” warranted denial of an
attachment order.
Within the scheme of the Attachment Law, section 484.020,
subdivision (b) of the Code of Civil Procedure complements and serves the
same function as the requirement in contract actions that where an
attachment is sought “the total amount of the claim or claims [must be] a
fixed or readily ascertainable amount.” (Code Civ. Proc., § 483.010,
subd. (a).) 12 The “ ‘fixed or readily ascertainable amount’ requirement
embodies a notice principle, that the defendant in the pending case and any
other creditors are given notice of the maximum amount of the property so
affected.” (16A Cal.Jur.3d (rev. May 2020) Creditors’ Rights and Remedies,
§ 77.) It also ensures that the attachment request may be fairly and
accurately determined in summary proceedings before trial. (Connecticut v.
Doehr (1991) 501 U.S. 1, 20 [“At best, a court’s initial assessment of each
party’s case cannot produce more than an educated prediction as to who will
win. This is especially true when,” as in a tort case where the plaintiff seeks
damages for assault, “the nature of the claim makes any accurate prediction
elusive.”].)
12Kemp Bros. Construction, Inc. v. Titan Electric Corp., supra,
146 Cal.App.4th at page 1481, footnote 5 (an “attachment order may be
issued only if the claim sued upon is, inter alia, for money based upon a
contract and is of a ‘fixed or readily ascertainable amount.’ (§ 483.010,
subd. (a).) Although damages need not be liquidated, they must be
measurable by reference to the contract sued upon, and their basis must be
reasonable and certain.”); see CIT Group/Equipment Financing, Inc. v. Super
DVD, Inc. (2004) 115 Cal.App.4th 537, 540.
23
Mindful that the Attachment Law was enacted in an effort to rectify
due process problems in a predecessor statute (Western Steel & Ship Repair,
Inc. v. RMI, Inc., supra, 176 Cal.App.3d at p. 1115; see Randone v. Appellate
Department, supra, 5 Cal.3d at pp. 543–563), we read Code of Civil Procedure
sections 484.020, subdivision (b), and 483.010, subdivision (a), to require an
equivalent degree of certainty in the requested attachment “amount,” and for
the same reason: To ensure that the defendant has meaningful notice of
what she is contending with, and to ensure that the attachment amount may
be accurately determined in summary proceedings prior to trial. Reading the
Attachment Law as a whole, therefore, we believe that what the Legislature
intended when it required attachment applicants to specify the “amount” to
be attached (Code Civ. Proc., § 484.020, subd. (b)) is that they state “a fixed or
readily ascertainable amount” (§ 483.010, subd. (a)), whether in contract
actions or in any other action where attachment is authorized by statute.
Because Royals pleads no definite amount of compensatory damages, nor any
basis for determining what exactly these damages are, her attachment
request does not meet this standard.
Third, an attachment applicant must present a “statement showing
that the attachment is sought to secure . . . recovery on a claim upon which
an attachment may be issued” (Code Civ. Proc., § 484.020, subd. (a)), and in a
financial elder abuse action, attachment is only authorized “in any action for
damages.” (Welf. & Inst. Code, § 15657.01.) Statutory penalties are not
damages. They are awarded as an enhancement to damages recovery, at a
multiple of two under Probate Code section 859 (sometimes loosely called
“double damages”) and a multiple of three under Civil Code 3345,
subdivision (b) (sometimes loosely called “treble damages”), but to be precise
they are not the same as damages. (Hill v. Superior Court (2016)
24
244 Cal.App.4th 1281, 1286 [Probate Code section 859 penalties are not
equivalent to punitive damages]; Estate of Ashlock (2020) 45 Cal.App.5th
1066, 1074 [same].) To the extent Royals’s attachment request was founded
on statutory double or treble damages recovery under these two statutes, it
did not fall within the authorizing provision in section 15657.01 of the Elder
Abuse Act permitting issuance of an attachment in a financial elder abuse
“action for damages.” Thus, it failed to meet the requirement that an
attachment applicant must submit a statement showing that requested
attachment would “secure the recovery on a claim upon which an attachment
may be issued.” (Code Civ. Proc., § 484.020, subd. (a).)
Fourth, and finally, “the amount to be secured by an attachment” must
be based on “[t]he amount of the defendant’s indebtedness claimed by the
plaintiff.” (Code Civ. Proc., § 483.015, subd. (a)(1).) “ ‘The term
“indebtedness” has no rigid or fixed meaning, but rather must be construed in
every case in accord with its context.’ ” (Carman v. Alvord (1982) 31 Cal.3d
318, 326.) “It can include all financial obligations arising from contract,”
“ ‘obligations which are yet to become due as [well as] those which are
already matured’ ” (id. at pp. 326–327), and “may be created by statute rather
than contract” (Patton v. City of Alameda (1985) 40 Cal.3d 41, 46). We
construe it in the context of the Elder Abuse Act to mean claimed liability for
compensatory damages, consistent with the evident purpose expressed by the
Legislature in authorizing attachment as a means to facilitate make-whole
relief via return of money or property.
To the extent Royals’s attachment request was based on her demand
for punitive damages, it did not comply with Code of Civil Procedure section
483.015, subdivision (a)(1) of the Attachment Law because a demand for
punitive damages is not a claim for “indebtedness.” Had Royals supported
25
her attachment request with competent proof and a sufficiently specific
statement of the amount she sought to secure, her prayer for compensatory
damages could be considered a claim for “indebtedness” subject to
attachment, as could her prayer for attorney fees and costs, an additional
mandatory item of recovery in a financial elder abuse action (Welf. & Inst.
Code, § 15657.5., subd. (a)) that is expressly attachable under the
Attachment Law (Code Civ. Proc., §§ 483.015, subd. (a)(2), 482.110). But a
claim for punitive damages recovery is meant to deter and punish, not to
make anyone whole.
In her supplemental brief, Royals argues that section 15657.01 of the
Welfare and Institutions Code authorizes attachments for all claimed liability
in any financial elder abuse “action for damages” and that punitive damages
are simply a form of damages. We reject that interpretation. Structurally,
the procedural schemes of the Attachment Law and the Elder Abuse Act are
incompatible with it. On the one hand, under section 481.190 of the Code of
Civil Procedure, an attachment may issue where the court makes a finding
by a preponderance of the evidence that a claim of financial elder abuse has
“ ‘probable validity.’ ” On the other hand, under section 15657.5, subdivisions
(b) and (d) of the Welfare and Institutions Code, punitive damages recovery is
available in an elder abuse action only upon proof by clear and convincing
evidence of recklessness, oppression, fraud, or malice. Even if, in the
abstract, it were possible to imagine that a trial court could attempt to assess
by a preponderance of the evidence the plaintiff’s chances of prevailing on the
issue of punitive damages by the higher standard of clear and convincing
evidence—a concept that requires considerable mental gymnastics to conjure
up—we see no basis in the text of either statutory scheme to justify adopting
26
such a novel, two-level standard of proof. We doubt that it would be
practically administrable in any event.
Constitutional considerations come into play here are well. The
difficulty of assessing the benchmark of clear and convincing proof by a
preponderance of the evidence not only poses difficulties of administration,
but also presents due process problems. Because civil defendants are not
accorded the protections afforded criminal defendants, punitive damages
always “ ‘pose an acute danger of arbitrary deprivation of property.’ ” (State
Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408, 417, quoting
Honda Motor Co. v. Oberg (1994) 512 U.S. 415, 432.) On the less than fully
developed record presented in summary attachment proceedings, it would
pose too great a risk of arbitrary deprivation if trial courts were charged with
projecting the likelihood of punitive damages recovery. There are too many
nuances to the multi-pronged test governing punitive damages (Simon v. San
Paolo U.S. Holding Co., Inc. (2005) 35 Cal.4th 1159, 1171–1172) to expect
that a provisional evaluation of that issue can be done in an accurate and
reliable way in an attachment proceeding. While it is true that the Elder
Abuse Act must be broadly construed in favor of elders, the paramount
importance of ensuring that the Attachment Law conforms to due process
standards must carry the day.
What we see here, in the overall, is that the Legislature enacted a
broad remedial scheme to protect elders, but in adding pretrial attachment to
the package of available remedies to the scheme, made use of a statutory
remedy that, within its own scheme, has long been interpreted narrowly.
Our reading of these two schemes together—permitting the attachment of
well-supported claims for compensatory relief along with associated requests
27
for attorney fees and costs, while rejecting the attachability of claims for
punitive damages and statutory penalties—strikes an appropriate balance.
C. The Trial Court Erred in Sustaining Royals’s Demurrer to
Lu’s Cross-petition
In December 2019, Lu filed a demurrer to Royals’s petition arguing
that, as pleaded, the first claim in the petition seeking return of trust assets
fails to state a cause of action under Probate Code section 850, and that the
prayer for punitive damages does not plead facts sufficient to constitute
oppression, fraud or malice as required by Civil Code section 3294. Along
with her demurrer, Lu also filed a motion to strike, repeating her attack on
the request for punitive damages on the same grounds, and adding an
additional argument that Royals’s request for statutory penalties under Civil
Code section 3345 should be stricken because that statute applies only in the
context of commercial transactions. The trial court overruled Lu’s demurrer
and denied her motion to strike.
In February 2020, following the rulings on her demurrer and motion to
strike, Lu filed a response to Royals’s verified petition, denying all material
allegations, and a verified cross-petition of her own that tracked the
evidentiary showing she made in opposition to the RTAO. According to the
cross-petition, Royals, by fraud and deceit, manipulated Adams into signing a
will and an amendment to the Trust that were contrary to his true
testamentary intent, and that deprived Lu of the financial provision he
intended to make for her outside of the Trust. The sixth count in Lu’s cross-
petition alleged a claim for financial elder abuse against Royals. In response
to Lu’s cross-petition, Royals filed a demurrer, which the trial court sustained
with prejudice as to all causes of action.
Lu timely appealed the RTAO, the order overruling her demurrer and
motion to strike, as well as the order sustaining Royals’s demurrer.
28
1. Standards of Review
“We review a trial court’s ruling on demurrer de novo . . . , giving ‘ “the
complaint a reasonable interpretation, reading it as a whole and viewing its
parts in context. . . . We deem to be true all material facts properly pled. . . .
We must also accept as true those facts that may be implied or inferred from
those expressly alleged.” ’ ” (Mahan, supra, 14 Cal.App.5th at p. 847,
citations omitted.)
Typically, the denial of a motion to strike is reviewed for abuse of
discretion. (Leader v. Health Industries of America, Inc. (2001)
89 Cal.App.4th 603, 612.) When the motion seeks to strike allegations of
punitive damages, however, the standard of review is de novo, because the
“motion to strike, like a demurrer, challenges the legal sufficiency of the
complaint’s allegations, which are assumed to be true.” (Blakemore v.
Superior Court (2005) 129 Cal.App.4th 36, 53.) “ ‘In passing on the
correctness of a ruling on a motion to strike, judges read allegations of a
pleading subject to a motion to strike as a whole, all parts in their context,
and assume their truth.’ [Citation.]” (Kaiser Foundation Health Plan, Inc. v.
Superior Court (2012) 203 Cal.App.4th 696, 704.)
2. The Order Sustaining Royals’s Demurrer Was Erroneous
Because the arguments advanced by Lu in her appeal of the trial
court’s order sustaining with prejudice Royals’s demurrer to the cross-
petition are limited to Lu’s fourth count seeking correction of Adams’s death
certificate and sixth count for financial elder abuse, our review on the merits
will be limited to those claims.
The trial court sustained Royals’s demurrer on three grounds—lack of
standing, failure to state a claim upon which relief may be granted, and
failure to serve summons and notice of the date of hearing on the petition.
Its ruling sustaining the demurrer with respect to the fourth count was
29
sound. Royals correctly argued that, before Lu filed her cross-petition, she
did not make a correction request to the county registrar (Health & Saf.
Code, § 103225) and thus she failed to exhaust available administrative
remedies. Beyond that, however, each of the cited grounds for sustaining
Royals’s demurrer was erroneous. To begin with, because Royals made a
general appearance in filing and pursuing her own petition, as well as by
filing a demurrer, she waived an objection to improper service of summons.
(Code. Civ. Proc. § 410.50, subd. (a).) And the issue of notice of the hearing
date for adjudication of the cross-petition on the merits (a date which Lu had
not yet requested and the court had not yet calendared) was not a proper
subject of demurrer. To the extent Royals had a genuine concern about notice
of merits adjudication, asserting it by demurrer was premature.
Nor is there any merit to Royals’s argument that the sixth count in the
cross-petition is legally deficient. Lu’s cross-petition for financial elder abuse
is essentially the mirror-image of Royals’s petition alleging the same type of
claim: Lu alleges “deprivation” of “property” of an elder (i.e., assets Adams
sought to make to his wife via a “donative transfer” outside the Trust) by
“undue influence.” (Welf. & Inst. Code, § 15610.30, subd. (c).) The principal
thrust of Royals’s claim that Lu’s sixth count fails to state a claim is a
standing argument. Royals argues that, as trustee of the Adams Trust, she is
exclusively empowered to pursue financial elder abuse claims on behalf of
Adams, and Lu, as a “stranger to the Trust,” lacks standing to do so.
According to Royals, Lu cannot show damages because, even if there were “a
finding that Royals committed elder abuse against Adams[,] any such
damages would flow to the Trust from which Lu will not take.”
We are unpersuaded. Lu correctly points out that, when the trustee of
an elder’s trust or the executor of an elder’s estate is herself accused of
30
financial elder abuse, the Elder Abuse Act expressly grants to a third party
with an interest in the claim standing to pursue it instead of the conflicted
fiduciary. (Welf. & Inst. Code, § 15657.3, subd. (d)(2).) Given the alleged
obstruction of Adams’s intended gifts to Lu outside of probate, Lu has
standing to pursue such a claim here on that basis. Royals resists this
conclusion, but her argument presupposes that anything recovered in a
financial elder abuse claim on Adams’s behalf must ultimately be recovered
by his estate and the distribution thereof must run through probate. This
line of argument assumes its conclusion. It rests on the disputed assumption
that Adams intended everything he owned in the years preceding his death to
be an asset of the Trust as of the date of his death, and that the disposition of
those assets would be controlled exclusively by his will and the terms of the
Trust.
By attacking the validity of the will and amended Trust, Royals argues,
Lu is in effect trying to claim she is entitled to inherit through intestate
succession, which according to Royals is a futile endeavor because even if
those instruments are invalid, Royals was the sole beneficiary of the Trust
prior to September 2016. The premise of this argument is incorrect. To
prevail, Lu does not need to inherit by intestacy. Royals alleges that the
disputed funds here were placed in some combination of accounts maintained
solely in Lu’s name and a joint account maintained in the names of Adams
and Lu as husband and wife. To the extent Adams deposited funds directly
into accounts solely controlled by Lu while he was still alive, at his death any
such pre-death gifts were not assets of the Trust or part of his estate. And as
for any funds that were deposited in or that passed through a joint account, a
testator may deposit funds in a joint account with a right to survivorship, and
at his or her death the funds in the account will pass directly to the survivor
31
outside of probate. (Prob. Code, § 5302, subd. (a); see Estate of O’Connor
(2017) 16 Cal.App.5th 159, 171; Estate of Petersen (1994) 28 Cal.App.4th
1742, 1751.) 13
Any “interested person, as defined in Section 48 of the Probate Code”
(Welf. & Inst. Code, § 15657.3, subd. (d)), has standing to bring a financial
elder abuse action. The phrase “interested person,” as used in section
15657.3 of the Elder Abuse Act, includes “[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.” (Prob. Code, § 48, subd. (a)(1).) On the facts alleged, Royals as
an individual committed financial elder abuse against Adams, and after
Adams’s death, Royals as Trustee is attempting to reap the benefit of that
wrong by contending that assets intended to be gifted to Lu are assets of the
Trust. As Lu puts it, “both parties . . . claim interest in the same property.”
Thus, she contends, she is a spouse with a claim against Royals—both as
Trustee and as an individual—and the disposition of that claim will be
“affected by” these probate proceedings. 14 We agree. The theory here, just as
13 The Adams Trust, to be sure, consists of two subtrusts, the revocable
Survivor’s Trust and the irrevocable Family Trust. (See fn. 1, ante.) Even if,
at Adams’s death, some portion of purportedly gifted funds in accounts solely
or jointly maintained by Lu are traceable to Cornelia Adams’s separate
property share of the Trust assets in the irrevocable Family Trust, that does
not mean all of the disputed proceeds from the Orinda Mortgage and the Sea
Ranch sale were Trust assets when he died, and thus subject to clawback in
their entirety, as Royals invites us to presuppose. During his lifetime, Adams
was empowered to gift his own separate property assets in the Survivor’s
Trust to anyone he pleased, as he saw fit, so long as he had the capacity to
make decisions to do so.
Citing Goldstein v. Barak Construction, supra, 164 Cal.App.4th at
14
page 852, Lu also contends that “the attachment amount must be reduced by
32
it was in Mahan based on the alleged financial elder abuse scheme in that
case, is that Royals obstructed Adams’s estate plan and “deprived” Lu “of
property indirectly, using the Trust as an instrument of [her] scheme.”
(Mahan, supra, 14 Cal.App.4th at p. 862.) To funnel recovery on such a claim
back into the hands of the person who allegedly carried out the scheme would
defeat the purpose of Welfare and Institutions Code section 15657.3,
subdivision (d)(2). The demurrer to Lu’s sixth count for elder abuse was
erroneously sustained.
No other aspect of the order sustaining Royals’s demurrer to Lu’s cross-
petition having been challenged here on appeal, the order will be reversed in
part with respect to the sixth count, and otherwise affirmed (on the merits
with respect to the fourth count, and by default with respect to all other
counts).
3. The Trial Court Properly Denied Lu’s Demurrer to
Royals’s Petition
Following the filing of Royals’s petition on October 24, 2019, Lu’s time
to demur was 30 days following proof of personal service on October 25,
making the deadline November 25, 2019. (Code Civ. Proc., § 430,40,
subd. (a); Prob. Code, §§ 1000, 1044.) Lu filed her demurrer on December 17,
2019. The trial court overruled it as untimely. (See Code Civ. Proc.,
§ 430.40, subd. (a); Prob. Code, §§ 1000, 1044; Cal. Rules of Court, rule 3.110,
subd. (d).)
Here on appeal, Lu fails to address the issue of untimeliness. She
complains instead that Royals’s demurrer to Lu’s cross-petition was untimely
as well, but that the court excused Royals’s tardiness as a matter of
the amount of any indebtedness of the plaintiff that the defendant has
claimed in a cross-complaint.” We need not address this contention in light of
our holding that the RTAO must be reversed in its entirety.
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discretion. Lu argues it is “unfathomable” that the court could have
reasonably refused to excuse her tardiness while treating Royals with lenity.
“What is sauce for the goose is sauce for the gander” is not a legal argument,
and we reject the invitation to employ the concept here. The trial court’s
orders are presumed correct. (Denham v. Superior Court (1970) 2 Cal.3d 557,
564.) Lu has not borne her burden to demonstrate error. Applying the
presumption of correctness, we conclude the trial court was correct to
overrule her demurrer.
4. The Trial Court Properly Denied Lu’s Motion To Strike
Lu moved to strike aspects of Royals’s petition on several grounds.
First, she argued that Civil Code section 3345 does not apply to financial
elder abuse cases, but only to commercial cases. The trial court rejected the
argument, ruling that Civil Code section 3345, by its literal terms, expressly
contemplates that the statute applies to “actions brought by, on behalf of, or
for the benefit of senior citizens . . . to redress unfair or deceptive acts . . . .”
(Ibid.) The ruling was correct. Second, she argued that Royals’s petition
failed to plead facts sufficient to give rise to punitive damages under that
section. The trial court found this argument contradicted by the allegations
made in the petition. Here, too, the court was correct.
Third, Lu challenged the sufficiency of the allegations to Royals’s
petition to support a claim for statutory penalties under Probate Code
section 859, or under Civil Code section 3345. 15 We see no error here either.
15 We note there is split in the appellate precedent as to whether, in a
financial elder abuse action, statutory penalties under Probate Code
section 859 require a predicate showing of bad faith (Levin v. Winston-Levin
(2019) 39 Cal.App.5th 1025, 1035–1036) or merely undue influence without
any additional showing of heightened culpability (Keading v. Keading (2021)
60 Cal.App.5th 1115, 1130). We have no occasion in resolving this appeal to
34
The allegations of Royals’s petition sufficiently aver that Lu knowingly took
advantage of Adams’s declining cognitive and physical health in persuading
him to take out a home equity loan on one property and sell another and
transfer the proceeds to Lu. While Lu contests these allegations, she does not
explain how, assuming they are true, they fail to make out a claim for
financial elder abuse or statutory penalties under Probate Code section 859
or Civil Code section 3345.
5. Lu’s Claims of Judicial Bias Are Meritless
Lu has made multiple, unsuccessful claims of judicial bias, via writ
petition and in the interpleader appeal. (Royals v. Lu, supra, A160265
[2021 WL 5998551, p. *6]; Lu v. Superior Court (July 10, 2020, A160425),
petn. den.; Lu v. Superior Court (Aug. 4, 2020, A160605), petn. den., review
den. Aug. 26, 2020, S263915; Lu v. Superior Court (Feb. 28, 2022, A164611),
petn. den.) Lu’s briefing on this point presents many of the same arguments
we have already rejected. We will not reconsider them here.
Lu also raises complaints of judicial bias regarding orders that postdate
the filing of this appeal and that are currently under review, but those orders
are not properly before us. The one complaint that appears to be properly
before us is alleged bias in connection with an order granting Royals’s ex
parte application to appoint a discovery referee. We conclude here, as we did
in resolving Lu’s prior complaints of judicial bias, that her claims have no
merit.
III. DISPOSITION
We reverse the trial court’s order of September 4, 2020, issuing a writ
of attachment and right to attach order. We reverse the order of August 11,
pass upon that issue. We assume without deciding that a showing of bad
faith is required.
35
2020, to the extent it sustains Royals’s demurrer to the sixth count of Lu’s
cross-petition alleging financial elder abuse. We otherwise affirm all orders
from which this appeal is taken. The parties shall bear their own costs on
appeal.
STREETER, Acting P. J.
WE CONCUR:
BROWN, J.
NADLER, J. *
*Judge of the Superior Court of California, County of Sonoma, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
36
Trial Court: Superior Court of California, County of Contra Costa
Trial Judge: Hon. Virginia M. George
Counsel: Law Offices of X. Young Lai and X. Young Lai,
for Defendant and Appellant.
Hartog, Baer & Hand, Andrew R. Verriere and
Amanda E. Sherwood, for Plaintiff and Respondent.
Royals v. Lu – A160985