Filed 12/20/19 Fine v. Weigold CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

VELMA FINE et al.,

Plaintiffs and Respondents,

v.

MICHAEL WEIGOLD,

Defendant and Appellant.

G055974, G056279

(Super. Ct. No. 30-2014-00762079)

O P I N I O N

Appeals from a judgment and a postjudgment order of the Superior Court of Orange County, David L. Belz, Judge. Judgment and postjudgment order reversed as to Weigold and remanded with directions. Requests for Judicial Notice. Denied.

Everett L. Skillman and Nathan D. LaMoure for Defendant and Appellant.

Catanese & Wells, T. Randolph Catanese, Douglas R. Hume and David Y. Yoshida for Plaintiffs and Respondents.

* * *

INTRODUCTION

A provision of a trust or will is presumptively the product of fraud or undue influence if it makes a donative transfer to a person who drafted the instrument or to a person who is in a fiduciary relationship with the transferor and also transcribed the instrument or caused it to be transcribed. (Prob. Code, § 21380, subd. (a)(1) & (2).) Decedent Loretta J. Nisewander created a trust which directed that, upon her death, its assets would be distributed equally between her long-time family friend Michael Weigold and her neighbor of many years, William Rosenstein. Nisewander also executed a pour-over will bequeathing all other assets to the trust.

Velma Fine, Joyce Jozsa, and Wanda Waltrip (collectively the Fine parties), who identify themselves as “lineal blood relatives” of Nisewander, filed a petition which, as amended, sought an order declaring Nisewander’s trust and will invalid on the ground, among others, they were the product of Weigold’s and Rosenstein’s undue influence. Following the first phase of a bifurcated bench trial on the amended petition, the trial court found the presumption of section 21380, subdivision (a)(1) or (2) applied as to Weigold and Rosenstein on the basis they drafted or transcribed the trust and will or caused them to be transcribed. After the second phase of trial, the trial court found insufficient evidence rebutted the presumption (id., subd. (b)), and further found the presumption of undue influence was conclusive because Weigold and Rosenstein drafted the trust and the will (id., subd. (c)). The court entered judgment which: (1) determined the trust and the will were invalid; (2) placed Nisewander’s assets in a constructive trust; and (3) appointed Fine trustee of the constructive trust; and (4) required Fine to begin probate proceedings of the estate. Weigold and Rosenstein appealed from the judgment.

Weigold contends the presumption of section 21380, subdivision (a)(1) and (2) was inapplicable because insufficient evidence showed he drafted or transcribed the trust or will or caused either to be transcribed. We agree. There is no evidence showing how either document came into being. No evidence was presented showing who drafted either instrument, much less that Weigold drafted them.

In Rice v. Clark (2002) 28 Cal.4th 89, 105 (Rice), the California Supreme Court narrowly interpreted the phrase “transcribes the instrument or causes it to be transcribed” as it appeared in section 21380’s predecessor statute, former section 21350, subdivision (a)(4), to require the person to “directly participate in transcribing the instruments.” (Rice, supra, 28 Cal.4th at p. 105, italics added.) The Supreme Court concluded that the term “transcribe” in the context of the statute was “clear enough in meaning: ‘To make a copy of (something) in writing; to copy out from an original.’” (Id. at p. 101.) Here, there was no evidence Weigold “direct[ed] or otherwise participate[d] in the instrument[s]’ transcription to final written form.” (Id. at p. 92.)

Because the trial court’s application of the presumption of section 21380, subdivision (a)(1) and (2) is not supported by substantial evidence, we reverse the judgment as to Weigold and remand for retrial on the merits of the Fine parties’ amended petition.

Weigold filed a separate appeal from the trial court’s postjudgment order awarding the Fine parties attorney fees and costs. Because the judgment is reversed, the Fine parties are not entitled to attorney fees and costs under section 21380, subdivision (d) as to Weigold. We therefore reverse the order awarding the Fine parties attorney fees and costs as to Weigold.

FACTS

Nisewander lived in a residence in Fullerton, across the street from Rosenstein, a street maintenance worker. Nisewander and Rosenstein met in 2000 and were neighbors for at least the 14 years preceding Nisewander’s death in 2014.

Nisewander and her husband (collectively the Nisewanders) were clients of Weigold’s father. Nisewander’s husband and Weigold’s father were close friends who played poker together on Friday nights. They were also partners in a trucking company called R&E Freight Services, Inc. until Weigold’s father passed away in 1991.

Weigold testified he has worked continuously as a tax preparer since 1988 and had helped Nisewander with her tax returns since 1990. Weigold is neither an accountant nor a bookkeeper.

Weigold described his relationship with Nisewander as “extremely” close. He testified Nisewander “was very generous to me since 1982, extremely generous.” He testified he picked up and delivered large sums of cash for the Nisewanders and also held in confidence very confidential personal information involving the Nisewanders.

In early March 2013, Rosenstein testified Nisewander showed him an unsigned document which purported to vest in him Nisewander’s power of attorney. Nisewander was about 85 years old at the time. Nisewander signed the power of attorney on March 10, 2013. Although the power of attorney stated it had been prepared and signed by Rosenstein, he denied preparing it or a second power of attorney signed about two months later. Rosenstein testified he did not understand what he was signing but did what he was told. He testified: “I’m very unaware of power of attorneys or trust[s] or wills or any—any documents of that sort.” He also testified that at all times, Nisewander had the ability to manage her own affairs. He testified he obtained the power of attorney for the purpose of being able to provide Nisewander with assistance if she was placed in a facility and could not write checks for herself in the future.

Nevertheless, the day after he obtained Nisewander’s power of attorney, Rosenstein, without Nisewander present, signed a signature card on her account to authorize transactions on her behalf. He thereafter began writing checks and making withdrawals from her account without documentation showing where the cash ended up.

On April 1, 2013, Rosenstein wrote a check to himself in the amount of $10,000 from Nisewander’s account and cashed it at the bank. A little over two weeks later, he wrote himself another $10,000 check from her account and cashed it at the bank.

Also in early April, according to Rosenstein, he met Nisewander at her home where, he testified, she handed him a copy of a trust document and asked him to review it. He read the trust document and, pursuant to her request, arranged for a notary to come to her home the following week to notarize her signature on the trust document.

On April 12, 2013, Rosenstein was present with the notary he procured when Nisewander signed the Loretta J. Nisewander Trust (the Trust) in her backyard. He testified he was present because he felt the notary was a stranger. Weigold was not there. The Trust was revocable; it stated that Nisewander’s husband had died and she had no children. The Trust provided that Nisewander named herself as the trustee and named Rosenstein “and/or” Weigold as the successor trustee in the event of her death or incapacity. The Trust further provided that upon her death, the Trust would terminate and its assets would be distributed to Rosenstein and Weigold equally after the payment of debts and funeral expenses.

On May 3, 2013, Rosenstein withdrew $10,000 in cash from Nisewander’s account. On May 10, 2013, Rosenstein signed a check for $11,000 that was made payable to Weigold’s wife, Cyndy Chy. Weigold testified Nisewander asked him to come to her house. When he arrived, she handed him the check which was signed by Rosenstein and otherwise filled out except for the payee line. Weigold also testified Nisewander told him, “I want you to give this to your wife.” He said “she had a pen in her hand, and she started to fill it out. She goes, ‘how do you spell it?’” and then she told Weigold, “Here honey, you just fill it out.” He stated that he filled out Chy’s name on the payee line and Nisewander told him, “There you go. Make sure you give this to Cyndy.” He testified Nisewander never told him why she was giving Chy this money and he never asked. He stated he did not think it was odd given that he and Nisewander were “extremely” close.

At the end of that month, Rosenstein withdrew $5,000 in cash from Nisewander’s account. On June 8, he withdrew another $9,000 in cash from Nisewander’s account.

A week after that, Rosenstein signed a check dated June 17 that was made payable to Chy for $10,000. Weigold testified that around June 17, Nisewander had left the check in an envelope on the passenger seat in an unlocked blue Oldsmobile parked in her driveway. He explained, “[w]e used that as our little exchange, post office box essentially.” He stated he did not see Nisewander that day and he and Nisewander never discussed that check.

At the end of June, Rosenstein signed another check in the amount of $10,000 made payable to Chy. Weigold testified that Nisewander called him over to her house and when he got there, she handed him the check and a pen and told him, “Here, give this to your wife.” He stated she gave him the pen to fill in Chy’s name on the payee line of the check dated June 28, 2013.

On August 30, Rosenstein withdrew $10,000 in cash from Nisewander’s account.

In late August or early September, Rosenstein testified he met Nisewander at her home where she handed him an unsigned copy of her will and asked him to review it. They discussed the will’s contents; it was a pour-over will giving, devising, and bequeathing all remaining property to the Trust and containing a provision that she was intentionally omitting heirs. A week later, on September 6, 2013, Nisewander signed the will (the Will), which was witnessed by Rosenstein and Weigold.

On October 10, Rosenstein withdrew $2,000 from Nisewander’s bank account, and on November 22, he withdrew another $24,300.

Rosenstein and Weigold testified large amounts of cash were taken from Nisewander’s accounts over a very short period of time because she used cash to pay for things. Weigold testified that, for example, the buyout of the freight business that the Nisewanders had owned was handled in cash and without any written documentation of a buy-out agreement.

On March 23, 2014, Nisewander died at the age of 87 years. Several weeks later, over $73,000 in cash was found in her detached garage which Rosenstein and Weigold counted. They did not deposit the money in the bank but instead opted to split the money between them four to six months later.

Weigold testified that Nisewander trusted him and that he was like a son to her. He did not know whether she was advised by an attorney in preparing the Trust. Nisewander never told Weigold she intended on leaving her estate to him and Rosenstein, although he testified that in a prior will, Nisewander had left her estate to Weigold and his father. Weigold was not aware of any computers or printers in Nisewander’s house.

BACKGROUND

I.

ROSENSTEIN FILES THE HEGGSTAD PETITION; THE FINE PARTIES OBJECT.

In December 2014, Rosenstein, acting as successor trustee to the Trust, filed a petition for an order confirming ownership of property in the Trust pursuant to section 850 and Estate of Heggstad (1993) 16 Cal.App.4th 943 (the Heggstad petition) and for an order declaring certain bank accounts as the property of the Trust. The petition alleged the Trust designated Rosenstein as the successor trustee and he was also the nominated executor of the Will. A copy of the Trust was attached as an exhibit to the Heggstad petition.

At the hearing on the Heggstad petition, Fine and Jozsa appeared and asserted they had not received notice but should have. They were thereafter provided notice.

II.

THE FINE PARTIES OBJECT TO THE HEGGSTAD PETITION AND FILE A PETITION SEEKING AN ORDER INVALIDATING THE TRUST.

In April 2015, the Fine parties filed an objection to the Heggstad petition and argued it should be denied because insufficient evidence showed that the property identified in that petition was intended to be transferred to the Trust. They argued both Rosenstein and Weigold were disqualified beneficiaries under section 21380.

The Fine parties also filed a petition contesting the Trust and seeking an order (1) declaring the Trust invalid or alternatively reforming the Trust and imposing a constructive trust; (2) removing the successor trustee and appointing an independent successor trustee; and (3) requiring an accounting of the Trust and other information. In their petition, the Fine parties alleged they are lineal blood relatives of Nisewander and otherwise interested persons. They alleged Nisewander lacked legal capacity to create and enter into the Trust based on her age and preexisting physical and mental conditions, which precluded her ability to know and understand her actions. In the petition, they further alleged Nisewander had been unduly influenced by Rosenstein and Weigold who each had a confidential relationship with her and actively participated in the creation of the Trust from which they directly profited.

The Fine parties later filed a motion seeking to amend their petition to add a request for specific relief under section 21380, subdivision (a)(1), (2), and (3) and a request for prevailing party attorney fees. The trial court granted the motion and accepted for filing the amended petition (the amended petition). During trial, the court granted the Fine parties’ request to further amend the amended petition to add the word “will.”

III.

FOLLOWING A BENCH TRIAL, THE TRIAL COURT ISSUES ITS FINAL STATEMENT OF DECISION FINDING THE FRAUD OR UNDUE INFLUENCE PRESUMPTION OF SECTION 21380, SUBDIVISION (a)(1) AND (2) APPLIED AS TO BOTH WEIGOLD AND ROSENSTEIN.

The Fine parties moved to sever the trial on the amended petition to first address whether the presumption of section 21380, subdivision (a)(1), (2), and (3) applied to the Trust and Will as to Weigold and Rosenstein. The trial court granted the motion.

The trial court issued its final statement of decision on the bifurcated issues. After the first phase of trial, the trial court found the presumption of section 21380, subdivision (a)(1) and (2) applied to Weigold and Rosenstein because “Weigold conspired and cooperated with Mr. Rosenstein in the drafting of the Trust and Will and/or the causing [of] the Trust and Will to be drafted” and Weigold and Rosenstein “transcribed the Will and the Trust or caused the Will and Trust in this case to be transcribed.”

The court then proceeded with the second phase of the bifurcated trial to determine whether Weigold and Rosenstein rebutted the presumption. The court found: (1) pursuant to section 21380, subdivision (b), there was insufficient evidence the donative transfer was not the product of fraud or undue influence; and (2) pursuant to section 21380, subdivision (c), the presumption was conclusive, given the court’s finding Weigold and Rosenstein drafted the instruments.

IV.

JUDGMENT INVALIDATING THE TRUST AND WILL WAS ENTERED; WEIGOLD AND ROSENSTEIN APPEALED.

In January 2018, judgment was entered which stated, inter alia, (1) pursuant to the court’s statement of decision, Weigold and Rosenstein were disqualified as beneficiaries and the Trust and Will are invalid; (2) the Heggstad petition was moot; (3) the court imposed a constructive trust over Nisewander’s assets and appointed Fine as trustee of the constructive trust; and (4) Fine was directed to commence probate proceedings within 30 days of entry of judgment.

Rosenstein and Weigold appealed.

V.

THE TRIAL COURT AWARDS THE FINE PARTIES ATTORNEY FEES AND COSTS.

The Fine parties filed a motion for an award of attorney fees and costs under section 21380, subdivision (d). The Fine parties’ motion also cited section 15642, subdivision (c). The court granted the motion, awarding the Fine parties $335,162 in attorney fees, and $30,329.41 in costs. Weigold and Rosenstein filed an appeal challenging the order awarding attorney fees and costs.

DISCUSSION

I.

STANDARD OF REVIEW

A judgment is presumed correct on appeal, and “all intendments and presumptions are indulged in favor of its correctness.” (In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) “In reviewing a judgment based upon a statement of decision following a bench trial, we review questions of law de novo. [Citation.] We apply a substantial evidence standard of review to the trial court’s findings of fact. [Citation.] Under this deferential standard of review, findings of fact are liberally construed to support the judgment and we consider the evidence in the light most favorable to the prevailing party, drawing all reasonable inferences in support of the findings.” (Thompson v. Asimos (2016) 6 Cal.App.5th 970, 981; see Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-60.)

II.

SECTION 21380 AND RICE, SUPRA, 28 CAL.4TH 89

“As a general proposition, California law allows a testator to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair.” (Estate of Sarabia (1990) 221 Cal.App.3d 599, 604.) However, “[t]his presumption can be overcome if it is shown that the testator was affected by undue influence, a concept with a very definite meaning.” (Ibid.)

“Section 21380[ ] prohibits donative transfers to broad categories of persons who, because of their relationship with the settlor/trustor, might exercise undue influence. Undue influence is presumed where the donative transfer is in favor of the person who drafted the instrument or where the person who transcribed it or caused it to be transcribed had a fiduciary relationship with the settlor/trustor. (§ 21380, subd. (a)(1), (2).) The presumption may be rebutted by clear and convincing evidence that the donative transfer was not the product of fraud or undue influence. (§ 21380, subd. (b).) Where the donative transfer is to the person who drafted the donative instrument, the presumption is conclusive. (§ 21380, subd. (c); see Rice, supra, 28 Cal.4th at p. 98 [discussing former § 21351; ‘if an attorney drafted a client’s will so as to benefit himself, he would . . . be conclusively disqualified’].)” (Butler v. LeBouef (2016) 248 Cal.App.4th 198, 208.)

In Rice, supra, 28 Cal.4th at page 101, the California Supreme Court analyzed section 21380’s predecessor statute, section 21350, which included in the category of presumptively disqualified persons the drafter of an instrument and “any fiduciary who ‘transcribes the instrument or causes it to be transcribed.’” The Supreme Court stated: “‘Transcribe’ is, in the present context at least, clear enough in meaning: ‘To make a copy of (something) in writing; to copy out from an original.’ (18 Oxford English Dict. (2d ed. 1989) p. 392; see also Webster’s 3d New Internat. Dict. (1981) p. 2426 [‘1 a: to make a written copy of . . . [;] b: to make a copy of (dictated or recorded matter) in longhand or esp. on a typewriter’]; Black’s Law Dict. (7th ed. 1999) p. 1503 [‘To make a written or typed copy of (spoken material, esp. testimony)’].)” (Rice, supra, 28 Cal.4th at p. 101.) As in Rice, in this case, “[n]either party propose[d] a meaning different from this, or suggests the Legislature used the term in any way other than its ordinary meaning.” (Ibid.)

The Rice court held that insufficient evidence showed the party against whom the presumption was asserted drafted or physically transcribed the instruments: “There is no evidence that [the transferee] actually transcribed any donative instrument. Michael Hardy, the attorney who prepared the will and trust, testified that after the first meeting with [the testator/settlor], no one other than Hardy and his secretary worked on the preparation, drafting, or transcription of the instruments. The secretary’s testimony was in accord; though [the transferee] telephoned after the first meeting to request that document preparation be expedited, the secretary actually prepared the instruments at Hardy’s direction. Similarly, there was no evidence that [the transferee] took a hand in physically preparing the stock transfer instruments or the deeds by which [the testator/settlor] conveyed real properties into her trust. The question, then, is whether [the transferee] can be said to have ‘caused’ the instruments’ transcription.” (Rice, supra, 28 Cal.4th at p. 101, italics added.)

The Supreme Court held that “‘a person who causes a document to be transcribed is one who directs the drafted document to be written out in its final form and, like the transcriber, is in a position to subvert the true intent of the testator.’” (Rice, supra, 28 Cal.4th at pp. 101-102, italics added, quoting Estate of Swetmann (2000) 85 Cal.App.4th 807, 819-820.) The Rice court added: “In Swetmann, the elderly testator’s next-door neighbor and conservator, who had for many years helped the testator and his wife with errands and who exercised the testator’s power of attorney, arranged for the testator to meet with an estate planning firm, provided information to the estate planner regarding the testator’s financial affairs, and paid the planning firm from the conservatorship account. The conservator did not, however, directly participate in preparing the resulting will and trust. [Citation.] [¶] The appellate court concluded the conservator had not caused the will or trust to be transcribed, within the meaning of section 21350, subdivision (a)(4), because ‘none of [his] activities pertained to the physical preparation of the documents.’ [Citation.] Unlike a drafter, transcriber, or person who directs the instrument’s transcription, the conservator was not peculiarly positioned ‘to subvert the true intent of the testator.’ [Citation.] His involvement in the will and trust’s preparation thus came within neither the spirit nor the letter of section 21350.” (Rice, supra, 28 Cal.4th at p. 102, italics added.)

Applying its interpretation of the statutory language to the facts before it, the Supreme Court concluded insufficient evidence showed the party alleged to have caused the transcription of an instrument had done so: “[The transferee] did not direct or oversee, or otherwise participate directly in, the will’s or trust’s transcription. Both instruments were transcribed by Hardy’s secretary at Hardy’s direction. [The transferee] facilitated the instruments’ preparation and execution by giving Hardy’s office a list of [the testator/settlor]’s assets that were to be placed in the trust, and by arranging appointments for [the testator/settlor] and driving her to them. He urged Hardy’s secretary to prepare the documents promptly after the May 4, 1995, meeting. He encouraged [the testator/settlor] to execute the will and trust after she initially balked at doing so on June 14, 1995. [The transferee] was present at meetings where the disposition of [the testator/settlor]’s estate was discussed, but he did not direct Hardy, or anyone else, to include any particular gifts or other provisions in the instruments. In short, [the transferee] materially assisted [the testator/settlor] to dictate the contents of her will and trust to an attorney and to execute the instruments drafted by the attorney, but did not himself directly participate in transcribing the instruments. For this reason, as the lower courts concluded, he did not ‘cause[] [the instruments] to be transcribed’ within the meaning of section 21350, subdivision (a)(4).” (Rice, supra, 28 Cal.4th at p. 105.)

III.

NO EVIDENCE WAS PRESENTED AT TRIAL SHOWING WEIGOLD DRAFTED OR TRANSCRIBED THE INSTRUMENTS OR CAUSED THEM TO BE TRANSCRIBED.

Weigold argues insufficient evidence supported the trial court’s findings that he drafted or transcribed either the Trust or the Will, or that he caused either instrument to be transcribed within the meaning of section 21380, subdivision (a)(1) and (2).

In its statement of decision, the trial court explained its findings as follows: “Does [section] 21380(a)(1) and (2) apply to Mr. Weigold? The court finds that the totality of the facts and circumstances supports a finding by a preponderance of the evidence that the [section] 21380 presumptions as to the donative transfer in the Trust and Will apply to Mr. Weigold. The nature of the transfers to Cindy Chy, the relationship of Mr. Weigold, the witnessing of the Will and the financial benefit from the Will and Trust support this finding. Therefore, the donative transfers to Mr. Weigold are presumed to be the product of fraud or undue influence pursuant to [section] 21380 (a)(1) and (2). [¶] The court finds that the evidence in this case supports a finding that Mr. Weigold conspired and cooperated with Mr. Rosenstein in the drafting of the Trust and Will and/or the causing [of] the Trust and Will to be drafted and therefore became a beneficiary of the donative transfer. The fact that checks were written to Mr. Weigold’s wife shortly after the first power of attorney was signed supports this finding[] amongst other evidence. These findings are also supported by the totality of the circumstances of this case.”

The issue presented in this appeal is whether sufficient evidence supported applying the statutory presumption of fraud or undue influence, and not whether substantial evidence might otherwise support a finding of fraud or undue influence. As discussed ante, the statutory presumption under section 21380, subdivision (a)(1) requires evidence that Weigold drafted the Trust and/or Will. No evidence suggests he did so. He is not an attorney. There is no evidence he had any experience with drafting such documents, much less that he had any hand in drafting either of the instruments at issue in this case. Therefore, the trial court’s finding that he drafted the Trust and Will is not supported by sufficient evidence.

There is also no evidence Weigold transcribed the Trust and Will or caused those instruments to be transcribed. The record lacks any evidence of how those two instruments came into physical being, much less that Weigold “direct[ed] or otherwise participate[d] in the instrument[s’] transcription to final written form.” (Rice, supra, 28 Cal.4th at p. 92.) We therefore conclude the presumption of section 21380, subdivision (a)(1) and (2) should not have been applied in this case. As a result of its erroneous application, judgment was entered declaring the Trust and Will void. We must therefore reverse the judgment and remand for retrial on the merits of the Fine parties’ amended petition as to Weigold.

IV.

BECAUSE WE REVERSE THE JUDGMENT, WE ALSO REVERSE THE POSTJUDGMENT ORDER AWARDING ATTORNEY FEES AND COSTS BASED ON THAT JUDGMENT.

The Fine parties’ motion for an award of attorney fees and costs was brought under section 21380, subdivision (d) which provides: “If a beneficiary is unsuccessful in rebutting the presumption, the beneficiary shall bear all costs of the proceeding, including reasonable attorney fees.” The motion also cited section 15642, subdivision (c) which provides: “If, pursuant to paragraph (6) of subdivision (b) [trustee is removed by the court because trustee is a person described in section 21380 subdivision (a)], the court finds that the designation of the trustee was not consistent with the intent of the settlor or was the product of fraud or undue influence, the person being removed as trustee shall bear all costs of the proceeding, including reasonable attorney fees.”

As discussed ante, we reverse the underlying judgment on the ground insufficient evidence supported the application of the fraud or undue influence presumption of section 21380, subdivision (a)(1) and (2). Because the judgment is reversed, Weigold has not been unsuccessful at this juncture in rebutting the presumption of fraud or undue influence under section 21380, subdivision (a). Moreover, the court’s findings regarding fraud or undue influence were based on the improper application of the presumption. The Fine parties are therefore not entitled to attorney fees and costs under section 21380, subdivision (d) against Weigold at this stage. We therefore reverse the postjudgment order awarding the Fine parties attorney fees and costs as to Weigold.

REQUESTS FOR JUDICIAL NOTICE

In his appeal from the judgment in case No. G055974, Weigold requests that this court take judicial notice of the superior court clerk’s entry of dismissal pursuant to the Fine parties’ request for dismissal of Rosenstein with prejudice as to all allegations of their petition. He also requests that we take judicial notice of two documents which he argues show Nisewander had been acquainted with a licensed attorney at the times the Trust and Will were prepared. As no document identified in Weigold’s request is relevant to the issues presented in this appeal, we deny his request.

In his appeal from the postjudgment order awarding the Fine parties attorney fees and costs in case No. G056279, Weigold filed a third request for judicial notice. We deny that request as moot and because the documents he requests that we judicially notice are not relevant to the resolution of the issue presented in this appeal.

DISPOSITION

The judgment and postjudgment order are reversed as to Weigold. The matter is remanded for retrial on the merits of the amended petition as to Weigold. In the interests of justice and because the merits have yet to be tried, neither party shall recover costs on appeal.

FYBEL, J.

WE CONCUR:

O’LEARY, P. J.

MOORE, J.