Filed 7/30/15 Estate of Shapiro CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


Estate of MARVIN ROBERT SHAPIRO,
Deceased.
___________________________________                                    G050036

DANIEL R. SHAPIRO,                                                     (Super. Ct. No. 30-2012-00544481)

     Petitioner and Appellant,                                         OPINION

         v.

JEANNE HUGHES SHAPIRO,

     Objector and Respondent.



                   Appeal from a judgment and order of the Superior Court of Orange County,
Randall J. Sherman, Judge. Affirmed.
                   Daniel R. Shapiro, in pro. per., for Petitioner and Appellant.
                   Law Office of Paul S. Nash and Paul S. Nash; Pallotta Law and Edward J.
Pallotta, Jr., for Objector and Respondent.
                                              INTRODUCTION
                  Daniel Shapiro appeals from the judgment following his unsuccessful will
and trust contest and from the subsequent denial of his motion for new trial. Estate
planning documents prepared in 2011 for Daniel’s father, Marvin Shapiro, disinherited
Daniel, Marvin’s sole surviving child, in favor of a trust of which Marvin’s second wife,
                          1
Jeanne, was trustee. Daniel challenged the will and the trust on grounds of undue
                                                                        2
influence exercised by Jeanne and of lack of capacity. The trial court found in Jeanne’s
favor and denied Daniel’s subsequent motion for a new trial.
                  We affirm both the judgment and the order denying the motion for new
trial. Daniel’s claims of error boil down mainly to disagreements with the trial court’s
findings of fact. These findings rest on substantial evidence, and we do not, at the
appellate level, reweigh evidence. The remaining issues involve the exercise of the trial
court’s discretion, which we find was not abused.
                                                      FACTS
                  Marvin was diagnosed with Parkinson’s disease in 2006. He was followed
by a neurologist, who saw him every few months, noting Marvin’s gradual decline. In
late 2010, Marvin’s condition abruptly worsened, and an MRI disclosed that he had a
cancerous brain tumor. He had surgery in December 2010, and spent about two months
in nursing facilities before returning home in late February 2011. Although he had both
chemotherapy and radiation treatments, they were ineffective to save his life.




         1
                    “Hereafter, we refer to the parties by their first names, as a convenience to the reader. We do not
intend this informality to reflect a lack of respect. [Citation.]” (In re Marriage of Balcof (2006) 141 Cal.App.4th
1509, 1513, fn. 2.)
                    Mrs. Shapiro’s name was alternately spelled “Jean” and “Jeanne” throughout the trial transcript.
We surmise that the latter name was pronounced “Jeanie,” because early in the trial her counsel distinguished
between the pronunciation of “Jeanne” and “Jean.” Mrs. Shapiro’s name was spelled “Jeanne” on the documents
filed with the trial court, and we adopt that spelling here.
         2
                    Daniel filed a separate action challenging the trust. (Case No: 30-2012-00544306) The cases
were consolidated for trial.


                                                           2
                 In March 2011, Marvin and his wife, Jeanne, executed wills and a trust,
prepared for them by an estate planning attorney. The attorney, who is also a
psychologist, satisfied himself that Marvin had the requisite capacity to execute a will
and set up a trust. A second attorney, called in at the same time to independently confirm
Marvin’s capacity, agreed he was competent. The drafting attorney also confirmed that
Marvin was acting freely, by meeting with him alone to ascertain whether the will and the
trust accurately reflected his wishes for his estate. They specifically discussed omitting
Daniel from the estate plan. These two attorneys witnessed the execution of the will.
Marvin died in June 2011.
                 Marvin’s son and sole surviving child, Daniel, filed a petition to probate a
holographic will dated 1984. The 1984 will left Marvin’s estate to Daniel and to his
sister, Georgine, who died in 2008. Under the 1984 will, Daniel would receive the entire
bequest. Jeanne filed a petition to probate the will signed in 2011, just before Marvin’s
                                                       3
death, which, in effect, disinherited Daniel. Another will, a holographic one Marvin
created in 1987, left bequests to Daniel and Georgine, but left the bulk of Marvin’s
property to Jeanne.
                 Daniel contested the 2011 will and trust on incapacity and undue influence
grounds. After the will and trust contests were consolidated for trial, the combined case
was tried in January 2014.
                 On the morning of the first day of trial, January 27, Daniel’s counsel asked
the court to continue the trial for another four months. It had already been continued
twice. Counsel said Daniel had sustained a head injury in a car accident the previous
November and could not testify. The court denied the request for continuance, and trial




        3
                 The will was a pourover will, which left Marvin’s property to the trustees of the Marvin R.
Shapiro and Jeanne H. Shapiro Family Trust. The trust, in turn, made no provision for Daniel. The will specifically
excluded Daniel from inheriting any part of Marvin’s estate or from being appointed an executor.


                                                           3
commenced. Daniel joined the trial in the afternoon. After three days of trial, the court
ruled in Jeanne’s favor and granted her petition to probate the 2011 will.
                  Daniel moved for a new trial on grounds of irregularity in the proceedings,
improper orders of the court, accident or surprise, newly discovered evidence, insufficient
evidence, and error in law. (See Code Civ. Proc., § 657, subd. (1), (3), (4), (6), (7).) He
                                        4
claimed, as he does on appeal , that Jeanne’s attorneys misled the court, that the 1987 will
was invalid, that the court misunderstood certain testimony, that Daniel’s counsel was not
prepared to go forward with trial on January 27 (and therefore did not have a deposition
transcript handy to impeach Jeanne’s witness), and that the court erred in not applying the
presumption of Family Law section 721.
                                                  DISCUSSION
                  Examining the opening brief closely, we have determined that Daniel
identified five main issues on appeal. They are: (1) the court’s refusal to grant a
continuance; (2) the court’s disregard of evidence of Marvin’s incapacity; (3) the court’s
disregard of evidence of undue influence; (4) the admission of the 1987 will into
evidence; and (5) the denial of the motion for a new trial. We review all but one for
                                                                   5
either substantial evidence or abuse of discretion.
I.                Trial Continuance
                  The decision to grant or deny a request for a continuance is left to the trial
court’s discretion. (Estate of Smith (1973) 9 Cal.3d 74, 81; Estate of McCarthy (1937) 23
Cal.App.2d 389, 393-394.) Daniel urges two reasons for taxing the trial court with abuse



         4
                    Daniel’s opening brief on appeal is the memorandum of points and authorities for the motion for
new trial with a few inconsequential changes.
          5
                    Daniel also argues, without citation to authority, that the trial court “breached” its discretion when
it limited his testimony regarding his relationship with his father to the last 10 years of Marvin’s life (2001 to 2011),
while entertaining evidence about the 1987 will. An argument made without citation to supporting authority is
deemed waived. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785.) In any event, the court did not
restrict Daniel’s testimony to any particular time – it simply asked for a time frame for some of Daniel’s statements,
and Daniel’s counsel specified “the last ten years.”


                                                            4
of discretion for not continuing the trial. First, he was disabled from his car accident and
therefore unable to testify, and, second, his counsel was not prepared.
              As to Daniel’s claimed disability, his counsel described his condition in
detail on the first day of trial, while she argued extensively for a continuance. Although
it is not clear from the record whether the court received a letter from Daniel’s doctor
regarding his symptoms, his counsel orally supplied the court with all the information it
contained. During the second day of trial, the court asked Daniel a series of direct
questions about his condition while he was testifying. Daniel told the court that he felt
“my head is full of oatmeal. It’s not exactly fuzzy but I get a sensation through my whole
head that it’s filled with something.” The court asked about his current ability to think
and to testify, and Daniel stated that his memory was affected as well as his ability to
concentrate and to keep to the point. The court allowed him to continue testifying.
              Evidence Code section 700 provides: “Except as otherwise provided by
statute, every person, irrespective of age, is qualified to be a witness and no person is
disqualified to testify to any matter.” Evidence Code section 701, subdivision (a),
provides: “A person is disqualified to be a witness if he or she is: [¶] (1) Incapable of
expressing himself or herself concerning the matter so as to be understood, either directly
or through interpretation by one who can understand him; or [¶] (2) Incapable of
understanding the duty of a witness to tell the truth.” Determining a witness’ competence
to testify is within the trial court’s discretion. (Cooper v. Board of Medical Examiners
(1975) 49 Cal.App.3d 931, 945.) As The Law Revision Commission has explained,
“[T]he Evidence Code has made a person’s capacity to perceive and to recollect a
condition for the admission of his testimony concerning a particular matter instead of a
condition for his competency to be a witness. And, under the Evidence Code, if there is
evidence that the witness has those capacities, the determination of whether he in fact
perceived and does recollect is left to the trier of fact.” (Cal. Law Revision Com. com.,
29B, Pt. 2 West’s Ann. Evid. Code (1995 ed.) foll. § 701, p. 284.)

                                              5
              Daniel makes much of the fact that he believes the court refused to consider
his doctor’s letter. The record includes a one-page letter attached to a declaration by his
counsel, which she attempted to file the Friday before the Monday trial date, seeking a
trial continuance. The clerk’s office rejected the entire filing; as the court pointed out on
Monday, a continuance requires either a stipulation (see Super. Ct. Orange County, Local
Rules, rule 388) or an ex parte application. On the morning of trial, Daniel’s counsel
referred to a 10-page report from the doctor that was not yet ready, and she offered to
give the letter attached to her rejected declaration to the judge on the spot. He stated that
he wanted to see the one-page letter. The record does not indicate what happened to the
letter after that. It was not introduced into evidence.
              Daniel was on the stand for part of the first day of trial and most of the
second day. Nothing in the record indicates that he could not express himself or even
that his ability to perceive and recollect was compromised. He testified to conversations
he had with his father in the 1990’s and to events he witnessed during his father’s last
illness in 2011. The trial court was in a much better position to determine Daniel’s
capacity to testify than we are, having observed him on the spot. Other factors also
militated against a continuance. For one thing, Daniel could not assure the court he
would be better able to testify in four months – the length of the continuance he sought –
than he was at present or even that his ability to testify would ever be better than at
present. He had already had two continuances, one of them based on the same auto
accident.
              The record does not indicate either obduracy or antagonism on the part of
the trial court. From all we can see, it exercised its discretion impartially.
              As to Daniel’s counsel’s lack of preparedness, that is hardly a reason to
continue a trial that has already been continued twice. Counsel appears simply to have
assumed the court would grant her request, a reckless assumption under the
circumstances, especially as opposing counsel indicated beforehand that they would not

                                              6
agree to a continuance. As a result, according to Daniel, she did not have an important
deposition transcript with her to impeach Jeanne’s first witness, and she did not
remember – and therefore did not challenge – the context of the passage opposing
counsel read into the record regarding Marvin’s accusation of theft against Daniel, which
                                                    6
will be discussed in more detail below. The trial court cannot be faulted for counsel’s
failure to observe the litigator’s motto: “Try for the best, expect the worst.” If this is an
issue at all, it is an issue between Daniel and his attorney.

II.               Mental Capacity
                  Probate Code section 6100.5, subdivision (a), establishes the standard for
                                                7
mental incompetence to make a will. We review a finding of competency to make a will
for substantial evidence. (Estate of Jamison (1953) 41 Cal.2d 1, 12-13, superseded by
statute on other grounds.)
                  Substantial evidence supported the trial court’s findings. Marvin’s
competency was evaluated by two experienced estate planning attorneys on the day he
executed his will, and both agreed he met the standard for testamentary capacity.
Whether he was lucid at various other times is not controlling. “When one has a mental
disorder in which there are lucid periods, it is presumed that his will has been made
during a time of lucidity. [Citations.]” (Estate of Goetz (1967) 253 Cal.App.2d 107,
114.) Daniel’s evidence did not overcome this presumption.




         6
                    She also could not produce a witness list when the court asked for it, and she had informed her
witnesses that they would not be needed that day. At the hearing on the motion for new trial, she confirmed that she
was not prepared – no trial brief, no motion in limine, no trial preparation meetings with the client.
          7
                    Probate Code section 6100.5, subdivision (a), provides: “An individual is not mentally competent
to make a will if at the time of making the will either of the following is true: [¶] (1) The individual does not have
sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and
recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s
relations to living descendants, spouse, and parents, and those whose interests are affected by the will. [¶] (2) The
individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or
hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions
or hallucinations, the individual would not have done.”


                                                          7
              As he does elsewhere in his briefs, Daniel simply collects all the evidence
favorable to his side of the controversy and ignores countervailing evidence. That is not
how appellate review works – quite the reverse. We uphold the trial court’s findings
supported by substantial evidence, even in the face of conflicts. (Howard v. Owens
Corning (1999) 72 Cal.App.4th 621, 630-631.)
III.          Undue Influence
              A trial court’s finding on undue influence is subject to review for
substantial evidence. (Estate of Larendon (1963) 216 Cal.App.2d 14, 19.) “Upon a
claim of insufficiency of the evidence the burden rests upon appellant ‘to demonstrate
that there is no substantial evidence to support the challenged findings.’ [Citation.] The
power of an appellate court begins and ends with a determination of whether there is any
substantial evidence, direct or indirect, contradicted or uncontradicted, to support the
inferences adopted by the trial judge or jury. The review starts with a presumption that
there is evidence in the record which sustains every finding of fact. [Citation.] When
different inferences reasonably can be drawn from the evidence the reviewing court is
without power to substitute its deductions for those of the trial court. [Citation.] ‘All of
the evidence most favorable to the respondent must be accepted as true, and that
unfavorable discarded as not having sufficient verity to be accepted by the trier of fact. If
the evidence so viewed is sufficient as a matter of law, the judgment must be affirmed.’
[Citation.]” (Estate of Moore (1956) 143 Cal.App.2d 64, 67.)
              Undue influence, as defined in Welfare and Institutions Code section
15610.70, subdivision (a), means “excessive persuasion that causes another person to act




                                              8
                                                                                                                   8
or refrain from acting by overcoming that person’s free will and results in inequity.”
“‘Proof, to establish undue influence, must be had of a pressure which overpowers the
mind and bears down the volition of the testator at the time the will is made. It consists
in the exercise of acts or conduct by which the mind of the testator is subjugated to the
will of the person operating upon it.’ [Citations.]” (Estate of Moore, supra, 143
Cal.App.2d at p. 71.)
                  The undue influence issue at trial centered on Daniel’s disinheritance in
2011, after having been named Marvin’s heir, along with his sister, in 1984. Daniel
maintains the trial judge misunderstood some key testimony that may have supported
Daniel’s claim Jeanne unduly influenced Marvin when he executed the will and trust.
                  While issuing his ruling, the judge mused aloud about why Marvin should
have disinherited Daniel. The answer supplied was that in 2011, just before the will and
trust were executed, Jeanne told Marvin that Daniel had stolen his money. “That could
explain why [Marvin] would disinherit his son.” But then the judge consulted Daniel’s
deposition testimony, which Jeanne’s counsel had read into the record. This series of
questions purportedly had Daniel denying that either Jeanne or Marvin had accused
Daniel of stealing Marvin’s money, in 2011 or ever. The judge thought this deposition

         8
                    Welfare and Institutions Code section 15610.70, subdivision (a), provides: “‘Undue influence’
means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free
will and results in inequity. In determining whether a result was produced by undue influence, all of the following
shall be considered: [¶] (1) The vulnerability of the victim. Evidence of vulnerability may include, but is not limited
to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or
dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability. [¶] (2)
The influencer’s apparent authority. Evidence of apparent authority may include, but is not limited to, status as a
fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or
other qualification. [¶] (3) The actions or tactics used by the influencer. Evidence of actions or tactics used may
include, but is not limited to, all of the following: [¶] (A) Controlling necessaries of life, medication, the victim’s
interactions with others, access to information, or sleep. [¶] (B) Use of affection, intimidation, or coercion. [¶] (C)
Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting
changes at inappropriate times and places, and claims of expertise in effecting changes. [¶] (4) The equity of the
result. Evidence of the equity of the result may include, but is not limited to, the economic consequences to the
victim, any divergence from the victim’s prior intent or course of conduct or dealing, the relationship of the value
conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the
length and nature of the relationship.” This statute became effective on January 1, 2014, just before the trial.
Probate Code section 86 incorporated the Welfare and Institutions Code definition of undue influence into the
Probate Code.


                                                            9
testimony “huge,” in part because it predated Daniel’s auto accident and was presumably
more reliable than his “oatmeal-headed” trial testimony. The judge concluded the
testimony negated the stealing-my-money explanation for Daniel’s being disinherited.
                 As Daniel pointed out both during trial and in his motion for a new trial, the
deposition testimony read into the record dealt with in-person, face-to-face accusations of
stealing. Daniel testified earlier in the deposition, and at trial, that he, Marvin, and
Jeanne had had a telephone conversation involving a lot of screaming in which both
                                                                               9
Marvin and Jeanne accused him of stealing Marvin’s money. Daniel admitted, however,
that Marvin did not say Jeanne was the source of this information.
                 Daniel accused Jeanne’s counsel of deliberately misleading the judge by
introducing the deposition testimony without mentioning that it referred only to in-person
conversations and not the telephone call. Although Daniel clarified the testimony himself
on the stand, it might have behooved his counsel to reinforce the difference in context on
redirect. According to Daniel, however, she was not sufficiently alert to do this.
                 But the trial court’s determination regarding undue influence rested on
more than just whether Jeanne lied to Marvin about Daniel in 2011. While that evidence
might have supported a finding of undue influence, the court had substantial
countervailing evidence. The court stated, “I would have to conclude . . . that Jeanne
Shapiro overcame [Marvin’s] free will, and I don’t see that in the evidence in this case.”
The court pointed out that the 1987 will left most of Marvin’s estate to Jeanne. It noted
the lack of evidence to support Daniel’s claim that Jeanne isolated Marvin. And it relied
also upon the testimony of the estate planning attorney and the neurologist’s testimony
that Marvin was not a person to be ordered about.



        9
                  At first glance, the mistake appears to have benefited Daniel. It removed a plausible reason for
disinheriting him, so there must have been some other reason, maybe a nefarious one. The end of the ruling,
however, suggests that the court had been considering the incident as Jeanne’s lying to Marvin to unduly influence
him.


                                                        10
                   We can reverse a judgment only if the appellant explains how the outcome
would have been different had the error not been committed, in other words, how the
error was prejudicial. (Century Surety Co. v. Polisso (2006) 139 Cal.App.4th 922, 963.)
We do not develop these explanations for the parties. (Ibid. ) In this case, ample
evidence supported the trial court’s conclusion Jeanne did not unduly influence Marvin to
disinherit Daniel, even if we allow that the deposition testimony confused the issue. The
record does not indicate the court’s decision turned on this evidence, outweighing all the
other evidence of no undue influence. In addition, the trial court had the opportunity to
revisit the issue with the correction painstakingly explained – as part of the motion for
new trial – and evidently did not consider the evidence important enough to justify a new
         10
trial.
IV.                The 1987 Will
                   Marvin created a one-page holographic will in 1987. It was notarized, but
not witnessed. On the first day of trial, Daniel’s counsel cross-examined Jeanne’s
witness extensively on the difference between it and the 2011 will and trust and directed
the witness to examine a copy in an exhibit book. Jeanne sought to move it into
evidence, but Daniel successfully objected to it as lacking foundation, even though his
                                                                           11
own counsel had raised the issue on cross-examination.                          Later, Jeanne provided the
                                                                                     12
necessary foundation, and the will was received into evidence.                            The court was careful to
explain that this will was admitted as an exhibit, not into probate.

              10
                     Daniel did not specify the ground for a new trial this issue represents, and we have not been able
to fit it into any of the statutory categories. It cannot be “[a]ccident or surprise” (see Code Civ. Proc., § 657, subd.
(3)), because Daniel immediately corrected opposing counsel while he was on the stand, and “ordinary prudence”
could have guarded against it. It cannot be “[n]ewly discovered evidence” (see id. subd. (4)), because the correct
testimony was contained in Daniel’s deposition transcript. The remaining categories are completely inapplicable.
            11
                     Daniel argues that Jeanne’s counsel violated their professional duties as lawyers by introducing
testimony regarding the 1987 will. He contends this version was not produced until February 2013, and Jeanne’s
counsel did not mention it in his deposition. In the first place, Daniel – not Jeanne – brought up the 1987 will at
trial. Moreover, Daniel had the will nearly a year and apparently did nothing to investigate it. This is simply
another instance of failure to prepare for trial.
            12
                     On appeal, Daniel asserts that the 1987 will is hearsay, but no hearsay objection was raised at trial.
(See Evid. Code, § 353.)


                                                           11
              The 1987 will left Daniel and his sister $50,000 each, plus equal shares of
Marvin’s Utah corporations. Daniel estimated that his father’s estate was worth $3
million in 1987, so each cash bequest was less than 2 percent of the total estate. The will
bequeathed $25,000 to the Santa Ana Zoo and left the rest of his property to Jeanne.
              We review the trial court’s decisions to admit or exclude evidence for abuse
of discretion. (Dart Industries, Inc. v Commercial Union Ins. Co. (2002) 28 Cal.4th
1059, 1078; Zhou v. Unisource Worldwide (2007) 157 Cal.App.4th 1471, 1476.) The
court admitted this document, not as a probated will, but as a piece of evidence to help
the trier of fact ascertain the testator’s intent. The significance of the 1987 will was that
it materially diminished the bequests to Marvin’s children in favor of Jeanne, thereby
casting doubt on Daniel’s contention that he was supposed to get everything and Jeanne
nothing before she unduly influenced his father. Moreover, the 1987 will was made well
before any question could have arisen about Marvin’s mental capacity – before he had
Parkinson’s disease, or cancer, or a brain tumor. Marvin left the bulk of his property to
Jeanne, essentially relegating his children to the status of minor beneficiaries along with
the zoo. This fact, the judge found, supported the structure of the 2011 will and trust,
which left everything to Jeanne, provided she survived Marvin, and to some charities
after her death.
V.            New Trial
              An appeal from an order denying a motion for new trial requires us to
examine “the entire record, including the evidence, so as to make an independent
determination whether the error was prejudicial.” (City of Los Angeles v. Decker (1977)
18 Cal. 3d 860, 872.) We do not determine credibility, however; instead we accept the
trial court’s credibility determinations and findings of fact if substantial evidence
supports them. (People v. Nesler (1997) 16 Cal.4th 561, 582.)
              On appeal, Daniel identifies the following issues that should have prompted
the trial court to grant his motion for new trial: the erroneous admission of the 1987 will;

                                              12
the misleading impeachment testimony regarding stealing Marvin’s money; the trial
court’s refusal to credit his testimony over Jeanne’s on the issue of undue influence; the
refusal to continue the trial, resulting in his counsel’s being unprepared; and the failure to
apply the presumption of Family Code section 721. Daniel does not match the issue with
                                13
the ground for new trial, leaving us to speculate as to how exactly he disagrees with the
trial court. Because we have dealt with many of these issues in the previous sections, we
will abbreviate the discussion here.
                  As noted above, the 1987 will was admitted only as evidence of Marvin’s
intent. Whether it was a valid will is irrelevant; it could just as easily been a letter from
Marvin explaining what he wanted to do with his property. The court was entitled to
weigh it with the other pieces of evidence.
                  Whether to grant a continuance, as stated above, rests with the trial court’s
discretion. In this case, the trial had already been continued twice, and Daniel was
seeking another four-month extension, with no assurance he would then be any better
able to testify. As it happened, Daniel did testify, and nothing in the record indicates that
his ability to do so was significantly compromised. He was, for example, very quick to
point out to opposing counsel that the deposition testimony read into the record regarding
his father’s accusations of theft referred to in-person conversations, not telephone calls.
                  Denying the continuance exposed Daniel’s counsel’s possible unreadiness
to proceed with trial. Daniel says she was not prepared to cross-examine Jeanne’s
witness on certain matters or to rehabilitate Daniel’s testimony regarding telephone and
in-person conversations with his father. This failure is, however, not a basis for granting
a new trial.



         13
                   The statutory grounds are: (1) irregularity in the proceedings preventing a fair trial; (2)
misconduct of the jury; (3) accident or surprise, which ordinary prudence could not have guarded against; (4) newly
discovered evidence; (5) excessive or inadequate damages; (6) insufficiency of the evidence to justify the decision;
and (7) error in law, occurring at the trial and excepted to by the moving party. (See Code Civ. Proc., § 657.)


                                                        13
                                                                          14
                  Family Code section 721, subdivision (b), which surfaced first during
closing argument, codifies a fiduciary standard for certain transactions between spouses.
Under this code section, “a rebuttable presumption of undue influence arises when one
spouse obtains an advantage over another in a community property transaction. . . . The
presumption that the advantage was gained by the exercise of undue influence continues
until it is dispelled. [Citation.] The burden of dispelling the presumption rests on the
spouse advantaged by the transaction. [Citation.]” (In re Marriage of Haines (1995) 33
Cal.App.4th 277, 297.)
                  The trial court found, first, that the code section did not apply, because
what was at issue was an estate plan, not a community property transaction between
husband and wife, and, second, even if the code section did apply and the burden of proof
did shift to Jeanne, she had carried it. Regardless of whose burden it was to prove undue
influence or lack of it, the court found sufficient evidence of its absence.
                  On appeal, Daniel in effect quarrels with the trial court’s findings of fact.
He claims there was evidence of Jeanne’s undue influence over Marvin. He cites various
pieces of evidence to support this assertion.
                  Daniel misconstrues our function, which is not to reweigh evidence but
rather to ascertain whether sufficient evidence supports the trial court’s findings of fact.
(Estate of Teel (1944) 25 Cal.2d 520, 526.) Daniel’s brief ignores the evidence that
Marvin acted with free will when he executed the estate planning documents, notably the
         14
                   Family Code section 721, subdivision (b) provides, “Except as provided in Sections 143, 144, 146,
16040, and 16047 of the Probate Code, in transactions between themselves, spouses are subject to the general rules
governing fiduciary relationships that control the actions of persons occupying confidential relations with each
other. This confidential relationship imposes a duty of the highest good faith and fair dealing on each spouse, and
neither shall take any unfair advantage of the other. This confidential relationship is a fiduciary relationship subject
to the same rights and duties of nonmarital business partners, as provided in Sections 16403, 16404, and 16503 of
the Corporations Code, including, but not limited to, the following: [¶] (1) Providing each spouse access at all times
to any books kept regarding a transaction for the purposes of inspection and copying. [¶] (2) Rendering upon
request, true and full information of all things affecting any transaction that concerns the community property.
Nothing in this section is intended to impose a duty for either spouse to keep detailed books and records of
community property transactions. [¶] (3) Accounting to the spouse, and holding as a trustee, any benefit or profit
derived from any transaction by one spouse without the consent of the other spouse that concerns the community
property.”


                                                          14
evidence of his attorney and his neurologist, in addition to Jeanne’s own evidence, which
the trial court clearly credited over Daniel’s. There was indeed conflict in the evidence,
as well as issues of credibility. The court resolved these conflicts and issues in Jeanne’s
favor, and we do not second-guess the trial court from this distance.


                                     DISPOSITION
              The judgment is affirmed. The order denying appellant’s motion for new
trial is affirmed. Respondent is to recover her costs on appeal.




                                                  BEDSWORTH, ACTING P. J.

WE CONCUR:



MOORE, J.



IKOLA, J.




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