Filed 12/11/13 Estate of Moynes CA1/2
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


ESTATE OF RUTH B. MOYNES,
Deceased.


LYNN LINTZ,
         Plaintiff and Respondent,                                   A137559
v.
                                                                     (San Mateo County
MARILU RAMIREZ,                                                      Super. Ct. No. PRO116317)
         Defendant and Appellant.

         Ruth Moynes died in 2006 at the great age of 100. Plaintiff Lynn Lintz, the
decedent’s executor and the sole beneficiary of her pour-over trust, brought suit to
recover various sums alleged to have been improperly obtained by Moynes’ long-time
caregiver, Ruby Waltrip, and Waltrip’s daughter, appellant Marilu Ramirez. At the
conclusion of a two-stage bench trial, the trial court entered judgment for Lintz and
against Ramirez for approximately $1.250 million. Ramirez attacks the judgment on a
number of grounds, but she directs her primary fire at the trial court’s finding that the
decedent had been the victim of undue influence. We find no error, and we affirm.
                                                 BACKGROUND
         Less than a year after Moynes died, Lintz filed her “Petition To Determine Title
To And Require Transfer of Personal Property to Estate” against Waltrip and Ramirez.
The gist of the petition was two-fold: (1) Moynes was induced “by fraud, undue
influence and duress” to create a number of bank accounts with Waltrip as a joint tenant,

                                                             1
and; (2) Moynes was induced, again “by fraud, undue influence and duress,” to sell her
residence to Ramirez in 2005. Lintz prayed for “an order determining that the
above-described money and property belong to the estate of Ruth B. Moynes, that title to
the above-described money and property is rightfully in Petitioner as administrator of the
estate of Ruth B. Moynes, that Ruby Waltrip [and] Marilu B. Ramirez . . . are directed to
convey such money and property to Petitioner as administrator, for damages equal to
twice the value of such property and for such other relief as this Court deems
appropriate.” The petition came on for hearing before an experienced probate court
judge, in connection with which hearing two unusual points of procedure should be
briefly mentioned at the outset.
       First, the trial court took evidence on two occasions, the second occurring after the
court had filed a tentative decision and a judgment. The court then granted a partial new
trial that amounted to reopening the evidence. The court then confirmed its tentative
decision, and ordered entry of a new judgment. Neither party challenges the propriety of
the procedures that culminated in the entry of the second judgment, the one from which
Ramirez has appealed. Nor does either party object to the court’s tentative decision—as
augmented with the subsequent confirmation order—being treated as a formal and final
statement of decision.
       Second, the trial court heard no live testimony, but decided the matter exclusively
on the basis of declarations and other writings. Although the court was initially cautious
of this approach (“How do you expect me to evaluate the issue of credibility?”), it
accepted the parties’ stipulation that the case was to be submitted solely on a
documentary basis. This methodology does not impact how the court’s ultimate
judgment is to be reviewed. “The trial court determines the weight of evidence and the
credibility of a declarant in matters submitted upon declarations” (Van Slyke v. Gibson
(2007) 146 Cal.App.4th 1296, 1300), and those determinations are protected by the
ordinary presumptions and rules governing substantial evidence. (Shamblin v. Brattain
(1988) 44 Cal.3d 474, 478-479; Kulko v. Superior Court (1977) 19 Cal.3d 514, 519, fn. 1;
In re Marriage of Nurie (2009) 176 Cal.App.4th 478, 492.)


                                             2
       A comparison of the parties’ briefs establishes that they implicitly agree that most
of the historical events and essential details are undisputed. We therefore adopt, with
minor nonsubstantive changes, the following narrative in the trial court’s detailed
20-page statement of decision1:
       Ramirez’s mother, Ruby Waltrip, was the caretaker of decedent Ruth Moynes.
“Moynes lived at her home [in] Daly City, California for many years until she died on
September 14, 2006, at the age of 100. Lintz considered Moynes her ‘Aunt’ because
Lintz’s grandmother was a close personal friend of Moynes, and Moynes treated Lintz’s
mother, Jacqueline Pierce, like a daughter. Lintz, her mother, Jacqueline Pierce, and her
father, William Pierce (hereafter ‘Pierce’) also assisted in taking care of Moynes to some
degree for some period of her life, yet their direct interaction with Moynes lessened
toward the end of Moynes’s life. Since 1997, Moynes was cared for by professional
caregiver Waltrip, to whom Moynes had no other personal relationship prior to her
employment. . . . [C]heck registers provided by [Lintz] suggest that, at one point in time
in early 2005, Moynes was paying Waltrip $750.00 periodically, about every week.
       “Petitioner Lintz was named Executrix in a Last Will and Testament executed by
Moynes on April 18, 1994. Moynes’s Will instructed that the estate was to be ‘poured
over’ into her living trust, also dated April 18, 1994 and in which Lintz was named
Trustee and sole beneficiary.
       “At the time of execution, Moynes’s trust contained bank accounts and personal
property, but did not include her Daly City home. Moynes had originally acquired the
home in 1961. In 1970, Moynes executed a deed transferring title to herself and
Jacqueline and William Pierce, as joint tenants. Pierce’s wife, Jacqueline, was very close
with Moynes because Jacqueline’s mother was best friends with Moynes. In 1979, title
was reconveyed, granting Moynes a life estate, with remainder to Jacqueline and William
Pierce as joint tenants. Jacqueline Pierce died in 1998, leaving Moynes and William


       1
        Among these changes are deletion of the numerous citations by the trial court to
evidence received at the trial.


                                             3
Pierce as the owners of record. [¶] The Daly City home was owned free and clear as of
March 1, 2004 . . . .
       “On March 4, 2004, Moynes executed a deed of trust and obtained a loan for
$200,000 which Lintz was told would be used to pay for Moynes’s care. Lydia Palma,
Waltrip’s sister and Ramirez’s aunt, was to some extent involved in acquiring this loan.
Palma assisted William Pierce in obtaining his wife’s death certificate from Canada to
validate his interest in Moynes’s property, in order to facilitate the loan. . . . [¶] . . . [¶]
       “On March 22, 2004, Moynes and Pierce executed another deed of trust to obtain a
loan of $57,000.
       “Ramirez asserts that Moynes approached her about buying Moynes’s home
because Moynes was afraid that Lintz and Pierce would put her in a nursing home. . . .
There is no evidence that either Lintz or Pierce intended or took any action to place
Moynes in a nursing home . . . .
       “Ramirez claims she did not want to purchase Moynes’s home at first because she
didn’t have the money, and her husband would not approve. However, after Moynes
allegedly reassured Ramirez that Moynes would help her finance the purchase of the
home, Ramirez agreed to move forward with the sale.
       “Moynes told Lintz that the home transaction from Moynes to Ramirez involved
the agreement that Moynes would be able to remain living in the home and have her
living expenses covered. Lintz cannot recall any conversations with Ramirez regarding
the terms and conditions of the house sale. Ramirez herself claims that Moynes allegedly
told Ramirez not to tell anyone about the sale of the house.
       “On December 22, 2005, Moynes allegedly signed a typed, notarized letter of
consent to sell her property, which acknowledged Moynes’s awareness of selling her
Daly City property to Ramirez for a below market price, in as-in condition, in gratitude of
everything that Waltrip had done for her, and also with the agreement that Ramirez
would allow her to remain living in the home rent-free . . . .
       “On January 19, 2005, Ramirez purchased Moynes’s residence for $600,000.
Pierce received $100,000 on January 20, 2005 as a result of the sale.”


                                                 4
       “Ramirez acquired financing for the house from Palma, her aunt. Palma appears
to have assisted in recommending both an appraiser and a real estate broker for this
transaction, and the nature of her working relationship with each is uncertain.
       “Ramirez acknowledges receipt of $100,000 from Moynes in the form of a
cashier’s check at some point after the signing of the documents in the home transaction,
which Ramirez claims to have split into smaller checks that she stored in her safety
deposit box. Ramirez also acknowledges receipt of three checks in the amount of $2,000
each from Moynes. Ramirez describes these checks as a ‘thank you’ from Moynes.
Thus, the evidence shows that on or about the time Moynes conveyed her home to
Ramirez, Moynes also paid Ramirez $106,000.”
       “After the sale of the home, and after Moynes’s death, Lintz forwarded some
‘bills’ to Ramirez with the expectation that these would be covered by the agreement
between Ramirez and Moynes for Ramirez to cover Moynes’s living expenses up to her
date of death. There is no evidence as to whether these bills were ever paid.
       “At some point during Moynes’s lifetime, Moynes established bank accounts and
certificates of deposit in joint tenancy with Moynes and Waltrip named as account
holders. Only Moynes’s assets were deposited into these joint accounts, yet Waltrip
made many withdrawals. . . . Waltrip testified that she used the money or gambled away
much of the funds. Lintz argues that much of the funds were transferred to Ramirez.
       “Through an accounting audit, Lintz alleges a pattern of withdrawals by Waltrip
over time, coinciding with substantial deposits in Ramirez’s accounts shortly thereafter.
It is undisputed that the parties cannot explain all of these transactions. Lintz alleges the
following transactions:
              “Withdrawal of $50,000 from Moynes/Waltrip joint account on October 18,
          2005, followed by an $11,000 deposit in Ramirez’s account on November 8,
          2005.
              “A $50,000 withdrawal from Moynes/Waltrip joint CD on July 25, 2006,
          followed by deposits of $3,000 on July 31, 2006 and $10,331.85 on August 18,
          2006 in Ramirez’s account.


                                              5
                   “A withdrawal of $35,700.27 from Moynes/Waltrip joint account on July
                31, 2006, followed by a $7,000 deposit on September 5, 2006.
                   “Withdrawal of $10,101.80 from the Moynes/Waltrip joint CD on
                September 5, 2006, followed by a deposit of the same amount, $10,101.80 on
                the same day. [¶] . . . [¶]
         “Ramirez had 29 open accounts between 2004 and 2006. Ramirez did not provide
an accounting for her holdings or any explanation for the source of these funds.”
         The trial court first analyzed the issue of whether improper advantage had been
taken:
         “One way the Probate Code addresses the vulnerability of dependent adults to
undue influence is by specifically limiting donative transfers to certain persons who have
special relationships with the testator and disqualifying such persons from validly
receiving gifts from the testator. Probate Code section 21350(a)(6)-(a)(7) provides: ‘No
provision . . . of any instrument shall be valid to make any donative transfer to . . . [a]
care custodian of a dependent adult who is the transferor, [or a] person who is related by
blood . . . to [said care custodian].’ A donative transfer or gift is ‘transfer of personal
property, made voluntarily, and without consideration.’ (Civil Code section 1146.)
Under Probate Code section 21351(d), the transferee may attempt to rebut this
presumption of invalid transfer to disqualified persons by a showing of clear and
convincing evidence that undue influence, fraud, duress or menace did not occur.
[¶] . . . [¶]
         “It is undisputed that Waltrip was Moynes’s paid care custodian and the evidence
establishes a confidential relationship existed. Waltrip was paid for her services to care
for Moynes from approximately 1997 until Moynes’s death in 2006. Check registers
provided by Lintz suggest that, at one point in time in early 2005, Moynes was paying
Waltrip $750.00 periodically, about every week. This pattern is consistent with a salary
for services.
         “This court finds, as a matter of law, that Waltrip was the decedent’s care
custodian, is disqualified from receiving donative transfers from Moynes based upon


                                                6
Probate Code section 21350(a)(6). It follows that Ramirez, as Waltrip’s daughter and
blood relative, is also disqualified from receiving donative transfers from Moynes based
upon Probate Code section 21350(a)(7).
       “The transferee bears the burden of rebutting this presumption of disqualification
by clear and convincing evidence, excluding testimony from the care custodian . . . .
Ramirez, the transferee, bears this burden of proof.”
       “Evidence of Moynes’s alleged alertness during a visit with a physician on August
25, 2006 does not rebut disqualification under Probate Code section 21351(d).
Furthermore, the same physician wrote of concern for Moynes’s ‘diminished and frail
condition’ on January 15, 2004, one year before the home transaction. This court finds
that as of January 15, 2004, Moynes suffered a diminished capacity whereby she was
unable to resist fraud or undue influence.
       “Ramirez’s chief argument, in the transfer of Moynes’s assets to her, is that
Ramirez was motivated to relieve Moynes’s alleged fear that Moynes would not be able
to live in her home until her death. Prior to the home transaction, Moynes had a legal
right to stay in her home because she owned a life estate interest. Yet after the transfer to
Ramirez, Moynes lost all legal title in her property. Since there was no evidence that
Lintz or Pierce actually intended to place Moynes in a nursing home, this court finds that
such motivating fear was the product of fraud and undue influence. This Court finds that
Ramirez’s argument that she acted to benefit Moynes is not credible.
       “The court finds that Ramirez does not provide clear and convincing evidence
from uninterested sources (especially sources other than Waltrip) that Moynes was not
exposed to fraud, menace, duress, or undue influence in relation to transfers to Waltrip
and Ramirez.
       “Additionally, Ramirez does not provide any evidence to rebut her daughter-
mother relation to Waltrip, the care custodian of transferor Moynes, nor does Ramirez
provide evidence of independent review of the transactions per Probate Code
section 21351(b). Thus, any donative transfers Moynes made to Ramirez would be
presumptively invalid. Even if the Court were to disregard the presumption, the Court


                                              7
finds clear and convincing evidence submitted establishes constructive fraud and undue
influence, especially given the confidential relationship that this court finds to have
existed.”
       The court then addressed a number of transfers of money from Moynes to
Ramirez:
       “Ramirez acknowledges three cash transfers in the form of checks directly from
Moynes in 2005 totaling $6,000. No evidence is provided to verify Moynes’s personal
knowledge of or permission for these transfers. However, Ramirez herself acknowledges
that they were ‘gifts.’ Furthermore, Ramirez concedes that there would be no reason to
receive payments from Moynes, as she did not provide care for her.
       “As gifts, these transfers are invalid under Probate Code section 21350(a)(7)
because the transfers of funds were donative from a decedent, Moynes, to Ramirez, a
blood relative of Moynes’s care custodian, Waltrip. Per Probate Code section 45, an
‘instrument’ is a will, trust, deed, or ‘other writing that designates a beneficiary or makes
a donative transfer of property.’ The personal check, a writing, from Moynes to Ramirez,
effectuates a donative transfer of cash, which satisfies the definition of an instrument.
Since these transfers are statutorily invalid, Moynes’s estate is entitled to reimbursement
of the total amount of these transfers of $6,000.00. Ramirez does not provide any
evidence that challenges this conclusion.
       “Ramirez also acknowledges receipt of $100,000 from Moynes and says that she
considered this amount a ‘gift.’ However, Ramirez claims that the $100,000 ‘gift’ she
received from Moynes ‘came with an obligation that [Moynes] was going to stay in her
house until she died.’ Ramirez states that, prior to receiving the check, she did not know
that she would receive this amount from Moynes. Since Ramirez concedes the $100,000
was a gift and since Ramirez is a disqualified beneficiary, the $100,000 gift is invalid and
must be returned to Moynes’s estate per Probate Code section 21350(a)(7).
       “In the matter of the sale of Moynes’s Daly City residence to Ramirez in
January 2005, Lintz argues that the home transaction should be invalid because it was
exchanged for $600,000, a sum below fair market value. Ramirez testified that the home


                                              8
transaction was a valid transfer because Ramirez bought the home in exchange for
permitting Moynes to remain living in the home until her death.
       “Ramirez’s testimony was supported by a typed, notarized letter of consent to sell
her property dated December 22, 2005 which Moynes allegedly signed, stating that
Moynes was selling her property to Ramirez ‘for a lower than market value in an AS IS
CONDITION.’ It further states in part,
       ‘I am fully aware of the market conditions . . . However, [Ramirez] is the
       daughter of [Waltrip], who has been taking care of me with loving care
       and devotion for many many years. And this is my way of showing my
       appreciation and gratitude for all she has done for me. Furthermore, it was
       our understanding that I will be allowed to live for life in this house without
       any rent.’

       “This court finds that Ramirez’s evidence that the sale was an arms-length value
for value exchange is not credible. Even if this court were to assume that Ramirez’s
evidence is true and Ramirez entered into an agreement to exchange the home for health
care, such evidence would only establish that Moynes was making a donative transfer and
a contractual one. It is donative because Moynes concedes that the lower sale price was a
reward or gift for everything that Waltrip, Ramirez’s mother, had done for Moynes for
many years up to that point. The transfer could only be contractual to the extent that
Ramirez provided independent consideration.
       “As noted above, however, this court finds that the evidence was a valid exchange
of consideration is not credible, and therefore that the entire amount of the transfer is
donative. Thus the full amount of the discount is a disqualified gift under Probate Code
section 21350(a)(7). Even if it were not barred by statute, this court finds, after weighing
all of the evidence, that undue influence was present because no reasonable person would
sell the home they had a right to live in for the rest of their life in exchange for the right
to live in that home for the rest of their life. This court finds the circumstantial evidence
of undue influence to meet the clear and convincing standard.”
       After determining that Lintz was not entitled to recover for any appreciation in the
home’s value since its transfer to Ramirez in 2005, the court continued:


                                               9
       “Ramirez does not argue that she is a qualified recipient of a gift from Moynes in
terms of Probate Code section 21350 . . . . [¶] . . . [¶]
       “Since the donative portion of the home transaction from Moynes to Ramirez was
invalid per Probate Code section 21350(a)(7), the proceeds of the home sale would have
been included in Moynes’s estate (per Moynes’s pourover will) but for its transfer to
Ramirez. An evaluation of the evidence reveals that the valuation of actual sales prices
of comparable homes is a more accurate representation of what the market would have
paid Moynes if she had chosen a buyer other than Ramirez. Appraisals also reflect
comparable home prices, but the pre-sale appraisal is more of an estimate and is not as
convincing as a post-sale evaluation of actual sales figures. . . . Thus, the court finds that
. . . the fair market value of the home was $718,750.
       “Therefore, to calculate [the] donative portion of Moynes’s transfer to Ramirez (or
the ‘discount’ on the sale price), the actual sale price ($600,000) is subtracted from the
suggested sale price ($718,750), to arrive at $118,750. Thus the donative portion of the
transfer, $118,750, is invalid and reimbursable to Moynes’s estate.”
       The court then considered the dozens of personal bank and checking accounts in
Moynes’s name:
       “In this matter of alleged cash transfers from Moynes’s bank accounts to Ramirez,
the court finds that Ramirez received funds from Moynes via Waltrip. There exists a
pattern of cash withdrawals out of Moynes’s accounts by Waltrip and then substantial
amounts deposited by Ramirez within a relatively short time afterwards. Since Waltrip
was not independently wealthy (in fact she has declared bankruptcy), it is very unlikely
that the corresponding deposits into Ramirez accounts came from a source other than
Moynes. This pattern reasonably raises the inference that money was transferred from
Moynes’s funds to Ramirez. The following transfers are reasonably inferred to originate
from Moynes’s funds:
              “$1,500 per month for 11 months, commencing November 2005 and
              ending October 2006, totaling $16,500. . . .

              “$11,000 deposited on November 8, 2005 following Waltrip’s


                                              10
              Withdrawal of $50,000 from a Moynes/Waltrip joint account
              On October 18, 2005.

              “$2,700 on May 31, 2006.

              “$3,000 deposited on July 31, 2006 and $10,331.85 deposited
              On August 18, 2006 after a withdrawal of $50,000 from a
              Moynes/Waltrip joint CD account on July 25, 2006.

              “$7,000 on September 5, 2006 deposited after a withdrawal of
              $35,700.27 from a Moynes/Waltrip joint account on the
              same day, September 5, 2006.

       “On September 15, 2006, one day after Moynes passed away, Waltrip withdrew
$10,101.80 from a joint Moynes/Waltrip CD account. Five days later, on September 20,
2006, Ramirez made a deposit of the exact same amount, $10,101.80. Because of the
timing and amounts of this activity, a reasonable inference is that Waltrip gave this
money to Ramirez from Moynes’s account. Waltrip and Ramirez are both disqualified
beneficiaries for donative gifts under Probate Code section 21350, so this transfer is
invalidated and Ramirez must return $10,101.80 to Moynes’s estate.
       “These transactions follow a pattern of deposits after large withdrawals from
Moynes’s accounts, which reasonably imply donative transfers from Moynes to Ramirez.
Whether the funds were improperly acquired or gifts from Moynes, Ramirez does not
provide evidence to establish a reason for any of these transfers to be characterized as
non-donative, nor do these transfers correspond with any evidence of payment for goods
or services. Waltrip and Ramirez are both disqualified beneficiaries for donative gifts
under Probate Code section 21350, so these transfers are invalidated and Ramirez must
return the sum of these transfers, $60,633.65, plus interest, to Moynes’s estate.
       “Ramirez claims that her habit of poor record keeping should not implicate her in
taking money from Moynes nor indicate wrongful conduct. However, Ramirez does not
provide explanations for each of these multiple, very significant deposits over a long
period of time. Ramirez only claims ‘it is just as reasonable to infer the transfers came
from Ramirez’s other accounts and funds owned before beginning the relationship with


                                             11
Moynes.’ This appears unlikely, as Ramirez’s bi-monthly salary, directly deposited into
her accounts was $2,500 in 2005 and 2006. Furthermore, as stated previously, Ramirez’s
testimony on this issue is not credible. Ramirez does not meet her burden of rebutting the
presumption of donative gifts, and she must return $60,633.65, plus interest, to Moynes’s
estate.”
       The court’s final determination, and its conclusion, were as follows:
       “Lintz also seeks double damages under Probate Code section 859, which imposes
liability on a person who, in bad faith, has wrongfully taken, concealed or disposed of
property belonging to the estate in the amount of twice the value of the property
recovered.2 In the present case, Ramirez has wrongfully taken property from Moynes,
and has essentially concealed these funds by attempting to characterize the transfers as
valid, and neglecting to provide an accounting. Ramirez exhibits a pattern of behavior
that implies bad faith dealings. Thus, Lintz, trustee of Moynes’s estate, is entitled
Probate Code section 859 relief.
       “Lintz’s motion for monetary relief is therefore GRANTED in part.
       “Lintz is entitled to $106,000 from direct cash transfers to Ramirez from Moynes
made sometime after January 10, 2005, $118,750 of donative discount from the home
transaction on January 10, 2005, and $60,633.65 in cumulative transfers from Moynes’s
accounts deposited into Ramirez’s accounts, a total of $285,383.65, plus interest. Lintz is
also entitled to twice this amount in additional relief based upon Probate Court
section 859. Judgment shall be entered against Ramirez in the amount of the sum of
these figures . . . plus interest.”


       2
         Statutory references are to the Probate Code unless otherwise indicated. The
cited statute provides in pertinent part: “If a court finds that a person has in bad faith
wrongfully taken, concealed, or disposed of property belonging to the estate of a
decedent, . . . or has taken, concealed, or disposed of property by the use of undue
influence in bad faith . . ., the person shall be liable for twice the value of the property
recovered . . . . The remedy provided in this section shall be in addition to any other
remedies available in law to a . . . personal representative or other successor in interest of
a decedent.” (§ 859.)


                                              12
       Following the slightly unorthodox procedural detour mentioned above, the trial
court made the additional determination that “weighing all of the evidence submitted by
the parties both during trial and posttrial papers, . . . the weight of the evidence supports a
finding that Ruth Moynes was a dependent adult as defined by Welfare and Institutions
Code § 15610.23(a).” The court also reiterated its determinations that “the Daly City
property was transferred for less than its fair market value, and therefore the transaction
was donative; that the evidence, including the accounting submitted by [Ramirez], does
not rebut the presumption of invalidity by a preponderance of evidence, let alone meet a
clear and convincing evidence standard; and that the evidence establishes that [Waltrip
and Ramirez] acted in bad faith such that additional damages pursuant to Probate Code
§ 859 were proper.”
       Judgment was entered in due course, whereupon Ramirez perfected this timely
appeal.
                                          REVIEW
       As may be gathered from the extensive number of factual determinations made by
the trial court, the parties correctly agree that this is largely a substantial evidence appeal.
(See Weil v. Weil (1951) 37 Cal.2d 770, 788 [“undue influence is a question for the trier
of fact, whose decision will not be reversed on appeal if supported by substantial
evidence”].) As such, it is subject to familiar, established rules: “ ‘Where findings of
fact are challenged on a civil appeal, we are bound by the “elementary, but often
overlooked principle of law, that . . . the power of an appellate court begins and ends with
a determination as to whether there is any substantial evidence, contradicted or
uncontradicted,” to support the findings below. [Citation.] We must therefore view the
evidence in the light most favorable to the prevailing party, giving it the benefit of every
reasonable inference and resolving all conflicts in its favor in accordance with the
standard of review so long adhered to by this court.’ ” (Bickel v. City of Piedmont (1997)
16 Cal.4th 1040, 1053.) “All issues of credibility are likewise within the province of the
trier of fact. ‘In brief, the appellate court ordinarily looks only at the evidence supporting



                                              13
the successful party, and disregards the contrary showing.’ [Citation.]” (Nestle v. City of
Santa Monica (1972) 6 Cal.3d 920, 925.)
       Although it does not appear until near the end of Ramirez’s reply brief—after it
was addressed by Lintz in her respondent’s brief—the crucial point of contention is the
trial court’s determination that Moynes was a “dependent adult.” That determination is
the predicate for all other determinations concerning undue influence, donative intent,
Waltrip and Ramirez being “disqualified” transferees, and other findings made in the
course of applying sections 21350 and 21351. Because of its importance, that
determination will be reviewed first.3
                       Substantial Evidence Supports The Trial
                         Court’s Determination That Moynes
                              Was A Dependent Adult
       The trial court’s finding was made under the cited guidance of Welfare and
Institutions Code section 15610.23, subdivision (a), which provides: “ ‘Dependent adult’
means any person between the ages of 18 and 644 who resides in this state and who has

       3
         But only after we briefly address Ramirez’s claim, put forth in one paragraph in
her brief as “a preliminary matter,” that Lintz lacks standing. Although we might
ordinarily deem this issue waived for failure to present it in the trial court, as
demonstrated in Lintz’s brief, “ ‘contentions based on a lack of standing involve
jurisdictional challenges and may be raised at any time in the proceeding.’ ” (Associated
Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 361,
quoting Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438.) Ramirez’s
claim appears to be based on the same transfers the trial court found invalid. Assuming
the validity of those transfers, Ramirez seems to treat the matter as whether Lintz, as an
individual or the ultimate beneficiary, has any sort of personal entitlement to anything
Ramirez was ordered to return. But it was Lintz’s duty, as executor, to recover assts of
the state she believed were in the wrong hands. (See § 850, subd. (a)(2)(D); Estate of
Beach (1975) 15 Cal.3d 623, 638; Estate of Rider (1926) 199 Cal. 742, 745.) Thus, Lintz
has always had standing.
       4
         An obvious problem is that this definition extends only to persons who have not
reached the age of 65, but it is not until Moynes was in her 90s that questions about her
mental or physical problems arose. The provision cited is part of the Elder Abuse and
dependent Adult Civil Protection Act (Welf. & Inst. Code, §§ 15600-15675). If a person
is 65 years of age or older, he is she is deemed an “elder” under that act. (Id.,
§ 15610.27.) However, for purposes of the Probate Code provisions cited by the trial

                                            14
physical or mental limitations that restrict his or her ability to carry out normal activities
or to protect his or her rights, including, but not limited to, persons who have physical or
developmental disabilities, or whose physical or mental abilities have diminished because
of age.”
       Ramirez makes a different issue the keystone of her arguments. Quoting the
standards for undue influence that have evolved for will contests under Civil Code
section 1575, Ramirez insists there is insufficient evidence to satisfy that standard
because there is no evidence that she, personally, exerted improper influence on Moynes,
and because there is no evidence that Moynes was not of sound mind when she executed
the 2005 sale of her Daly City home.
       Ramirez’s first point will not detain us long. As the trial court correctly noted, a
person who is related by blood to a “care custodian of a dependent adult” is vicariously
subject to the prohibition against donative transfers in section 21350.5 If Waltrip ran
afoul of the prohibition, Ramirez cannot benefit thereby, no matter how blameless she
might otherwise be.
       “Undue influence” is shadowy concept found in the statutes governing conduct
events from 2004 to 2006, the time frame here.6 The term does not appear in


court, the quoted definition “also include those persons who (1) are older than age 64 and
(2) would be dependent adults, within the meaning of [Welfare and Institutions Code]
Section 15610.23, if they were between the ages of 18 and 64.” (§ 21350, subd. (c).)
The Probate Code provisions apply “to instruments that become irrevocable on or after
September 1, 1993, and before January 1, 2011” (§ 21355, subd. (a)), and will be
repealed January 1, 2014 (id., subd. (b)).
       5
        “[N]o provision, or provisions of any instrument shall be valid to make any
donative transfer to any of the following: [¶] . . . [¶] (6) A care custodian of a dependent
adult who is the transferor. [¶] (7) A person who is related by blood . . . to . . . a person
who is described in paragraph (6).” (§ 21350, subd. (a).)
       6
         It was added to the Elder Abuse and Dependent Adult Civil Protection Act
effective 2009 (see Welf. & Inst. Code, § 15610.30, subd. (a)(3), added by. Stats. 2008,
Ch. 475, § 1), and to the Probate Code statutes that will supersede sections 21350 and
21351, effective January 1, 2014. (See §§ 21380, 21382, added by Stats. 2010, ch. 620,
§ 7.)


                                              15
section 21350, but it does in subdivision (d) of section 21351.7 Moreover, the definition
of “dependent adult” quoted above—with its inclusion of “mental limitations” and
diminished “mental abilities”—almost invites the mind to think of undue influence. But
undue influence is not a definitional component of being a dependent adult. Being a
dependent adult is by itself sufficient to activate section 21350.
       Ramirez treats as dispositive the issue of whether Moynes’s mental state satisfies
requirement of undue influence, hence her assertion that “the physical condition of
Moynes has no probative value in determining whether her will was overborne.” This
may be abstractly correct (but see fn. 7, ante), yet it does not control the issue of whether
the decedent qualified as a dependent adult.
       “Undue influence . . . is the legal condemnation of a situation in which
extraordinary and abnormal pressure subverts independent free will and diverts it from its
natural course in accordance with the dictates of another person.” (Estate of Sarabia
(1990) 221 Cal.App.3d 599, 605.) Ramirez treats undue influence as requiring proof that
the victim was not of “sound mind.” Ramirez views the trial court as basing its decision
solely “on a single letter from Dr. Hoddinott,” Moynes primary physician, who, while
concluding in January 2004 that Moynes was “diminished and frail,” also concluded in
August 2006 that Moynes was “alert and lucid mentally” less than a month before she
died. This approach is misguided.
       Ramirez does not challenge the validity of the court’s findings concerning
Moynes’ physical state in the years 2004 and 2005. Indeed, we do not think such a
challenge could be made. The evidence supporting those findings, including
Dr. Hoddinott’s testimony on which Ramirez places so much emphasis, establishes

       7
           “Section 21350 does not apply if any of the following conditions are met:
[¶] . . . [¶] The court determines, upon clear and convincing evidence, but not based
solely upon the testimony of any person described in subdivision (a) of Section 21350,
that the transfer was not the product of fraud, menace, duress or undue influence. If the
court finds that the transfer was the product of fraud, menace, duress or undue influence,
the disqualified person shall bear all costs of the proceeding, including a reasonable
attorney’s fees.” (§ 21351, subd. (d).)


                                               16
beyond any reasonable doubt that Moynes met the statutory definition of a dependent
adult, which would activate the prohibitions of section 21350.
       “It is an established rule of appellate procedure that if there is a finding of fact that
is dispositive and necessarily controls the judgment, the presence or absence of findings
on other issues is inconsequential. In other words, sometimes a single finding is all that
is really important.” (Alpine Ins. Co. v. Planchon (1999) 72 Cal.App.4th 1316, 1320.)
The finding that Moynes was a dependent adult may have this significance, meaning that
we could stop here. However, out of respect to the trial court’s conscientious and
thorough efforts, and because the merits have been thoroughly developed in the parties’
briefs, we shall address other issues.
       Ramirez’s implicit premise, that “undue influence” as used in section 21351 is
identical with that developed under Civil Code section 1575 seems misplaced. When the
Legislature wants to do that it has used express language to that effect. (See Stats. 2008,
ch. 475, § 1, adding Welf. & Inst. Code, § 15610.30, subd. (a)(3) and amending the
definition of “financial abuse” to include “taking, secreting, appropriating, obtaining or
retaining, real or personal property of an elder or dependent adult by undue influence, as
defined in Section 1575 of the Civil Code”; Stats. 1995, ch. 977, § 1, adding. Gov. Code,
§ 820.21 and withdrawing immunity from government employees who obtain “testimony
by . . . undue influence, as defined in Section 1575 of the Civil Code.”) The Legislature
has not done that with respect to sections 21350 and 21351. It must therefore be
concluded that a slightly different concept was intended when the concept of undue
influence was allowed in sections 21350 and 21351. The most obvious meaning is that
the emphasis was expanded from the mental to also extend to “physical . . . limitations,”
“physical . . . disabilities,” and “physical . . . abilities [that] have diminished because of
age.”8 (Welf. & Inst. Code, § 15610.23, subd. (a), quoted in full, ante.) Thus, Ramirez

       8
        This may be only a matter of degree, given that decisions finding undue
influence with life care contracts have always given attention to the victim’s physical
condition. (E.g., Stenger v. Anderson (1967) 66 Cal.2d 970, 973, 979; Johnson v. Studley
(1926) 80 Cal.App. 538, 556, 559-560.)


                                               17
departs from the statutory text by equating—and restricting—undue influence to purely
mental impairment.
          In addition, to judge from the evidence selectively cited in her brief, Ramirez also
appears to believe that, presuming the issue is the soundness of Moynes’s mind, expert
medical evidence is to be preferred or treated as more credible. Not so. Undue influence
may be proved by circumstantial evidence. (David v. Hermann (2005) 129 Cal.App.4th
672, 684; Estate of Mann (1986) 184 Cal.App.3d 593, 607; cf. Estate of Ferris (1960)
185 Cal.App.2d 731, 734 [“ ‘Undue influence,’ obviously, is not something that can be
seen, heard, smelt or felt; its presence can only be established by proof of circumstances
from which it may be deduced”].) Relevant circumstances can include
“ ‘ “. . . control over the decedent’s business affairs, dependency of the decedent . . . for
care or attention . . . .” ’ ” (Estate of Baker (1982) 131 Cal.App.3d 471, 481.) And while
undue influence must be shown to have been exerted on the testamentary or donative act
of the decedent, the exertion does not have to be demonstrated as of the moment the
decedent’s act was executed, but may encompass conditions before and after the act.
(Ibid.)
          Moreover, even if uncontradicted, the trial court, as the trier of fact, could
disbelieve any and all of Ramirez’s declarations and evidence. (E.g., Foreman & Clark
Corp. v. Fallon (1971) 3 Cal.3d 875, 890; Lohman v. Lohman (1946) 29 Cal.2d 144,
149.) Our review of the record, keeping in mind that Ramirez’s evidence and testimony
was repeatedly found not credible, demonstrates that the supporting circumstantial
evidence of undue influence is strong. Ramirez makes no appreciable attempt to knock
down the reasoning behind the court’s finding that “undue influence was present because
no reasonable person would sell the home they had a right to live in for the rest of their
life in exchange for the right to live in that home for the rest of their life. This court finds
the circumstantial evidence of undue influence to meet the clear and convincing
standard.”
          Also pertinent, and also unchallenged by Ramirez, is this additional finding:
“Ramirez’s chief argument, in the transfer of Moynes’s assets to her, is that Ramirez was


                                                18
motivated to relieve Moynes’s alleged fear that Moynes would not be able to live in her
home until her death. Prior to the home transaction, Moynes had a legal right to stay in
her home because she owned a life estate interest. Yet after the transfer to Ramirez,
Moynes lost all legal title in her property. Since there was no evidence that Lintz or
Pierce actually intended to place Moynes in a nursing home, this court finds that such
motivating fear was the product of fraud and undue influence. This Court finds that
Ramirez’s argument that she acted to benefit Moynes is not credible.”
       Ramirez does not challenge the finding that Waltrip and Moynes had “a
confidential relationship.” With Lintz and Pierce eliminated, it is a reasonable
construction of this finding is that Moynes’s “motivating fear” of ending up in a rest
home “was the product of fraud and undue influence” exerted by Waltrip and/or Ramirez.
With Moynes’s powers of resistance undermined by her weakened physical state, playing
upon that fear qualifies as undue influence.
       There are also attendant circumstances that take the sale out of the realm of
ordinary arms-length transactions. The purchase price was provided to Ramirez by her
aunt. The aunt also arranged for the broker and the appraiser. Most oddly, Ramirez not
only got the property, she also received $106,000 from Moynes which she—Ramirez—
then reduced to “smaller checks that she stored in her safety deposit box.” All of this is
hard to square with “Ramirez’s claim that she did not want to purchase Moynes’s home
at first because she didn’t have the money, and her husband would not approve.” And
remember, in the background is Waltrip, Ramirez’s mother, being paid $750 every week
to care for Moynes, all the while apparently removing money from Moynes’s bank
accounts in order to fund her gambling or personal needs. To detect undue influence
from these circumstances is not a rash conclusion, particularly after the trial court
specifically found that Ramirez’s evidence “that the sale was an arms-length value for
value exchange is not credible,” nor was Ramirez’s “argument that she acted to benefit
Moynes.”
       Finally, the quoted finding on undue influence was preceded by “Even if it were
not barred by statute . . . .” because Ramirez, through Waltrip, was a disqualified person


                                               19
by section 21350. Thus, even if Ramirez prevailed on overturning the finding of undue
influence—and she does not—this statutory disqualification would, as already
mentioned, by itself constitute a sound basis for the judgment. There is no dispute
Moynes was over 65 and had physical problems caring for herself that necessitated
Waltrip’s employment since 1997. Moynes’s physical limitations were sufficient to
qualify her as a dependent adult without need to consider her mental condition. Under
the circumstances present here, that qualification is established as a matter of law, with
the corollary that Ramirez’s disqualification under section 21350 is equally manifest. In
other words, Ramirez’s disqualification is, as the trial court concluded, shown, not as a
matter of contested fact, but “as a matter of law.”
       Ramirez’s disqualification moots other of her contentions. Section 21350, quoted
at footnote 4, ante, operates to disqualify specified groups from receiving any “donative
transfer” made by “any instrument.” The instruments in this instance would be the
documents generated in connection with the 2004 loans and the 2005 sale of Moynes’s
Daly City residence. With Ramirez’s disqualification by section 21350 established, there
is no need to consider her contentions that: (1) “the trial court erred in finding the sale of
[Moynes’s] Daly City home was donative because Moynes received full value for her life
estate interest in the property”; (2) “the trial court erred in finding the $100,000 Mrs.
Ramirez received from Moynes was donative because it was consideration for allowing
Moynes to live in the property the rest of her life”; (3) “there is no evidence that any
provision of an instrument made a donative transfer to Mrs. Ramirez as required by
Probate Code section 21350” and; (4) “insufficient evidence exists to support a
conversion theory.” Value and consideration are, in this context, irrelevant.
       A related argument from Ramirez is that even if undue influence is demonstrated,
the only remedy under Civil Code section 1567 is rescission. Not true. Rescission is not
the exclusive remedy in a court exercising equitable powers (General Acc. Etc. Corp. v.
Indus. Acc. Com. (1925) 196 Cal. 179, 189; Mabry v. Randolph (1908) 7 Cal.App. 421,
426), and the probate court can exercise such powers, which include ordering
misappropriate funds returned to the estate. (Estate of Kraus (2010) 184 Cal.App.4th


                                              20
103, 114-115.) The court’s probate power was invoked by Lintz when she filed her
“Petition To Determine Title To And Require Transfer Of Personal Property To Estate,”
and prayed “that this Court exercise its equitable powers.” The court was therefore
authorized to hear and decide all “claims, causes of action, or matters that are normally
raised in a civil action.” (§ 855.) Put another way, the court was simply ordering
Ramirez to make restitution, which is a recognized equitable remedy to prevent unjust
enrichment. (American Psychometric Consultants, Inc. v. Workers Comp. Appeals Bd.
(1995) 36 Cal.App.4th 1626, 1645; 1 Witkin, Summary of Cal. Law (10th ed. 2005)
Contracts, § 1013, p. 1102.) Finally, Ramirez’s argument overlooks the express statutory
grant of double recovery, which section 859 declares is “in addition to any other remedies
available.”9
               The Trial Court’s Findings On The Monetary Transfers
                  Are Supported by Substantial Evidence And/Or
                                   Legally Correct

       Ramirez contends that “the trial court erred in assigning damages to transfers
made from Joint Tenancy accounts after Moynes’ death” because “upon Moynes’ death
the accounts and proceeds passed to Waltrip” who then enjoyed “full ownership of the
funds and they were not part of the Moynes estate.” This may be true in most instances,
but not, as the trial court correctly determined, where “Waltrip and Ramirez are both
disqualified beneficiaries,” thus “invalidating” all of the transfers and requiring
reimbursement to Moynes’s estate.
       This is also true as to Ramirez’s argument that those transfers “were not donative
because there was an agreement whereby Waltrip had a restricted right to withdraw
funds” “for Moynes’ use,” that is, “for Moynes’ care and emergency situations.” The

       9
         Concerning section 859, which speaks of “the use of undue influence in bad
faith” (see fn. 2, ante), Ramirez insists “the overwhelming evidence shows [she] did not
act in bad faith.” Allowing for some redundancy (how can a person exercise undue
influence in good faith?), the circumstantial evidence is ample that Ramirez was hardly
an innocent who wandered onto the scene, but was an active, and knowing, participant in
the scheme .


                                             21
trial court mentioned an agreement “that Waltrip had authorization from Moynes to
withdraw funds for Moynes’s use.” Such an agreement as characterized by Ramirez
would obviously terminate on Moynes’s death, but the trial court was considering
withdrawals made thereafter. There being no further need for withdrawals “for Moynes’
care and emergency situations,” Waltrip and Ramirez were then disqualified for making
personal use of the joint accounts.
       Section 21350 does not apply to a transfer that “does not exceed the sum of three
thousand dollars.” (§ 21351, subd. (h).) Ramirez argues that “at least 16 of the transfers
the Court charged Mrs. Ramirez for . . . were $3,000 or less,” and therefore come within
this exemption. Assuming without deciding the estate valuation meets the threshold of
section 21351, subdivision (h), it would mean only that these transfers might not be
presumptively invalid under section 21350. They would nevertheless be invalid here, as
the trial court found: even “disregard[ing] the presumption,” there was evidence of
undue influence.
                                      DISPOSITION
       The judgment is affirmed.

                                                 _________________________
                                                 Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Haerle, J.




                                            22
