Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County Super.Ct.No. RIC436668, Edward D. Webster, Judge. Affirmed.
Donald R. Davidson III for Plaintiff and Appellant.
Michael S. Goergen for Defendants and Respondents.
OPINION
McKinster, J.
PROCEDURAL AND FACTUAL HISTORY
In June 2000, Carl and Elinor Nebe executed a living trust and mutual pour-over wills. Carl died on March 9, 2003. He was 77 years old. Elinor died on January 24, 2004. She was 85 years old.
The Nebes had no children. Under the terms of their trust, upon the death of the second of them, the estate would be distributed among three nieces and a nephew, defendants Judy Halstead Earp and Suzy Kaspereen, their sister Peggy Graham and their brother Roland Halstead. (These four individuals are sometimes referred to herein as the Halstead siblings or the Halsteads; Roland is sometimes referred to in the record as “Sparky.”) Judy Earp and Suzy Kaspereen each received 45 percent of the estate, while Peggy Graham and Roland Halstead received five percent each. The trust omitted any mention of the Nebes’ four other nieces and nephews: plaintiff Ronald Smith and his sister Donna Lunt, and Jonathan Fillbach and Mauri Fillbach Jones. Smith challenged the validity of the wills and the trust, asserting that the Nebes lacked testamentary capacity when they executed their wills and the trust documents, and that defendants exercised undue influence to procure disposition of the Nebes’ estate in their favor.
Only Judy Earp, Suzy Kaspereen and Ronald Smith are parties to the litigation.
The evidence at trial showed that the Nebes had been close to all of their nieces and nephews when they were growing up and treated all of them with equal affection and generosity. From this, Smith deduced that the Nebes had always intended to divide their estate equally among the cousins. He acknowledged, however, that the Nebes had never told him that.
The evidence supports the conclusion that the Nebes were, in fact, closer to the Halstead siblings than to the other cousins. The Halsteads’ mother, Evelyn, was the twin sister of Elinor Nebe. The Nebes had helped to raise Evelyn’s children when she went through a divorce. The Halstead siblings lived with the Nebes for a time and considered them second parents. Peggy Graham testified in her deposition that Elinor told her, when she was about nine years old, that she and Carl intended to leave their estate to her and her siblings. In later years, the Nebes apparently relied to a far greater extent on Judy and Suzy than on any of their other nieces and nephews, and viewed them with especial love and respect.
Although the court questioned the credibility of Peggy Graham’s testimony in many respects, it apparently found this statement credible.
Carl Nebe had suffered for many years from a paranoid delusion that he was under government surveillance and was being subjected to “zapping” by the government. Ronald Smith testified that Carl had covered the walls in many areas of the house with foil and that he slept in odd places, such as in a closet or behind a sofa, to avoid being “zapped.” He said that Carl was concerned about being “zapped” through the telephone. Judy Earp acknowledged that Carl believed he was under surveillance and was being “zapped” by radiation. However, she denied that either Carl or Elinor expressed concerns about being “zapped” through the telephone or microwave oven. She had seen no evidence that Carl was wearing foil under his clothing or that he slept in a closet or behind the sofa. No other witness saw foil on walls except in Carl’s computer room or on any appliance, or saw any indication that Carl was wearing foil under his clothing or slept in any unusual place.
Bryan Kemp, a clinical psychologist and professor of clinical psychology, testified that Carl Nebe’s paranoid psychosis had rendered him incapable, since at least the late 1980’s, of making a valid testamentary transfer. He was unable, however, to state in what manner Carl Nebe’s delusion resulted in the testamentary disposition.
Dr. Kemp also testified that, in his opinion, by the time the wills and trust were executed, both Carl and Elinor were so profoundly demented from Alzheimer’s that both lacked testamentary capacity. The court did not find Dr. Kemp’s conclusions credible. Other evidence showed that Elinor had become forgetful and often repeated herself in conversation. She attended a family wedding wearing clothing some family members felt was inappropriate, or not up to her usual standards. There was no evidence, however, that she did not recognize and remember family members.
According to Smith, Carl had begun to use maps to assist him in finding ordinary neighborhood locations, such as the pharmacy, and had placed sets of car keys around the house so that he could find them. Donna Lunt had not observed this. Donna’s daughter, Jeanette Price, testified that Carl had always used maps, even when he drove to places he was familiar with. He was always the one who gave other family members directions.
In his opening brief, Smith asserts that there was evidence that Carl had become violent and was physically abusing Elinor. However, the only evidence to that effect was Donna Lunt’s testimony that she had observed Elinor with a black eye and saw “some patches” on a wall in the house. Ronald Smith testified that he observed holes that were “round like a fist” in the bathroom wall.
Jan Copley, the attorney who prepared the Nebes’ wills and trust, testified that although she was aware of Carl’s delusion, she saw no signs that either of the Nebes was cognitively impaired or lacked testamentary capacity, or that the delusion resulted in the testamentary disposition. Both knew what property they owned and knew exactly how they wanted it distributed upon their deaths. Their primary concern was ensuring that the surviving spouse was cared for after the death of the first spouse, and both wanted the bulk of the estate to go to Judy and Suzy after their deaths.
Judy had set up the appointment with Copley, and she and Suzy had taken the Nebes to appointments with Copley. However, Copley saw no indication that Judy or Suzy had influenced their decisions. They did not participate in the discussions in Copley’s office about the structure of the estate plan or the distribution of the assets.
Smith contended that Judy and Suzy had isolated the Nebes from other family members and had exercised undue influence to obtain the favorable disposition of the estate. In support of this contention, he produced evidence that Elinor’s telephone service did not include long distance, precluding her from calling family members who lived outside the Riverside area, and that his sister was told not to telephone Elinor when she was hospitalized immediately before her death. Donna Lunt acknowledged, however, that when she did call the hospital, she was told that Elinor was in the emergency room and that a phone could not be brought to her. Elinor died shortly thereafter. He also based his contention that the Nebes were isolated from other family members on the fact that Judy and Suzy had not informed the other cousins that the Nebes had executed wills and a trust or of the Nebes’ decision to leave the bulk of their estate to them.
The Nebes continued to live independently and to manage their own affairs until late 2002. Carl was first hospitalized for treatment of a heart ailment. He was ultimately placed in a facility for Alzheimer’s patients because he had shown a tendency to wander off when he was in a less restrictive facility. Elinor was placed in a facility which apparently does not accept Alzheimer’s patients. Although the death certificate for each of the Nebes lists Alzheimer’s dementia as a contributing cause of death, there was no evidence that either had been diagnosed with Alzheimer’s. Judy had expressed a concern that Carl suffered from the disease in October 2001. At about that time, it had come to light that since about June 2001, Carl had given approximately $38,000 to a neighbor, who told him that he could help him avoid the government surveillance. There was no evidence that Carl was financially irresponsible prior to June 2001.
At the conclusion of Smith’s case-in-chief in a bench trial, the court granted defendants’ motion for judgment pursuant to Code of Civil Procedure section 631.8, finding that there was no credible evidence that the Nebes lacked testamentary capacity when they executed their wills and trust documents in June 2000, or that defendants exercised undue influence. Smith filed a timely notice of appeal.
“After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. The court may consider all evidence received, provided, however, that the party against whom the motion for judgment has been made shall have had an opportunity to present additional evidence to rebut evidence received during the presentation of evidence deemed by the presenting party to have been adverse to him, and to rehabilitate the testimony of a witness whose credibility has been attacked by the moving party. . . .” (Code Civ. Proc., § 631.8, subd. (a).)
LEGAL ANALYSIS
STANDARD OF REVIEW
In ruling on a motion for judgment pursuant to Code of Civil Procedure section 631.8, the court, sitting as the trier of fact, may grant judgment for the defendant if it is persuaded that the plaintiff has failed to sustain his or her burden of proof. Because the court is authorized to weigh the evidence and make findings of fact, it may refuse to believe witnesses and may draw conclusions at odds with expert opinion. (Roth v. Parker (1997) 57 Cal.App.4th 542, 549-550.) We may reverse the order granting the motion only if the court’s findings are not supported by substantial evidence. (Id. at p. 549.) We view the evidence in the light most favorable to the court’s ruling, resolving all conflicts and drawing all reasonable inferences from the evidence to support the judgment. (Bickel v. City of Piedmont (1997) 16 Cal.4th 1040, 1053.) We must affirm the judgment if there is substantial evidence, contradicted or uncontradicted, which supports the judgment. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 766.)
Smith’s argument in his opening brief is based entirely on the faulty premise that the nonsuit standard of review applies, i.e., that we must assume the truth of the plaintiff’s evidence. He misreads the holding of the case he cites in support of that contention. Contrary to Smith’s assertion, the court in Franco Western Oil Co. v. Fariss (1968) 259 Cal.App.2d 325, did not hold that the standard of review applicable to motions for nonsuit in a jury trial applies to motions for judgment brought pursuant to Code of Civil Procedure section 631.8. Rather, the court contrasted the two standards, holding that on appeal from a judgment entered pursuant to Code of Civil Procedure section 631.8, the trial court’s findings are reviewed for substantial evidence. (Franco Western Oil Co. v. Fariss, supra, at pp. 328-329.) In his reply brief, Smith acknowledges that the standard of review is substantial evidence, but continues to argue that the trial court erred because substantial evidence demonstrated lack of capacity and undue influence. At times, he contends that we are to review the court’s ruling for abuse of discretion.
Because Smith misunderstands the standard of review, he presents only the evidence which favors his position. However, the trial court made it clear that it did not believe Smith’s testimony, and that it was not persuaded that there was any credible evidence that either of the Nebes was so cognitively impaired that they were unable to understand their testamentary acts. Nor did it find that there was any evidence that Carl Nebe’s delusion caused him to make the disposition that he did. In effect, Smith is asking us to reweigh the evidence and conclude that the trial court should have believed his evidence. That, of course, we may not do. As long as there is substantial evidence which supports the trial court’s conclusions, we must affirm its judgment, even if there is also evidence which would support a different conclusion if it had been believed by the trier of fact. (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.)
The trial judge found Smith’s testimony almost entirely without credibility. He said that Smith was one of the “worst” witnesses he had ever seen. Determination of the credibility of witnesses, by observation of their demeanor and manner of testifying, is a matter within the exclusive purview of the trier of fact, and we will not second-guess the trial court’s conclusions concerning Smith’s credibility. (See Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, overruled on other grounds in Liodas v. Sahadi (1977) 19 Cal.3d 278, 287.)
An appellant has the burden to show affirmatively both error and prejudice. (In re Marriage of McLaughlin (2000) 82 Cal.App.4th 327, 337.) Because Smith misunderstands the standard of review, he has utterly failed to meet this burden. We may therefore simply disregard Smith’s arguments and affirm the judgment. (Paterno v. State of California (1999) 74 Cal.App.4th 68, 106.) Nevertheless, we have examined the record on appeal and, as we will discuss briefly, we have determined that there is substantial evidence which supports the court’s determination that Smith failed to meet his burden below.
SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S FINDING THAT PLAINTIFF FAILED TO MEET HIS BURDEN OF PROVING THAT THE NEBES LACKED TESTAMENTARY CAPACITY
A will contestant has the burden of proving lack of testamentary capacity at the time the testamentary instrument was executed. (Prob. Code, § 8252.) A person lacks testamentary capacity if, at the time of execution of the instrument, 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).)
If the testator suffers from a delusion, as Carl Nebe unquestionably did, that alone does not suffice to invalidate his will. Rather, the will contestant must establish that the will was the product of the delusion, i.e., that the delusion “‘bore directly upon and influenced the creation and terms of the testamentary instrument.’ [Citations.]” (Estate of Lingenfelter (1952) 38 Cal.2d 571, 581.) Here, not even Dr. Kemp could explain how Carl’s delusion about government surveillance would have caused him to favor the Halstead siblings over the other cousins, or Judy and Suzy over their brother and sister. Moreover, there was no evidence whatsoever that the Nebes ever intended to leave any part of their estate to anyone other than the Halstead siblings. Thus, the evidence supports the court’s conclusion that there was no evidence that Carl Nebe’s delusion resulted in the bequest to the Halstead siblings.
The court’s conclusion that there was no credible evidence that either of the Nebes suffered from such a degree of dementia when they executed their testamentary documents that they lacked testamentary capacity is also supported by substantial evidence. There was no evidence, other than the testimony of Dr. Kemp, that either of the Nebes was unable to understand the nature of the testamentary act, to understand the nature and situation of their property or to remember and understand their relationships with their remaining family members. (Prob. Code, § 6100.5, subd. (a)(1).) The court was, of course, entitled to disregard Dr. Kemp’s evidence if it did not find it credible. (Roth v. Parker, supra, 57 Cal.App.4th at p. 550; Howard v. Owens Corning, supra, 72 Cal.App.4th at p. 632.) Jan Copley testified that, based on her observations of the Nebes and her conversations with them, she firmly believed that the Nebes were competent under that standard. Although Judy Earp acknowledged that she had some concerns about Carl’s delusions, she had seen no evidence that he or Elinor suffered from dementia or were unable to conduct their financial affairs. In her experience, neither displayed more than mild forgetfulness or confusion. Up until the end of 2002, Carl continued to run the household and to pay the bills. With the exception of the $38,000 payment to the neighbor more than a year after the execution of the wills and trust, the Nebes had been financially responsible, and had continued to live independently for two and a half years after they executed the wills and trust.
Smith contended that the evidence that Carl Nebe gave away $38,000 demonstrated that he lacked testamentary capacity. However, that incident occurred more than a year after the execution of the wills and trust. The court reasonably concluded that this incident did not tend to prove that Carl lacked testamentary capacity in June 2000.
Smith also asserted that Carl’s incompetence was established by the evidence that he sold a small apartment building owned by his mother for less than its fair market value. Carl sold the building in October 2000, for approximately $250,000. Smith claimed that the apartment building was worth $400,000. The only evidence in support of that claim was Judy Earp’s testimony that in 1999 she had estimated that the building was worth $400,000. However, Earp had no expertise in real estate valuation. Copley’s notes showed that Carl estimated it to be worth $300,000. Copley felt that the building should have been worth more than $250,000, but had never seen an appraisal and did not know its market value. Moreover, the evidence showed that the building was old and in need of repair, and that it was subject to rent control. Judy also testified that Carl disliked dealing with the tenants. This evidence supports the court’s conclusion that Carl sold the building for a reasonable price, and that even if he sold it for somewhat less than he could have gotten, he had rational reasons for doing so.
Thus, substantial evidence supports the trial court’s conclusion that Smith failed to meet his burden of proving that either of the Nebes lacked testamentary capacity in June 2000.
SUBSTANTIAL EVIDENCE SUPPORTS THE TRIAL COURT’S CONCLUSION THAT PLAINTIFF FAILED TO MEET HIS BURDEN WITH RESPECT TO HIS CLAIM OF UNDUE INFLUENCE
A will contestant also has the burden of proving undue influence. (Prob. Code, § 8252.) “‘“Undue influence is established when it is shown that the testamentary disposition was brought about by undue pressure, argument, entreaty or other coercive acts that destroyed the testator’s freedom of choice so that it fairly can be said that he was not a free agent when he made his will [citation]; . . . the circumstances proven must be inconsistent with the claim that the will was the spontaneous act of the testator.” . . .’ [Citation.]” (Conservatorship of Davidson (2003) 113 Cal.App.4th 1035, 1059, fn. 15, disapproved on other grounds in Bernard v. Foley (2006) 39 Cal.4th 794, 816, fn. 14.) A presumption of undue influence arises if all of the following elements are shown: “(1) the existence of a confidential relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in the actual preparation or execution of the will, such conduct not being of a merely incidental nature; and (3) undue profit accruing to that person by virtue of the will.” (Estate of Sarabia (1990) 221 Cal.App.3d 599, 605.)
Here, there was no evidence that Judy Earp or Suzy Kaspereen actively participated in the execution or preparation of the will. Judy arranged for an appointment with an estate planning attorney, at the Nebes’ request. She and Suzy drove them to the appointment but did not participate in any way in the decisions as to the how the estate would be distributed. This is no more than incidental participation in the preparation of the instruments.
There was also no evidence that either of them profited unduly as a result of the wills and trust. As noted above, the Nebes raised them for part of their childhood, and they were the daughters of Elinor’s twin sister. The evidence supports the inference that Judy and Suzy remained closer to the Nebes than either of their siblings, and that they were much closer to the Nebes than any of the other cousins. Finally, contrary to Smith’s assertion, there was no credible evidence that Judy and Suzy isolated the Nebes from other family members. Dr. Kemp opined that the Nebes were isolated by virtue of the fact that Judy and Suzy failed to tell their siblings and cousins that the Nebes had executed wills and a trust and failed to tell them about the disposition of the estate. He provided no rational explanation as to why Judy and Suzy should have taken it upon themselves to disclose to anyone that the Nebes had created an estate plan, and there was no evidence that either of them knew the terms of the wills and trust. There was no evidence that family members were not told when the Nebes were placed in residential facilities, or that they were not able to visit, write or telephone them.
Thus, the court’s conclusion that Smith did not meet his burden of making even a prima facie showing of undue influence is supported by substantial evidence.
CONCLUSION
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur: Ramirez, P.J., Miller, J.
The eight cousins are all the children of Elinor Nebe’s siblings. Carl had no siblings. The parents of both Carl and Elinor predeceased them, as had all of Elinor’s siblings. Thus, if the wills and trust were invalidated, the estate would be divided equally among Elinor’s nieces and nephews. (Prob. Code, §§ 6401, 6402.)
For convenience, we will sometimes refer to individuals by their first names.