Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. A223980 Gerald G. Johnston, Judge. Affirmed.
Megan A. Richmond for Plaintiff and Appellant.
Price, Crooke, and Gary, and Bruce J. Gary for Defendant and Respondent Douglas Fletcher.
Law Offices of Dirk Van Tatenhove and Dirk Van Tatenhove for Defendant and Respondent Lisa Combs.
IKOLA, J. WE CONCUR:
Kelly Combs, a former beneficiary of The Dr. Walter F. Combs, O.D., Living Trust dated October 24, 2003 (the Trust), appeals from a judgment that, inter alia, (1) confirmed the validity of a Trust amendment increasing the bequest to Lisa Combs (decedent Walter’s former second wife) and changing the successor trustee from Kelly to Lisa’s father, and (2) applied a no contest clause to Kelly. On appeal Kelly (1) contests the court’s factual findings that Lisa did not unduly profit from the amendment and did not commit elder abuse against Walter, and (2) challenges the court’s application of the Trust’s no contest clause to him as a beneficiary. We affirm the judgment.
For convenience and to avoid confusion, we refer to members of the Combs family individually by their first names; we intend no disrespect.
Kelly’s unopposed motions to augment the record, filed on November 16 and 20, are granted.
Walter, an optometrist, had nine children, including Kelly, with his first wife, Eunice, from whom he separated in 1972 and was divorced in 1977. In 1977, Lisa, who was significantly younger than Walter, began working for him. They quickly became romantically involved and in 1983 they married. In 1984 their son, Jared, was born. In 1986 Walter and Lisa divorced because Walter did not want the legal responsibilities of marriage. Shortly after their divorce Walter and Lisa made a purchase deposit on a house (the house) and moved into the residence a few months later. At the escrow closing, Lisa saw that Walter held sole title to the house; she objected, but Walter reassured her that if “anything ever happened to [him, Lisa would] get the house.” Lisa continued working for Walter, but stopped taking a salary so they could afford the home. When Lisa’s mother expressed her concerns to Walter that Lisa lacked social security or other “financial security for the future,” Walter assured Lisa’s mother “he would always take care of [Lisa].” Over the years Walter, Lisa, and Jared continued to live together in the house; Walter sometimes referred to Lisa as his wife. Lisa continued to work as Walter’s bookkeeper.
In May 2003, at age 72, Walter learned he had terminal pancreatic cancer. He informed some of his sons and daughters from his first marriage and told them he (1) did not want Lisa to know of his condition since she would “hound” him, (2) did not plan to give her “a penny” since she treated him badly, and (3) did not want her to get “involved in his financial affairs.” Walter retired in August; he sold his practice and told a friend that Lisa would receive a portion of the sale proceeds. In July or August, when Walter discussed his illness with Bill Dul, his long-time accountant, Dul suggested that Walter prepare a will or trust and referred him to estate planning attorney Bruce Gary. In September, Walter told Lisa he had cancer after they returned from a vacation together to Oregon.
Unless otherwise specified, all further dates refer to the year 2003.
In October, Dul and Gary met with Walter at Dul’s office. Walter asked whether a living trust could be amended once put in place and also inquired about a no contest clause due to his concern “that Lisa might contest what he was doing in this document.” Walter instructed Gary not to mail any documents to Walter’s house because Walter did not want Lisa to read them. At a subsequent meeting in October between Walter, Dul and Gary, Walter signed a living trust and a pour-over will. The Trust provided for a cash bequest to Lisa of $40,000 and gave her and Jared the right to live rent-free in the house for three years, so that Jared would have a residence while completing his college education. The bulk of Walter’s estate went in relatively equal shares to his offspring, i.e., Jared and the eight sons and daughters from his first marriage. The Trust named Kelly as successor trustee in the event Walter became incapacitated. Walter also signed a power of attorney for health care naming his son, Dr. Walter Combs, Jr., a physician, as his primary agent, and a financial power of attorney naming Kelly as attorney-in-fact.
One of the nine children from the first marriage had already passed away.
On November 17, Walter and Lisa talked about the Trust. On November 24, Walter and Lisa met with Dul and Gary. Lisa listed changes she and Walter (she used the word “we”) wanted to make to the Trust, the will, and the powers of attorney. The changes included: making Lisa a joint tenant owner of the house, eliminating cash bequests to the children of Walter’s first marriage, and increasing Lisa’s cash bequest to $100,000.
Gary asked Lisa to leave the room. Alone with Dul and Gary, Walter stated he did not wish to make the changes, but was concerned about Lisa’s threats to leave and take Jared with her. He “asked if the documents could be changed to intentionally mislead Lisa,” to which Gary replied “the documents could be changed and signed and the changes revealed to Lisa and the documents could be destroyed the next day.” It was agreed Walter would “consult with his sons” and “get back to [Gary] regarding any changes after he met with his sons.” In the meantime, Walter would inform Lisa that the changes were being worked on.
After this private conversation, Lisa was invited back into the room. Consistent with the prearranged plan, Walter told Lisa that Gary would be making the changes.
In a phone call the next day, Walter confirmed with Dul and Gary the plan to mislead Lisa. Walter told his brother that he (Walter) “had devised a method where even though the trust would be changed perhaps, it would not go into effect.”
According to Lisa’s testimony, in November Walter also told Lisa he planned to remove Kelly as successor trustee because Kelly had showed the Trust to his (Kelly’s) siblings contrary to Walter’s instructions, had brought a notary public to Walter’s house without asking Walter’s permission, and asked to look in Walter’s file cabinet and take over his checkbook. The next day Walter informed Lisa’s father he would be the new successor trustee.
On December 8, Gary and Dul met Walter at a bank to which Lisa had driven him. Dul noted Walter’s mental capacity was “slipping,” he “could hardly walk, . . . was nauseous, . . . very weak [and] losing a lot of weight.” Outside Lisa’s presence, Gary tried to get “confirmation from [Walter] that he did not want us to be amending his trust,” but was unable to do so because Walter was in “excruciating pain.” Back in Lisa’s presence, Lisa or Walter asked Gary about the status of the Trust amendment. In front of Lisa, Gary told Walter that if he wanted any changes made to the trust, he needed to phone Gary. Surprised that the changes had still not been made, Lisa began to cry and told Dull “she had been with [Walter] for 25 years.” Dull and Gary felt Walter did “not appear to know or understand what he is doing.”
The next day Walter phoned Gary and asked the lawyer to come to his house. That same day Gary informed Kelly that he (Gary) “was going out the next day to meet with [Walter] about making changes to the trust.” Gary discussed with Kelly and Walter Jr. “what could be done to prevent [Walter] from signing anything at that point.” Gary stated that Walter Jr., as Walter’s health care attorney-in-fact, could declare Walter incompetent.
The next morning Walter Jr., visited Walter at Walter’s house. Walter lay in bed and in a weak voice said, “[I know] why [you’re] here.” Walter never got up. Walter Jr. talked with Walter “about different things” “to see if he was totally out of it or not.” Walter had trouble keeping his eyes open; he was in his last stages of dying, “sick, . . . tired, . . . weak [and] off and on confused.” In addition, Walter had been prescribed five medications which “would make a person lethargic, confused [and] nauseated.” Walter Jr. “had to sit on the bed next to” Walter in order to hear his weak voice. Walter Jr. asked Walter “whether he really wanted to change that will.” Walter replied he did, but closed by saying, “Don’t worry. We’ll have a plan.” Walter Jr. did not conduct the standard tests for determining a patient’s mental capacity; he did not wish to formally declare his father incompetent because Walter was dying “in his bed where he wants to be with his son [Jared],” and had told Walter Jr. “he had a plan” concerning the Trust.
Walter Jr. then left the residence, crossing paths at the front door with Gary who was arriving. Walter Jr. “mentioned something to . . . Gary about” Walter being incompetent to make a major estate planning change.
Lisa led Gary upstairs. Gary entered Walter’s bedroom to see Walter, dressed in pajamas and a bathrobe, “seated on the bed with some pillows . . . forming a back for him to sit up against.” Gary sat in a chair by the bed. Walter said he and Lisa wanted to amend the Trust, then Lisa stated the changes to be made, which sounded very similar to those Gary had heard in Dul’s office in November. At Gary’s request, Lisa left the bedroom. Gary explained to Walter that he (Gary) had been waiting for Walter’s phone call about whether to change the Trust. Walter apologized for the confusion, but said “this is what he wants.” To Gary there appeared to be “no doubt in [Walter’s] mind”; Walter stated “they were considering hiring another attorney to do it if [Gary] wouldn’t do it.” Gary “interpreted that as strength of will” — “a strong conviction on [Walter’s] part inconsistent with the possibility that somebody was pressuring him to do that.” Walter was “adamant” he wanted to make these changes. Gary then “worked through the trust document with [Walter] paragraph by paragraph saying, all right, this is coming out, this is staying in.” Walter confirmed the changes. Gary did not hear any slurring in Walter’s speech. Walter seemed “strikingly different” from how he had appeared at the bank two days earlier, leading Gary to believe Walter “had pulled himself together” and “must have been determined to make this change.” Walter’s “responses were appropriate to the conversation” they were having and he was not experiencing delusions.
At his office, Gary prepared an amendment to the Trust (the Amendment), revocations of the financial and health care powers of attorney, and a new health care power of attorney appointing Lisa as Walter’s agent. He also prepared a letter for Walter’s signature confirming that he (Walter) was changing the Trust of his own free will and not due to any pressure from Lisa. The letter also authorized Gary to charge the Trust for any time Gary spent, whether before or after Walter’s passing, “to explain or testify regarding the changes” to the Trust.
Gary testified at trial he had spent over 1000 hours on this case to be billed at $250 per hour.
Gary returned to Walter’s house around 4:00 p.m., reviewed the Amendment with Walter, and had Walter sign it and the other documents. The Amendment, inter alia, bequeathed the house to Lisa; increased her cash bequest to $100,000; eliminated cash bequests to Walter Jr., Kelly, two other sons from Walter’s first marriage, and Walter’s first wife; and appointed Lisa’s father as successor trustee. Because Gary had forgotten to prepare a codicil to Walter’s pour-over will, he had Walter “write out a halographic [sic] codicil,” thus obviating the need to have two witnesses to Walter’s signature. Thus, Gary was the sole witness to Walter’s mental capacity at the time Walter signed the documents.
Walter erroneously dated the codicil as of 2000.
In addition to testifying as a trial witness, Gary represented Lisa in obtaining Walter’s remains and represented her father (the trustee) both here and below. On this issue, the court stated: “Mr. Gary is . . . so deeply involved in this . . . wearing so many different hats . . . . I’m trying to grapple with why he is still in this matter at this point.”
By December 29, Gary had learned from Lisa that Walter was “incapable of talking to anybody.” Two days later, Walter passed away.
In July 2005, Kelly filed a second amended petition to, inter alia, declare the Trust valid and the Amendment invalid, alleging Lisa procured the Amendment by undue influence over and elder abuse of Walter. In a detailed statement of decision, the court determined the Amendment “was not the result of undue influence or elder abuse.”
DISCUSSION
Substantial Evidence Supports the Court’s Factual Findings Lisa Did Not Unduly Benefit From the Amendment and Did Not Exert Undue Influence Over Walter
On appeal Kelly also seems to argue Gary exerted undue influence over Walter; however, Kelly did not raise this contention in his petition. Moreover, Gary is not a beneficiary of Walter’s estate.
Kelly challenges the court’s findings that Lisa did not exert undue influence over Walter to procure the Amendment and did not unduly benefit from the Amendment. He contends the court “disregarded all circumstantial evidence of undue influence,” such as “the impact of Walter’s physical and mental state” that made “him susceptible to undue influence,” “the true nature of Walter and Lisa’s relationship,” “Walter’s expressed intent to take care of his children,” and “the overwhelming documented evidence of Lisa’s pressure on Walter to change the Trust while Walter grew sicker and weaker and more dependent on Lisa for his care.” Kelly emphasizes that the elements of undue influence may be properly shown by circumstantial evidence (Estate of Gelonese (1974) 36 Cal.App.3d 854, 865) which, when considered individually “may be of little weight, but [when] taken collectively . . . may then be sufficient to raise a presumption of undue influence.” (In re Hannam (1951) 106 Cal.App.2d 782, 786.)
We initially review legal principles of undue influence applicable to testamentary documents such as wills and living trusts. (See Rice v. Clark (2002) 28 Cal.4th 89, 96, citing Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 182 [legal principles governing undue influence apply to inter vivos trusts].) “As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.] [¶] This presumption can be overcome if it is shown that the testator was affected by undue influence.” (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604 (Sarabia); see also Prob. Code, § 6104 [any part of a will procured by undue influence is invalid].) “Undue influence is pressure brought to bear directly on the testamentary act, sufficient to overcome the testator’s free will, amounting in effect to coercion destroying the testator’s free agency.” (Rice v. Clark, supra, 28 Cal.4th at p. 96.) The person contesting a trust bears the burden of proving undue influence by “[c]lear and convincing proof . . . .” (Estate of Truckenmiller (1979) 97 Cal.App.3d 326, 334; § 8252, subd. (a).) But “‘under certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence.” (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) The presumption of undue influence arises if the challenger shows “that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.” (Rice v. Clark, supra, 28 Cal.4th at p. 97.)
All statutory references are to the Probate Code unless otherwise stated.
It is a question of fact “whether the presumption will apply . . . .” (Sarabia, supra, 221 Cal.App.3d at p. 605.) Thus, the court’s factual finding that Lisa did not unduly profit from the Amendment (and therefore the presumption of undue influence did not arise) is subject to the substantial evidence standard of review: “When determining whether there is sufficient evidence to support the trial court’s finding of undue benefit, we follow established rules of appellate review: We view factual matters most favorably to the prevailing party and in support of the judgment. We defer issues of credibility to the trier of fact. Additionally, we resolve all conflicts in the evidence in favor of the respondents. [Citation.] Our power ‘begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion’ reached by the trier of fact.” (Estate of Auen (1994) 30 Cal.App.4th 300, 311.) Similarly, whether Lisa actually exerted undue influence over Walter, absent the presumption, is a factual question subject to the substantial evidence standard of review. (Estate of Lingenfelter (1952) 38 Cal.2d 571, 585 [question of undue influence is “‘one of fact for the jury’s determination’”].)
Despite the factual nature of the court’s finding Lisa did not unduly profit from the Amendment and therefore no presumption of undue influence arose in this case, Kelly, citing Ghirardo v. Antonioli (1994) 8 Cal.4th 791 (Ghirardo), argues our standard of review is de novo in determining whether the court correctly applied the governing law in making its finding.
We must therefore determine whether substantial evidence supports the court’s findings that (1) the presumption of undue influence did not apply in this case and (2) in the absence of the presumption, Kelly failed to show by clear and convincing evidence that Lisa did in fact exert undue influence over Walter. We first examine the evidentiary support for the court’s finding that the presumption of undue influence did not arise. Critical to that finding was the court’s assessment that Kelly failed to sufficiently show the third requirement for the presumption, i.e., that Lisa unduly benefited from the Amendment. Whether Lisa unduly profited was crucial because the court found Kelly did sufficiently show the first two requirements for the presumption, i.e., that Lisa (1) had a confidential relationship with Walter, and (2) played an active role in procuring the Amendment.
In deciding whether Lisa unduly benefited from the Amendment, the court “agreed with both parties that ‘extrinsic’ evidence regarding [Walter’s] relationship with Lisa . . . was properly admitted . . . .” For, to assess whether a beneficiary’s share of an estate seems inordinent, a factfinder must gauge all aspects of the beneficiary and testator’s relationship — the connections, obligations, affections, and history between them. Sarabia is instructive: “For the trier of fact to decide what influence was ‘undue’ clearly entails a qualitative assessment of the relationship between the decedent and the beneficiary . . . . To determine if the beneficiary’s profit is ‘undue’ the trier must necessarily decide what profit would be ‘due.’ These determinations cannot be made in an evidentiary vacuum. The trier of fact derives from the evidence introduced an appreciation of the respective relative standings of the beneficiary and the contestant to the decedent in order that the trier of fact can determine which party would be the more obvious object of the decedent’s testamentary disposition.’” (Sarabia, supra, 221 Cal.App.3d at pp. 607-608.)
In assessing whether Lisa’s share under the Amendment was undue, the court noted she “was to receive a cash bequest and 3 rent free years in the home under the terms of the original trust” and under the Amendment “a larger cash bequest and title to the home . . . .” The court found (1) Lisa and Walter “lived together for over 20 years, 17 of which they spent in the [house],” (2) a continuing bond existed between Walter and Lisa during the entire time they were together, (3) they “held themselves out to the public, and even to some family members, as husband and wife despite their 1986 divorce,” (4) Lisa “raised their son Jared in the [house],” and (5) “[o]n various occasions throughout their long relationship [Walter] had assured Lisa and others that he would ‘take care of Lisa’ [u]pon his death.” The court concluded Lisa’s taking under the Amendment was not an undue benefit and “therefore, the burden of showing the absence of undue influence has not shifted to Lisa . . . .” The record amply supports these findings.
Absent the presumption, Kelly was required to prove by clear and convincing evidence that Lisa in fact exerted undue influence over Walter. The court found Kelly failed to meet this burden of proof. Does substantial evidence support the court’s finding? In examining this question, we recognize, as did the court below, the strong presumption in favor of a testator’s competence and the difficulty a challenger faces in proving undue influence sufficient to overcome that presumption: “‘“[I]t is necessary to show that the influence was such as, in effect, to destroy the testator’s free agency and substitute for his own another person’s will. [Citation.] Evidence must be produced that pressure was brought to bear directly upon the testamentary act. [Citation.] Mere general influence, however strong and controlling, not brought to bear upon the testamentary act, is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator. [Citation.] . . . [M]ere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient. [Citation.] [¶] ‘The unbroken rule in this state is that courts must refuse to set aside the solemnly executed will of a deceased person upon the ground of undue influence unless there be proof of “a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made.”’”’” (Hagen v. Hickenbottom, supra, 41 Cal.App.4th at p. 182.)
In examining whether Lisa overpowered Walter’s free will, the court sought “to divine [Walter’s] intentions . . . as his life drew to a close” and what Walter “truly wanted to do with his estate.” The court considered “certain aspects of his personality” “as a person, husband and father,” his relationship with the children from his first marriage, and the history of his relations with Lisa. The court noted “there was never a close relationship between Lisa [and the] children from the first marriage,” nor did Walter “try to combine the two families.” Instead Walter “tended to downplay and disparage his relationship with one family while in the presence of the other.” The court considered the evidence that Walter and Lisa lived together in the house “where they raised their son until [Walter’s] death,” that Walter “had promised her the home many times over the years,” “that she provided professional services (bookkeeping and office management) at [Walter’s] office for years without taking any pay which would require [Walter] to pay various employment taxes (and vest her in Social Security),” and “that she did this in order to leave more money for [Walter] to pay the mortgage on the home.” “Based upon the evidence presented [of their relationship], the court [found] it most probable that [they] had an uneven relationship with some periods better than others.” The court deduced Walter, “a man used to having power in personal relationships (so much so that he could end his ‘financial exposure’ to Lisa in 1986 and yet keep her in his life) would be capable of leaving a relationship where he was being emotionally abused,” yet “stayed with Lisa . . . from 1986 until his death because that is what he chose to do.” The court was not persuaded by Kelly’s evidence that Lisa tried to isolate Walter and that Walter was incapacitated by illness and drugs when he signed the Amendment, because such evidence was speculative and Lisa presented countervailing evidence. Finally, the court recognized Gary as “the sole source of information regarding how [Walter] presented during the discussion of changes to the trust and the subsequent execution [of the Amendment] on December 10, 2003.” The court “spent some time contemplating how to view . . . Gary’s testimony” and concluded “Gary testified truthfully regarding his observations and conclusions about [Walter] on December 10, 2003.”
The court concluded Kelly failed “to demonstrate by clear and convincing evidence that Lisa . . . exerted undue influence to secure the amendment.” This conclusion is well supported by the record and we commend the court for its thorough consideration of the issues and voluminous evidence and its well written statement of decision.
But Kelly asserts the court failed to consider Walter’s “expressions of dispositive intent” and the Amendment’s “drastic[] alter[ation of] the previous distributions under the Trust.” He argues consideration of these factors reveals the “unnatural” nature of Lisa’s gifts under the Amendment. In fact, the court did take into account both factors, expressly noting Walter (1) “provided Lisa . . . a far more modest benefit in the [original] trust” and (2) expressed his intent to mislead Lisa and not make her requested changes. Yet in the end, Walter was free to change his mind about the distribution of his assets; the record supports the court’s finding he was competent at the time he signed the Amendment that effectuated his change of testamentary intent.
Substantial Evidence Supports the Court’s Finding Lisa Did Not Commit Elder Abuse Against Walter
Kelly contends the court failed to explain the basis for its finding Lisa did not commit elder financial abuse. He asserts “the court lumped Financial Elder Abuse into the same category as undue influence and capacity.”
The Elder Abuse and Dependent Adult Civil Protection Act (Welf. & Inst. Code, § 15600 et seq.) is intended to protect elders (Welf. & Inst. Code, § 15610.27 [persons 65 years of age or older]) from abuse, neglect and abandonment. (Welf. & Inst. Code, § 15600.) A person financially abuses an elder, inter alia, by taking personal property of the elder “to a wrongful use or with intent to defraud, or both.” (Welf. & Inst. Code, § 15610.30, subd. (a)(1).) A wrongful use is presumed if the person takes the property in bad faith. (Welf. & Inst. Code, § 15610.30, subd. (b).) Under certain circumstances a successful plaintiff can recover, inter alia, attorney fees and punitive damages. (Welf. & Inst. Code, § 15657.5.) Where financial elder abuse involving fraud or malice is proved by clear and convincing evidence, the perpetrator forfeits any inheritance in the deceased elder’s estate and may not serve as the decedent’s fiduciary. (§ 259.)
In its statement of decision, the court found Kelly “failed [to] prove by a preponderance of the evidence that any Elder Financial Abuse of [Walter] occurred.” The court did not explain the basis for its finding other than to note that “the Second Cause of Action in the Second Amended Petition alleges Elder Financial Abuse based upon [Walter’s] illness, use of medication and inability to understand the legal affect [sic] of the [Amendment].” Kelly contends the court, in deciding whether financial abuse occurred, should have considered evidence that Lisa forged Walter’s name on two financial documents: (1) an authorization to a credit card company to issue Lisa a Mastercard on Walter’s business account, and (2) a check drawn on Walter’s bank account to pay the credit card account. We agree the court should have taken this evidence into account.
The statement of decision, however, cannot be considered deficient unless Kelly “brought to the court’s attention” any omission or ambiguity prior to the entry of judgment. “Under Code of Civil Procedure section 634, a party claiming deficiencies in the trial court’s statement of decision must bring those deficiencies ‘to the attention of the trial court . . . .’ While it is true this section ‘does not specify the particular means that the party may use to direct the court’s attention to the claimed defects in the statement,” [citation], rule 232(d) of the California Rules of Court provides: ‘Any party affected by the judgment may, within 15 days after the proposed statement of decision . . . ha[s] been served, serve and file objections to the proposed statement of decision . . . .’ [¶] Code of Civil Procedure section 634 and California Rules of Court, rule 232, taken together, clearly contemplate any defects in the trial court’s statement of decision must be brought to the court’s attention through specific objections to the statement itself . . . . By filing specific objections to the court’s statement of decision a party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous.” (Golden Eagle Ins. Co. v. Foremost Ins. Co. (1993) 20 Cal.App.4th 1372, 1380.) “In rendering a statement of decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts; only when it fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.” (Hellman v. La Cumbre Golf & Country Club (1992) 6 Cal.App.4th 1224, 1230.) Thus, a party objecting to a tentative statement of decision must alert the court to a specific defect in the statement; i.e., to the particular section of the statement and the manner in which it fails to “fairly disclose[] the court’s determination as to the ultimate facts and material issues in the case.” (Golden Eagle Ins. Co. v. Foremost Ins. Co., supra, 20 Cal.App.4th at p. 1380.)
California Rule of Court, rule 232(d), is the predecessor to California Rule of Court, rule 3.1590(f).
Here, Kelly did not properly bring to the court’s attention any defect in the tentative statement of decision. While Kelly did submit 46 questions regarding the tentative statement, seeking “clarification and/or a correction” as to each question, this list of 46 queries improperly interrogated the court. (People v. Casa Blanca Convalescent Homes, Inc. (1984) 159 Cal.App.3d 509, 525, abrogated on other grounds in Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 184-185 [party improperly demanded “an inquisition, a rehearing of the evidence”].) Kelly unreasonably asked the court to wade through three pages of questions not earmarked to any particular section of the statement. Expecting a judge to study a list of 46 questions to decipher what findings are proposed is asking far too much. Here, Kelly’s pleadings, trial brief and closing argument failed to alert the court that his elder abuse cause of action was based on forgery allegations. The record does not disclose whether any party requested a statement of decision; therefore we cannot assume Kelly requested a finding Lisa committed elder abuse by forging Walter’s name. At the tail end of his list of 46 detailed questions objecting to the tentative statement of decision, questions 41 through 44 ask: “(41) Did Lisa take, secrete, appropriate or retain any real or personal property of Walter to a wrongful use or with intent to defraud or both? [¶] (42) Did Lisa improperly execute the name of Walter on any documents? [¶] (43) If the answer to the foregoing question is affirmative, which documents? [¶] (44) Did Lisa improperly appropriate a credit card on an account owned by Walter?” These questions are not segregated, labeled or otherwise identified as queries relating to the elder abuse cause of action. In sum, Kelly failed to properly alert the court to any defect in the statement of decision concerning his elder abuse cause of action.
We therefore infer “all findings necessary to support the judgment, and our review is limited to whether there is substantial evidence in the record to support these implied findings.” (In re Marriage of Cohn (1998) 65 Cal.App.4th 923, 928.) Thus, we examine the record for substantial evidence that Lisa signed Walter’s name to the written request for a credit card and on his check for a proper use, in good faith, and without intent to defraud. We find ample evidentiary support. As to the credit card authorization, Lisa testified Walter phoned the credit card company and tried to order a card in Lisa’s name, but was told to submit a written request; Walter knew Lisa signed and mailed a written request. Lisa used the credit card in her name in November and December to pay for groceries, Walter’s prescription medicines, and Christmas presents. (During their relationship, Walter had always paid for Christmas gifts.) These credit card charges totaled $1,369.95. The check Lisa signed in Walter’s name paid these charges, with Walter’s knowledge and authorization. Thus, substantial evidence supports the court’s finding Lisa did not commit financial elder abuse against Walter.
The No Contest Clause Is Enforceable Against Kelly
Kelly claims the Trust’s no contest clause is unenforceable against him, relying on sections 21306 and 21307 which provide that a no contest clause is unenforceable under certain circumstances.
The no contest clause in Walter’s Trust provides that a “Contestant shall be considered to have predeceased [Walter] without surviving issue and not to be living at the time of [Walter’s] death.” A “Contestant” is defined to include a person who participates in an action seeking “to . . . invalidate . . . any provision in . . . any amendment of [the Trust].” Because Kelly unsuccessfully sought to invalidate the Amendment on grounds of undue influence or elder abuse, the court ruled that under the no contest clause, Kelly was to “be treated as though he predeceased [Walter] without surviving issue” and therefore Kelly lacked “standing to pursue the remaining causes of action and prayers in the petition.”
Kelly argues section 21306 applies to exempt him from the no contest clause’s enforcement because “the Amendment was an attempt to revoke certain terms of the Trust.” Under section 21306, subdivision (a), a “no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with reasonable cause, brings a contest that is limited to one or more of the following grounds: [¶] (1) Forgery. [¶] (2) Revocation. [¶] (3) An action to establish the invalidity of any transfer described in Section 21350.” (Section 21350 invalidates donative transfers to, inter alia, a person who drafted the testamentary instrument.) By its terms, section 21306 would shield Kelly from the no contest clause only to the extent he challenged the Amendment on grounds the Amendment was forged or revoked, or contained a section 21350 transfer. Kelly, however, challenged the Amendment on grounds it resulted from Lisa’s undue influence and elder financial abuse. We need not address his argument the Amendment constituted a revocation of the Trust. It is clear he did not contest the Amendment on grounds the Amendment itself had been revoked.
Alternatively, Kelly argues section 21307 applies because he “challenged an Amendment that benefits a person who gave directions to the drafter of the Amendment.” Under section 21307, a “no contest clause is not enforceable against a beneficiary to the extent the beneficiary, with probable cause, contests a provision that benefits any of the following persons: [¶] (a) A person who drafted or transcribed the instrument. [¶] (b) A person who gave directions to the drafter of the instrument concerning dispositive . . . contents of the provision . . ., but this subdivision does not apply if the transferor affirmatively instructed the drafter to include the contents of the provision . . . . [¶] (c) A person who acted as a witness to the instrument.” (Italics added.) Kelly’s invocation of section 21307, subdivision (b) fails because Walter affirmatively instructed Gary, the drafter of the Amendment, to make the changes reflected therein.
The court did not err in ruling the Trust’s no contest clause applied to Kelly.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
MOORE, ACTING P. J. FYBEL, J.
On this issue, Ghirardo states: “‘There are three steps involved in deciding a mixed fact/law question. The first step is the establishment of basic, primary or historical facts. The second is the selection of the applicable law. The third is the application of law to the facts. All three trial court determinations are subject to appellate review. Questions of fact are reviewed by giving deference to the trial court’s decision. Questions of law are reviewed under a nondeferential standard, affording plenary review. [Citation.] However, as to the third step, the application of law to fact, difficulty is encountered and views as to the correct approach are mixed. . . . [¶] “‘In our view, the key to the resolution of this question is the nature of the inquiry that is required to decide “whether the rule of law as applied to the established facts is or is not violated.” [Citation.] If application of the rule of law to the facts requires an inquiry that is “essentially factual,” [citation] — one that is founded “on the application of the fact-finding tribunal’s experience with the mainsprings of human conduct,” [citation] — the concerns of judicial administration will favor the [trial] court, and the [trial] court’s determination should be classified as one of fact reviewable under the clearly erroneous standard. If, on the other hand, the question requires us to consider legal concepts in the mix of fact and law and to exercise judgment about the values that animate legal principles, then the concerns of judicial administration will favor the appellate court, and the question should be classified as one of law and reviewed de novo.’”’” (Ghirardo, supra, 8 Cal.4th at pp. 800-801.)
Here, Kelly does not dispute the court’s selection of the applicable law; in fact, he expressly agrees the “trial court correctly identified the three prongs” of the “test for determining whether a presumption of undue influence exists.” As to the third step identified in Ghirardo, i.e. applying the law to the facts, the facts here were highly disputed. (The court noted in its statement of decision that “evidence [was] presented by 23 witnesses over the course of several months [and s]everal hundred exhibits were also admitted into evidence.) The inquiry was primarily factual and, as recognized in Sarabia and other cases, the substantial evidence standard governs our review.