Filed 2/3/20 Batis v. Nunez 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

—-

AILEEN BATIS, as Administrator, etc.,

Plaintiff and Appellant,

v.

ANGELINA NUNEZ,

Defendant and Respondent.

C083489

(Super. Ct. No. SPR0007299)

Aileen Batis brought suit against her sister, Angelina Nunez, to determine title to a home and other property originally belonging to their mother. Following a bifurcated trial separating out financial issues, the trial court denied Batis relief as to the house. Batis appealed, contending the trial court erred in (1) concluding a trust over real property had been created; (2) applying the preponderance of evidence standard when determining the deed should be characterized as a trust; (3) failing to apply a rebuttable presumption that the transfer of the home to Nunez was the product of undue influence; and (4) failing to consider Welfare and Institutions Code section 15610.70’s factors regarding undue influence.

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The Litigation

Batis and Nunez’s mother died on June 2, 2014. The Roseville home at issue was purchased by the mother in July 2007, the same year she moved in.

When the mother died, Nunez, along with her children and boyfriend, were living with the mother in the home. A year before she died, the mother signed a deed transferring the home to Nunez. Four months after the mother’s death, Batis petitioned the court to determine title to the home and the mother’s property. Nunez filed a declaration in response, stating her mother had wanted the home put in Nunez’s name so it could be sold and the proceeds split among the grandchildren. A bifurcated trial was held to determine title to the home.

The Trial

Nunez’s Testimony

At the trial, Nunez testified that she began living with her mother in October 2011. Nunez and her mother had “multiple conversations” about putting the home in Nunez’s name. In late 2012, Nunez asked her mother if she still wanted the home in Nunez’s name. Her mother responded, “I’ve been asking you to do it for months.”

Nunez testified that her mother “wanted me to take care of her wishes, and I promised her I would. Her wishes were to live in the home that she bought and if I could take care of her, then we would possibly save the home for the grandchildren.”

Nunez contacted Placer County about transferring the home and called a notary. She found a fill-in-the-blank deed and a durable power of attorney, online. She completed the information on the deed. Her mother signed the deed on March 1, 2013. That same day her mother was diagnosed with vascular dementia, though Nunez testified she was not at that medical appointment.

To notarize the deed, a notary came to the house twice. When the notary visited the first time, she discovered the mother’s identification had expired and needed renewal. Eighteen days later, the notary returned and notarized the deed. The mother was lying in bed watching TV when she signed.

Nunez understood that her mother was conveying the house to her to hold for the grandchildren. As to her mother’s health at the time of signing, Nunez testified that her mother was “continuing to suffer” in the two weeks leading up to and after the signing of the deed, but she “noticed an improvement in her mental status at that time.” “She was doing good.”

The Notary’s Testimony

The notary testified that the mother had “seemed to be aware,” explaining: “I don’t do a whole lot of general notary work like this. Most my work is loan signing so, when I’m presented with a document that’s specific, such as this one, I generally review the nature of the document and what it entails so we would’ve gone over that, and I felt comfortable that she understands what [she] was signing.” She added, “if I have a sense that she’s not aware of . . . [what day, what month is it], then I might ask her, you know, ‘What day is it,’ just from general conversation that I might proceed with that type of questioning.”

She also recalled that on her second visit, the mother apologized for her having to come back. The notary explained, “the fact that she recalled that I was there prior to that date and apologized for me having to come back gave me a sense that she understood, you know, she had a sense of timeline.” The mother had also said “hello” to her and was able to carry on small talk during this second visit.

The Sister Abbie’s Deposition Testimony

The trial court considered deposition testimony of Batis and Nunez’s sister Abbie. Abbie testified that the mother was very close to Nunez’s daughter who had grown up in the mother’s house. Abbie believed the mother had moved to Roseville in 2007 to be closer to Nunez’s daughter.

Asked about her mother’s wishes, she testified, “I believe . . . that she stated it would go to the grandchildren or the children being underage then she (sic) would go to the parent . . . to handle for the grandchildren.” Abbie and her mother had discussed having the mother’s property go to the grandchildren “a few times,” both when the mother lived in San Jose, and in Roseville. She also testified that a few weeks after moving into the home in Roseville, her mother said she wanted the house to go to the grandkids. The mother also wanted her jewelry box and jewelry to go to Nunez’s daughter.

Abbie had wanted her mother to write a will, because she had only verbalized her wishes. Abbie got her mother a blank will form, but as far as she could recall, her mother never filled it out.

Abbie also testified that the only sign of dementia she saw her mother display was one occasion when her mother thought somebody was at the house who was not. She could recall no other instance of her mother displaying a dementia symptom.

Batis’s Testimony

Batis testified that she discovered her mother’s home was in Nunez’s name a year before her mother died, when she got a call from her sister Abbie. And she first learned that Nunez was holding the home for the grandchildren when Nunez answered the complaint.

She also testified that she had been concerned about her mother’s care. She described an incident in late 2012, when her and Nunez’s teenage sons were caring for the mother, and the mother had a fall. Nunez and her boyfriend were then at a casino. Batis also recalled an incident where Nunez’s daughter took the mother’s ATM card and charged around $2,000.

Batis, in her deposition testimony, confirmed that Abbie told her in 2007 that her mother wanted the grandkids to receive her property.

Closing Statements

The parties filed written closing statements. Batis asked that the home be held in a constructive trust for the mother’s estate. She cited medical records and discovery responses showing the mother’s declining physical and mental condition, which left her susceptible to undue influence. She argued her mother did not fully understand the facts when she signed the deed over to Nunez. Batis also cited Nunez’s spending from her mother’s bank account.

Batis also argued a presumption of undue influence arose from the relationship between Nunez and the mother, in which Nunez, through active participation, obtained undue profit or unfair advantage. She specially argued: “[Nunez] gained an undue profit or unfair advantage over the elder [mother] because [Nunez] now owns the [home] without paying any financial consideration whatsoever to [mother] and the home could have been sold, encumbered or subject to [Nunez’s] creditors.” She also argued undue influence is shown through the Welfare & Institutions Code section 15610.70 factors. Batis did not argue that anyone other than Nunez obtained an undue profit or advantage.

Nunez, in turn, argued Batis had failed to show title had been obtained by undue influence, fraud, or lack of capacity. She argued no presumption of undue influence arose because she obtained no undue profits from the home’s transfer to her in trust. Rather, the weight of the evidence, along with the presumption that all persons have the capacity to make decisions, showed the mother had the capacity to execute the deed.

Batis raised in reply, for the first time, that the purported trust failed to satisfy the statute of frauds under Probate Code section 15206.

The Trial Court’s Ruling

The trial court ruled for Nunez, finding she held the home in trust for the grandchildren. It cited the rebuttable presumption that all persons have the capacity to make decisions and perform acts. (§ 810) And though the mother suffered from dementia at the time of the conveyance, insufficient evidence showed she was unaware of the nature of her act when executing the deed.

Further, Batis bore the burden of proving the deed had been procured by undue influence. The court noted Batis could invoke a presumption of undue influence by establishing (1) a confidential relationship existed between Nunez and the mother; (2) Nunez actively participated in procuring the deed; and (3) Nunez received undue profit. Finding only the third element was in dispute, the court concluded Nunez had not received undue profit at the time of the conveyance because she was holding the home in trust for the grandchildren. The court rejected Batis’s contention that the third element could also be established by showing “unfair advantage.”

Having found Batis failed to invoke the presumption of undue influence, the court concluded Batis had failed to establish, by a preponderance of the evidence, that the deed’s execution had been procured by undue influence. Concomitantly, it found Nunez had established the existence of a trust by a preponderance of the evidence. It noted the sister Abbie’s deposition testimony was consistent with Nunez’s claim of trust.

The court also concluded the statute of frauds did not preclude the creation of a trust, explaining that the deed — though silent as to its trust nature — could satisfy the writing requirements of section 15206(b). The court cited Cardoza v. White (1933) 219 Cal. 474, 476-477 (Cardoza), which explained “an oral trust in real property cannot be held wholly void; it is merely unenforceable when, in an action brought to compel performance of its terms, the party to be charged asserts its invalidity.” (Italics added.)

DISCUSSION

I. Statute of Frauds

On appeal, Batis contends the trial court erred in finding a trust in real property had been created. She argues the notarized deed transferring the home to Nunez did not satisfy the statute of frauds because, under section 15206, a written instrument is required to create a trust in real property. And here, no writing expressly identified a trust between Nunez and her mother. We conclude Batis cannot enforce the statute of frauds.

Section 15206 imposes a statute of frauds requirement for trusts involving real property. (Ukkestad v. RBS Asset Finance, Inc. (2015) 235 Cal.App.4th 156, 160-161.) Such trusts are created only by a written instrument signed by either the trustee or the settlor or by operation of law. (Prob. Code § 15205; Id. at p. 161.) Whether the statute of frauds has been satisfied is reviewed de novo. (Id. at p. 161.)

But the absence of a written instrument does not render an oral trust wholly void. (Cardoza, supra, 219 Cal. at p. 476.) Rather, an oral trust is “merely unenforceable” when the party alleged to be a trustee asserts the trust’s invalidity. (Ibid.) As such, only the trustee and the trustee’s successors may assert a statute of frauds defense. (Id. at pp. 476-477.)

Here, Nunez, the party to be charged as trustee, asserts no statute of frauds challenge, nor does she contest the trust’s validity. Therefore section 15206 does not preclude our recognition of the trust despite the lack of a written instrument evidencing a trust, because Batis cannot enforce the statute of frauds.

Batis, however, argues the trial court’s reliance on Cardoza was misplaced. She asserts that not every oral trust evidenced solely by a deed constitutes a trust, and the facts in Cardoza that gave rise to a trust by operation of law (constructive trust), do not exist here. We disagree because the rule in Cardoza regarding enforceability applies here.

In Cardoza, a father gave a deed to real property to a person named Callaghan to secure a loan. (Cardoza, supra, 219 Cal. at p. 474.) The father told Callaghan that if anything happened to him, the property should go to his daughter, the plaintiff in this quiet title action. (Ibid.) The father subsequently paid the loan, and Callaghan, at the father’s direction, transferred the property to the daughter. (Id. at p. 475) Almost a year before the transfer, a judgment was obtained against the father; the defendant was later assigned the judgment and sought to execute on the property. (Ibid.) The daughter successfully sued to quiet title. (Ibid.) On appeal, the defendant argued the deed from the father to Callaghan was intended merely as security and thus Callaghan was only a mortgagee, with no legal title to convey to the daughter. (Ibid.) Our Supreme Court disagreed, finding that Callaghan had held the property as a trustee for the daughter as evinced by the father telling Callaghan to convey it to the daughter if something happened to him and later modifying this instruction (after the loan was paid) by directing Callaghan to convey the property to the daughter. (Id. at pp. 475-476.) The court held: “[W]e see no reason why this intention, either in its original form or as subsequently modified [Citation], might not be given effect as a trust.” (Ibid.)

The defendant in Cardoza further argued that the statute of frauds applied to the creation of the trust, averring that the transaction could not be upheld as a trust because only the deed was in writing — not the agreement constituting the trust. (Cardoza, supra, 219 Cal. at p. 476.) Rejecting this argument, the court explained that an oral trust in real property is not wholly void, but merely unenforceable if asserted by the party to be charged. (Ibid.) A creditor of the trustor has no right to challenge the voluntary completion of performance by a trustee. And Callaghan “did not refuse to recognize the trust.” (Ibid.) The court also noted, that if Callaghan had repudiated his obligation, the daughter, as the intended beneficiary could have held him as constructive trustee. (Id. at pp. 476-477.)

Batis seemingly seeks to distinguish Cardoza based on the defendant’s status as a creditor, affording him no right to assert the statute of frauds to invalidate the already voluntary performance of the trust. Batis simply misses the core of Cardoza relative to the statute of frauds: an oral trust in real property is merely unenforceable when the party charged asserts its invalidity. The rule appears well-settled. (Rest. 3d Trusts, § 24, com. a(1); Express Trust in Real Property [as to statute of frauds, “no one except the trustee or a person succeeding to the trustee’s interest may take advantage of the unenforceability of the trust”], 13 Witkin, Summary of Cal. Law (11th ed. 2018) Trusts, § 35, p. 645 [only the trustee and the trustee’s successors may take advantage of the statute of frauds]; § 70. Bogart, The Law Of Trusts & Trustees (2d ed. rev. 2018) § 70.) Batis cites no authority limiting this rule.

Batis also points to the Cardoza court’s acknowledgment that had Callaghan repudiated his obligation as trustee, the daughter as the intended beneficiary could have held him as a constructive trustee to her benefit. Batis argues a constructive trust is a trust created by operation of law and thus falls within an express exception to the statute of frauds writing requirement. However, the Cardoza dicta that a constructive trust could have been created had Callaghan repudiated his obligation does not alter the core rule that only the charged trustee can assert the statute of frauds. Indeed, the record here suggests the only reason Nunez has not carried out the trust obligation is the instant suit.

Batis further argues that the majority of case law holds that a deed absolute is by itself insufficient to create a trust, and cites Barr v. O’Donnell (1888) 76 Cal. 469, 470 (Barr), and Reagh v. Kelley (1970) 10 Cal.App.3d 1082, 1086 (Reagh) in support. Neither case advances her position.

In Barr, Barr and O’Donnell became equal owners in a tract of land. (Barr, supra, 76 Cal. at p. 470.) They later divided the land, with O’Donnell receiving a larger share. (Ibid.) Barr later alleged that they had agreed that O’Donnell would hold the land in Barr’s trust until Barr asked him to reapportion the shares. (Ibid.) But later when Barr asked O’Donnell to convey him the land, O’Donnell refused. (Ibid.) Barr sued and O’Donnell successfully demurred. (Id. at pp. 470-471) Our Supreme Court affirmed, explaining that the statute of frauds precluded a claim because Barr failed to allege an express trust, which can only be created by an instrument in writing. (Id. at p. 471.) And the absence of fraud precluded a trust by operation of law. (Ibid.)

Thus, Barr is consistent both with Cardoza and our conclusion here: The statute of frauds defense may only be asserted by the charged trustee or successor trustees.

Reagh, on the other hand, is inapposite. There, the mother, before her death, signed a deed granting real property to a trustee to hold in trust for several beneficiaries. (Reagh, supra, 10 Cal.App.3d at p. 1087.) When she signed the deed, the mother possessed — though she never signed — a declaration signed by her son and the trustee that purported to represent the mother’s wishes as orally explained to the son. (Id. at pp. 1087-1088.) The son was one of several beneficiaries. (Id. at p. 1088.) Both the son and the trustee had discussed the declaration with the mother before she signed the deed. (Id. at p. 1087.) Consistent with the deed, the declaration stated that the mother had conveyed real property to the trustee to hold for certain beneficiaries. It also provided additional terms, conditions, and purposes of the trust. (Id. at p. 1088.) The administrator of the estate appealed from the trial court’s ruling that a valid trust had been established and that she had no right, title or interest in the property which was the subject of the trust. (Id. at pp. 1086-1087.)

On appeal, the challenge focused on alleged uncertainties in the deed and declaration and other issues, including the statute of frauds. (Reagh, supra, 10 Cal.App.3d at p. 1088.) As to a statute of frauds, the court considered whether the declaration and deed satisfied the statutory requirements of a written instrument signed by the trustee or trustor. (Id. at p. 1090.) The court, noting that a trust declaration signed by only the trustee may suffice, concluded the statute of frauds was satisfied as the deed was signed by the trustor, and the written declaration was signed by the trustee. (Id. at pp. 1090-1091.) And while the deed did not suffice as a declaration of a trust because the beneficiaries’ interest, the estate’s duration, and manner of performance were undeclared, the declaration filled those gaps and thus, together with the deed, created a valid trust. (Id. at pp. 1093-1095.)

Reagh did not involve an oral trust and therefore gives no ground to question the conclusion that the statute of frauds relative to an oral trust cannot be enforced by anyone other than the trustee or successor trustees; nor does Batis persuade us otherwise. Accordingly, while the oral trust here may have been vulnerable to a statute of frauds challenge, the party empowered to bring such a challenge, Nunez, has recognized the existence of a trust. The trust is therefore enforceable.

II. The Applicable Standard for Determining the Establishment of a Trust

Batis next argues the trial court erred in applying a preponderance of the evidence standard rather than a clear and convincing standard in determining whether the deed should be characterized as a trust. She points to the trial court’s ruling that “the respondent has established the existence of the trust by the preponderance of the evidence.” She maintains the preponderance of the evidence standard does not apply where the deed’s express terms are inconsistent with a trust’s establishment. In support, she cites Sheehan v. Sullivan (1899) 126 Cal. 189 (Sheehan).

In Sheehan, the father, before he died, transferred real property to the mother. (Sheehan, supra, 126 Cal. at p. 190.) The son sued, claiming the mother was holding the property in trust for him. (Id. at p. 191.) The trial court ruled for the son, but the appellate court reversed. (Id. at pp. 190, 196.) Noting the absence of evidence that the deed was anything but a deed, the court held it was insufficient to create a trust. (Id. at pp. 192, 194.) In so holding, it explained that “clear and convincing” evidence is required to find a trust arising from a deed absolute. (Id. at p. 193.)

Here, Batis raised no objection to the trial court’s statement of decision and therefore forfeits the challenge on appeal. (See In re Marriage of Fossum (2011) 192 Cal.App.4th 336, 346; Thompson v. Asimos (2016) 6 Cal.App.5th 970, 983.) And in any event, any such error was harmless. Indeed, in Sheehan, the court cited the complete absence of evidence that the deed was a trust. Here, by contrast, the testimony of multiple witnesses evinced a trust. Nunez testified she was holding the property in trust for the grandchildren, as per her mother’s wishes. Abbie testified her mother had told her on multiple occasions — including shortly after moving to the Roseville home in 2007 — that she wanted her property to go to her grandkids. Batis acknowledged, in her deposition, that she recalled Abbie telling her of their mother’s wishes. Conversely, Batis cites no evidence that the mother’s intent was to do anything but establish a trust. Accordingly, the evidence satisfies a clear and convincing evidence standard.

III. The Rebuttable Presumption of Undue Influence

Batis next argues the trial court erred in failing to apply a rebuttable presumption of undue influence. She points to the trial court’s ruling that, “[t]he court disagrees with the petitioner that the cited cases give rise to the interpretation that either undue profit or unfair advantage can support the establishment of element No. 3 [of the test for a presumption of undue influence].” Batis maintains that “undue advantage” or “undue benefit to such person or another person under the will” can also satisfy the third element and cites several cases in support.

Batis also argues that whether Nunez is a trustee should not preclude application of the presumption of undue influence. Nunez “should be held to the high standard she voluntarily assumed and because of the unfair advantage, undue benefit and undue profit she and her family received from [the mother] arising from [Nunez’s] own actions, including fee simple title to [the mother’s] home, rent free living and a disproportionate share of [the mother’s] estate, the presumption of undue influence should apply.” We disagree.

We will assume without deciding that the trial court’s ruling, that the third element is limited to undue profit and does not include undue advantage or undue benefit, was overly narrow. Batis still cannot show prejudice because the evidence does not show that Nunez reaped undue benefit or advantage. As trustee, Nunez has no interest in the home per se. (See Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 455 [“A trust is a personal relationship between the trustee and the beneficiary. [Citation.] It does not create an interest in the trust res per se”].) Accordingly, her role as trustee confers no benefit or advantage with respect to the home. And, at least as far as the home is concerned, there is no indication Nunez breached a fiduciary duty. Nor is there evidence Nunez has lived rent free or assumed a disproportionate share of the estate. Prior to the mother’s death, Nunez and family lived in the home in order to care for her mother. After her mother’s death, the record indicates Nunez and her adult children have paid rent to the trust.

Further, as noted, Batis did not assert, at trial, the theory that the benefit or advantage could be to Nunez’s children or any “other person.” This forfeits any such argument. “Failure to raise specific challenges in the trial court forfeits the claim on appeal” (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564.) “ ‘Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider. [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.’ ” (Ibid., italics added.) Even assuming the argument is not forfeited, the fact that the Nunez children are beneficiaries does not alone establish an undue benefit or advantage. (Cf. Estate of Sarabia (1990) 221 Cal.App.3d 599, 607 [that a beneficiary takes “substantially more” under the will than he would without the will does not establish undue profit].)

Moreover, had Batis successfully invoked the presumption, it could be overcome by showing the gift was made “ ‘with a full knowledge of all the facts, and with a complete understanding of the effect of the transfer.’ ” (Szekeres v. Reed (1950) 96 Cal.App.2d 348, 357.) And here, the notary testified the mother appeared aware and understood what she was signing. No evidence pertaining to that time period contradicts the notary’s observations. Indeed, the mother had expressed intent to transfer the home to the grandchildren as far back as 2007 — long before the proffered evidence of mental health decline. (See fn. 6, ante.) Furthermore, as we next discuss, the evidence establishes there was no undue influence even considering the factors set forth in section 15610.70.

IV. Welfare & Institutions Code section 15610.70 – Undue Influence Factors

Batis argues the trial court abused its discretion in failing to consider certain statutory factors in Welfare & Institutions Code section 15610.70 regarding undue influence. We disagree.

Welfare & Institutions Code section 15610.70 defines “Undue influence” as “excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” In determining undue influence, the statute directs courts to consider: [¶] (1) The victim’s vulnerability; [¶] (2) “The influencer’s apparent authority”; [¶] (3) The influencer’s actions or tactics including, [¶] “(A) Controlling necessaries of life, medication, the victim’s interactions with others, access to information, or sleep. [¶] (B) Use of affection, intimidation, or coercion. [¶] (C) Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times and places, and claims of expertise in effecting changes”; and [¶] (4) The “equity of the result,” which includes, “any divergence from the victim’s prior intent or course of conduct.” (Welf. & Inst. Code § 15610.70.)

Batis argues the trial court’s written ruling fails to address those factors, and had the court considered them, it would have reached a different result. She argues her mother was vulnerable in that the signing occurred when she was suffering from dementia, confusion, and hallucinations, and could not ambulate on her own. Nunez controlled necessaries of life for the mother, in that her mother could not ambulate, feed herself, and administer medications. And the mother stopped making bank transactions after Batis’s name was added to her accounts. She argues Nunez initiated changes in person or property rights in that she transferred the home, and put her mother’s financial accounts in her name, without telling her siblings. Lastly, she argues the result was inequitable in that the transfer empowered Nunez to sell the home, borrow against it, and reside in it — even against the mother’s wishes. We cannot agree.

First, nothing in Welfare & Institutions Code section 15610.70 requires the court to make express findings as to the factors — nor does the statute require the court to expressly state that it has considered them. Second, while Batis argued in closing that the trial court must consider the factors, she did not request a statement of decision on that issue after the trial court issued its written ruling. “ ‘If the party challenging the statement of decision fails to bring omissions or ambiguities in it to the trial court’s attention, then, under Code of Civil Procedure section 634, the appellate court will infer the trial court made implied factual findings favorable to the prevailing party on all issues necessary to support the judgment, including the omitted or ambiguously resolved issues.” (Schwan v. Permann (2018) 28 Cal.App.5th 678, 699.) We then review those implied findings for substantial evidence. (Ibid.)

Substantial evidence is evidence that is of reasonable, credible and of solid value. (Lui v. City and County of San Francisco (2012) 211 Cal.App.4th 962, 969.) In reviewing the record for substantial evidence, evidentiary conflicts and reasonable inferences drawn from the facts are resolved in support of the trial court’s determination. (Ibid.) We are bound by the trial court’s credibility determinations and do not reweigh evidence. (Ibid.) A single witness’s testimony can constitute substantial evidence. (Ibid.)

Here, substantial evidence supports the implied finding that the deed was not procured through undue influence as shown through the Welfare & Institutions Code section 15610.70 factors. Any suggestion of vulnerability as shown through medical records, the mother’s general medical condition, and the nature of Nunez’s role in caring for the mother was outweighed by the evidence the mother was mentally aware and understood the nature of the deed transfer when she executed the deed. Again, the notary provided testimony of her contemporaneous observations while the deed was notarized. And Batis, Nunez, and Abbie provided testimony indicating that the mother had long wanted the home to go to her grandchildren. The mother’s desire predated evidence of mental decline, so there was no “divergence from the victim’s prior intent or course of conduct.” (See § 15610.70, subd. (a)(4).) Rather, the trust is consistent with the mother’s previously expressed intent. Further, nothing indicates Nunez ever claimed ownership of the home as described by Batis; rather, Nunez has consistently maintained she held the home in trust for the grandchildren consistent with her mother’s wishes. And as the trial court expressly found that Nunez holds the home in trust for the grandchildren, she cannot now treat the property differently.

In sum, substantial evidence supports the implied finding that the deed was not procured by undue influence under the factors in Welfare & Institutions Code section 15610.70.

DISPOSITION

The judgment is affirmed. Batis shall pay Nunez’s costs on appeal. (See Cal. Rules of Court, rule 8.278(a)(1), (5).)

/s/

MURRAY, J.

We concur:

/s/

HULL, Acting P. J.

/s/

BUTZ, J.