Opinion
A165237
05-03-2023
DEBORAH P., as represented, etc., Plaintiff and Respondent, v. EVE H., Defendant and Appellant.
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. P21-00827.
MARGULIES, J.
Jean B. executed a revocable living trust in 2015 but subsequently in 2017, executed an amendment and restatement of the prior trust (2017 Trust), specifically superseding the prior trust. Several years later, Carolyn Cain, as court-appointed attorney for conservatee Deborah P., petitioned under Probate Code section 850 to determine the validity of the 2017 Trust. Appellant Eve H. objected to the validity of the 2017 Trust, arguing Jean lacked capacity at the time she executed this trust. Deborah P. and appellant are two of Jean's four children. Following a bench trial, the court determined appellant had not proven Jean lacked capacity when she executed the amendment and restatement in 2017. Appellant contends her evidence compels a finding that Jean lacked capacity as a matter of law, and the trial court erred in excluding a forensic psychologist's written report. We affirm.
In the interest of clarity, we refer to Jean B. and her children by their first names. No disrespect is intended.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. Background and Chronology
Jean B. had four children, Deborah P., Pamela H., appellant Eve H., and Ryan B. Deborah is disabled and was conserved by her mother on December 27, 1991, at the age of 36. Until Jean's death, she served as Deborah's conservator.
On February 5, 2015, Jean executed a trust entitled "The Jean [B.] Revocable Living Trust" (2015 Trust). The trust conveyed her estate, consisting primarily of a house in the City of Richmond (Tulare Property), and other assets to appellant. Jean "purposely" made no provision for her other children. The trust also named appellant as the successor trustee, upon the death of Jean. On that same day, Jean executed an advance health care directive, naming appellant as her agent to make health care decisions for her.
However, Jean executed another advance health care directive, prepared by an attorney, on June 6, 2017, replacing appellant with Ryan as her agent. In addition, Jean filed a request for an elder abuse restraining order against appellant, which was granted, and an order issued on June 20, 2017.
Jean appointed Ryan as the trustee of the 2015 Trust on September 5, 2017. Also, in September, the court appointed Carolyn Cain as counsel for Deborah.
On September 28, 2017, Jean executed an "Amendment and Restatement of the Jean [B.] Revocable Living Trust, dated 2/5/2015" (2017 Trust), specifically superseding the 2015 trust. Unlike the 2015 Trust, the 2017 Trust, upon Jean's death, distributed "in equal shares to [Ryan] and to the Trustee of the Deborah [P.] Special Needs Trust," all of Jean's interest in the Tulare Property. The 2017 Trust identified the same four children as in the prior trust but added L.B. as another child. The trust gave nothing to Pamela, appellant, or L.B. Notably, appellant was disinherited "for mistreating the settlor."
Though L.B. was identified in the 2017 Trust as a son, he advised the trial court he was not Jean's biological son.
On that same date, Jean executed "The Deborah [P.] Special Needs Trust," naming Ryan as trustee. Jean passed away on December 20, 2017.
Following Jean's death, Ryan petitioned and was appointed Deborah's limited conservator in April 2018.
Pursuant to a petition filed by Deborah's attorney (Cain), the court suspended Ryan as Deborah's limited conservator on December 30, 2020, and appointed Madison Gottschall as temporary conservator. Ryan was removed as the limited conservator after Deborah was removed from the Tulare Property and taken to Kaiser Hospital where she spent several weeks. Since then, Deborah has resided in a group home. Ryan was ultimately removed as Deborah's permanent limited conservator in March 2021, and replaced by Gottschall.
On January 13, 2021, appellant, acting as the trustee of the 2015 Trust, executed a quitclaim deed transferring ownership in the Tulare Property to herself as an individual.
On May 28, 2021, Cain, as Deborah's attorney, filed a petition, which among other assertions, challenged the validity of the 2015 Trust on the grounds of lack of capacity and undue influence. According to her petition, Cain could not rely on the 2017 Trust because Ryan did not provide her with a copy of the trust, and she had insufficient information to subpoena a copy of the "Trusts and Estate planning documents from a third party." In July 2021, however, having obtained a copy of the 2017 Trust, Cain filed an amended petition, no longer attacking the validity of the 2015 Trust but instead claiming the 2015 Trust was completely superseded by the 2017 Trust and seeking to establish the 2017 Trust's validity.
Appellant filed an answer to the amended petition, asserting the validity of the 2015 Trust and denying the validity of the 2017 Trust. B. Trial Testimony
1. Michael Dobrov
Michael Dobrov, a trust and estate attorney, testified on behalf of plaintiff. At the time of the trial, he had practiced law for 30 years and had done estate planning work for over 20 years. In his practice, among other documents, he drafts trusts, wills, advance health care directives, durable powers of attorney, and has drafted hundreds of wills and trusts.
Dobrov first met with Jean in late September 2017. Ryan asked Dobrov whether he could prepare some estate planning documents for Jean. Prior to their first meeting, Dobrov sent Jean a questionnaire, which was filled out in her handwriting, and he spoke with her on the phone "to make sure that she's okay with what I'm doing and she seemed okay." Dobrov prepared a restated revocable trust, a pour-over will, and a special needs trust for Jean's disabled daughter, Deborah.
When Jean arrived at Dobrov's office, she was in a wheelchair and not in great health, and spoke softly. Nonetheless, according to Dobrov, Jean was "very clear minded," "knew what she was doing," and "knew why she was there." Jean told Dobrov what she needed him to do. Jean mentioned and provided Dobrov with the 2015 Trust, indicating she had changed the trustee to Ryan. Jean told Dobrov she wanted to change the 2015 Trust but she wanted Ryan to continue as trustee. In response to Dobrov's inquiry about why she wished to change the 2015 Trust, Jean said she wanted to make sure her daughter, Deborah, would be taken care of and would receive some inheritance to be put into a special needs trust so as "not to interfere with government benefits." Further, Jean specifically indicated she did not want certain of her children to inherit her property, and "she was pretty adamant that [appellant] be excluded." Questioned by Dobrov about preparing an advance health care directive and a durable power of attorney, Jean replied she already had both in place. Jean told Dobrov she was unmarried and identified her children. He believed Jean had "[s]ound memory enough." While she could not recall the particulars of the 2015 Trust, she "certainly knew that Advance Health Care Directives and durable power of attorney were executed a few months prior to that, so she was aware of her estate plan, yes." And Jean was "pretty adamant about who she wanted to be the beneficiaries of the restated trust." Dobrov met with Jean alone. He thought Ryan was out of the room but did not "remember a hundred percent." However, Dobrov did not allow Ryan to speak for Jean. "Jean spoke for herself." In Dobrov's opinion, the trust was simple, in that Jean had specific intentions that she wanted to accomplish. Consequently, he drafted the amendment and restatement in a manner that would "be simple for Jean [B.] to understand."
"' "A special needs trust is a trust that is intended to allow the beneficiary to continue to maintain eligibility for certain needs-based government benefits ...." '" (Balian v. Balian (2009) 179 Cal.App.4th 1505, 1512.)
On cross-examination, Dobrov testified Ryan was not in his office the entire time. He brought Jean into his office and then Dobrov asked to speak with Jean.
Dobrov testified he was not trained as a psychologist or psychiatrist and had no medical training in identifying or quantifying cognitive deficits. He was not aware that in early 2017, Jean had been diagnosed with dementia. Dobrov had no concern that Ryan was exercising undue influence. He did not consider requiring the house to be sold and was told Deborah was living at the house and receiving government benefits.
2. Appellant Eve H.
Appellant was aware of her mother's restraining order application against her, but claimed Ryan filled out the application and her mother "got this information from [Nicole Bradford, who is appellant's niece, and Ryan]." Appellant believed it was Jean's attorney, Ms. Moxley, not Jean, who asked for the three-year restraining order. Beginning in December 2016, appellant started living at the Tulare Property and later moved out as required by the June 2017 restraining order. Appellant maintained that in 2017, she never actually moved out of her mother's home, but "got thrown out" and was told not to return. She stayed away from the home to avoid problems in her career. Between the date the restraining order was issued, June 20, 2017, and her mother's death on December 20, 2017, she did not live in her mother's home. During that period, on one or two occasions, however, appellant visited the home, accompanied by the police, to speak to her mother and remove her personal property. She did not feel comfortable going into the home without a police escort.
Appellant testified she signed a quitclaim deed in January 2021, transferring the Tulare Property to herself as an individual, believing she had "total control of taking care of [her] mother" and "all [her] grounds were covered."
According to appellant, Deborah was conserved in either 1991 or 1993, and Jean served as the conservator until her death. While appellant looked into becoming Deborah's conservator, she never filed a petition to be appointed her conservator.
In January 2015, appellant brought Jean to a senior center, where Jean received assistance in obtaining a restraining order against Ryan because he had threatened Jean, the most recent incident having occurred when appellant came to the house to tell Ryan she wanted to paint and do some interior decorating. Appellant also obtained a restraining order against Ryan, after he threatened her.
At one point, Jean became obsessed with playing the slot machines at a casino and was losing a lot of money. As a result, appellant "got authority to sign on [her] mother's bank account" to keep Jean from using up her funds. Nonetheless, appellant asserted she "never took over [her] mother's finances," her mother "was in charge of her own finances," and appellant did not "take over anything." In addition, appellant indicated that in April 2017, Jean "was taking a lot of her money and misappropriating her funds and wasn't taking care of her household obligations" and "there were times [appellant] had to bail her out."
From December 2016 until appellant was required by the restraining order to leave the Tulare Property, she stayed some nights with her mother and other nights with her boyfriend. Appellant claimed she had spent "a lot" of her money getting her mother's house in order by "getting stuff changed, her carpet changed, getting her house painted," and her "tall grass cut."
In March 2017, appellant began receiving payments from the State of California as "an IHSS in-home worker for Debbie." She received these payments through May 2017.
In-Home Supportive Services (IHSS) is a publicly funded home care program that helps pay for services to eligible individuals who are unable to remain safely in their own homes without assistance. (<https://ehsd.org/elderly-disabled/in-home-supportive-services-ihss/> (as of May, 2023).)
Appellant also maintained she never received anything from Dobrov, including a notification from him in January 2018 informing her of the administration of her mother's amendment and restatement. She had a PO box in January 2018 at a UPS Store located on San Pablo Avenue.
According to appellant, during 2017, Jean was not able to dial the phone, was "very confused at times," agitated, had a flat affect, could not remember where she put anything, and could not recognize people she had known for years. Jean would call different businesses "to fuss with them like IHSS and . . . just the people with her bills and her house and her mortgage." Jean would then ask appellant to take her to a business because Jean "insisted that there was a problem," but upon arrival would have nothing to say.
3. Timothy Nelson
Timothy Nelson had known appellant for approximately 20 years and had visited the Tulare Property from 2000 to 2009 or 2010. He did a lot of repairs and yard maintenance, for instance, pulling up the carpets because they were in bad condition due to "dog poop." He noticed Jean was living in filth but she did not seem to be aware of her living conditions. Appellant tried to clean the house and do repairs to put the residence into "better living conditions for her mom." In early 2017, Jean recognized Timothy, but eventually she did not. She "didn't really say much" to him. In 2017, Timothy described Jean as "fussing, pretty much." He never went to the residence to visit Jean, and only went there when he was called to do some work . His relationship with appellant varied. She helped take care of his mother after she had had a stroke, freeing Timothy up to do things like go to choir practice. Timothy was grateful for appellant's help, but at one point, he applied for a restraining order against her, though he did not follow through with it.
4. Dr. Lekisha Mixon
Lekisha Mixon is a psychologist, with a focus on forensic psychology. She testified on behalf of appellant. At the time of the trial in this matter, she had testified as an expert approximately five or six times, and since 2021, had been involved in the field of assessing the mental competency or capacity of patients. The assessments included psychological and neuropsychological testing. Appellant's counsel offered Dr. Mixon as an expert in forensic psychology.
Through her training, Dr. Mixon was familiar with the "Montreal test of cognitive abilities" (MoCA) and had the occasion to "evaluate" the "mini mental status examination" (MMSE). Both tests are "screeners for impairment and cognitive ability." Dr. Mixon had no special knowledge, skill, training (within the last 10 years), or education with respect to testamentary capacity, or whether a trustor had capacity to execute a trust. Nor had she ever qualified as an expert on testamentary capacity or capacity required for the execution of trusts.
In preparation for trial, Dr. Mixon reviewed Jean's medical records, court proceedings, the medical provider deposition, the certificate of a health care provider for medical leave, subpoenas, other depositions, "the amendment and restatement of Jean [B.] Living Trust, the banking statement of Jean [B.], the Deborah [P]. Special Needs Trust and a personal letter written from [L.B.]."
In Dr. Mixon's opinion, Jean did not have "full mental capacity in September 2017." After reviewing Jean's medical records, including the records of visits to Dr. Amy Gordon, Dr. Mixon learned Jean had a diagnostic history of depression, and a CT scan showed Jean was also experiencing vascular dementia. Dr. Mixon never met with Jean.
Jean's MMSE and MoCA tests, according to Dr. Mixon, indicated Jean suffered from "mild and moderate dementia," and her medical records reflected she was "lacking some cognitive ability and the ability to engage with the medical provider." Following Dr. Mixon's review of Jean's records, she opined that because of Jean's diagnosis of dementia, "it's likely that her mental capacity after May 2017 continued to decline, as that is the inherent nature [of] dementia-well, a neurocognitive disorder." According to Dr. Mixon, on May 24, 2017, when Jean was administered a MoCA test, she scored a 16 out of 30, indicating moderate dementia and implying a deficit in alertness and attention. The MoCA also reflected memory impairment because Jean scored zero out of five on the delayed recall scale, suggesting she was unable to recall words provided. This memory impairment reflected in the test suggested to Dr. Mixon that it was unlikely Jean would have had the level of memory to remember the details of her "family's situation, in a situation where she was making testamentary decisions."
In addition, based on the MoCA test, Dr. Mixon believed there was a "notable decline" in Jean's "visual-spatial processing, her executive functioning, her verbal fluency, her abstract reasoning, and her memory." Given Jean's impairment, Dr. Mixon further opined Jean "would have had a difficult time understanding abstract concepts." Nonetheless, to provide the "most accurate opinion," Dr. Mixon needed to see specific subscales on the MoCA. Lastly, Dr. Mixon opined there was a pattern of deterioration, and even with intervention, the decline would have continued, and Jean was not receiving any intervention for her cognitive capacity.
The MoCA test was completed in 45 minutes, but Dr. Mixon agreed that ideally an expert assessing someone's capacity would need to spend longer than 45 minutes. Dr. Mixon further agreed capacity can fluctuate from day to day, it is preferable to test capacity over several days, and the doctor administering the test would want to be assured the individual had a good night's rest and eaten well before being tested.
Evidently, Jean was accompanied by a" 'daughter'" for the MoCA test on May 24, 2017. Notably, Jean's restraining order against appellant was signed on June 6, 2017, shortly after the MoCA test was administered. Dr. Mixon assumed appellant was the daughter who accompanied Jean, and if appellant was present with Jean during the test, there was a "possibility" her presence affected Jean's ability to answer questions if she was stressed.
When the MoCA test was administered, Jean was not questioned about her estate planning documents, asked to identify her children, husband, wife, or domestic partner, nor was she asked to identify any property. Moreover, Dr. Mixon had not spoken to any witnesses with "personal knowledge" of Jean during the period of May 24, 2017 through September 28, 2017, when Jean executed the amendment and restatement to the 2015 Trust. In addition, she had not spoken to any care provider. From reading the medical records, Dr. Mixon was aware Jean suffered from hypertension, but during her deposition, Mixon admitted to not knowing whether between the period of May 24, 2017 and September 28, 2017, Jean was taking any hypertension medication. Dr. Mixon agreed, however, that if Jean was given proper hypertension medication, her functioning could improve. Better nutrition would have improved Jean's health overall, but it would have had little impact on her cognitive abilities. And though the current medication may have slowed down the progression of her dementia, it would not have stopped it. Dr. Mixon did not review any of Jean's medical records, assuming they existed, for the period of June 2017 through Jean's passing in December 2017.
5. Dr. Amy Gordon
Amy Gordon is a medical doctor specializing in family medicine who worked at the West County Health Center and saw Jean on three occasions. Dr. Gordon referred Jean to a psychologist for a mental status exam. By the second visit, Dr. Gordon "had written 'dementia,'" though she did not have an independent recollection of the diagnosis. Dr. Gordon reviewed the records, and noted Jean had had a mental status exam, but she did not write down the score, but "it must have been low enough to qualify her for dementia." During one of Jean's visits, Dr. Gordon wrote under "subjective comments": "Dementia. Daughter has been caring for her, along with another sister. Daughter has decided to take off work for a month to get on top of her mom's medical needs. Forgetful, hypertension, incontinence, not walking, losing weight, gets angry and hard to deal with and doesn't want to go to the doctor. Daughter is stressed and upset." The last record of Jean's visit to the West County Health Center is dated May 24, 2017. In one of the doctor's entries in Jean's medical records, she observed, "Patient was appropriately dressed. Affect constricted. Mood congruent, speech organized but low in volume and slow rate. No evidence of thought disturbance. Denied SIHI."
SIHI is "Suicidal ideation, homicidal ideation."
Dr. Gordon also noted dementia can cover a spectrum, and she did not know what type of dementia Jean had. Jean was not asked questions by Dr. Gordon to determine if Jean had the capacity to execute a trust. In addition, Dr. Gordon confirmed she was not an expert on testamentary capacity.
6. Carolyn Cain
Carolyn Cain was appointed as Deborah's attorney on September 13, 2017. She represented Deborah during the trial to determine the validity of the 2017 trust. She agreed that a special needs trust was created on September 28, 2017, that Deborah was the beneficiary in the special needs trust, and that Jean executed the 2017 Trust in September 2017, under which Deborah was a beneficiary. Cain recalled she visited Jean in 2017 at her home. According to Cain, Jean was not in a wheelchair but sat during the entire visit. Cain indicated she did not provide "legal information" to Jean, nor to Ryan when she spoke with him.
On June 17, 2021, the court appointed Cain as Deborah's guardian ad litem.
Cain also represents Deborah in this appeal.
C. Statement of Decision
The trial court issued a statement of decision in which it found that "No witness's testimony is ideal here." Nonetheless, the court found: "Mr. Dobrov had two advantages, however. First, he actually spoke with Jean. Second, as an experienced probate attorney, he was accustomed to evaluating whether people seem to understand the issues made pertinent by Probate Code section 811. While noting that she was not 'in great health,' she was 'clear minded.' She told him what they were doing and was aware of who her children were. She wanted to make sure Deborah was taken care of and did not lose government benefits. She wanted Ryan to be the trustee. She wanted [appellant] and Pamela disinherited and was 'adamant' about [appellant]." After considering the factors set forth in Probate Code 811, the trial court concluded appellant failed to prove Jean lacked capacity to execute the 2017 Trust, but that to the contrary "it appears that she understood what she was doing and what she wanted."
Disagreeing with the trial court's decision, appellant appeals.
II. DISCUSSION
A. Mental Capacity Generally
The general rules for assessing mental capacity begin with Probate Code section 810, which establishes a rebuttable presumption "that all persons have the capacity to make decisions and to be responsible for their acts or decisions." (§ 810, subd. (a).) The statute recognizes that persons with mental or physical disorders "may still be capable of contracting, conveying, marrying, making medical decisions, executing wills or trusts, and performing other actions." (Id., subd. (b).) Under section 811, a person lacks capacity to decide or act, such as entering into a contract or executing wills or trusts, when there is a deficit in at least one identified mental function and "a correlation [exists] between the deficit or deficits and the decision or acts in question." (§ 811, subd. (a).) A mental function deficit bears on capacity if it "significantly impairs the person's ability to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question." (Id., subd. (b).) Section 812, which excepts itself from testamentary capacity determinations, states that "a person lacks the capacity to make a decision unless the person has the ability to communicate . . . the decision," and to the extent relevant, to understand and appreciate: the "rights, duties, and responsibilities created by, or affected by the decision"; the "probable consequences for the decisionmaker and, where appropriate, the persons affected by the decision"; and the "significant risks, benefits, and reasonable alternative involved in the decision." (§ 812, subds. (a)-(c).)
All statutory references are to the Probate Code.
As will be discussed further, section 811 sets forth the factors to be evaluated by the court in determining whether a person lacks capacity to make a decision or do a certain act.
In contrast to the sliding scale rubric described above, section 6100.5 "contemplates a significantly lower mental capacity standard for the making of a will." (Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1351 (Lintz).) A person is not competent to make a will when he or she does not: understand "the nature of the testamentary act"; understand and recollect "the nature and situation of [his or her] property"; or remember and understand his or her "relations to living descendants, spouse, and parents, and those whose interests are affected by the will." (§ 6100.5, subd. (a)(1)(A)-(C).) The statute further provides that a person suffering from a mental health disorder "with symptoms including delusions or hallucinations" lacks capacity to make a will if the delusions or hallucinations result in the individual devising property in a way that the individual would not have done except for the existence of the delusions or hallucinations. (Id., (a)(2).)
The court in Andersen v. Hunt (2011) 196 Cal.App.4th 722 (Andersen) concluded that section 6100.5 informs a trustor's capacity to execute an amendment that, "in its content and complexity, closely resembles a will and codicil." (Andersen, at p. 731.) Section 6100.5 bears on whether, under section 811, subdivision (b), "a person's mental deficits are sufficient to allow a court to conclude that the person lacks the ability 'to understand and appreciate the consequences of his or her actions with regard to the type of act or decision in question.'" (Andersen, at p. 731.) Section 6100.5 is thus "made applicable through section 811 to trusts or trust amendments that are analogous to wills or codicils." (Andersen, at p. 731.) The original trust document in Andersen was complex. But the amendments, which added, dropped, and reallocated the trust residue among appellant beneficiaries, were not. (Ibid.) The appellate court concluded that the amendments were indistinguishable from a will or codicil in that they were simple and testamentary in nature. (Ibid.) The decedent's capacity to execute the amendments therefore should have been evaluated under the lower testamentary capacity standard set forth in section 6100.5. (Andersen, at p. 731.)
Adopting the reasoning in Andersen, the court in Lintz recognized that because sections 810 through 812 provide that capacity must be evaluated in light of the complexity of the decision or act in question, the capacity to execute a trust" 'must be evaluated by a person's ability to appreciate the consequences of the particular act he or she wishes to take.'" (Lintz, supra, 222 Cal.App.4th at pp. 1351-1352.) The trusts and trust amendments in Lintz "addressed community property concerns, provided for income distribution during the life of the surviving spouse, and provided for the creation of multiple trusts, one contemplating estate tax consequences, upon the death of the surviving spouse." (Id. at p. 1353.) The sliding-scale contractual standard set forth in sections 810 through 812 applied to those instruments because they were "unquestionably more complex than a will or codicil." (Lintz, at pp. 1352-1353.)
B. Standard of Review
Appellant correctly identifies the applicable standard of review on appeal from the trial court's statement of decision. "In general, in reviewing a judgment based upon a statement of decision following a bench trial, 'any conflict in the evidence or reasonable inference to be drawn from the facts will be resolved in support of the trial court's decision. [Citations.]' In a substantial evidence challenge to a judgment, the appellate court will 'consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]. [Citations.]' [Citation.] We may not reweigh the evidence and are bound by the trial court's credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment." (Estate of Young (2008) 160 Cal.App.4th 62, 75-76.)
In this case, however, appellant had the burden of proof at trial to establish that Jean lacked capacity presumed under section 810. The trial court concluded appellant did not meet her burden to prove incapacity." 'In the case where the trier of fact has expressly or implicitly concluded that the party with the burden of proof did not carry the burden and that party appeals, it is misleading to characterize the failure-of-proof issue as whether substantial evidence supports the judgment. This follows because such a characterization is conceptually one that allows an attack on (1) the evidence supporting the party who had no burden of proof, and (2) the trier of fact's unassailable conclusion that the party with the burden did not prove one or more elements of the case [citations]. [¶] 'Thus, where the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant's evidence was (1) "uncontradicted and unimpeached" and (2) "of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding." '" (Sonic Manufacturing Technologies, Inc. v. AAE Systems, Inc. (2011) 196 Cal.App.4th 456, 465-466; see Valero v. Board of Retirement of Tulare County Employees' Assn. (2012) 205 Cal.App.4th 960, 965 [describing this alternative test as a "conceptual and substantive distinction within the substantial evidence analysis depending on who has the burden of proof on a particular issue, which party prevailed on that issue and who appealed"].)
C. Jean B.'s Legal Capacity
Appellant seeks to reverse the trial court's judgment finding Jean had mental capacity to execute the 2017 Trust, because under the sliding-scale contractual capacity standard, she asserts her "evidence compels a finding of [Jean's] incapacity as a matter of law." We are not persuaded.
Appellant first contends the trial court erred because it "deemed" the changes made by the 2017 Trust "disinheriting [appellant] and providing for Ryan and Deborah-were significant, but were not complicated." Appellant argues that "the facts of this case are more aligned with the higher capacity standard elicited by the facts of Lintz, as opposed to the lower standard of Andersen, whereas the challenged instruments here as in Lintz included a number of trust amendments that ultimately resulted in the enactment of a new living trust and disinheriting two children." "Accordingly," appellant argues, "the instruments at issue in this case, as in Lintz, are 'unquestionably more complex than a will or codicil' and therefore require more than testamentary capacity."
To the extent appellant is suggesting that the trial court erroneously applied the lower testamentary capacity standard employed by the court in Andersen, however, the record reflects otherwise. In its statement of decision, the trial court discussed and applied the sliding-scale contractual standard rather than the less rigorous testamentary capacity standard under section 6100.5. The statement of decision acknowledged the section 810 "rebuttable presumption affecting the burden of proof that all persons have the capacity to make decisions and to be responsible for their acts or decisions." (§ 810, subd. (a).) Moreover, the court explained that section 811 sets forth the deficits in mental functions and the correlation between the deficit or deficits and the decision or acts in question. Those deficits include (1) alertness and attention, (2) information processing, (3) thought processes, and (4) ability to modulate mood and affect. (§ 811, subd. (a).)
Indeed, in her opening brief appellant acknowledges the trial court "appropriately imposed the mental capacity standard set forth in sections 810 to 812."
In our view, appellant has misconstrued the trial court's statement that changes made by the 2017 Trust "were significant, but were not complicated." Under sections 810, 811, and 812, the capacity to execute a contract "must be evaluated by a person's ability to appreciate the consequences of the particular act he or she wishes to take. More complicated decisions and transactions thus would appear to require greater mental function; less complicated decisions and transactions would appear to require less mental function." (Andersen, supra, 196 Cal.App.4th at p. 730; accord, Lintz, supra, 222 Cal.App.4th at p. 1352.) The decisions here, to disinherit specific family members and provide for others, were not nearly as complicated as those involved in the series of trust amendments in Lintz, which "addressed community property concerns, provided for income distribution during the life of the surviving spouse, and provided for the creation of multiple trusts, one contemplating estate tax consequences, upon the death of the surviving spouse." (Lintz, at p. 1353.) The trial court's acknowledgement that the changes were significant but not complex merely reflects that the trial court's decision was guided appropriately by an assessment of Jean's mental capacity in relation to the complexity of the particular acts she wished to undertake.
In reaching its decision, the court considered the section 811 factors described above. Crediting Dobrov's testimony, the court found Jean was "alert and attentive, including being oriented to time and place" and "was processing information, including talking with Dobrov." The court also found there was no indication that Jean's "thought processes suffered from disorganization, hallucinations or delusions." While Jean was" 'soft spoken' and not 'in great health,'" the court observed this could have been an "indication of ability to modulate mood and affect, or only physical impairment."
In addition to the section 811 factors considered by the court, and in accord with the trial court's ruling, we note Dobrov testified that when he met with Jean, she was "very clear minded, she knew what she was doing, [and] she knew why she was there." She told Dobrov what she needed him to do, mentioned and provided him with the 2015 Trust, and indicated she had changed the trustee to Ryan. Significantly, Jean told Dobrov she wanted to make sure Deborah would be taken care of and receive some inheritance to be put in a special needs trust "so as not to interfere with government benefits." Moreover, Jean specifically indicated she did not want certain of her children to inherit her property and was "pretty adamant" appellant should be disinherited. When Dobrov asked Jean about preparing an advanced health care directive and a durable power of attorney, Jean answered she already had both in place. She was also aware of her estate plan. Jean knew she was unmarried and was able to identify her children. Lastly, Dobrov believed Jean had "[s]ound memory enough."
Appellant contends the judgment must be reversed as a matter of law because her evidence was "uncontradicted, unimpeached and of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding that [Jean] lacked capacity when she executed the 2017 Testamentary Documents." In support of her contention, she relies on the testimony of Dr. Mixon and Dr. Gordon. However, except for quoting a portion of the trial court's statement of decision in which Dobrov is mentioned once, appellant fails entirely to discuss or cite to Dobrov's contradictory testimony which, notably, the trial court credited in finding Jean had capacity. We are troubled by this material omission in appellant's briefing especially in view of her inaccurate assertion that her evidence was "uncontradicted [and] unimpeached," leaving no room for a judicial determination that Jean lacked capacity. "An appellant challenging the sufficiency of the evidence to support the judgment must cite the evidence in the record supporting the judgment and explain why such evidence is insufficient as a matter of law. [Citations.] An appellant who fails to cite and discuss the evidence supporting the judgment cannot demonstrate that such evidence was insufficient." (Rayii v. Gatica (2013) 218 Cal.App.4th 1402, 1408.) In particular, the contention that a finding is not supported by substantial evidence may be deemed waived where the appellant's brief fails to discuss and cite all relevant evidence. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247.)
We need not reach the issue of whether appellant has waived her arguments in favor of reversal because under the sliding-scale contractual standard, Dobrov's testimony supports the trial court's finding that Jean had capacity to execute the 2017 Trust. Because appellant's evidence of incapacity was contradicted and impeached by Dobrov's testimony, which was credited by the trial court, we cannot conclude appellant was entitled to a judgment in her favor as a matter of law.
D. Exclusion of Dr. Mixon's Written Report
Following the completion of testimony, appellant sought to move Dr. Mixon's written report regarding Jean's mental capacity into evidence. Deborah's counsel, Carolyn Cain, objected, arguing the report contained matters "outside of [Dr. Mixon's] qualifications and experience." The trial court denied the request, commenting Dr. Mixon said nothing about her report with the exception of "looking at one particular area on it." In addition, the court found the report was not adequately authenticated because appellant's counsel "asked [Dr. Mixon] about a couple entries on one of the pages of it. You should have asked her is this your report, does it contain all your conclusions et cetera, et cetera, to authenticate it. [¶] As of right now I don't know exactly what's in it or what the basis for everything in it is. She wasn't examined about it and therefore she wasn't cross-examined about it either." Appellant's counsel, nonetheless, failed to object to the exclusion of the report and moved on to another exhibit.
Appellant claims the trial court's ruling excluding Dr. Mixon's report was arbitrary given there was no hearing, briefing, or arguments, nor "any careful consideration of the information before the Court" when the report was excluded.
First, Dr. Mixon's testimony attempting to authenticate her report is not the model of clarity. While Dr. Mixon identified her report, when appellant's counsel asked the doctor whether the document still expressed her opinions, the court interjected, "And we were on page 4 of the report," to which Dr. Mixon responded, "Yes, Judge." We thus question whether the report was even properly authenticated.
Second, even assuming Dr. Mixon authenticated her report, appellant failed to preserve this issue for appeal when, following the court's ruling and thereafter, appellant's counsel failed to object on any ground to the exclusion of the report. "[A]n appellate court ordinarily will not consider an alleged erroneous ruling where an objection could have been, but was not, raised before the trial court." (Martorana v. Marlin &Saltzman (2009) 175 Cal.App.4th 685, 699; Evid. Code, § 354.)
Conversely, appellant maintains the record is unclear regarding whether her counsel waived the objection, pointing out that when the trial court first stated, "So your request is denied," the transcript reflects counsel's response was "Inaudible." However, after the court explained, in some detail, why the medical report should be excluded for lack of proper authentication, it again stated, "So I'm denying its admission." Rather than objecting, counsel moved on to a different exhibit seeking to have it admitted to evidence.
From our review of the record, we are persuaded that by failing to object, appellant failed to preserve for appeal the exclusion of Dr. Mixon's report because no objection was interposed in the trial court.
Though appellant asserts the record is unclear because "Appellant's counsel's objection was inaudible," there is no basis for inferring that appellant's counsel made an objection to the court's exclusion of the report.
In any event, even if the trial court erroneously excluded Dr. Mixon's medical report, any error was harmless. As detailed above, Dr. Mixon provided very comprehensive testimony about Jean's declining mental capacity, opining Jean did not have "full mental capacity in September 2017." Dr. Mixon further testified she had reviewed Jean's other medical records, learned about Jean's diagnostic history, detailed the results of the MMSE and MoCA tests, and concluded Jean suffered from "mild and moderate dementia." During her testimony, on one occasion, in passing, Dr. Mixon briefly referred to page 4 of her report. Appellant does not explain what additional information concerning Jean's capacity could have been garnered from the medical report which was only briefly referenced during Dr. Mixon's testimony. In short, the trial court heard more than enough testimony from Dr. Mixon regarding Jean's lack of capacity to aid it in reaching its final decision.
III. DISPOSITION
Accordingly, the judgment is affirmed. Deborah shall recover costs on appeal from appellant.
WE CONCUR: HUMES, P. J., BANKE, J.