Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SPR077662.
SEPULVEDA, J.
Appellant Daniel Blackwood challenges the grant of summary judgment in his action to invalidate testamentary documents that left the bulk of his mother’s estate to respondent Nancy Wilcox (the domestic partner of appellant’s deceased sister) and to appellant’s nephew (the son of appellant’s deceased sister). He argues that various procedural and evidentiary defects in respondents’ motion for summary judgment precluded the trial court from granting summary judgment. He also argues that there were triable issues of material fact. We affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from appellant’s verified complaint/petition for declaratory relief, as well as the evidence submitted in connection with respondents’ summary judgment motion. Appellant, who lives in Idaho, is a surviving son of Clydagh Luana Hedges (Clydagh), who died on February 28, 2005, in Santa Rosa. According to Ann George, Clydagh’s tenant and friend of seven years, appellant visited Clydagh three times in the few years before Clydagh’s death, and called Clydagh every four to five months. Phyllis Crockett, Clydagh’s close friend of nearly 58 years, believes that the last time appellant saw Clydagh in person was at Clydagh’s 80th birthday party in August 2004.
For the sake of clarity, and because they are frequently referred to in the record by their first names, we refer to various members of appellant’s family by their first names.
George’s declaration was dated September 13, 2006, more than a year and a half after Clydagh’s death, and stated that appellant visited Clydagh three times “[o]ver the past three years.” It is unclear whether this meant that appellant had visited Clydagh three times in the three years preceding her death in 2005, or three times in the three years preceding George’s declaration.
Clydagh had two other children, Mark Eugene Blackwood (Mark) and Evangeline Clydagh Blackwood-Cuglietta (Eva). Respondent Wilcox was Eva’s registered domestic partner. Mark, who was diagnosed with schizophrenia in the 1970s and also is a diabetic, was living in a group home in Palo Alto and taking medication for his condition at the time that appellant filed his complaint. George stated that Clydagh was concerned for Mark’s welfare “[o]n a daily basis,” making sure that he had new clothes, toiletries, and the care he needed. Clydagh drove from her home in Santa Rosa to Palo Alto to visit Mark on a monthly basis. Clydagh, Eva, and Wilcox included Mark in birthday and holiday celebrations. According to George, “When Clydagh passed away, [Wilcox] became Mark’s advocate and continued the pattern of excellent care and concern for him.” Wilcox stated in her declaration in support of summary judgment that “I consider [Mark] a member of my family.” According to Wilcox, appellant moved Mark out of the state, apparently after the present dispute arose between the parties.
Crockett and Clydagh were “traveling buddies,” and took frequent trips with Eva and Wilcox. They traveled together to Disneyland, San Diego’s Sea World, and the desert, and they also traveled together three or four times to Hawaii. George stated that Wilcox “was like another daughter to Clydagh.”
Eva died in November 2003, leaving behind a son, Anthony Cuglietta (Tony), who was apparently in his twenties. After Eva’s death, Crockett spoke with Clydagh for 30 minutes each day when they were not together. According to Crockett, Clydagh and Eva “had been very close,” and Clydagh “felt Eva’s death very deeply.” Crockett and Clydagh visited Hawaii in May 2004 to celebrate Eva’s life. Crockett stated, “After the trip I feel that Clydagh turned the corner on her grief over losing Eva. She was more like her vibrant self after that trip. I do not want to minimize the impact of Eva’s death on Clydagh. However, Clydagh was able to manage her grief and still live a productive life.” Wilcox and Clydagh remained close after Eva’s death. Crockett testified that after Eva’s death, “Clydagh many, many times said to me, ‘It’s almost like still having my daughter,’ and that never changed to the last minute because anything [that] happened to Clydagh in that last minute, [Wilcox] was there a hundred percent of the time.” Wilcox, Clydagh, and Tony continued to include Mark in birthday and holiday celebrations after Eva died.
According to appellant’s complaint, Clydagh created a living trust in 1994. Respondent Carl Dimeff prepared the trust. Upon Clydagh’s death, the trust was to be distributed 60 percent to Eva, 20 percent to appellant, and 20 percent to a special-needs trust for the benefit of Mark. At the same time as the trust was executed, Clydagh also executed a pour-over will, which named Clydagh’s trust as the pour-over beneficiary. Respondent Dimeff prepared the pour-over will.
Clydagh executed a first amendment to her living trust in 2000. She changed the beneficiary provision so that upon her death, the trust would be divided equally among her three children (with Mark’s portion still subject to the provisions of a special-needs trust). Again, the amendment was prepared by respondent Dimeff.
Clydagh amended her living trust with the help of Dimeff again on July 14, 2004, after the death of her daughter in 2003 (second trust amendment). She again changed the beneficiary provisions of the trust, so that upon her death, her grandson Tony would receive 40 percent of her estate, respondent Wilcox would receive 30 percent, and her son Mark would receive 30 percent (to be held in trust). Appellant’s previous one-third distribution was changed to a one-time distribution of $5,000. Wilcox and Tony were named as successor trust managers.
Clydagh was diagnosed with cancer, apparently only weeks before her death. On January 20, 2005, Clydagh executed a codicil to her will (will codicil), which was prepared by Dimeff. Appellant Wilcox was named as executor (replacing Eva), and Tony was named as successor executor (replacing appellant). Two other persons served as witnesses to the codicil; however, the record on appeal does not contain any declarations or testimony from them regarding Clydagh’s mental capacity when she executed the codicil. On January 27, 2005, Clydagh executed a document titled “Request for Change of the Living Trust of Clydagh L. Hedges” (third trust amendment request), which Dimeff’s office received before sending her a third trust amendment on February 8, 2005. Clydagh requested that her trust be amended such that (1) the special-needs trust for Mark be eliminated, so that Mark would instead receive a one-time payment of $200, to be delivered in ten-dollar bills, and (2) respondent Wilcox and Tony would each receive half of Clydagh’s estate (after the distributions to appellant and Mark). The request also stated, “I have further arranged for Nancy K. Wilcox and my grandson, Anthony E[.] Cuglietta, to maintain responsibility for Mark’s care in accordance with the current pattern. They have written orders to this effect.” According to Dimeff, his office sent a third trust amendment to Clydagh based on her instructions; however, Clydagh apparently did not execute it before her death on February 28, 2005.
Respondents’ separate statement of undisputed facts in support of summary judgment stated that Clydagh was diagnosed with cancer in January 2005. Appellant did not dispute this fact below, but does so on appeal because respondents omitted the specific page of Crockett’s deposition testimony that was cited in support of this fact. Appellant claims that this is another example of respondents’ “sloppiness,” and says he is under no obligation to “ ‘play nice’ by admitting that which [respondents] have failed to prove.” However, appellant does not go so far as to claim that Clydagh was not diagnosed with cancer in January 2005, no doubt because he submitted medical records to the trial court that he said showed Clydagh was diagnosed with cancer in January 2005.
Appellant was asked at his deposition whether there was medical evidence that Clydagh was not of sound mind in July 2004. He responded that he was surprised to learn at his mother’s funeral that other people had learned that she had cancer before he had. When asked whether he had any evidence that Clydagh did not know what she was executing when she signed the second trust amendment, appellant replied, “No, I do not have any evidence in regards to that question about amending in July 2004, July the 14th, that she was unduly or influenced [sic] in some particular way to make that change.” He also stated, “When it came to situations dealing with Eva, she was not sound. And then looking at the fact that, you know, Mark is not taken care of here either, these are not sound decisions.”
According to Crockett, who discussed Clydagh’s changes to her estate plan with Clydagh, Clydagh’s reasons for the changes to her trust and will were “simple”: “When Eva died she left a portion of her estate to Clydagh. Eva knew that Clydagh could use the money. Although Eva’s generosity did make things easier for Clydagh she felt that she had been given something that really did not belong to her. Throughout Eva’s illness [Wilcox] was there for her 24 hours a day, seven days a week. . . . Clydagh felt that given [Wilcox’s] devotion to Eva, Eva’s estate should have been divided equally between” Tony and Wilcox. As for why Clydagh sought to eliminate the special-needs trust for Mark, Crockett explained: “Because of his dependence on state aid, Clydagh was aware that her son Mark could not receive a lump sum of cash. She asked [Wilcox] and Tony to take care of Mark and they agreed. [Wilcox] and Tony have continued to look after Mark providing him with what he may need or want.” Respondent Dimeff also stated that although the language of the special-needs trust was designed to protect Mark’s government benefits, Clydagh “expressed concern that a percentage ownership in her house would not be of benefit to [Mark], or pragmatic.”
As for the reduction of appellant’s interest in his mother’s estate, Crockett explained that Clydagh felt that appellant “had received the bulk of his father’s estate. Clydagh saw Eva struggle to make ends meet as a single mother and wanted to balance the two inheritances by leaving the majority of her estate to Eva’s son and her partner.” Clydagh explained this in a handwritten letter to appellant dated January 16, 2005, a few weeks before her death. The letter concluded, “I have always loved you and I am very proud of your family. I hope with your $5000.00 you will find a way to add some enjoyment to your busy life. [¶] With my Dearest Love, [¶] Mom [¶] Clydagh Luana Hedges [¶] I have asked, Nancy Wilcox, my constant support since Eva’s death, to deliver this to you upon my death.” Clydagh died on February 28, 2005. Appellant stated that he received the letter with Clydagh’s will.
Appellant filed a verified petition for declaratory relief/complaint on September 26, 2005. His first cause of action was for declaratory relief against Wilcox; appellant sought a judicial determination that he was entitled to a one-third interest in his mother’s estate. Appellant’s second cause of action sought cancellation of the second trust amendment, the third trust amendment request, and the will codicil, based on Clydagh’s alleged lack of testamentary capacity and the alleged undue influence of respondents. Appellant also alleged causes of action for intentional tortious interference with expectancy and breach of fiduciary duties.
Respondents filed a motion for summary judgment. In support of their motion, respondents submitted declarations from Crockett, George, and respondent Wilcox. Crockett described her best friend of nearly six decades as happy and lively right before she was diagnosed with cancer, and “lucid until the end.” George stated that she shared a home with Clydagh, who was responsible for paying bills as well as the upkeep of the home. According to George, Clydagh managed her responsibilities “until the day she died.” She stated, “Any decisions she made up until the time of her death were her own based on her own caring and the uplifting fairness of life.” Wilcox described Clydagh as “a vibrant person who planned her own 80th birthday party/roast,” and who “was lucid and pleasant up until the very end.” Regarding the death of Eva, Wilcox stated, “Eva’s death was hard on Clydagh as it would be for any parent however Clydagh continued to enjoy life and manage her grief. When Clydagh was dying she was alert and communicative.”
Appellant filed his opposition on December 14, 2006, which was late because it was less than 14 days before the scheduled hearing date of December 26, 2006. (Code Civ. Proc., § 437c, subd. (b)(2).) Following a hearing, the trial court granted summary judgment. Its order simply states, “Defendant[s’] Motion for Summary Judgment is GRANTED. Defendants have met their initial burden and plaintiff[’s] untimely opposition does not contain evidence sufficient to create a triable issue of fact as to any of the causes of action.” Appellant timely appealed from the subsequent judgment.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
Where a trial court grants a motion for summary judgment on the ground that there is no triable issue of material fact, the court shall specify the reasons for its determination. (§ 437c, subd. (g).) The trial court’s order was required to, but did not, “specifically refer to the evidence proffered in support of, and if applicable in opposition to, the motion which indicates that no triable issue exists.” (Ibid.) Neither party addresses the trial court’s failure to specify the evidence relied on in determining there was not a triable issue of fact. “Once a summary judgment or summary adjudication is before us, for independent review, on appeal, the trial court’s asserted failure to refer to the evidence is not dispositive.” (Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 178; see also Unisys Corp. v. California Life & Health Ins. Guarantee Assn. (1998) 63 Cal.App.4th 634, 640 [failure to comply with § 437c, subd. (g) not grounds for automatic reversal].) Any failure to state reasons for granting summary judgment is harmless where, as here, an appellate court’s independent review reveals that the moving party was entitled to summary judgment because there was no evidence sufficient to raise a triable issue of fact. (Byars v. SCME Mortgage Bankers, Inc. (2003) 109 Cal.App.4th 1134, 1146-1147.)
II.
DISCUSSION
A. Standard of Review.
“In order to support summary judgment for a defendant, it must appear from the record either that the plaintiff cannot establish one or more of the elements of the cause of action or that the plaintiff cannot refute an affirmative defense established by the defendant. [Citations.]” (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115.) “When a defendant’s motion for summary judgment is supported by affidavits and declarations sufficient to sustain the motion, the burden shifts to the plaintiff to show the existence of a triable issue of material fact. [Citations.] An issue of fact is not created by speculation, conjecture, imagination, or guesswork; it can be created only by a conflict in the evidence submitted to the trial court in support of and in opposition to the motion. [Citation.]” (Id. at pp. 115-116.) “On appeal, we review the record de novo to determine whether the moving party met its burden of proof. [Citations.]” (Id. at p. 116.)
In assessing each cause of action, we apply the same three-part analysis required of the trial court. (Knight v. Hayward Unified School Dist. (2005) 132 Cal.App.4th 121, 128.) We first identify the issues framed by the pleadings, then determine whether the moving party has established facts negating the opponent’s claim and, if the moving party has carried its burden, we conclude the analysis by determining whether the opposition has demonstrated the existence of a triable issue of material fact. (Ibid.; § 437c, subd. (p)(2).)
B. No Procedural Reason to Deny Summary Judgment.
Appellant argues that the trial court should have denied respondents’ motion for summary judgment because their separate statement of undisputed facts failed to comply with section 437c, subdivision (b)(1). That section provides: “The supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (§ 437c, subd. (b)(1).) Appellant argues that because the declarations of Crockett, George, and respondents Wilcox and Dimeff (as well as other evidence) were not referenced in respondents’ separate statement, they “ ‘[did] not exist’ ” for purposes of supporting respondents’ motion. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337, superseded by statute on other grounds, as stated in Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 957, fn. 4.) Appellant claims that the problem was “exacerbated” by respondents’ supporting brief, which “failed to discuss or summarize in a coherent manner the undisputed facts or their relationship to the legal issues raised in [respondents’] motion.”
Appellant’s argument lacks merit. The summary judgment statute is phrased in permissive terms. Failure to comply with section 437c, subdivision (b)(1) “may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Italics added; see also San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 315.) We review the trial court’s implied decision to review evidence not found in respondents’ separate statement for abuse of discretion (ibid.), and conclude that the trial court did not abuse its discretion. Respondents’ motion for summary judgment and supporting papers totaled about 80 pages; it is not as if appellant or the trial court were required to search for facts that “might be buried in [a] mound of paperwork filed with the trial court.” (Cf. Lewis v. County of Sacramento, supra, 93 Cal.App.4th at p. 116.) Indeed, a review of respondents’ moving papers and supporting evidence provides far more clarity about the relevant facts and law than a review of the more than 100 pages of briefs that appellant has submitted to this court. Although respondents’ separate statement was by no means perfect, appellant was in no way deprived of due process, because he was adequately informed of the issues and evidence to be addressed. (United Community Church v. Garcin, supra, 231 Cal.App.3d at p. 337.)
Respondents informally requested in their respondents’ brief that we strike appellant’s opening brief, but did not file a formal motion asking that we do so. (Cf. Cal. Rules of Court, rule 8.204(e)(2) [party may file motion to strike briefs that are not supported by citations to matters in the record].) We decline to do so, and have disregarded any supposed noncompliance with the California Rules of Court. (Rule 8.204(e)(2)(C).)
C. Evidentiary Issues Do Not Compel Reversal.
Appellant next complains (as he did at the hearing on respondents’ summary judgment motion) that respondents failed to properly authenticate five exhibits that were attached to a declaration of their counsel in support of summary judgment. (§ 437c, subd. (b)(5) [evidentiary objections waived unless made “at the hearing”].) Because appellant failed to obtain a ruling on his objections, he waived them. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.)
Even assuming arguendo that the objections were not waived, and that the trial court should have excluded the five exhibits, it does not follow that summary judgment was inappropriate. Exhibit C is titled “Overview of Clydagh Luana Hedges Estate Planning.” The document, which was presumably prepared by counsel, contains a brief summary of information found elsewhere in the record. Exhibit D is a copy of the third trust amendment request, which was also attached to the declaration of respondent Dimeff, which appellant does not challenge. Exhibit E is a handwritten note from Clydagh to Dimeff’s law offices requesting changes to her trust; again, Dimeff addressed the requested changes in his declaration. Exhibit F is a copy of an agreement that Wilcox and Tony care for Mark per Clydagh’s request, and exhibit G is a copy of a bank account statement opened for the benefit of Mark. The record contains other references to the agreement to provide for Mark’s care, as well as efforts to do so. In sum, respondents demonstrated that there was no triable issue of material fact, even without the five exhibits that appellant challenges on appeal.
Appellant disputed in his separate statement respondents’ claim (in their separate statement) that Wilcox and Tony agreed to care for Mark, claiming that they were not “properly funding” an account for Mark. On appeal, appellant argues that the evidence respondents cited in their separate statement was defective because it did not specifically refer to the written agreement to care for Mark. Elsewhere in his appellate briefs, however, appellant acknowledges that there was an agreement to care for Mark, but argues that it was unenforceable. In other words, there is no real dispute over whether an agreement to care for Mark was reached, only over the legal effect of such an agreement. (Post, § II.D.)
D. No Triable Issue Regarding Testamentary Capacity.
Appellant’s complaint sought to invalidate the second trust amendment, will codicil, and third trust amendment request, based on the fact that “my mother was not of sound and disposing mind.” It alleged that “[o]n or about July 14, 2004 [the date of the second trust amendment] and up until her death, Clydagh Luana Hedges was not of sound and disposing mind, mentally extremely depressed and lacking sufficient mental capacity to make or execute the Trust Amendments or Will Codicil.” The complaint described Clydagh as “suffering from extreme deep depression due to the death of her only daughter, in declining and very poor physical and mental health, ill with terminal cancer . . . .”
A person who is 18 years or older and of sound mind may make a will. (Prob. Code, § 6100.) A person 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,” or “(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.” (Prob. Code, § 6100.5, subd. (a).) Anyone with the capacity to transfer property may create a trust. (13 Witkin, Summary of Cal. Law (10th ed. 2005) Trusts, § 25, p. 597.) In general, the test of capacity to transfer property is the same as for capacity to execute a will. (Tuttle v. Bessey (1955) 137 Cal.App.2d 725, 727.)
“Testamentary capacity must be determined at the time of execution of the will. [Citation.] Incompetency on a given day may, however, be established by proof of incompetency at prior and subsequent times. [Citation.]” (Estate of Mann (1986) 184 Cal.App.3d 593, 602.) “The burden is on the contestant to overcome the presumption that a testator is sane and competent.” (Ibid.)
To demonstrate that there was no triable issue regarding Clydagh’s testamentary capacity, respondents submitted declarations from Crockett, George, and respondent Wilcox. They stated that although Clydagh was understandably grief stricken over the death of Eva, she managed her grief and was otherwise “happy and lively,” “lucid until the end,” able to manage her finances, “focused on life, loving and caring,” and “alert and communicative” even when she was dying. Respondents stated in their separate statement of undisputed facts that Clydagh was mentally fit and capable of making decisions when she made changes to her estate plan. They cited the deposition testimony of Crockett, who stated that although Clydagh was “very depressed” after Eva’s death, “she went up, up, up” after Clydagh and Crockett vacationed in Hawaii in May 2004. Crockett also testified that Clydagh “was just as sharp the night before she—some of the things that were said in the room the last night—I saw her within 24 hours of her death—were as sharp as they could be.” With this evidence, respondents met their burden of showing that appellant’s claim that Clydagh lacked testamentary capacity had no merit. (§ 437c, subd. (p)(2).)
On appeal, appellant argues that Crockett’s deposition testimony did not demonstrate that Clydagh was mentally fit when she made changes to her estate plan because “[a]t best, the cited passage offers Phyllis Crockett’s lay opinion that, on the night before Clydagh Hedges’ death, ‘some of the things’ Clydagh said ‘were as sharp as they could be.’ ” (Original italics.) Appellant simply ignores Crockett’s testimony that Clydagh was in good spirits after a Hawaiian vacation in May 2004, and he fails to address any of respondents’ other evidence regarding Clydagh’s testamentary capacity, claiming he has no obligation to do so because it was not referenced in respondents’ separate statement.
More to the point, appellant fails to demonstrate that there is a triable issue of fact regarding Clydagh’s testamentary capacity. Citing appellant’s deposition testimony, respondents’ separate statement stated that plaintiff had no evidence that Clydagh did not know the terms of the second trust amendment, that she was unduly influenced into making the amendment, or that she was unable to make personal decisions. Appellant testified that he did not have any evidence that Clydagh was unduly influenced to make the second trust amendment, and that the only evidence he had that Clydagh was unable to make proper personal decisions was that “[w]hen it came to situations dealing with Eva, she was not sound.” To the contrary, respondents presented evidence that Clydagh revised her trust and will in part because she wanted respondent Wilcox—who was “like another daughter to Clydagh”—to receive the portion of her estate that she had received from Eva, Wilcox’s domestic partner. We disagree with appellant that his testimony creates a triable issue of fact as to whether Clydagh was competent to amend her trust.
We likewise disagree with appellant’s argument that the fact Clydagh eliminated the special-need trust for Mark was not a “sound” decision. Appellant characterizes this change as “[i]nexplicabl[e].” To the contrary, respondents offered evidence that the special-needs trust was eliminated because of Clydagh’s concern that an inheritance would make Mark ineligible for state aid, and because she had arranged for respondent Wilcox and Tony to take care of Mark’s needs.
Appellant repeatedly argues that Dimeff’s office advised Clydagh that any agreement that Wilcox and Tony care for Mark is unenforceable, and that the agreement is, in fact, unenforceable. Even assuming that is true, it does not create a triable issue regarding Clydagh’s testamentary capacity. In appellant’s request for judicial notice (which this court granted on July 10, 2007), he points to a declaration that was filed by respondents in the trial court, while this appeal was pending, in support of their petition for determination of persons entitled to distribution. Sandra Van Guilder, an attorney in Dimeff’s law office, stated that she talked with Clydagh during the first week in January 2005 about changes she wanted to her trust. Clydagh “stated that she wanted to leave her estate equally between [respondent] Wilcox and [Tony], and requested that [Dimeff’s law offices] take Mark Blackwood out as a beneficiary of her estate as he was on SSI. She stated that she knew [Wilcox] and [Tony] would take care of any special needs Mark might want or need. I told her that [Wilcox] and [Tony] would not be under any obligation to help Mark and that she should specifically disinherit him in her trust to prevent any future problems. Clydagh stated that she was not comfortable with the disinheritance language regarding Mark, as she thought it was too harsh. I suggested that she could leave Mark a pecuniary amount and then she wouldn’t have to use the disinheritance language. Once again, I advised her that this was a major change to her estate plan and I wanted a written request signed and dated by her before I would prepare the new amendment. I knew she was ill and wanted to get the amendment finished as soon as possible, but told her I still wanted a written request.” (Italics added.) While it is true that the italicized portion of the declaration suggests that there is no legally enforceable agreement to care for Mark, as appellant argues, the declaration as a whole actually supports respondents’ argument that Clydagh was of sound mind when she requested changes to her trust. She discussed specific provisions for Mark that would not be “too harsh,” an indication that she understood the nature of the proposed testamentary act. (Cf. Prob. Code, § 6100.5, subd. (a)(1)(A).)
There is no evidentiary support for appellant’s assertion that Mark is currently “without financial support,” or that Wilcox conceded that she has not complied with her agreement to care for Mark. Wilcox explained that she and Tony opened a bank account for Mark but were prevented by this litigation from fully funding it. She also explained that she is “still committed” to helping Mark “any way [she] could,” even though appellant moved Mark out of the state without telling her beforehand. When asked at his deposition about the source of money for the bank account opened for the benefit of Mark, Tony testified, “It was partly from my own. At this point I don’t have the full $10,000 in there because we’ve been using it, but between [Wilcox] and I, we put money in there to pay for him.”
Appellant argues that the fact he disputed whether he “inherited” a house from his father (the reason Clydagh gave for reducing the portion of her estate she left to appellant) precluded the granting of summary judgment. His counsel suggested at the hearing on respondents’ summary judgment motion that because Clydagh was mistaken that appellant “inherited” a home from his father, this demonstrates that she lacked testamentary capacity. However, when asked at his deposition whether appellant “receive[d] an inheritance at the death of [his] father,” appellant responded, “We [my family] received our house.” While it is apparently not technically true that appellant inherited a house from his father, the fact that appellant himself testified that he received the house through an “inheritance” shows that any supposed misunderstanding Clydagh held about the house does not demonstrate she was not of sound mind.
Appellant provided a judgment to the trial court settling the estate of his father that did not include the distribution of a house to him. According to George, in 2001 “Clydagh confided that [appellant] and his family had been well taken care of in his father’s Will. Clydagh stated that Dan’s mortgage was paid in full from their father’s estate, as he wished. Clydagh wanted to make sure Eva, Nancy Wilcox (Eva’s registered domestic partner) and her grandson, Tony, were well taken care of in her Will.”
Finally, appellant testified that Clydagh was “in a weakened state” around the time she amended her trust. Medical records show that on January 26, 2005, Clydagh had to use a wheelchair to get from the car to a doctor’s appointment because she “just felt weak,” and that she had “been feeling quite miserable” because of pain. We disagree with appellant’s argument that evidence of Clydagh’s weakened physical state shortly before her death creates a triable issue of fact as to whether Clydagh was competent to amend her trust. “ ‘It has been held over and over in this state that old age, feebleness, . . . [and] physical disability . . . do not furnish grounds for holding that a testator lacked testamentary capacity.’ ” (Estate of Mann, supra, 184 Cal.App.3d at p. 603.) Moreover, although the medical records submitted by appellant suggest that Clydagh (who was suffering from stage II multiple myeloma cancer at the time) was in a weakened physical state in January 2005, they do not suggest that she was in a weakened mental state. Indeed, the doctors who wrote the records reported that they discussed Clydagh’s diagnosis with her, and gave her specific instructions that she understood.
E. No Triable Issue Regarding Undue Influence.
Appellant’s complaint sought to invalidate the second trust amendment, will codicil, and third trust amendment request, based on the fact that respondents exercised undue influence on Clydagh to make the changes. The complaint alleged that the second trust amendment, will codicil, and third trust amendment request were created “under the undue influence, direct involvement, pressure and assistance” of respondents.
The execution of a will or trust is ineffective to the extent that the execution was procured by undue influence. (Prob. Code, § 6104; 1 Cal. Trust and Probate Litigation (Cont.Ed.Bar 2007) Grounds for Setting Aside Will or Trust, § 6.21, p. 133 [determination of undue influence same for will and trust contests].) “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 (2002) 28 Cal.4th 89, 96.) Although an individual who challenges a testamentary instrument usually bears the burden of proving undue influence (Prob. Code, § 8252), “a presumption of undue influence, shifting the burden of proof, arises upon the challenger’s showing 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, supra, at pp. 96-97; see also Estate of Mann, supra, 184 Cal.App.3d at p. 606.) The presumption arises only if all of the required elements are shown. (Estate of Sarabia (1990) 221 Cal.App.3d 599, 605.)
Respondents concede that there was a confidential relationship between respondent Wilcox and Clydagh; however, they argued in moving for summary judgment that Wilcox was not an active participant in the amendments to Clydagh’s estate plan, and that the amendments did not unduly benefit Wilcox. Wilcox acknowledged that Clydagh asked her to replace Eva as the successor trustee of Clydagh’s living trust, and that she agreed. Crockett testified that when she and Clydagh discussed changes to Clydagh’s estate plan in January 2004, Wilcox had “some knowledge but no percentages . . . because she would—probably wouldn’t have wanted this, you know. . . . Clydagh and I felt that [Wilcox] did not need to know how she was mentioned in this trust.” Crockett also testified that she and Clydagh were the only ones involved in conversations in December 2004 and January 2005 regarding making changes to Clydagh’s estate. She also testified that Wilcox “had no input and no knowledge [of the second trust amendment], and this was the way we sort of figured was the best way to leave it,” and that Wilcox “never ever, ever, ever influenced Clydagh in any way, shape or form about this whole trust.” With this evidence, respondents met their burden of showing that appellant’s claim that Clydagh acted under undue influence had no merit. (§ 437c, subd. (p)(2).) We recognize it is difficult to make a showing that summary judgment is appropriate where a plaintiff alleges undue influence, because of the inherent difficulties of proof in undue influence cases. (Hagen v. Hickenbottom, supra, 41 Cal.App.4th at p. 187 [defendant did not attempt to negate foundational facts that would shift burden of proof to proponent of trust or will].) Here, however, respondents established that there was no presumption of undue influence, and they offered the testimony of a close friend of Clydagh who stated that Wilcox did not exert pressure on Clydagh. (Cf. ibid.)
Appellant argues for the first time on appeal that Crockett lacked personal knowledge of the nature and content of conversations between Clydagh and respondent Wilcox that took place outside of Crockett’s presence. He claims that other evidence of meetings with Clydagh and Wilcox (and others) demonstrates that there was a triable issue of fact regarding Wilcox’s supposed undue influence.
First, appellant points to copies of Clydagh’s written requests in early 2004 for changes to her trust (which resulted in the second trust amendment). According to Dimeff, Clydagh contacted him in approximately January 2004 requesting changes to her trust after the death of her daughter. His office requested that she put her requested changes in writing. His office received her written requested changes in a document dated January 17, 2004. Clydagh requested that (1) Wilcox replace Eva as her executor, (2) $5,000 be left to appellant upon her death, (3) the balance of her estate go to Tony (who would receive 40 percent), to Wilcox (who would receive 30 percent), and to Mark (who would receive 30 percent held in trust, with Wilcox as the administrator), (4) the share of Eva’s house that Clydagh inherited from Eva be added to her estate, (5) George (her renter) be allowed to stay in her home for a “fair period of time” following Clydagh’s death, and (6) Crockett have the first right of refusal at taking over the car that was purchased with money advanced from Crockett to Clydagh. Almost as soon as Dimeff’s office received Clydagh’s requested changes, Clydagh called his office saying she had “ ‘changes to these changes.’ ” His office received a slightly modified version of the request for changes (which was also dated January 17, 2004) in an envelope postmarked February 6, 2004.
The versions of the instructions submitted to the trial court were incomplete; this court granted appellant’s unopposed motion to augment the record to include the second page of each letter requesting changes.
At the bottom of the revised instructions, Clydagh wrote, “On Saturday March 6, 2004 TONY, NANCY [Wilcox], CLYDAGH, AND PHYLLIS [Crockett] went over this ‘Request for Change’ of my TRUST. All have agreed with my requests subject to some explanatory changes. All such changes are in ITALICS to expedite identification of changes made to the original request. These changes become official on this date.” (Unnecessary emphasis removed.) The italicized portion of Clydagh’s requested changes related to the appointment of Tony as a successor executor in the event Wilcox was unable to serve, the appointment of Tony as a co-administrator of Mark’s special-needs trust, and specific instructions regarding George’s continued occupancy of Clydagh’s house after Clydagh’s death. The document does not, as appellant repeatedly suggests, show that Wilcox “agreed” that she inherit more of Clydagh’s estate. Rather, it suggests that Clydagh met with Wilcox and others regarding her request for the care of Mark, as well as other issues.
Second, appellant points to the deposition testimony of Tony where he discussed various conversations that he and Wilcox had with Clydagh. Tony testified that Clydagh tried to give Wilcox and him her will, but “we weren’t sure. We thought that it was too much. And she [Clydagh] insisted, and [Wilcox] and I worked out a deal so that I took care of Mark and [Wilcox] would still be the trustee. And Grandma went over all the stuff she wanted us to do.” Tony also testified that he, Eva, Clydagh, Wilcox, “Amy,” and Crockett met about six months before Eva’s death to “go[] over Grandma’s wishes and my mother’s issues with certain problems in her past that influenced Grandma’s will.” In another meeting shortly before Clydagh’s death, Clydagh met with Tony, Amy, Wilcox, and possibly Crockett to give them a packet of “trust letters.” Clydagh also discussed with Wilcox and Tony their agreement to take care of Mark, and that “50-50 would be the estate.”
The record does not reveal who “Amy” is.
While it is no doubt true, as appellant claims, that the cited evidence shows that respondent Wilcox discussed with Clydagh certain aspects of Clydagh’s trust, there is simply no evidence that Wilcox actively participated in procuring the preparation or execution of any testamentary device. (Rice v. Clark, supra, 28 Cal.4th at pp. 96-97.) Indeed, although Tony’s deposition testimony lacks detail, it appears that it was Clydagh (as opposed to Wilcox) who initiated meetings about her estate. Appellant failed to provide evidence of “circumstances inconsistent with voluntary action.” (Estate of Mann, supra, 184 Cal.App.3d at p. 607.) “ ‘[Mere] opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient.’ [Citations.] There must be activity by the beneficiary in the actual preparation of the will. [Citation.]” (Ibid.) Appellant perhaps demonstrated that Wilcox had a mere opportunity to influence the mind of Clydagh, but not that she ever did so.
As to whether Wilcox unduly profited from Clydagh’s trust and will: “Whether between relatives, or between friends and relatives, numerous cases have held that a will is not unnatural where it provides for one who has had a particularly close relationship with, or cared for the testator, or is in comparatively greater need of financial assistance.” (Estate of Mann, supra, 184 Cal.App.3d at p. 607.) We acknowledge that determining whether a beneficiary’s profit is “ ‘undue’ ” involves “a qualitative assessment of the relationship between the decedent and the beneficiary,” and that evidence of the relative standing between a beneficiary and a contestant “may include dispositional provisions in previous wills executed by the decedent [citation], or past expressions of the decedent’s testamentary intentions . . . [or] . . . a showing of the extent to which the proponent would benefit in the absence of the challenged will.” (Estate of Sarabia, supra, 221 Cal.App.3d at p. 607, italics added.) Given the uncontradicted evidence that Wilcox was close with Clydagh, traveled with her, celebrated birthdays and holidays with her and her family members, was there for her “a hundred percent of the time,” and was like another daughter to Clydagh, it can hardly be said that Wilcox unduly profited under changes to the distribution of Clydagh’s estate.
Appellant argues that in considering whether Wilcox unduly benefited from Clydagh’s amended trust, we should look to the fact that Clydagh changed the distribution of her estate so that instead of her children receiving equal shares of her estate, Wilcox and Clydagh’s grandson received the bulk of it. This court has previously rejected a test of looking to a testamentary instrument alone to determine whether there is an undue benefit, because such a test would “impinge on the testator’s right and freedom to devise property to persons or entities with whom the testator has no genetic or legal relationship.” (Estate of Sarabia, supra, 221 Cal.App.3d at p. 608.) In sum, there was no triable issue of fact regarding whether Wilcox (or anyone else) exerted undue influence over Clydagh.
F. No Other Disputed Fact that Precluded Summary Judgment.
Appellant argues that other supposed “defects” in the evidence that was set forth in respondents’ separate statement demonstrate that summary judgment was inappropriate. We disagree.
Citing appellant’s deposition testimony, respondents’ separate statement stated, “In a letter dated January 16, 2005 [Clydagh] explained to [appellant] the reason why she left him $5,000.00 instead of 1/3 of her entire estate.” Appellant purported to dispute this statement in his separate statement. However, he offered no supporting evidence and instead simply argued that the letter showed signs of undue influence or “confusion,” an argument we rejected above. (Ante, § II.D.) Appellant argues for the first time on appeal that respondents’ separate statement is defective because it cited appellant’s deposition testimony referring to a “ ‘document dated January 16, 2005,’ ” but did not actually cite to a letter from Clydagh. This argument ignores the fact that appellant himself offered the letter in support of his opposition to summary judgment. (§ 437c, subd. (g) [trial court may rely on evidence submitted in opposition to summary judgment motion in determining whether there are triable issues].)
Likewise, respondents stated below that appellant had the January 16, 2005 letter from Clydagh analyzed by an expert who determined that the letter contained Clydagh’s handwriting. Appellant did not dispute this fact below but attempts to do so on appeal because his deposition testimony referred to “a document of unknown origin.” This objection is not well taken in light of the statement by appellant’s counsel during appellant’s deposition that “I don’t believe we’re going to be questioning the—that the handwritten thing was written by her. What we’re going to question is the content.” Moreover, appellant himself submitted the letter from his mother in support of his opposition to summary judgment, describing it as a “[c]opy of the Handwritten letter by Decedent Clydagh Luana Hedges dated January 16, 2005.” Even assuming there was any “defect” in respondents’ separate statement, it is beyond dispute that the January 16, 2005 letter to appellant was written by Clydagh.
Appellant next complains about the evidence that supported respondents’ statement that Clydagh “was impressed with Wilcox’s performance as the trustee of [Eva’s estate] and wanted Wilcox to serve as trustee of her estate,” because the cited deposition testimony actually referred to Wilcox’s performance as the “executor” (as opposed to “trustee”) of Eva’s will. Although appellant’s characterization of the cited deposition testimony is technically accurate, appellant offers no evidence that Clydagh did not, in fact, wish that Wilcox oversee her estate.
In short, appellant fails to demonstrate that there are triable issues of material fact precluding summary judgment.
G. Appellant Waived Claim that Third Trust Amendment Request Is Unenforceable.
As appellant acknowledges, he did not allege in his complaint that Clydagh died without ever executing an amendment to her trust that incorporated the instructions in the third trust amendment request. In opposing summary judgment, appellant did not argue that the third trust amendment request was unenforceable because Clydagh did not execute a formal amendment. He argues for the first time on appeal that the third trust amendment request is unenforceable as an amendment to Clydagh’s trust, because it was an informal instrument that was not phrased so as to preclude any doubt that Clydagh intended the informal instrument to make further testamentary provisions. (Estate of Spencer (1948) 87 Cal.App.2d 591, 598.) Having failed to direct the trial court’s attention to this theory in his opposition to summary judgment, appellant waived this argument. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 28-29.) Although appellant argues that this is a legal issue arising from undisputed facts that may be raised for the first time on appeal, we decline to exercise our discretion to review the issue. (Hussey-Head v. World Savings & Loan Assn. (2003) 111 Cal.App.4th 773, 783, fn. 7.)
H. Summary Judgment Appropriate as to Additional Causes of Action.
Appellant’s complaint also alleged causes of action for intentional tortious interference with expectancy and breach of fiduciary duties. On appeal, appellant argues that, having demonstrated that there were triable issues of material fact on his first two causes of action, “reversal is equally compelled as to” his remaining causes of action. Having concluded that there was, in fact, no triable issue of material fact as to appellant’s first two causes of action, we likewise conclude that reversal is not “compelled” as to his remaining causes of action, especially in light of the fact that appellant directs us to no specific evidence that demonstrates a triable issue as to his interference with expectancy and breach of fiduciary duty causes of action.
We also reject appellant’s alternative argument that reversal is “required” in order to permit him to amend his remaining two causes of action. As respondents argued in moving for summary judgment, tortious interference with expectancy is not a tort that has been recognized in California. (Hagen v. Hickenbottom, supra, 41 Cal.App.4th at p. 173.) As for appellant’s breach of fiduciary duty claim, appellant lacked standing to state a cause of action as to Clydagh. (Johnson v. Superior Court (1995) 38 Cal.App.4th 463, 473-474.) Having failed to offer any argument in his opposition to summary judgment on these issues, he has waived his ability to do so now. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at pp. 28-29.)
III.
DISPOSITION
The judgment is affirmed. Respondents shall recover their costs on appeal.
We concur: Ruvolo, P. J., Rivera, J.