Kerley v. Weber

238 Cal. Rptr. 3d 781, 27 Cal. App. 5th 1187
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 3, 2018
DocketB282202, B283256
StatusPublished
Cited by14 cases

This text of 238 Cal. Rptr. 3d 781 (Kerley v. Weber) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kerley v. Weber, 238 Cal. Rptr. 3d 781, 27 Cal. App. 5th 1187 (Cal. Ct. App. 2018).

Opinion

LUI, P. J.

Marcie Ann Weber appeals from a judgment and an order in two related actions.1 Both actions concern Weber's conduct that resulted in a conviction for theft from an elder or dependent adult in April 2010. That case (the Criminal Action) was the subject of a prior appeal in this court. ( *784People v. Weber (Oct. 4, 2013) No. B244008, 2013 WL 5503205, 2013 Cal.App. Unpub. LEXIS 7156, modified October 30, 2013, 2013 Cal.App. Unpub. LEXIS 7844 ( Weber ).)

Weber's victim was an elderly woman, Philippa Johnston, who died before the end of the criminal trial. Respondent Sarah L. Kerley, Johnston's conservator and the co-administrator of her estate, filed the two actions underlying this consolidated appeal.2 In one action (the Probate Action, Superior Court No. BP097749), Kerley filed a petition under Probate Code section 850 et seq. seeking civil damages against Weber.3 In the other action (the Restitution Action, Superior Court No. YS024039), Kerley obtained a judgment based on the $700,000 restitution award in the Criminal Action (the Restitution Judgment).

In the Probate Action, Weber appeals from the judgment, which awarded damages equal to twice the amount of the restitution award (i.e., $1.4 million) under section 859. In the Restitution Action, Weber appeals from an order for the sale of a residence to satisfy the Restitution Judgment.

Although the two actions are separate, Weber makes duplicative and overlapping arguments in each appeal. She argues that: (1) the trial court in the Probate Action erred in entering judgment based upon estoppel theories without permitting a trial on the actual amount of Johnston's loss; (2) the court in the Probate Action erred in concluding that double damages were permitted under section 859 based upon Weber's criminal conviction without a separate finding of bad faith; (3) the double damages award in the Probate Action should have taken account of sums that Weber had already paid in restitution; and (4) restitution payments that Weber made before the restitution award was reduced to a judgment should have been credited to the principal amount of the restitution amount rather than to accumulated prejudgment interest.

We reject all of these arguments except the last. Pursuant to the terms of a stipulation concerning the amount of restitution in the Criminal Action, Weber's prejudgment restitution payments should have been credited against principal rather than interest. However, even after adjusting the remaining principal on the Restitution Judgment to account for prejudgment payments, Weber apparently still owes a substantial sum.

We therefore remand for the trial court in the Restitution Action to calculate the amount remaining due on the Restitution Judgment. Assuming that calculation confirms that an amount remains due, we affirm the trial court's order permitting the sale of Weber's residence to satisfy the remaining judgment amount.

We affirm the judgment in the Probate Action.4

BACKGROUND

1. Weber's Conviction and the Restitution Judgment

After Weber waived jury and agreed to a court trial, she was convicted of one count of theft from an elder or dependent adult under Penal Code section 368, subdivision (d). ( Weber, supra, slip opn. at p. 2.) Weber's victim, Johnston, was an elderly woman with dementia.5

*785Weber was a paralegal trained in probate law who obtained a power of attorney to handle Johnston's financial affairs. Weber gave herself a "constant stream of gifts." Although Weber was a fiduciary, she did not act on Johnston's behalf "at all." Weber and her family diverted Johnston's telephone calls and mail and isolated Johnston from her friends and her sister. Johnston was "completely dependent upon the Webers" who "completely isolated her essentially for three years from any outside contact."

Judge Van Sicklen did not "try[ ] to analyze the exact amounts of money" that Weber took. However, by adding the rough amounts of Weber's distributions "you come up to about 740 or so thousand dollars" from "money controlled by Mrs. Weber." In addition to finding Weber guilty under Penal Code section 368, subdivision (d), the judge found true that Weber took property exceeding $150,000 for purposes of a sentencing enhancement under former Penal Code section 12022.6, subdivision (a)(2).

Weber was sentenced on October 18, 2010. As part of her sentence, she was ordered to "make restitution to the victim, the estate of Lucille Johnston," pursuant to Penal Code section 1202.4, subdivision (f), "in an amount to be determined."

At a restitution hearing on December 3, 2010, the parties informed the court that they had agreed on a restitution amount of $700,000. The parties stated that prior restitution payments that Weber had made would be set off against that amount, leaving a principal balance of $414,545.99.

Kerley subsequently filed the Restitution Action to enforce the restitution award. On July 11, 2012, Kerley obtained an "order for restitution and abstract of judgment" in that action for the $700,000 restitution amount pursuant to Penal Code section 1214 (the Restitution Judgment). The order also awarded 10 percent annual interest from March 15, 2006, the date of the loss.

Weber appealed the award of interest. In Weber, this court held that the interest award was proper. We concluded that interest was mandatory under Penal Code section 1202.4, subdivision (f)(3)(G). ( Weber, supra, slip opn. at p. 5.) We further held that the July 2012 Restitution Judgment was a "valid modification of the restitution order." ( Id. at p. 6.)6

On April 14, 2017, the trial court issued an order for the sale of a Manhattan Beach residence belonging to Weber to enforce the Restitution Judgment. That order is the subject of this appeal.

2. The Probate Action

Kerley originally filed the Probate Action in 2006, seeking recovery of the money that Weber and family members took from Johnston along with enhanced damages pursuant to section 859. After extensive pretrial proceedings, the action was set for trial.

In ruling on pretrial motions in limine, the trial court decided that the results of the criminal trial and Weber's stipulation to the amount of restitution essentially resolved all the issues for trial. As a result of that ruling, trial took less than an hour.

The court issued a written decision on April 4, 2017. The court found that Weber's criminal conviction established all the elements of elder abuse under Welfare & Institutions Code section 15610.30. The court also found that, based on her stipulation *786to the $700,000 restitution amount, Weber was estopped from claiming that she took less than that amount from Johnston.

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Cite This Page — Counsel Stack

Bluebook (online)
238 Cal. Rptr. 3d 781, 27 Cal. App. 5th 1187, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerley-v-weber-calctapp5d-2018.