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Estate of Ellis Wendell Fuller, Deceased. v. David Rudnick et al

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Placer)


May 11, 2011

ESTATE OF ELLIS WENDELL FULLER, DECEASED. BEULAH L. BIZIEFF, CONTESTANT AND APPELLANT,
v.
DAVID RUDNICK ET AL., PETITIONERS AND RESPONDENTS.

(Super. Ct. No. SPR5238)

The opinion of the court was delivered by: Blease , Acting P. J.

Estate of Fuller

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Beulah Bizieff filed an action contesting a will executed by her son, Ellis Wendell Fuller (Nick),*fn1 under which he left his entire estate to his niece Rachel Rudnick and nephews David and Aaron Rudnick (respondents). The contest asserted three separate grounds for invalidating the will: (1) the will had not been executed in the manner and form required by law; (2) Nick lacked testamentary capacity at the time he executed it; and (3) the will resulted from undue influence exerted by Samuel Rudnick, Nick's half-brother and respondents' father. The trial court granted summary judgment to respondents, ruling against Beulah on all claims. Beulah filed a motion for new trial (Code Civ. Proc., § 657), which the court denied. Meanwhile, respondents submitted a memorandum of costs seeking, among other things, expert witness fees. (Code Civ. Proc., § 998, subd. (c)(1).) The court denied Beulah's motion to tax those fees.

Beulah appeals from the summary judgment, arguing she established a triable issue of material fact as to each of the grounds raised in her will contest. She also challenges the trial court's postjudgment orders denying her motion for new trial and motion to tax the expert witness fees.

We shall conclude each of Beulah's contentions lacks merit and affirm the judgment and postjudgment orders.

FACTUAL AND PROCEDURAL BACKGROUND

The facts are set forth in the light most favorable to Beulah as the party opposing summary judgment. (Clayworth v. Pfizer, Inc. (2010) 49 Cal.4th 758, 764.)

Nick died on September 27, 2008. He was not married and had no children. He was survived by, among others, his mother Beulah, father Ellis Fuller, half-sisters Anastasia Bizieff and Jeanne Mieneke, half-brother Samuel Rudnick, and respondents.

Nearly a decade earlier, on December 23, 1998, Nick executed a will. The sole beneficiaries named therein are respondents. At the time of Nick's death, the net value of his estate was approximately $7,328,000. The will nominated Samuel as executor. As executor, he was entitled to a statutory fee in excess of $100,000.

The will was drafted at Nick's request by his attorney A. Morgan Jones and was executed in Jones' office. The will was witnessed by Jones and Jones' secretary, who died in 2002. By signing the attestation page, Jones and his secretary declared under penalty of perjury that "on [December 23, 1998], [Nick] declared to us . . . that this instrument, consisting of four (4) pages, including the page signed by us as witnesses, was his Will and requested us to act as witnesses to it. He thereupon signed this Will in our presence, all of us being present at the same time. We now, at his request, in his presence, and in the presence of each other, subscribe our names as witnesses." Samuel was not present when Nick executed his will. Jones understood that the document he signed was Nick's will.

Nick signed and dated the will on page three. The will reflects that it was executed on December 23, 1998; however, it appears that the "8" in 1998 was changed from a "9" to an "8." Nick initialed the bottom of pages one, two and three of the will; he did not initial page four, the attestation page signed by Jones and Jones' secretary.

Neither Beulah nor Anastasia is mentioned in the will. Nick's half-brother Samuel is referred to as his "brother." Samuel also is referred to as "Samuel H. Rudnick" and "Samuel Rudnick" rather than by his full name "Samuel H. Rudnick, Jr." Respondents are referred to as the "minor children of [Nick's] brother," although David was 18 years old when the will was executed.*fn2 Rachel's name is misspelled "Rachael."

Nick had a tremendous amount of affection for respondents. Both before and after he executed his will, Nick stated that he intended to leave his estate to respondents. Nick had a good relationship with Beulah and Anastasia. Nick sent Beulah several hundred dollars each month and told her, "You never have to worry mother . . . because I will always make sure you are doing fine."

Nick was intelligent, highly educated, well read, and detail oriented. He was not the type of person who could be influenced into doing something he did not want to do. He also "kept things confidential."

At some point in time, Nick told Anastasia that "Sam wasn't going to help take care of him -- either before or after a surgery. And that he was just going to . . . leave [Nick] there to fend for himself if [Nick] didn't sign this thing leaving everything to [Samuel] and the kids." Anastasia could not remember when Nick told her this. She did recall telling Nick, "[T]here's nothing I can do to get away. And [Nick] said that's okay. And I think he mentioned his housekeeper was there or something . . . ."

Nick spent Christmas 1998 with his long time secretary Adrienne Christensen and her husband. Christensen observed that Nick's mind was sharp during the 1998 holiday season.

On October 1, 2008, shortly after Nick's death, Jones filed a petition for probate of will and for letters testamentary on behalf of Samuel. At the time, Jones believed the original will had been lost or destroyed; therefore, he sought the admission of an unsigned will. A few days later, the original, along with a copy, was discovered in Nick's office, and on October 8, 2008, Jones filed an amended petition, which included a copy of Nick's executed and witnessed will.

On November 3, 2008, Beulah and Anastasia (Nick's half-sister) filed a will contest. The contest alleged three separate grounds for invalidating the will: (1) the "purported will" was not executed in the manner and form required by law; (2) "Nick was not of sound and disposing mind" at the time the "purported will" was executed; and (3) the "purported will is not and never was Nick's will and was made at the time of its alleged execution as a result of the undue influence of SAMUEL RUDNICK . . . ."

On January 9, 2009, respondents filed their answer to the will contest. They denied the will was invalid and challenged Anastasia's standing to contest the will. Anastasia later was dismissed from the action.

On May 7, 2009, respondents moved for summary judgment on the ground that "no triable issue of material fact exists . . . because [Nick's] will was validly executed, [Nick] was of sound mind when he executed the Will, and [Nick] was not unduly influenced into executing the Will."

After the motion was fully briefed, Beulah sought to file "supplemental evidence" in support of her opposition to "all issues sought to be summarily adjudicated." The supplemental evidence consisted of medical records pertaining to Nick dated December 11 and 18, 1998, which reflected the following: on December 11, 1998, Nick was skiing with friends when they were separated on the hill. When Nick rejoined the group, he "appeared disoriented, confused, and had a lack of short-term memory." The cause of his condition was unknown. He was taken to the hospital where he indicated "some decreased recall of the events of the day until about two hours prior to [being evaluated by a physician]." The physician described Nick as "alert" and "oriented in all spheres," but noted Nick "lack[ed] memory for about a ten-hour period during the day." In his "assessment" the physician observed that Nick's "altered mental status and amnesia which ha[d] resolved." Later that day, Nick was evaluated by a neurologist, who found that Nick's "[m]emory, long term and short term, [was] intact" and that his "[i]nsight and judgment appear[ed] to be good." Among other things, the neurologist's "plan" for Nick included an "MRA/MRI Brain." On December 18, 1998, following an "abnormal MRA of the internal carotid artery on the left," Nick had a "left cerebral carotid angiogram," which revealed "[i]n the vertical portion of the left internal carotid artery siphon, there is a 57% diameter stenosis well below the takeoff of the left ophthalmic artery" and a "40-50% diameter stenosis in the left internal carotid artery bulb associated with some ulcerated plaque in the region of the bulb."*fn3

Respondents objected to the introduction of the supplemental evidence as untimely. The trial court sustained respondents' objection and alternatively found that such evidence did "not create a triable issue of fact as to [Nick's] mental capacity at the time of execution of the will." The court granted summary judgment in favor of respondents.*fn4

DISCUSSION

I.

Beulah contends the trial court's grant of summary judgment was in error because there are triable issues of fact regarding whether (1) the will had been executed in the manner and form required by law, (2) Nick had testamentary capacity at the time he executed it, and (3) the will resulted from undue influence exerted by Samuel. To prevail on a motion for summary judgment, a defendant must show that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2).) Once a defendant has shown that one or more elements of the plaintiff's cause of action cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue. (Ibid.) To meet that burden, the plaintiff may not rely upon the mere allegations or denials in his pleadings but, instead, must set forth the specific facts showing that a triable issue of material fact exists as to that cause of action. (Ibid.; see also Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) "'A party cannot avoid summary judgment based on mere speculation and conjecture [citation], but instead must produce admissible evidence raising a triable issue of fact. [Citation.]'" (Pacific Gas & Electric Co. v. City of Oakland (2002) 103 Cal.App.4th 364, 371.)

We review the trial court's ruling on a motion for summary judgment de novo, considering all the evidence the parties offered in connection with the motion, except that which the court properly excluded, and the uncontradicted inferences the evidence reasonably supports. (Merrill, supra, 26 Cal.4th at pp. 476-477.)

A.

Beulah Failed To Raise A Triable Issue Of Material Fact

As To Whether The Will Was Duly Executed

Beulah contends the trial court erred in granting summary judgment in favor of respondents because "[t]he purported will is invalid because it has been altered," and a triable issue of fact remains as to whether the will was duly executed "because the statements of the counsel who prepared the will are untrustworthy." She also asserts the trial court abused its discretion in excluding the declaration of her handwriting expert, whose testimony she claims is relevant to the issue of the will's validity. Each of these contentions lacks merit.

A written will is validly executed if its execution complies with Probate Code*fn5 section 6110. ( § 6113.) Section 6110 sets forth the requirements for execution of a witnessed will. As relevant here, that section states:

"(a) . . . a will shall be in writing . . . .

"(b) The will shall be signed by one of the following:

"(1) By the testator.

[ ¶] . . . [ ¶]

"(c) (1) . . . [t]he will shall be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator's will."

To show the will had been duly executed, respondents came forward with the will itself, which was signed by Nick and witnessed by Jones and Jones' secretary. They also introduced Jones' declaration, in which he explained that he drafted the will at Nick's request and in accordance with Nick's instructions, Nick signed the will on December 23, 1998, in Jones' office, Jones and his secretary witnessed Nick sign the will, Jones understood the document he signed was Nick's will; and Jones' secretary died in 2002. Where, as here, only one of the subscribing witnesses is available, his "evidence alone may be sufficient to prove due execution and the unavailable witness is really not necessary . . . ." (Estate of Burdette (2000) 81 Cal.App.4th 938, 945; see also § 8253.)*fn6

Beulah responded by arguing that the will was invalid because it had been altered. In particular, she noted that the execution date had been changed from "December 23, 1999" to "December 23, 1998" and asserted that if the will was witnessed before the date was changed, it was not properly witnessed as the date on the attestation page conflicted with the date provided by the testator. Beulah repeats this argument on appeal. As we shall explain, her argument fails because there is no requirement that a witnessed will be dated, and the only evidence before the court was that the will was executed on December 23, 1998, in accordance with section 6110.

There is no requirement that a witnessed will be dated. ( § 6110; Estate of Smith (1998) 61 Cal.App.4th 259, 269 & fn. 6.) As set forth above, a written will is valid so long as it is executed in accordance with section 6110. ( § 6113.) Here, the only evidence before the trial court as to when the will was executed and witnessed was the will itself and Jones' declaration -- both of which indicated that Nick signed the will on December 23, 1998, and that Jones and his secretary witnessed Nick sign the will on that date as attested to in the will. Contrary to Beulah's assertion, the fact that the date was changed from December 23, 1999, to December 23, 1998, does not "provide a reasonable inference that the will was actually executed a year later than both the attesting witnesses claim . . . . ." On this record, such an assertion is pure speculation and, thus, is insufficient to create a triable issue of material fact as to whether the will was duly executed. (See Waschek v. Department of Motor Vehicles (1997) 59 Cal.App.4th 640, 647 (Waschek) ["'When opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork.'"].)

Beulah's claim that "[t]he proffered will is bogus because the fourth page of the actual will document was initialed, but the fourth page of the proffered will was not initialed" is equally unavailing. Contrary to Beulah's assertion, there is no evidence Jones admitted the proffered will was not the same will executed by Nick. The portion of Jones' deposition cited by Beulah makes no mention of Nick's initials or lack thereof. Elsewhere in his deposition, Jones testified that it is his practice, where he witnesses a will, to inspect the will and make sure the testator signed his name, provided the necessary portion of the date, and initialed each page.*fn7 Jones, however, never stated that he saw Nick initial the fourth page of the will. In any event, Nick's failure to initial the attestation page does not give rise to a reasonable inference that "the proffered will [contains] a substituted fourth page," as Beulah contends. On this record, such an assertion is pure speculation and, thus, is insufficient to raise a triable issue of material fact as to whether the will was duly executed. (See Waschek, supra, 59 Cal.App.4th at p. 647.)*fn8

Beulah also contends a triable issue of fact remains as to whether the will was duly executed "because the statements of the counsel who prepared the will are untrustworthy." Beulah's attack on Jones' credibility is misplaced. Relying on Rodgers v. State Bar (1989) 48 Cal.3d 300 (Rodgers), she argues she is entitled to "the reasonable inference" that Jones' testimony is untrue because he "destroyed an original or copy of the will and the entire records contained in the testator's file." As a preliminary matter, there is no evidence Jones destroyed an original of the will. The original will along with a "duplicate copy" were discovered in Nick's office following his death. Moreover, the only evidence is that Jones inadvertently destroyed Nick's will file along with Nick's litigation files.*fn9 Jones could not recall what was in the will file, but it would have been his practice to include a copy of the will in the file. Beulah's suggestion that the file contained a will different than the will sought to be probated is pure speculation. In any event, a witnesses' credibility is not a proper consideration on summary judgment. (Code Civ. Proc., § 437c, subd. (e) ["If a party is otherwise entitled to summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility."].) Rodgers, supra, 48 Cal.3d at page 305, cited by Beulah, involved the review of a recommendation of the Review Department of the State Bar Court that the petitioner be disbarred from the practice of law in California. It did not involve a motion for summary judgment, and thus, is wholly inapplicable to the issues raised in this appeal.*fn10 (Ibid.)

Finally, we need not determine whether the trial court abused its discretion in excluding the declaration of Beulah's handwriting expert because Beulah has failed to show she was prejudiced by the alleged error.

We do not presume injury from every error. (Code Civ. Proc., § 475.) To the contrary, "[n]o judgment, decision, or decree shall be reversed . . . by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the . . . party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed." (Ibid.; see also Evid. Code, § 354 ["A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous exclusion of evidence unless the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice . . . ."].)

In his declaration, Beulah's handwriting expert opined that "the handwritten last number of the year was originally naturally written as an Arabic numeral '9', but was then naturally or unnaturally altered to an Arabic numeral '8.'" He was unable to tell whether the alteration of the "9" to an "8" was a natural, normal handwriting style or whether it "was forced or unnatural for the author to write that way." The expert's declaration adds nothing. In reviewing the trial court's ruling, we assume the date was altered, and the expert's inability to tell whether the alteration was natural or forced does not create a triable issue as to the validity of the will. Accordingly, Beulah failed to raise a triable issue of material fact as to whether the will was duly executed.

B.

Beulah Failed to Raise A Triable Issue of Material

Fact As To Nick's Mental Capacity

Beulah next contends the trial court erred in granting summary judgment in favor of respondents because a triable issue of fact remains as to whether Nick had the requisite mental capacity at the time he executed the will. We disagree.

A testator's mental capacity is ordinarily presumed. (Estate of Mann (1986) 184 Cal.App.3d 593, 602.) "An individual is not mentally competent to make a will if at the time of making the will either of the following is true: [ ¶] (1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual's property, or (C) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will. [ ¶] (2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual's devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done. ( § 6100.5, subd. (a).)

"'Testamentary capacity cannot be destroyed by showing a few isolated acts, foibles, idiosyncrasies, moral or mental irregularities or departures from the normal unless they directly bear upon and have influenced the testamentary act . . . .'" (Estate of Nolan (1938) 25 Cal.App.2d 738, 745.)

"A witness may state his opinion as to the sanity of a person when: [ ¶] (a) The witness is an intimate acquaintance of the person whose sanity is in question; [ ¶] (b) The witness was a subscribing witness to a writing, the validity of which is in dispute, signed by the person whose sanity is in question and the opinion relates to the sanity of such person at the time the writing was signed; or [ ¶] (c) The witness is qualified under Section 800 or 801 [of the Evidence Code] to testify in the form of an opinion." (Evid. Code, § 870.)

Here, respondents proffered the declarations of Jones, a subscribing witness to Nick's will, and Christensen, Nick's long time secretary and friend, to show Nick did not lack testamentary capacity when he executed his will. Jones explained, in pertinent part, that he met Nick in 1997 when he was retained to represent Nick in a litigation matter; the two were in constant contact over the next two and one-half years and became social friends; Jones drafted the will at Nick's request and in accordance with Nick's instructions; Jones was present when Nick executed the will; Jones believed Nick "was in full possession of his mental faculties when he executed his will . . . ."; and Jones would not have witnessed Nick's will if he had any doubt as to Nick's mental competency. In the portions of Christensen's declaration relied upon by respondents to show Nick had the requisite testamentary capacity, Christensen stated that she worked as Nick's secretary from 1984 to 2004, during which time they developed a "a strong professional relationship and friendship"; Nick spent the 1998 Christmas holiday with Christensen and her husband as he often did; Nick did not have any surgeries around that time; and Nick "was as sharp as a tack during that holiday season." Respondents also pointed to the deposition testimony of Beulah and Anastasia, both of whom stated that Nick knew who they were in December 1998 and January 1999 and understood and recollected the nature and situation of his property during that same period. Beulah also testified that Nick "kn[e]w what a will [wa]s supposed to do" and was not suffering from hallucinations or delusions at or near the time he executed his will.*fn11

Beulah responded by claiming that she was entitled to an inference Nick lacked testamentary capacity because "[t]he will was unnatural because it bequeathed everything to the siblings of a half-brother rather than the mother and father of the testator." She repeats that claim on appeal.

A testator's disposition of property to the exclusion of his or her closest relatives "is an element supporting an inference of undue influence when the testament is attacked on that ground, and is of like value when it is claimed that the testator was laboring under hallucinations which had caused him to make an unreasonable or unjust discrimination against some of his heirs at law. But, when mental incapacity is the ground of attack, the dispository clauses of the will are not, in and of themselves, evidence of mental incapacity which would overcome the presumption of sanity and competence." (Estate of Nolan, supra, 25 Cal.App.2d at p. 741.) Thus, the fact that the will bequeathed Nick's entire estate to respondents does not give rise to an inference that Nick was mentally incapacitated when he executed his will. (Ibid.)

As she did in the trial court, Beulah also points to a number of technical errors and omissions in the will and argues that Nick, who was a detailed oriented person, would never have executed such a will if he was of sound mind. In particular, she notes the failure to mention "the natural objects of [Nick's] bounty, his living mother and father"; the failure to mention Nick's two half-sisters; the "inconsistent references" to Samuel as "Samuel H. Rudnick" and "Samuel Rudnick" instead of using his legal name Samuel H. Rudnick, Jr.; the reference to Samuel as his brother instead of his half-brother; the reference to David as a minor, when he was 18; and the misspelling of Rachel's name. Beulah further argues that "a person of sound mind in 1998 would not date a solemn legal document in December 1998 with the year 1999 . . . ." None of these errors or omissions, whether considered separately or together, is sufficient to raise a triable issue of fact as to whether Nick had the requisite testamentary capacity when he executed his will because there is no indication whatsoever that any of them directly bore upon or influenced the testamentary act. (See Estate of Nolan, supra, 25 Cal.App.2d at p. 745.)

Finally, Beulah's supplemental evidence, if admitted, would not have raised a triable issue of material fact as to Nick's mental capacity at the time he executed the will. Beulah claims "the amnesia and probable concussion sustained on December 11, [1998], and recovery from surgery performed on December 18, [1998], provide additional evidence that Nick was not of sound mind on December 23, 1998, if he executed the purported will on such date." Not so.

The medical records for December 11, 1998, reflect that Nick "appeared disoriented, confused, and had a lack of short-term memory" while skiing with friends and was taken to the hospital. While he admitted "some decreased recall of the events of the day until about two hours prior to [being evaluated by a physician]," his "altered mental status and amnesia which ha[d] resolved" by the time he was examined by a physician later that day. His "[m]emory, long term and short term, [was] intact" and that his "[i]nsight and judgment appear[ed] to be good." There is absolutely no evidence the events of December 11, 1998, had any lasting impact on Nick's mental capacity beyond December 11, 1998. Nor is there any mention of a concussion in the records.

The medical records for December 18, 1998, indicate Nick had a "left cerebral carotid angiogram." Beulah's characterization of the procedure as a "surgery" is misleading at best. As discussed ante at footnote 3, an angiogram is a diagnostic test. Moreover, there is no indication in the medical records that the procedure had any impact whatsoever on Nick's mental functioning. Accordingly, Beulah failed to raise a triable issue of material fact as to Nick's mental capacity when he executed his will, even if we consider the supplemental evidence submitted by Beulah after the motion had been fully briefed.

C.

Beulah Failed To Raise A Triable Issue Of Material Fact

As To Whether Nick Was Unduly Influenced By Samuel

Beulah next contends the trial court erred in granting summary judgment in favor of respondents because a triable issue of material fact remains as to whether Nick was unduly influenced by Samuel in executing the will bequeathing his entire estate to respondents, Samuel's children. Again, we disagree.

"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.) "'Mere general influence'" is insufficient. (Estate of Mann, supra, 184 Cal.App.3d at p. 606.) "There must be proof of '"a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made."'" (Ibid.)

In her will contest, Beulah averred that Nick's will "was made at the time of its alleged execution as a result of the undue influence of SAMUEL RUDNICK in that on or about December 23, 1998 Nick was either about to undergo surgery or had just undergone surgery, and as a result of his medical condition had diminished capacity that enabled SAMUEL RUDNICK to demand that Nick execute this purported will as a condition to receiving assistance with his affairs from SAMUEL RUDNICK during Nick's incapacity."

Respondents pointed to the following undisputed facts in support of their assertion that Nick's will was the product of his own free will and not a result of Samuel's undue influence: Nick asked Jones to draft a will leaving Nick's property to respondents; he did not have surgery on or around Christmas 1998; he had tremendous affection for respondents; he told Christensen, his accountant, and longtime employee that he intended to leave his estate to respondents;*fn12 he "was not easily influenced at all by anyone"; and Samuel was not present when he executed his will.

In response, Beulah pointed to Anastasia's deposition testimony that "Nick told me that Sam wasn't going to help take care of him -- either before or after a surgery. And that he was just going to, like, leave him there to fend for himself if he didn't sign this thing leaving everything to him and the kids." Beulah also noted that although Samuel denied "suggest[ing] to Nick anything about how he should dispose of his estate," he acknowledged that "[Nick] had discussed making me his heir. And I told him that it would be illogical for me to inherit and pay the inheritance taxes, and that he should just give it to the children, if that's what he wanted to do, so that they wouldn't have to inherit twice."

Neither Samuel's statement to Nick nor Samuel's deposition testimony, whether considered alone or in combination, raise a triable issue as to whether Nick was unduly influenced by Samuel in executing his will. There is no evidence as to when Samuel told Nick he would not care for him unless he signed "something" leaving everything to Samuel and respondents. Moreover, there is no evidence Nick had surgery anytime near December 23, 1998. Even assuming the procedure performed on December 18, 1998, could be considered a surgery, there is no evidence whatsoever that Nick would be unable to care for himself thereafter. To the contrary, several days after the procedure, he joined Christensen and her husband to celebrate Christmas. Furthermore, there is no evidence that Nick's will was overborne by Samuel's threat not to care for him. (See Rice, supra, 28 Cal.4th at p. 96; Estate of Mann, supra, 184 Cal.App.3d at p. 606.) To the contrary, Anastasia testified that when she told Nick she could not assist him, he told her "that's okay" and indicated his housekeeper or someone else would be able to do so.*fn13 Finally, Samuel's mere suggestion that Nick leave his estate to respondents rather than to Samuel simply does not amount to undue influence. (See Estate of Mann, supra, 184 Cal.App.3d at p. 606.) In sum, Beulah failed to raise a triable issue of material fact as to whether Nick was unduly influenced by Samuel in preparing his will.

II.

The Trial Court Did Not Err In Denying

Beulah's New Trial Motion

To the extent Beulah contends the trial court erred in denying her motion for new trial, she is mistaken. After summary judgment was granted, Beulah moved for a new trial, claiming: (1) the evidence was insufficient to justify the decision; (2) the decision was against the law; and (3) there was an error in law, occurring at trial, which was excepted to by the moving party. (Code Civ. Proc., § 657, subds. 6, 7.)

We review the trial court's denial of the motion for new trial de novo (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860), and for the reasons stated above, find the evidence was sufficient to justify summary judgment in respondents' favor, summary judgment was not against the law, and there was not an error in law. Accordingly, we affirm the trial court's order denying Beulah's motion for new trial.

III.

The Trial Court Did Not Abuse Its Discretion In Refusing To Tax Respondents' Expert Witness Fees

Finally, Beulah contends the trial court erred in refusing to tax respondents' expert witness fees because respondents' "offer of compromise was unreasonable and not made in good faith," and the fees were not "incurred or ever demonstrated to have been related to or utilized in [the summary judgment motion]." We are not persuaded.

Section 998 of the Code of Civil Procedure, subdivision (b) permits a defendant to make an offer to allow judgment to be taken against him or her in a fixed amount (section 998 offer). If the offer is not accepted, "and the plaintiff fails to obtain a more favorable judgment or award, the plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs from the time of the offer," which, in the court's discretion, may include expert witness fees "incurred and reasonably necessary in either, or both, preparation for trial or arbitration, or during trial or arbitration, of the case by the defendant." (Id., subd. (c)(1).)

To be valid, a section 998 offer must be reasonable. (Essex Ins. Co. v. Heck (2010) 186 Cal.App.4th 1513, 1528.) "Whether a section 998 offer is reasonable must be determined by looking at circumstances when the offer was made." (Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699.) "A token or nominal offer made with no reasonable prospect of acceptance will not pass the good faith test." (Essex Ins., supra, 186 Cal.App.4th at p. 1528.) Where, as here, the party making the offer prevailed in the action, the offer is presumed to have been reasonable, and it is the complaining party's burden to show otherwise. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 134.) Whether a section 998 offer is reasonable is left to the sound discretion of the trial court. (Ibid.) On appeal, the burden is on the complaining party to establish an abuse of discretion. (Ibid.)

After learning of Beulah's contest, respondents, through their counsel, reviewed the will and interviewed Jones, Christensen, and Nick's longtime friend Joe Cox, each of whom provided essentially "the same information that was contained in . . . their respective declarations in support of [respondents'] Motion for Summary Judgment." Having discovered no grounds to invalidate the will, counsel telephoned Beulah's then counsel "to see if he could provide . . . any facts that could, at that stage, give [respondents] reason to doubt [their] evaluation of the case, and to also give [Beulah's counsel] an evaluation of [respondents'] case . . . ." Respondents' counsel told Beulah's counsel about their conversations with Jones, Christensen, and Cox. Beulah's counsel responded that the contest was filed at the last minute to preserve whatever rights Beulah might have in Nick's estate, and that he had not discussed the case in any detail with Beulah. Thereafter, respondents served a section 998 offer in the amount of $10,000 along with their answer to the will contest. Beulah did not accept the offer and did not receive a judgment more favorable than the offer. As the prevailing party, respondents submitted a memorandum of costs seeking, among other things, expert witness fees in the amount of $4,790. Beulah moved to tax the expert witness fees on the ground the section 998 offer was "premature because no discovery by anyone had been served prior to the time of such offer," the offer was "'token or nominal'" when compared with the value of Nick's estate and the amount she sought to recover. She also claimed the expert witness fees were not recoverable because they were not related to the motion for summary judgment. The trial court disagreed and awarded respondents their expert witness fees as part of the overall cost award.

As she did in the trial court, Beulah claims on appeal that the $10,000 offer "was premature because no discovery by anyone had been served prior to [the offer being served]." This court rejected a similar argument in Barba v. Perez (2008) 166 Cal.App.4th 444 (Barba).

There, the plaintiff in a personal injury action served a Code of Civil Procedure section 998 offer along with the summons and complaint. (Barba, supra, 166 Cal.App.4th at p. 449.) In rejecting the dissent's assertion that any section 998 offer served by a plaintiff before the answer is due is per se unreasonable, the court observed that Code of Civil Procedure "[s]section 998, subdivision (b) allows an offer of compromise to be served until 10 days prior to commencement of trial. Thus, while it purposefully set a deadline beyond which the offer may not be served, the Legislature did not impose any minimum period that must elapse following commencement of suit for service of a valid section 998 offer." (Id. at p. 452.) While there had been a "free flow of information between [the parties]" prior to service of the section 998 offer, the court observed: "Even assuming a situation . . . where a defendant has no information about the plaintiff's damages when served with an early section 998 offer, defense counsel may request that plaintiff provide informal discovery on the damage issue and/or allow an extension of time to respond to the demand. If plaintiff's counsel refused to accord the defendant these courtesies and unyieldingly insisted that defendant respond without information, such conduct could then be presented to the trial court when it considered whether to award special fees and costs." (Id. at p. 451.)

Here, as in Barba, respondents evaluated the strength of their case prior to making their Code of Civil Procedure section 998 offer. In particular, they investigated Beulah's claims, determined they were without merit, and communicated what they had found to Beulah's counsel. Thereafter, Beulah failed to request any additional information or request an extension of time to respond to the offer. Instead, she ignored it. On this record, the trial court did not err in determining the offer was timely. (Barba, supra, 166 Cal.App.4th at pp. 451-452.)

Beulah also renews her claim that the $10,000 offer was "token or nominal when compared with the [roughly $7,250,000 respondents] collectively stood to lose and the approximately $3,635,000 . . . that [she] stood to gain in the event of her successful will contest." The amount claimed by one party, by itself, is not indicative of whether another party's compromise offer is "'realistically reasonable,' in 'good faith,' 'token' or 'nominal.' It is only one of the many factors to be taken into consideration by the trial judge in making his decision. To hold otherwise could force a liability-free defendant to pay for damages not of his doing." (Culbertson v. R.D. Werner Co. (1987) 190 Cal.App.3d 704, 710 [finding trial court did not abuse its discretion in awarding expert witness fees to the defendant where the defendant offered $5,000 on a $1.5 million dollar claim], fn. omitted.) "When a defendant perceives himself to be fault free and has concluded that he has a very significant likelihood of prevailing at trial, it is consistent with the legislative purpose of section 998 for the defendant to make a modest settlement offer." (Ibid.) Such is the case here.

After interviewing Jones, Christensen, and Cox, respondents saw no basis for invalidating the will. Having discussed the case with Beulah's counsel, respondents saw no reason to question their initial evaluation, and thereafter made their $10,000 offer. Contrary to Beulah's assertion, there is no evidence respondents were attempting to "'game the system'" by making an offer they knew would not be accepted so that they could later recover large expert witness fees. Rather, the evidence showed that the offer was based on respondents' determination that Beulah's will contest lacked merit. Moreover, as the trial court observed, this was an "all-or-nothing case." If the will was determined to be valid, respondents would receive Nick's entire estate and Beulah would receive nothing. If the will was determined to be invalid, Beulah and Nick's father would share in Nick's entire estate under the rules of intestate succession, and respondents would receive nothing. ( § 6402.) On this record, the trial court acted well within its discretion in determining respondents' offer was reasonable and made in good faith.

Finally, Beulah argues respondents are not entitled to expert witness fees because "none of the expert witness fees were incurred or ever demonstrated to have been related to or utilized in [the summary judgment] motion." Code of Civil Procedure "[s]section 998 seeks to penalize a litigant who, in refusing a reasonable settlement offer, causes the other party to suffer the expenses of expert witnesses '"reasonably necessary in either, or both, the preparation or trial of the case . . . ."' [Citation.] Since the statute does not specify precisely the services for which costs are recoverable, the determination of allowable costs is largely within the trial court's discretion. [Citation.]" (Evers v. Cornelson (1984) 163 Cal.App.3d 310, 317-318; see also Code Civ. Proc., § 998, subd. (c)(1).)

It is undisputed that respondents' expert witness fees were reasonably necessary in the preparation for trial. Respondents' experts were "retained solely to rebut the opinions of the experts disclosed by Beulah . . . ." The expert fees claimed were for their time in reviewing the facts of the case and consulting with respondents' counsel on appropriate questions to ask Beulah's experts at their depositions. In sum, the trial court acted well within its discretion when it denied Beulah's motion to tax respondents' expert witness fees.*fn14

DISPOSITION

The judgment and postjudgment orders denying Beulah's motion for new trial and motion to tax respondents' expert witness are affirmed. Respondents shall recover their costs on appeal.

We concur: ROBIE , J. BUTZ , J.


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