Filed 10/23/14

                    CERTIFIED FOR PARTIAL PUBLICATION*

            IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO


MERILOU JENKINS, as Trustee, etc.,

        Plaintiff and Appellant,                     E059692

v.                                                   (Super.Ct.No. RIP1200120)

CHARLOTTE J. TEEGARDEN et al.,                       OPINION

        Defendants and Respondents.




        APPEAL from the Superior Court of Riverside County. Thomas H. Cahraman,

Judge. Reversed.

        Michael R. Lawler, Jr. and Harry A. Wallace for Plaintiff and Appellant.

        The Law Office of Kyle A. Patrick and Kyle A. Patrick for Defendants and

Respondents.




        *
              Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this
opinion is certified for publication with the exception of parts IV, V, and VI.




                                             1
       In 2007, Robert (Bob) Perry quitclaimed a house to defendant Charlotte (Jeanne)

Teegarden, who was his friend and one of his caregivers. Teegarden prepared the

quitclaim deed. In her deposition, Teegarden admitted that the only consideration that

she gave for the quitclaim consisted of one dollar and her friendship. At trial, however,

she testified that, pursuant to an oral agreement with Perry, she also gave (1) $100,000,

which went into improvements to the house, (2) her $45,000 equity in a different house,

and (3) her services.

       Plaintiff Merilou Jenkins is Perry’s stepdaughter and, since Perry’s death, the

trustee and beneficiary of his trust. In this proceeding, Jenkins contends that the

quitclaim was invalid under Probate Code former section 21350, which, at the time,

provided that a “donative transfer” is invalid under specified circumstances, including

when the recipient drafted the instrument that effected the transfer. Jenkins also contends

that the quitclaim deed was ineffective because it was executed by Perry in his individual

capacity instead of as trustee and because it had an erroneous legal description.

       The trial court found that the quitclaim was not a donative transfer because

Teegarden gave good consideration for it. It then reformed the quitclaim deed so as to fix

the mistakes in it regarding the grantor’s capacity and the legal description.

       Jenkins appeals. She contends, among other things, that the trial court erred by

finding that the quitclaim was not a donative transfer.




                                              2
       Preliminarily, we will hold that, even though Probate Code former section 21350

et seq. has been repealed and replaced by Probate Code section 21380 et seq., which

applies only to instruments executed on or after January 1, 2011, Probate Code former

section 21350 et seq. still governs an instrument executed before January 1, 2011.

       This brings us to the definition of a “donative transfer” for purposes of Probate

Code former section 21350 (as well as current Probate Code section 21380) — a question

of first impression. We will hold that a transfer is a donative transfer if it is for

inadequate consideration; the mere fact that the recipient gave good consideration,

sufficient to support a contract, does not prevent the transfer from being donative.

       Finally, we will hold that the evidence demonstrated that the quitclaim was a

donative transfer under this definition as a matter of law. Hence, the quitclaim was

invalid.

                                               I

                                FACTUAL BACKGROUND

       Around 1956 or 1957, when Jenkins was 13 or 14, her mother Loyce married

Robert Perry. Jenkins lived with the Perrys until she was 21 or 22.

       The Perrys lived at 16065 Perry Heights Drive in Riverside. They also owned a

vacant lot next door at 16025 Perry Heights Drive.

       In 2002, the Perrys set up a revocable living trust and transferred the vacant lot to

the trust. The trust provided that, after the deaths of both spouses, Jenkins would become

the successor trustee and sole beneficiary.



                                               3
       Perry and Teegarden first met in 2001, when they both commuted on the same

train from the same station. Teegarden lived in Sun City and had a full-time job in

Anaheim.

       Perry hired Teegarden to do household bookkeeping work for a few hours on

weekends. In 2003, after Loyce sustained a knee injury, Teegarden began helping the

Perrys out around the house by shopping for groceries, cooking, and cleaning. Teegarden

was paid some $7,000 to $15,000 a year for her services. Teegarden also socialized with

the Perrys. However, the Perrys also had other caregivers, and Teegarden continued to

work full-time.

       In 2003, Teegarden’s house in Sun City went into foreclosure. Pursuant to an oral

agreement with the Perrys, she deeded the house to them and they paid off the mortgage.

The amount of the mortgage was $205,000;1 Teegarden estimated that the market value

of the house at the time was $250,000. It was agreed that Teegarden could continue to

live in the Sun City house. She would pay rent if she could, but if she could not, she did

not have to. Whenever she was able to make the mortgage payments again, she would

buy it back from the Perrys for $205,000.




       1
              Teegarden testified that the amount of the mortgage was either $186,000 or
$205,000. The documentary transfer tax on the sale to the Perrys was $225.50, which
would mean that the Perrys paid exactly $205,000. (See Rev. & Tax. Code, § 11911,
subd. (a) [documentary transfer tax of $0.55 per $500].)



                                             4
         Initially, Jenkins saw or spoke to her mother Loyce and to Perry roughly once

every two weeks. Starting in 2004 or 2005, however, Teegarden started telling them

falsehoods about Jenkins. For example, Teegarden told them that Jenkins intended to put

them both in a home, sell their house, and take all their money. Teegarden also told them

that Jenkins had gotten her fired from her job and had sent the police to her home.2 After

that, Jenkins tried to stay in touch with Perry, but he would not return her calls.

         In December 2005, Loyce died. Perry did not contact Jenkins, nor did she contact

him. Perry’s caregivers, including Teegarden, arranged the funeral without consulting

Jenkins. Jenkins attended the funeral, but she couldn’t get close to Perry because

Teegarden’s husband was “guard[ing]” him. Thereafter, Jenkins had no relationship with

Perry.

         In early 2006, Perry and Teegarden orally agreed to build a house on the vacant lot

that would belong to Teegarden. Perry would pay a contractor to build the structure

itself; Teegarden would pay for everything above and beyond the cost of the contractor.

Ultimately, Teegarden put about $100,000 into the house; she paid for flooring, the

electrical system, a water main, the propane system, appliances, hardscaping, and

fencing.




         2
              Even though Teegarden was recalled to the stand after this testimony by
Jenkins, she was never questioned about it; thus, she never denied making these
statements.



                                              5
       Meanwhile, at some point, Perry sold the Sun City house. It was agreed that the

net proceeds would be “a partial offset to what came out of his pocket to build the

house.”

       When a long-time friend learned that Perry was going to quitclaim the house to

Teegarden, he went to Perry and said, “Don’t do it.” Perry replied, “She deserves it and I

like her.” At some point, Perry told the same friend that “he was building [the house] so

[Teegarden] would have a place to live and look after him.”

       In January or February 2007, the new house was finished, and Teegarden moved

in.

       On August 1, 2007, Perry signed a quitclaim deed purporting to transfer the house

and lot to Teegarden. Teegarden prepared the deed by filling out the blanks in a

preprinted form that she had bought at Staples. She wrote in Perry individually — rather

than as trustee of the trust — as the grantor. She wrote in the address and assessor’s

parcel number of the property, but she did not include a proper legal description. She

wrote in consideration of one dollar. After the deed was signed but before it was

recorded, someone (Teegarden did not know who) wrote in a short legal description, but

it did not accurately describe the property.

       The attorney who had drafted Perry’s 2002 trust3 testified that he would have

expected Perry to ask him to draft any such deed.


       3
              This attorney also represented Jenkins at trial.



                                               6
       At that time, the house was worth approximately $480,000.4 Its fair rental value

was $2,500 a month.

       In her deposition, Teegarden admitted that she bought the house from Perry for

one dollar and her friendship. At trial, however, she testified that the consideration she

gave for the property included the $100,000 that she paid toward improvements, plus her

equity in the house in Sun City, plus her continued care.

       On August 2, 2007, the quitclaim was recorded. However, due to the errors in the

deed, the record title remained in the trust.

       There was conflicting evidence with regard to whether, at this point, Perry was

mentally and physically able to manage his own affairs.

       Teegarden continued to buy groceries, cook, do housekeeping, and do

bookkeeping for Perry, and he continued to pay her approximately $10,000 a year for her

services. She kept a baby monitor in her house in case he “needed to call out for help.”

However, she still worked full-time, and Perry still had other caregivers.

       In 2011, when Perry was 87, he was killed in a fire that destroyed his house.




       4
              Jenkins repeatedly states that the house was worth $600,000. She
stipulated, however, that it was worth $480,000.



                                                7
                                              II

                             PROCEDURAL BACKGROUND

       In 2012, Jenkins filed a petition asserting three causes of action against

Teegarden:5 (1) to void a donative transfer under Probate Code former section 21350; (2)

to adjudicate title to or possession of alleged trust property under Probate Code section

850; and (3) for damages for financial elder abuse under Welfare and Institutions Code

section 15600 et seq.

       Teegarden filed a responsive pleading alleging, among other things, that the

quitclaim was for good and valuable consideration.

       Jenkins filed a trial brief arguing, among other things, that the quitclaim was

ineffective because it had the wrong grantor and the wrong legal description.

       Teegarden filed a trial brief asserting for the first time that the petition was barred

by the statute of limitations. Jenkins filed a supplemental trial brief asserting that

Teegarden had forfeited the statute of limitations by failing to plead it.

       Similarly, Teegarden filed a trial brief asserting for the first time that the quitclaim

deed should be reformed. Jenkins filed a supplemental trial brief arguing that Teegarden

was not entitled to reformation.


       5
              Teegarden’s husband Thomas Baloga was also named as a defendant,
because he was allegedly living in the house with Teegarden. As his rights are merely
derivative of Teegarden’s, we do not discuss them further in this opinion. (See Hoff v.
Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 931, fn. 1.)

       A third named defendant was dismissed without prejudice before trial.



                                              8
       The trial court bifurcated the issue of whether the quitclaim was a donative

transfer. After the first phase of trial, it found that the quitclaim was not a donative

transfer.

       After the second phase of trial, the trial court issued a statement of decision. In it,

it found additional evidence that the quitclaim was not a donative transfer. It also stated:

“[Teegarden] failed to plead the remedy of reformation, yet sought that relief at the trial.

After careful consideration the court finds no prejudice in this regard. [Jenkins] was

well-prepared to deal with the issue . . . . [Jenkins] also filed a supplemental trial brief

resisting reformation on the merits.” It therefore ordered reformation of the quitclaim, so

that it would be effective to convey the property to Teegarden.

       The trial court expressly declined to rule on the applicability of the statute of

limitations.

       The trial court then entered judgment against Jenkins and in favor of Teegarden in

accordance with its statement of decision.

                                              III

    THE QUITCLAIM WAS A DONATIVE TRANSFER AS A MATTER OF LAW

       Jenkins contends that the trial court erred by finding that the quitclaim was not a

donative transfer.




                                               9
       A.     Statutory Background.

              1.       Probate Code former section 21350 et seq.

       In 2007, when the quitclaim was executed, Probate Code former section 21350, as

relevant here, provided:

       “(a) Except as provided in Section 21351, no provision, or provisions, of any

instrument shall be valid to make any donative transfer to any of the following:

              “(1) The person who drafted the instrument. [¶] . . . [¶] . . .

              “(6) A care custodian of a dependent adult who is the transferor.” (Stats.

2003, ch. 444, § 1.)

       Probate Code former section 21351 then provided:

       “Section 21350 does not apply if any of the following conditions are met:

       “(a) The transferor is related by blood or marriage to, is a cohabitant with, or is the

registered domestic partner . . . of the transferee or the person who drafted the instrument.

...

       “(b) The instrument is reviewed by an independent attorney . . . .

       “(c) . . . [T]he instrument is approved pursuant to a[] [court] order . . . .

       “(d) The court determines, upon clear and convincing evidence, but not based

solely upon the testimony of [the person who drafted the instrument], that the transfer

was not the product of fraud, menace, duress, or undue influence. . . .

       “(e) Subdivision (d) shall apply only to the following instruments:




                                              10
               “(1) Any instrument other than one making a transfer to [the person who

drafted the instrument]. [¶] . . . [¶] . . .

       “(h) The transfer does not exceed the sum of three thousand dollars ($3,000).”

(Stats. 2002, ch. 412, § 1.)

       Probate Code former section 21355 provided: “This part shall apply to

instruments that become irrevocable on or after September 1, 1993.” (Stats. 1995,

ch. 730, § 16.)

       We pause to summarize these provisions briefly: A “donative transfer” above a

certain minimum value to an unrelated drafter of the transfer instrument was invalid —

even if the transferee could disprove fraud, menace, duress, and undue influence —

unless it had been either reviewed by an independent attorney or approved by a court.

               2.     Current Probate Code section 21380 et seq.

       In 2010, Probate Code former section 21350 et seq. was repealed, effective

January 1, 2014. (Prob. Code, former § 23155, subd. (b), Stats. 2010, ch. 620, § 6.) At

the same time, Probate Code section 21380 et seq. was enacted, effective January 1,

2011. (Stats. 2010, ch. 620, § 7.)

       Probate Code section 21380, as relevant here, now provides:

       “(a) A provision of an instrument making a donative transfer to any of the

following persons is presumed to be the product of fraud or undue influence:

               “(1) The person who drafted the instrument. [¶] . . .




                                               11
                “(3) A care custodian of a transferor who is a dependent adult . . . . [¶] . . .

[¶] . . .

         “(b) The presumption created by this section is a presumption affecting the burden

of proof. The presumption may be rebutted by proving, by clear and convincing

evidence, that the donative transfer was not the product of fraud or undue influence.

         “(c) Notwithstanding subdivision (b), with respect to a donative transfer to the

person who drafted the donative instrument . . . , the presumption created by this section

is conclusive.”

         Probate Code section 21382 provides:

         “Section 21380 does not apply to any of the following instruments or transfers:

         “(a) A donative transfer to a person who is related by blood or affinity, within the

fourth degree, to the transferor or is the cohabitant of the transferor. [¶] . . .

         “(c) An instrument that is approved pursuant to a[] [court] order . . . . [¶] . . .

         “(e) A donative transfer of property valued at five thousand dollars ($5,000) or

less . . . .”

         Probate Code section 21384 provides:

         “(a) A gift is not subject to Section 21380 if the instrument is reviewed by an

independent attorney . . . .”

         Probate Code section 21392 provides:

         “(a) This part shall apply to instruments that become irrevocable on or after

January 1, 2011.”



                                                12
       Again, to summarize: For purposes of this case, the effect of Probate Code section

21380 et seq. is the same as the effect of Probate Code former section 21350 et seq.; a

“donative transfer” above a certain minimum value to an unrelated drafter of the transfer

instrument is invalid — even if the transferee could disprove fraud, menace, duress, and

undue influence — unless it has been either reviewed by an independent attorney or

approved by a court.

       B.     Effect of the Repeal of Probate Code Former Section 21350 Et Seq.

       Preliminarily, Teegarden contends that the repeal of Probate Code section 21350

et seq. “destroyed” Jenkins’s claims.

       The principle on which Teegarden relies is known as the statutory repeal doctrine.

(Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1151.)

“Under that doctrine, . . . ‘“where a right or a right of action depending solely on statute

is altered or repealed by the Legislature, in the absence of contrary intent, e.g., a savings

clause, the new statute is applied even where the matter was pending prior to the

enactment of the new statute.”’ [Citation.]” (Ibid.)

       When the Legislature repealed Probate Code section 21350 et seq., it did not

include an express saving clause. However, it did reenact Probate Code section 21350 et

seq. as Probate Code section 21380 et seq., with only minor changes. Admittedly, the

new statute, by its terms, applied only to instruments that became irrevocable on or after

January 1, 2011. Nevertheless, under Probate Code section 3, subdivision (g), “If [a] new

law does not apply to a matter that occurred before the operative date, the old law



                                              13
continues to govern the matter notwithstanding its amendment or repeal by the new law.”

(Italics added.)

         There is evidence that this is what the Legislature intended. The Law Revision

Commission’s comments on Probate Code section 21392 stated: “Subdivision (a) of

Section 21392 limits the application of this part to instruments that become irrevocable

on or after January 1, 2011. Instruments that became irrevocable before that date are

governed by the former law.” (Cal. Law Rev. Com. com., 54A pt. 2 West’s Ann. Prob.

Code (2011 ed.) foll. § 21392, p. 260, italics added.) “‘The Commission’s official

comments are deemed to express the Legislature’s intent.’ [Citation.]” (Guardianship of

Ann S. (2009) 45 Cal.4th 1110, 1137-1138, fn. 20.)

         We therefore conclude that Jenkins’s claims survived the repeal.

         C.     Statutory Interpretation.

         We turn to the meaning of “donative transfer” under Probate Code former section

21350.

         “Statutory interpretation is a question of law that we review de novo. [Citation.]”

(Bruns v. E-Commerce Exchange, Inc. (2011) 51 Cal.4th 717, 724.) “Our goal in

construing a statute is ‘to determine and give effect to the intent of the enacting

legislative body.’ [Citation.] ‘“We first examine the words themselves because the

statutory language is generally the most reliable indicator of legislative intent. [Citation.]

The words of the statute should be given their ordinary and usual meaning and should be

construed in their statutory context.” [Citation.] If the plain, commonsense meaning of a



                                              14
statute’s words is unambiguous, the plain meaning controls.’ [Citation.] If, however, the

statute is susceptible to more than one interpretation, we ‘may consider various extrinsic

aids, including the purpose of the statute, the evils to be remedied, the legislative history,

public policy, and the statutory scheme encompassing the statute. [Citation.]’

[Citation.]” (Holland v. Assessment Appeals Bd. No. 1 (2014) 58 Cal.4th 482, 490.)

                1.      Plain meaning.

        There is no statutory definition of a donative transfer. In plain English, “donative

transfer” means gift. But then why did the Legislature choose to use the long Latinate

noun phrase instead of the short Anglo-Saxon word? This is at least some indication that

it intended the term to have a specialized meaning. In any event, both “donative transfer”

and “gift” are ambiguous. In most legal contexts, a gift means a transfer without any

consideration at all. (E.g., Civ. Code, § 1146 [defining gift of personal property].)

However, in some contexts, it can mean a transfer for inadequate or disproportionate

consideration. (E.g., Salmon v. Wilson (1871) 41 Cal. 595, 605-606 [deed by father to

children of 25,000 acres in exchange for $461 was a gift].) In still other contexts, a

transfer for consideration can be viewed as a gift in part, to the extent that the value of the

property transferred exceeds the value of the consideration. (See Gov. Code, § 82028,

subd. (a) [for purposes of Political Reform Act, gift means “any payment that confers a

personal benefit on the recipient, to the extent that consideration of equal or greater value

is not received . . . .”].)




                                              15
              2.      Legislative history.

       Because the statute is ambiguous, we turn to its legislative history.

                      a.     Probate Code former section 21350 as initially proposed.

       Probate Code former section 21350 was first enacted in 1993. (Stats. 1993,

ch. 293, § 8.) The immediate impetus for the bill was a series of articles in the Los

Angeles Times about an attorney named James D. Gunderson, who had “engaged in a

series of highly questionable, if not, arguably, illegal acts” by drafting wills and trusts

that named him as a beneficiary of his clients’ estates. (Assem. Com. on Judiciary,

Analysis of Assem. Bill No. 21 (1993-1994 Reg. Sess.) as amended Feb. 4, 1993, p. 1.)6

       A committee analysis of an early version of the bill quoted the following language

from Magee v. State Bar (1962) 58 Cal.2d 423, 433: “There is no rule that attorneys

should never draw wills in which they receive gifts . . . Even though an attorney may be

acting only to carry out the wishes of his client in drawing a will containing a gift to

himself, he should send the client to another lawyer when the circumstances would

support an inference of wrongdoing. In the instant case, [the attorney] should have taken

the initiative in having [the client] consult another lawyer.” (Assem. Com. on Judiciary,

Analysis of Assem. Bill No. 21 (1993-1994 Reg. Sess.) as amended Feb. 4, 1993, p. 4,

italics added.) The analysis then stated: “[The bill] codifies the standard announced in

Magee.” (Ibid.)

       6
            Available at <http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_0001-
0050/ab_21_cfa_930208_101917_asm_comm>, as of October 17, 2014.



                                              16
                     b.     Probate Code former section 21350 as amended before

                            enactment.

       One early version of the bill invalidated any “transfer, including a gift,” that

otherwise met its requirements. (Assem. Bill No. 21 (1993-1994 Reg. Sess.), as amended

June 17, 1993, p. 11.) There was concern, however, that this could be construed to

include “even transfers for fair and adequate consideration.” (Sen. Com. on Judiciary,

Analysis of Assem. Bill No. 21 (1993-1994 Reg. Sess.) as amended June 17, 1993, p. 8.)7

Accordingly, the bill was amended so as to invalidate only a “donative transfer.”

(Assem. Bill No. 21 (1993-1994 Reg. Sess.), as amended June 30, 1993, p. 11.)

                     c.     Probate Code 21350 as enacted in 1993.

       The original version of Probate Code section 21350, as enacted in 1993, provided:

       “(a) Except as provided in Section 21351, no provision, or provisions, of any

instrument shall be valid to make any donative transfer to any of the following:

              “(1) A person, including an attorney, conservator, or other person having a

fiduciary relationship with the transferor, who drafted, transcribed, or caused to be

drafted or transcribed, the instrument.” (Stats. 1993, ch. 293, § 8.)

       Significantly, it was not entirely clear whether this encompassed a nonfiduciary

drafter. It could be argued that, under the principle of ejusdem generis (see generally In

re Corrine W. (2009) 45 Cal.4th 522, 531), the word “person” was limited by the words

       7
            Available at <http://www.leginfo.ca.gov/pub/93-94/bill/asm/ab_0001-
0050/ab_21_cfa_930617_113305_sen_comm>, as of October 17, 2014.



                                             17
“an attorney, conservator, or other person having a fiduciary relationship with the

transferor”; if so, then the statute did not invalidate a donative transfer to a drafter who

was not an attorney, conservator, or similar fiduciary. This interpretation would be

consistent with the legislative history, which, as we have discussed, focused on Attorney

Gunderson and attorney-drafted instruments.

                      d.     Probate Code 21350 as amended in 1995.

       In 1995, Probate Code section 21350 was amended so as to provide:

       “(a) Except as provided in Section 21351, no provision, or provisions, of any

instrument shall be valid to make any donative transfer to any of the following:

              “(1) The person who drafted the instrument.” (Prob. Code, former § 21350,

subd. (a)(1), Stats. 1995, ch. 730, § 12.)

       In other words, the amendment made it clear that a donative transfer to any drafter

— not just a fiduciary — was invalid.

                      e.     Conclusions based on the legislative history.

       We draw several conclusions from this legislative history.

       First, from the discussion of Magee, it appears that the bill was intended to

invalidate a gift to an attorney drafter “‘when the circumstances would support an

inference of wrongdoing.’” (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 21

(1993-1994 Reg. Sess.) as amended Feb. 4, 1993, supra, p. 4, quoting Magee v. State

Bar, supra, 58 Cal.2d at p. 433.) A transfer for zero consideration is certainly one such

circumstance. However, a transfer for inadequate consideration is also a classic



                                              18
suspicious circumstance. (See Herbert v. Lankershim (1937) 9 Cal.2d 409, 426, 471, 476

[confidential relationship combined with grossly inadequate consideration give rise to a

presumption of undue influence].)

       Second, the Legislature selected the term “donative transfer” because it wanted to

exclude “transfers for fair and adequate consideration.” (Sen. Com. on Judiciary,

Analysis of Assem. Bill No. 21 (1993-1994 Reg. Sess.) as amended June 17, 1993, supra,

p. 8.) It follows that it intended “donative transfer” to include transfers for unfair or

inadequate consideration.

       Third, in 1995, the Legislature took deliberate action to invalidate donative

transfers to all drafters, including nonfiduciaries. This is significant because, if one were

to look only at the legislative history from 1993, one could conclude that the Legislature

was concerned about transfers for less than adequate consideration only when the

transferee is an attorney or other fiduciary drafter. However, when one also looks at the

1995 amendment and the legislative history from 1995, one can only conclude that the

Legislature was concerned about transfers for less than adequate consideration to any

drafter.

       We note that defining donative transfer as a transfer for less than fair and adequate

consideration is also consistent with “the evils to be remedied.” The Legislature was

concerned about abuses by drafters, and particularly by attorney drafters. If minimally

sufficient consideration — “the proverbial ‘peppercorn’” (San Diego City Firefighters,

Local 145 v. Board of Administration etc. (2012) 206 Cal.App.4th 594, 619) — were all



                                              19
that it took to avoid invalidation of a transfer, then Attorney Gunderson would have

drafted clauses requiring him to pay a peppercorn as consideration.

       We therefore conclude that “donative transfer,” as used in Probate Code former

section 21350, includes not only a transfer for zero consideration, but also a transfer for

unfair or inadequate consideration. But how inadequate is too inadequate? Jenkins urges

us to hold that any time the value of a transfer exceeds the value of the consideration, the

excess should be deemed a donative transfer; she cites authorities dealing with the federal

gift tax. But the result of a finding that part of a transfer is subject to gift tax is merely

that a tax is due based on the value of that part. By contrast, the results of a finding that

part of a transfer to a drafter is donative would be draconian. That part of the transfer

would be invalid; the recipient would not be allowed to even try to show the absence of

undue influence. Thus, requiring a perfect fit between the value of the transfer and the

value of the consideration would disrupt too many perfectly innocent transactions after

the fact.

       A better model can be found in the realm of specific performance. A contract

cannot be enforced by specific performance if there is inadequate consideration (Civ.

Code, § 3391, subd. (1)), though a breach can still be remedied in damages. In this

context, “‘[a] consideration, to be adequate, need not amount to the full value of the

property.’ [Citation.] The test ‘is not whether the [vendor] received the highest price

obtainable for his property, but whether the price he received is fair and reasonable under

the circumstances.’ [Citation.]” (Meyer v. Benko (1976) 55 Cal.App.3d 937, 945 [sales



                                               20
price of $23,500 for property worth as much as $29,000 or $30,000 was adequate

consideration when seller accepted a lower price to sell quickly].) We conclude that this

standard best fits the legislative intent.

       D.      Application to These Facts.

       Here, the trial court ruled that a transaction is not a donative transfer if there is at

least minimally good consideration. Thus, it applied an erroneous legal standard. The

next question is whether we should give the trial court an opportunity to make new

findings under the correct legal standard. This turns on whether there was evidence from

which it could find that the quitclaim was not a donative transfer.

       Jenkins had the burden of proving that the quitclaim was a donative transfer.

(Evid. Code, § 500.) She carried her initial burden of producing evidence by introducing

Teegarden’s deposition testimony that the only consideration was one dollar and her

friendship. Teegarden, however, testified at trial that she gave three types of

consideration for the quitclaim.

       First and foremost, Teegarden put approximately $100,000 into improvements to

the house. The parties dispute whether this counts as consideration at all. Jenkins argues

that it does not, because both the house and the improvements ultimately benefited

Teegarden herself. Teegarden argues that it does, because consideration can consist of

detriment to the promisee just as much as it can consist of benefit to the promisor.

       We may assume, without deciding, that the $100,000 constituted good

consideration sufficient to support a contract. But even if so, it did not constitute fair and



                                               21
adequate consideration. It did not benefit Perry at all; it came out of Teegarden’s pocket,

and it went right back into Teegarden’s pocket. If such consideration sufficed to prevent

a transfer from being donative, it would be too easy for a drafter (and particularly an

attorney drafter) to subvert the statutory scheme simply by providing that proceeds of the

transfer must be used to buy something that the attorney already wants.

       Second, Teegarden claimed that she gave Perry her equity in her Sun City house,

which she estimated at $45,000 (as of 2003). It must be remembered that they had

already entered into an entirely separate deal regarding the Sun City house; Perry bought

it by paying off the $205,000 mortgage, and he gave Teegarden the right to repurchase it

for $205,000. Thus, Perry already owned the Sun City house — including the $45,000

equity in it — subject only to Teegarden’s option to repurchase it for $45,000 less than it

was worth. When she moved into the subject property instead, she gave up her

repurchase option. But there was no evidence that, as of 2007, she could have raised

$205,000 for the repurchase. If not, then her option was worth zero. In any event, even

assuming Teegarden effectively made Perry $45,000 richer, $45,000 plus $100,000 still

was not adequate consideration for a $480,000 house. (Paratore v. Perry (1966) 239

Cal.App.2d 384, 387 and cases cited [$4,100 not adequate for property worth $6,200;

$30,000 not adequate for property worth $35,000; $1,800 not adequate for property worth

$2,500].)

       Third and finally, Teegarden agreed to provide Perry with continued care.

However, she had already been providing him with care between 2002 and 2007 in



                                             22
exchange for payments averaging about $10,000 to $12,000 a year. Between 2007 and

2011, she continued to provide him with care in exchange for payments of approximately

$10,000 a year. There was no evidence that she worked any longer or provided any

additional services; Perry still had other caregivers. Once again, even assuming that her

continued care constituted consideration sufficient to support a contract, the value of that

care was largely canceled out by Perry’s cash payments. If there was any excess value, it

was trivial.

       In sum, there was no evidence that Teegarden gave adequate consideration for the

quitclaim; hence, the quitclaim was a donative transfer as a matter of law. Inasmuch as

Teegarden has already had a full and fair opportunity to litigate this issue, we see no

point in remanding for reconsideration of it. (See Sharabianlou v. Karp (2010) 181

Cal.App.4th 1133, 1150.)

       Teegarden does not dispute that she was the drafter of the quitclaim within the

meaning of Probate Code former section 21350.8 We deem her to have forfeited any

counterargument.

       It necessarily follows that the quitclaim was invalid. We therefore need not

address Jenkins’s contention that the trial court erred by reforming the quitclaim.


       8
               Jenkins claims that Teegarden admitted that she was the drafter. This is
putting it too strongly. Teegarden did admit that she “drafted and prepared” the quitclaim
deed by filling in the blanks in the form. However, she never took any position, one way
or the other, on whether this made her the “drafter” within the meaning of Probate Code
former section 23150.



                                             23
                                                IV

                        THE SCOPE OF TEEGARDEN’S TESTIMONY

           Jenkins also contends that the trial court erred by allowing Teegarden to testify

that the quitclaim was not the product of undue influence.

           A.     Additional Factual and Procedural Background.

           Teegarden admitted that she was the one who filled in the blanks in the quitclaim

deed before it was signed. Early in the first phase of trial, counsel for Jenkins also

introduced Teegarden’s admission in her deposition that the only consideration that she

gave for the quitclaim was one dollar and her friendship.

           Counsel for Teegarden asked Teegarden if she ever spent the night at the Perrys’

house. Counsel for Jenkins objected based on relevance. The trial court overruled the

objection, but it allowed “a standing objection on relevance to this line of questioning

. . . .”

           Counsel for Jenkins also objected based on relevance to questions about whether

Teegarden socialized with Loyce and about whether Teegarden paid for improvements to

the house. The trial court overruled these objections.

           B.     Analysis.

           As Jenkins notes, under Probate Code former section 21350, if a transaction

constitutes a donative transfer to a drafter, and if none of the statutory exceptions apply,

the transaction is invalid; the transferee is not allowed to try to prove that the transaction

was free of undue influence. Moreover, the trial court is not allowed to find the absence



                                                24
of undue influence based solely on the testimony of the drafter. Jenkins therefore argues

that the trial court erred by allowing Teegarden to testify that the quitclaim was not the

product of undue influence.

       This argument confuses the issue of a donative transfer to a drafter with the issue

of undue influence. Jenkins treats these as interchangeable, on the theory that, once a

transaction has been proven to be a donative transfer to a drafter, there is a “conclusive

presumption of undue influence.” Hence, in her view, evidence offered to disprove a

donative transfer necessarily is also offered to disprove undue influence.

       This does not correctly describe the operation of Probate Code former section

21350. (See generally J. Phillips, Irrebuttable Presumptions: An Illusory Analysis (1975)

27 Stan. L. Rev. 449.) It would be more accurate to say that a donative transfer to a

drafter is treated as if it were the product of undue influence. However, the transferee is

always allowed to try to prove that there was no donative transfer at all.

       Here, disproving undue influence was not the thrust of the challenged testimony.

Rather, Teegarden was trying to disprove a donative transfer. For example, the fact that

she paid for improvements to the house tended to show that she actually gave good

consideration as bargained for between her and Perry. As we held in part III.D, ante, this

testimony ultimately fell short of proving that she gave fair and adequate consideration.

Nevertheless, it was by no means irrelevant. (See Evid. Code, § 210 [“‘Relevant

evidence’ means evidence . . . having any tendency in reason to prove or disprove any

disputed fact that is of consequence to the determination of the action.”].)



                                             25
       Jenkins’s real grievance seems to be that Teegarden was allowed to contradict her

admission in her deposition. Deposition testimony, however, is not a binding judicial

admission. A party can contradict his or her own deposition testimony at trial, subject

only to the use of the deposition for impeachment. (Code Civ. Proc., § 2025.620, subd.

(a); Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522-1523.)

       We also note that, even assuming the challenged testimony was offered to

disprove undue influence, it was still relevant. Jenkins was claiming that the quitclaim

was invalid under Probate Code for section 21350 for two distinct reasons — not only

because it was a donative transfer to a drafter, but also because it was a donative transfer

to the care custodian of a dependent adult. If the trial court found that it was a donative

transfer to the care custodian of a dependent adult, Teegarden would have been allowed

to try to disprove undue influence. Thus, again, evidence disproving undue influence was

not irrelevant. Moreover, while the trial court could not find the absence of undue

influence based solely on the testimony of the drafter, there was documentary evidence

and, for all the trial court knew at the time, there could have been other witnesses that

corroborated Teegarden’s testimony.

       Finally, the asserted error was harmless. In part III.D, ante, we held that, even if

all of Teegarden’s testimony is accepted, it fell short of disproving a donative transfer.




                                             26
                                               V

                               STATUTE OF LIMITATIONS

       Teegarden contends that the statute of limitations had run on Jenkins’s claim to

invalidate the quitclaim.

       Teegarden, however, failed to raise the statute of limitations as an affirmative

defense in her responsive pleading. “The general rule is firmly established that if a

statute of limitation is not pleaded it is waived. [Citation.]” (Hall v. Chamberlain (1948)

31 Cal.2d 673, 679; see also Prob. Code, § 1000 [“Except to the extent that this code

provides applicable rules, the rules of practice applicable to civil actions . . . apply to, and

constitute the rules of practice in, proceedings under this code.”].) Raising the statute of

limitations for the first time in a trial brief is too little, too late. (Martin v. Van Bergen

(2012) 209 Cal.App.4th 84, 91.)

       Teegarden points out that Jenkins affirmatively alleged that the action was timely;

Teegarden denied this. Teegarden argues that her denial “plac[ed] the statute of

limitations in issue.” Not so. “A mere denial is insufficient to raise the bar of

limitations.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1117.) “[I]f the

defense appears on the face of the complaint, it must be raised by demurrer; otherwise it

must be specially pleaded in the answer . . . [citations].” (O’Neil v. Spillane (1975) 45

Cal.App.3d 147, 156.) Merely pleading facts showing that the action is barred — or, as

in this case, denying facts showing that the action is not barred — is insufficient. “The

essence of the rule requiring the statute to be pleaded is to apprise plaintiff that defendant



                                               27
intends to rely upon that defense. While it may be that inferentially, the times being

stated, it follows that the action was not timely filed under the statute, yet more is

required. There must be some expression that lateness of the commencement of the

action is a ground of defense.” (Hall v. Chamberlain, supra, 31 Cal.2d at p. 680.)

       We therefore conclude that we cannot uphold the judgment for Teegarden based

on the statute of limitations. Moreover, Teegarden is not entitled to a remand for

reconsideration of this issue. The trial court quite properly declined to rule on the

applicability of the statute of limitations.

                                               VI

                   TEEGARDEN’S UNPLEADED COUNTERCLAIMS

       This brings us to the question of the appropriate appellate remedy. It is undisputed

that Teegarden used approximately $100,000 of her own money to make improvements

to the subject property. As Jenkins concedes, Teegarden could have cross-complained

for relief as a good faith improver. (Code Civ. Proc., § 871.1 et seq.); however, she never

did.

       Jenkins therefore argues that it is too late for Teegarden to assert such a

counterclaim. Jenkins further argues that, even if Teegarden could still assert a claim as a

good faith improver (or on some other theory), then Jenkins would be entitled to an offset

for (1) the reasonable rental value of the subject property and (2) attorney fees based on

elder abuse (see Welf. & Inst. Code, § 15657.5, subd. (a)).




                                               28
       Our holding means that Jenkins is entitled to “restitution on reasonable terms and

conditions of all property and rights lost by the erroneous judgment . . . .” (Code Civ.

Proc., § 908.) “Whether a party is entitled to restitution following reversal ‘present [s] a

question calling for judicial discretion in determining what equity required.’ [Citation.]

On remand, the trial court will have discretion to consider Jenkins’s claim of an offset for

reasonable rental value and Teegarden’s claim of $100,000 investment in the subject

property. We express no view with respect to how the court should exercise its

discretion.9

       We note, however, that the trial court has already implicitly rejected Jenkins’s

financial elder abuse claim. Financial elder abuse requires the taking of the property of

an elder for a wrongful use, with the intent to defraud, or by undue influence. (Welf. &

Inst. Code, § 15610.30, subds. (a)(1), (a)(3).) Our holding that the quitclaim was invalid

under Probate Code former section 21350 does not resurrect this claim and does not make

Jenkins entitled to attorney fees.




       9
               It appears to be undisputed that, while the appeal was pending, Teegarden
sold the subject property. The trial court allowed her to have $100,000 of the proceeds
but ordered that the remainder be deposited in a blocked account. We hereby grant
Jenkins’s request for judicial notice that the blocked account has been set up in
Teegarden’s name. The fact that the subject property has been reduced to cash should
simplify the trial court’s restitution determination.



                                             29
                                             VII

                                       DISPOSITION

       The judgment is reversed. The matter is remanded for further proceedings not

inconsistent with this opinion. Because, under our opinion, Jenkins remains the Trustee

of the proceeds of the subject property, the trial court is directed to order that the funds in

the blocked account be placed in the name of Jenkins, as Trustee, pending further order

of the trial court. Jenkins is awarded costs on appeal.

       CERTIFIED FOR PARTIAL PUBLICATION


                                                                  RICHLI
                                                                                             J.

We concur:


McKINSTER
                 Acting P. J.


CODRINGTON
                           J.




                                              30
