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

May 11, 2011


(Super. Ct. No. SPR5238)

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

Estate of Fuller



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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.


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



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