Filed 3/16/20 Dowling v. Uriostegui CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SEVEN

GREGORY DOWLING,

Plaintiff and Respondent,

v.

DIANE URIOSTEGUI,

Defendant and Appellant.

B294046

(Los Angeles County

Super. Ct. No. 16STPB03890)

APPEAL from a judgment of the Superior Court of Los Angeles County, Mary Thornton-House, Judge. Affirmed as modified.

John L. Dodd & Associates and John L. Dodd; Morris & Morris and John Stuart Morris for Defendant and Appellant.

Gifford, Dearing & Abernathy, Michele L. Abernathy, Riley B. Holzman and Devan R. Larsen; Greines, Martin, Stein, & Richland and Marc J. Poster for Plaintiff and Respondent.

_____________________________

INTRODUCTION

One year before he died, Prescott Dowling amended his family trust to disinherit his only living son, Gregory Dowling, and to name Diane Uriostegui, a friend of the family, as the sole beneficiary of the trust. Gregory brought this action to declare the amended trust void, arguing, among other things, Uriostegui procured the amendment by undue influence.

Following a court trial, the trial court entered judgment in favor of Gregory and ordered Gregory as the trustee to administer assets of the trust under the terms of a prior version of the trust. The court also ruled that, while Prescott was alive, Uriostegui committed financial abuse under Welfare & Institutions Code section 15657.5 by wrongfully causing him to pay off a debt encumbering her home. The court ordered Uriostegui to transfer part of her ownership interest in the home to Gregory.

Uriostegui argues substantial evidence did not support the judgment. She also argues the trial court erred in ordering her to transfer an ownership interest in her home to Gregory because Gregory’s petition did not assert a claim to recover such an interest or to recover payments Prescott made toward her home. We disagree with the first contention, agree with the second, modify the judgment, and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

A. Prescott and Ellen Dowling Create a Family Trust for the Benefit of Their Children

Prescott was born in 1932. In 2005 he and his wife, Ellen, created a revocable trust (the Trust). The Trust named the couple’s two children, Gregory and Richard, as beneficiaries, but provided that Richard’s share would go to Gregory in the event Richard predeceased either Prescott or Ellen. Prescott and Ellen amended the Trust in 2009, maintaining the primary provisions governing distribution of the Trust estate.

Ellen died in July 2011. Richard died less than a year later, in March 2012. Their deaths had a profound effect on Prescott.

B. Prescott Pays Off the Note Encumbering Uriostegui’s Home

Uriostegui was a friend of Prescott and Ellen. She dated their son Richard intermittently for several years in the 1990s. In March 2012 Uriostegui inherited a residential property (the Olive Street property) from a woman named June Downen. As we will discuss, the circumstances in which Uriostegui came to inherit Downen’s property, and their uncanny similarity to the circumstances in this case, became an important issue in this action.

In May 2012 Prescott contributed $359,138 to pay off a promissory note secured by a deed of trust (which the parties refer to as a “reverse mortgage”) on the Olive Street property. Prescott wrote a letter to Uriostegui stating he wanted to pay off the debt because she had been a “dear friend.” He described the payoff as an investment that would allow Uriostegui to live in the home during her lifetime and allow Uriostegui’s son Rob and Gregory to “have the option, to either sell the house or keep it for a rental at their discretion” after both Prescott and Uriostegui died. Prescott added that he and Uriostegui still needed to formalize the terms of the investment.

C. Prescott’s Relationship with Gregory and Gregory’s Children Deteriorates, and Prescott Disinherits Them

According to Gregory and Gregory’s two adult children, Ian and Carleen, Prescott became increasingly depressed after Ellen and Richard died. Gregory initially visited Prescott almost every evening and regularly helped with housework and errands. But Prescott’s relationship with Gregory and his family began to deteriorate. One weekend in 2012 Gregory drove his car out of town for the weekend. When he returned, Prescott claimed that someone had seen Gregory’s car at a nearby store and that Gregory had not actually left town and used the trip as an excuse to avoid him. In another incident, Prescott told Gregory that Gregory’s ex-wife (who no longer lived in the area) had been at a local restaurant with several friends and had called Ellen a bitch and Prescott an old bastard. When Gregory asked his father who told him this, Prescott said it was Uriostegui, whom he described as “very trustworthy.” And in another incident, Prescott went to Gregory’s house and accused Carleen of sending people to spray paint his truck, “bad-mouthing” him at parties, saying she wanted him to die, and calling Ellen a bitch. Carleen cried, denied she said any of these things, and told Prescott she loved him. Gregory asked Prescott where he had heard these statements and expressed concern someone was telling Prescott “this stuff to try and separate you from us to isolate you to get your money.” Prescott said that no one was going to get his money and that he heard about these statements from a “trustworthy” older woman. After this incident, Prescott stopped visiting Gregory’s house and no longer saw Gregory’s children, although Gregory continued to visit Prescott at his house.

By 2014 Prescott was becoming increasingly angry with Gregory, saying that Gregory was a compulsive liar and greedy, that he did not want to see Prescott, and that he wanted Prescott to die. Gregory’s visits with his father decreased from daily to two or three evenings a week. At some point, Gregory stopped seeing Prescott regularly, although Gregory testified at trial he would still call his father and go to the house to check up on him.

In June 2014 Prescott wrote a letter that accused Gregory of having told Richard he wanted Ellen and Prescott to die, telling people Prescott “mistreated him as a child,” and stealing one of Prescott’s watches. In that same letter, Prescott praised Uriostegui as “loyal, dependable, humble and most of all trustworthy.”

Prescott’s anger with and distrust of Gregory and his family culminated when Prescott wrote Gregory a six-page letter in November 2014. Gregory described the letter as coming “out of the blue.” Prescott wrote that Gregory and his children were drug addicts, that Gregory had lied about using cocaine, and that Gregory sold drugs. Prescott accused Gregory of “stealing from people and selling the merchandise for a profit,” stealing Prescott’s watch and garden tools, and “cashing forged checks.” He also accused Gregory of “snitch[ing]” on him to the city about Prescott draining his pool. He also claimed Carleen sent someone to Prescott’s house to spray paint his truck, had an abortion when she was 14, told people Prescott had Alzheimer’s disease and was bedridden, and said Prescott used to strike Gregory. Prescott also wrote he had “shelled out” $350,000 of his retirement money to pay for Gregory’s home, even though that was not true. Prescott, Ellen, and Gregory purchased Gregory’s home for $265,000, with Gregory paying $50,000 and Prescott and Ellen paying $38,000 of the down payment. Gregory paid Prescott and Ellen over $160,000 between 1999 and 2014 toward the loan the parents obtained to purchase the property, taxes, and insurance. Prescott accused Gregory of failing to pay him back because Gregory was “spending money lavishly,” buying Carleen “expensive purses ($1500 each and more),” spending “thousands of dollars in Las Vegas,” and eating at expensive restaurants.

In 2015 an attorney named John Morris prepared an amended trust for Prescott (the 2015 Trust). The 2015 Trust disinherited Gregory and Gregory’s children and made Uriostegui the beneficiary of all the Trust assets. Prescott signed the 2015 Trust on September 1, 2015.

D. Prescott Dies, and Uriostegui Goes on a Spending Spree

Prescott died on June 21, 2016. Uriostegui took $1.8 million from the Trust estate, put it in her personal account, and began to spend it. And spend she did. She made “extensive home improvements” on Prescott’s house and the Olive Street property, and she gave her son money, which he used to buy luxury cars and “numerous racehorses.” Although she testified she could not remember how much money she spent, by the time of trial Uriostegui had returned to her lawyers’ trust account only $750,000 of the $1.8 million.

E. Gregory Files This Action To Void the 2015 Trust, and the Trial Court Rules in His Favor

In October 2016 Gregory filed this action to void the 2015 Trust on the grounds that Uriostegui procured the 2015 amendment through undue influence and that Prescott lacked the capacity at that time to amend the Trust. Gregory sought an order distributing the trust assets pursuant to the 2009 Trust documents. Gregory also brought a claim for financial elder abuse under section 15657.5, seeking noneconomic damages, punitive damages, attorneys’ fees, and costs.

Following a court trial, the trial court issued a 108-page statement of decision. The court declared the 2015 Trust void because Uriostegui procured it by undue influence. The court relied on the testimony of Gregory, Carleen, and two doctors who treated Prescott in 2012 and 2013, Dr. James Henry and Dr. Jay Thomas. The court also relied on the testimony of Dr. Susan Bernatz, a forensic neuropsychologist, who provided expert testimony on Prescott’s testamentary capacity and the indicators of undue influence. Dr. Bernatz analyzed undue influence using a model she developed and referred to by the acronym SCAM (susceptibility, confidential relationship, actions and tactics, and monetary loss).

Applying the factors in section 15610.70, the trial court found by clear and convincing evidence Uriostegui procured the amendments to the Trust through undue influence. The court found Prescott was vulnerable because of his age, health, physical condition, and mental health issues, which included depression, delusions, and paranoia. (See § 15610.70, subd. (a)(1).) The court found Uriostegui exerted apparent authority over Prescott because Prescott signed a power of attorney and healthcare directive naming Uriostegui as his agent to make decisions in the event he was not able to do so and because Prescott repeatedly described Uriostegui as “trustworthy.” (See id., § 15610.70, subd. (a)(2).) The court found Uriostegui gave Prescott false information about Gregory, including that Gregory engaged in conduct similar to criminal conduct Richard engaged in when he was alive, to incite Prescott’s paranoia and generate delusions about Gregory’s behavior and to isolate Prescott from Gregory. (See id., § 15610.70, subd. (a)(3).)

The court also found that how Uriostegui came to inherit the Prescott family’s assets was, as one witness put it, “eerily similar” to how she inherited the Olive Street property from Downen. In particular, Downen wrote letters about her son that were similar to the letters Prescott wrote Gregory. The letters in both cases were written by ailing senior citizens who would soon leave their estates to Uriostegui, asserted the authors were “of sound mind” (as if “to provide support for the gifting of entire estates to a non-family member”), used similar adjectives to described the respective sons (“disrespectful, lying, drug dealing, attributing bad-mouthing to connected family, wishing them both dead, and thieving”), and included “the theme of engendering mistrust to those that would be a natural heir.” The court found: “The similarities in language and the resulting isolation [of immediate family members] are all evidence of a common scheme/plan and they also solidify [Uriostegui’s] identity as someone capable of exerting the undue influence that she exerted in Prescott’s last years.” The court found that Prescott “was a victim of undue influence and but for that undue influence he would not have deviated from an almost 10 year plan of leaving his remaining son and grandchildren his estate.”

The court also ruled the 2015 Trust was void because Prescott lacked the capacity to amend the trust as a result of “delusions.” These delusions included Prescott’s mistaken beliefs about the actions and intentions of Gregory and Carleen, as expressed in his letters and his statements to others, and Prescott’s mistaken belief about the amount of money that he had paid (and that Gregory owed him) for Gregory’s house, which Prescott appeared to confuse with the payment he made toward the Olive Street property. Finally, the court found that Prescott originally intended his payment toward the debt on the Olive Street property to be an investment that would remain part of his estate, but that Uriostegui’s undue influence “caused Prescott’s investment . . . to be converted into a gift.”

The court ordered Gregory as the trustee to administer the trust according to the 2009 Trust documents. The court ordered Uriostegui to return the Trust assets she had taken (plus interest), transfer title to Prescott’s residence to Gregory as the trustee of the Trust, file an accounting as a constructive trustee, not make any transfers that would impede the court’s orders, and pay Gregory his attorneys’ fees and costs. The court also ordered Uriostegui to transfer to Gregory an ownership interest in the Olive Street property “equal to the current value of the share of the residence purchased by Prescott Dowling” and imposed a lien on Uriostegui’s remaining interest in the property. Uriostegui timely appealed.

DISCUSSION

A. Standard of Review

“‘In reviewing a judgment based upon a statement of decision following a bench trial,’ we review questions of law de novo,” and “‘[w]e apply a substantial evidence standard of review to the trial court’s findings of fact.’” (Ribakoff v. City of Long Beach (2018) 27 Cal.App.5th 150, 162; see Estate of Young (2008) 160 Cal.App.4th 62, 76.) In reviewing a substantial evidence challenge to a judgment based on a statement of decision, “the appellate court will ‘consider all of the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference, and resolving conflicts in support of the [findings]’ . . . . We may not reweigh the evidence and are bound by the trial court’s credibility determinations. [Citations.] Moreover, findings of fact are liberally construed to support the judgment.” (Estate of Young, at p. 76; see In re Marriage of Ciprari (2019) 32 Cal.App.5th 83, 94.)

Courts have traditionally held that the substantial evidence standard of review applies even where the cause of action or claim requires the plaintiff prove his or her case by clear and convincing evidence. For example, in In re Marriage of E. & Stephen P. (2013) 213 Cal.App.4th 983, the court stated: “The clear and convincing standard . . . applies in the trial court and is not a standard for appellate review. [Citation.] ‘“‘The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal.’” . . . Thus, on appeal from a judgment required to be based upon clear and convincing evidence, “the clear and convincing test disappears . . . [and] the usual rule of conflicting evidence is applied, giving full effect to the respondent’s evidence, however slight, and disregarding the appellant’s evidence, however strong.”’” (Id. at pp. 989-990; see Morgan v. Davidson (2018) 29 Cal.App.5th 540, 549; In re Christopher R. (2014) 225 Cal.App.4th 1210, 1216, fn. 4.) The Supreme Court, however, has granted review in a conservatorship case to decide whether, in reviewing a trial court order that must be based on clear and convincing evidence, the reviewing court is simply required to find substantial evidence to support the trial court’s order or find substantial evidence from which the trial court could have made the necessary findings based on clear and convincing evidence. (Conservatorship of O.B. (2019) 32 Cal.App.5th 626 review granted May 1, 2019, S254938.) As we will discuss, under either standard, substantial evidence supports the trial court’s findings.

B. The Court Did Not Err in Voiding the 2015 Trust Because Uriostegui Procured It by Undue Influence

1. Governing Law

“California courts have long held that a testamentary document may be set aside if procured by undue influence.” (David v. Hermann (2005) 129 Cal.App.4th 672, 684 (David); see Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1357.) “‘Undue influence’ means excessive persuasion that causes another person to act or refrain from acting by overcoming that person’s free will and results in inequity.” (§ 15610.70, subd. (a); Prob. Code, § 86; see Lintz, at p. 1354 [“undue influence, in the context of a testamentary disposition of property by will or trust, [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’”].) Section 15610.70, subdivision (a), provides that, in “determining whether a result was produced by undue influence,” courts must consider: “(1) The vulnerability of the victim,” “(2) The influencer’s apparent authority,” “(3) The actions or tactics used by the influencer,” and “(4) The equity of the result.” “‘[T]he party contesting a testamentary disposition bears the burden of proving undue influence . . . by clear and convincing evidence.’” (Doolittle v. Exchange Bank (2015) 241 Cal.App.4th 529, 545; see Estate of Clementi (2008) 166 Cal.App.4th 375, 384 [“probate court correctly placed the burden of proof on appellants to prove by clear and convincing evidence that [the testamentary] gift . . . was the product of undue influence”].)

2. Substantial Evidence Supported the Trial Court’s Findings

Uriostegui argues “[t]here was no substantial evidence the ‘presumption’ [of undue influence] arose, nor is there substantial evidence of ‘undue influence’ absent the presumption.” “A presumption of undue influence ‘arises upon the challenger’s showing that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instrument’s preparation or execution; and (3) the person would benefit unduly by the testamentary instrument.’” (David, supra, 129 Cal.App.4th at p. 684; see Rice v. Clark (2002) 28 Cal.4th 89, 97.) Even without the presumption, however, the court can consider “the evidence as a whole” to determine whether it “satisf[ies] the general standard for proof of undue influence . . . .” (David, at p. 685.)

Here, the court did not apply the presumption of undue influence, but instead considered the factors in section 15610.70 and found Uriostegui procured the 2015 amendments to the Trust through undue influence. Substantial evidence supported the court’s findings. (See Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1357 [“even without [the] presumption, the statement of decision establishes the undue influence required to void a testamentary document; defendant’s influence overcame decedent’s free will and operated directly on the testamentary acts voided by the trial court”].)

As to the first factor, the vulnerability of the victim, “[e]vidence of vulnerability may include, but is not limited to . . . illness, . . . injury, age, . . . impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim’s vulnerability.” (§ 15610.70, subd. (a)(1).) These factors were present here. Prescott was 83 years old when he executed the 2015 Trust. His wife and one of his sons had died in recent years, and multiple witnesses, including Dr. Henry and Dr. Thomas, testified Prescott appeared depressed. Dr. Thomas treated Prescott for several health problems, including “significant cardiac” and “congestive issues.” Prescott was hospitalized several times, including for surgery following a fall in 2012 and for surgery to implant a pacemaker. Dr. Henry described Prescott’s mental state as both “combative” and “paranoid.” Prescott would yell at healthcare providers and kick them out of his room, and Prescott told Dr. Henry and his staff that Gregory and Carleen were stealing from him. Dr. Bernatz testified Prescott’s vulnerability to abuse was heightened because Ellen and Richard had recently died and Prescott was living alone.

There was also evidence Uriostegui knew of Prescott’s vulnerabilities. Uriostegui testified that her relationship with Prescott was very close—“like brother and sister”—and that after Ellen died she would regularly see Prescott in person and speak with him on the phone.

As to the second factor, the influencer’s apparent authority (§ 15610.70, subd. (a)(2)), there was evidence Prescott placed a great deal of trust in Uriostegui. When discussing the source of his beliefs that Gregory and Carleen were persecuting him, Prescott repeatedly referred to Uriostegui as “trustworthy” and (although he did not always identify Uriostegui by name) as a “trusted” friend and like a sister. (See Assemblymember Dickinson, sponsor of Assem. Bill No. 140 (2013-2014 Reg. Sess.), letter to Chief Clerk of the Assembly concerning the legislative intent of Assem. Bill 140 (2013-2014 Reg. Sess.), reprinted at Assem. J. (2013-2014 Reg. Sess.) p. 3368 [apparent authority factor “describe[s] those who occupy positions of trust and who thus might more easily unduly influence an elder”]; cf. § 15610.70, subd. (a)(2) [family relationship can evidence apparent authority].) Prescott also made Uriostegui his agent in the event he could no longer care for his affairs or make medical decisions. Dr. Bernatz testified Uriostegui was in a position to influence Prescott because he trusted her, and Uriostegui knew his vulnerabilities.

Uriostegui argues a long-term friendship, like the one she had with Prescott, is not a confidential relationship for purposes of proving undue influence. The second factor of the undue influence test, however, is not whether there was a “confidential relationship” (that’s the first factor of the undue influence presumption), but whether the influencer had apparent authority over the vulnerable person. (See § 15610.70, subd. (a)(2); David, supra, 129 Cal.App.4th at p. 684.) In any event, Uriostegui’s theory of a confidential relationship is wrong. So long as the requisite level of trust is present, a testator can have a confidential relationship with a friend, as Prescott had with Uriostegui. (See Estate of Baker (1982) 131 Cal.App.3d 471, 475, 480 [confidential relationship existed between the testator and a trusted friend the testator considered knowledgeable].)

The third factor is evidence of the influencer’s “actions or tactics,” such as “[c]ontrolling . . . the victim’s interactions with others [and] access to information” and the use of “coercion.” (§ 15610.70, subd. (a)(3)(A), (B).) And “[a]lthough fraud and undue influence are separate grounds for setting aside a will [citation], they are closely related, and fraud may be considered in determining whether there was undue influence.” (Estate of Garibaldi (1961) 57 Cal.2d 108, 114; see David, supra, 129 Cal.App.4th at p. 685 [“contestants relying on a theory of undue influence may claim that the beneficiary employed misrepresentations to pressure the testator”].) Here, there was evidence Uriostegui gave Prescott false information to convince Prescott to distrust his son. Prescott told Gregory and Carleen that the source of his false beliefs about them was a trustworthy friend, and on one occasion Prescott identified Uriostegui as that friend. Significantly, Uriostegui did not submit any evidence to rebut the testimony of Gregory and Carleen that none of the accusations Prescott made against them was true. In addition, some of the conduct Prescott believed Gregory engaged in, such as drug use, theft, and cashing forged checks, was similar to conduct Richard had engaged in (and been arrested for) before he died. It was reasonable to infer from this evidence that Uriostegui, who dated Richard in the 1990’s, had access to this information and used it to convince Prescott that Gregory had engaged in this type of conduct.

Dr. Bernatz’s testimony further supported the trial court’s findings. She testified that Prescott had projected his fears of Richard’s criminal behavior onto Gregory and that, as Prescott’s trust in Gregory decreased, his confidence in and reliance on Uriostegui increased. While Dr. Bernatz did not specifically opine that Uriostegui gave Prescott false information, she testified that giving a person false information to incite a delusion and poison that person’s family relationships was a manipulative persuasion tactic and a means of exploiting the person’s vulnerabilities. And Dr. Bernatz testified that “clearly” Prescott’s delusions “were being incited.”

Finally, the evidence of how Uriostegui inherited Downen’s estate was circumstantial evidence supporting the court’s findings. As she had with Prescott, Uriostegui developed a close friendship with Downen. Before Downen died, she (like Prescott) began making accusations against her son Gary, spoke with him less frequently, and stopped seeing him in person. On one occasion, Gary heard Uriostegui disparage him over the phone to Downen. Like Prescott, Downen wrote letters that stated she was of sound mind and that accused her son of being disrespectful, selling drugs, and lying. Downen wrote a letter to Uriostegui directing her not to let Gary or Gary’s wife into her home. Prescott wrote a similar letter in April 2016 directing Uriostegui not to let Gregory or Gregory’s family into his home. As the trial court found, the facts of Uriostegui’s two inheritances evidenced a common scheme, motive, and knowledge of how to isolate aging parents from their immediate family members and inherit money and property that would otherwise go to the parents’ children.

Uriostegui argues there was no substantial evidence she actively participated in procuring the amendments to the Trust. But although there was no direct evidence that Uriostegui convinced Prescott to execute the Trust amendments, there was circumstantial evidence that Uriostegui gave Prescott false information and isolated him from his son to inherit his estate. (See Estate of Carter (2003) 111 Cal.App.4th 1139, 1154 [substantial evidence includes reasonable inferences]; Getty v. Getty (1972) 28 Cal.App.3d 996, 1003 [same].) And as the trial court found, the letters Prescott wrote were apparently drafted to justify the 2015 amendment to the Trust. Prescott wrote the June 2014 letter (where he made some of the worst statements about Gregory, including that Gregory wanted his parents to die and claimed his parents had mistreated him as a child) to “enlighten” Deborah Caldin, the first attorney Prescott asked to amend the Trust. In any event, evidence of active participation in procuring a testamentary document, while “highly probative,” “is essential to proof of undue influence only if the court relies on the presumption of undue influence to shift the burden of proof to the proponent of the testamentary instruction.” (David, supra, 129 Cal.App.4th at p. 684.) Because the trial court did not rely on the presumption, the court did not have to make a finding of active participation. (See id. at pp. 684-685 [“Appellant cannot challenge the court’s finding of undue influence by showing only the weakness or absence of evidence of procurement; other factors in combination can also support this finding.”].)

The final factor under section 15610.70—“evidence of the equity of the result,” such as “any divergence from the [testator’s] prior intent” (§ 15610.70, subd. (a)(4))—also supported a finding of undue influence. The 2015 Trust diverged from Prescott’s (and Ellen’s) intention in the 2009 Trust to leave the entire trust estate (in the event Richard died first) to Gregory and Gregory’s children.

Citing In re Estate of Shay (1925) 196 Cal. 355, Uriostegui argues that she did not “‘unduly’ benefit” from the amendments to the Trust because Prescott’s reasons for disinheriting Gregory were “‘a matter of opinion’” and that “courts ‘have no right to substitute their opinions . . . for that of the testator.’” To the extent Uriostegui is arguing a beneficiary cannot challenge a testator’s or trustee’s decision to disinherit his or her child, that is not the law. (See David, supra, 129 Cal.App.4th at p. 684.) As stated, section 15610.70, subdivision (a)(4), provides that divergence from a testator’s prior intent is relevant to the inequity analysis. In any event, In re Estate of Shay is distinguishable. In that case the Supreme Court held a testator’s son did not unduly benefit from an amendment to a will because “[t]he amount which he will receive under” the amended will was “substantially the same as he would have received under the [prior] will.” (In re Estate of Shay, at p. 364.) In contrast, under the terms of the 2009 Trust, Gregory gets everything and Uriostegui gets nothing; under the 2015 Trust, Uriostegui gets everything and Gregory gets nothing. That’s not “substantially the same.”

3. The Trial Court Did Not Err in Relying on Dr. Bernatz’s Testimony

Without arguing Dr. Bernatz’s testimony was inadmissible, Uriostegui contends Dr. Bernatz’s testimony was not substantial evidence. In particular, Uriostegui argues there was no evidence supporting Dr. Bernatz’s opinion Prescott disinherited Gregory because Prescott believed Gregory had engaged in misconduct or had ill will toward him. Uriostegui contends the “overwhelming” and “unrefuted” evidence was that Prescott disinherited Gregory because Gregory failed to repay him for payments he made toward Gregory’s house and for money he gave Gregory to buy a truck.

“‘[W]hen an expert bases his or her conclusion on . . . “assumptions . . . not supported by the record,” the expert’s opinion “cannot rise to the dignity of substantial evidence . . . .”’” (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 314; accord, Wise v. DLA Piper LLP (US) (2013) 220 Cal.App.4th 1180, 1191; see Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1117 [expert opinion “based on assumptions of fact without evidentiary support . . . or on speculative or conjectural factors . . . has no evidentiary value”].) There was some evidence one of the reasons Prescott disinherited Gregory was that Gregory had not paid all the money he owed his father. Indeed, Morris testified Gregory’s failure to pay back Prescott was a “large portion” of the reason Prescott asked him to amend the Trust. But there was also evidence Prescott disinherited Gregory for other reasons. For example, Gregory testified Prescott would threaten to disinherit him when Prescott told Gregory he was a liar and untrustworthy and claimed he wanted Prescott to die. In his June 2014 letter Prescott wrote that he was making statements about Gregory to “enlighten” Caldin. Prescott wrote in another letter that he was revoking his power of attorney appointing Gregory as his agent because Gregory was “sneaky, disrespectful, hostile, mean and a big liar.” There was sufficient evidence for Dr. Bernatz to opine Prescott did not disinherit Gregory solely because Gregory stopped paying back money Prescott had lent him.

Uriostegui also argues Dr. Bernatz’s testimony was not substantial evidence because she testified she was not giving an expert opinion. This argument mischaracterizes the record. Dr. Bernatz declined to give an ultimate opinion whether Uriostegui unduly influenced Prescott, but she opined that the facts she reviewed evidenced “indicators” of undue influence under her SCAM model.

Finally, Uriostegui argues Dr. Bernatz’s testimony was not substantial evidence because she simply testified about her understanding of the law. “[A]n expert may not testify about issues of law or draw legal conclusions” (Nevarrez v. San Marino Skilled Nursing & Wellness Centre, LLC (2013) 221 Cal.App.4th 102, 122), and “‘[s]uch legal conclusions do not constitute substantial evidence” (King v. State of California (2015) 242 Cal.App.4th 265, 292). But that is not what Dr. Bernatz did. She described the indicators she believed demonstrated undue influence based on her expertise as a forensic neuropsychologist; that is, she testified about facts, and left it to the trier of fact to decide whether those facts met the legal requirements for undue influence. The trial court considered Dr. Bernatz’s testimony in analyzing the undue influence factors in section 15610.70, subdivision (a).

Finally, even without Dr. Bernatz’s testimony, there was substantial evidence to support the trial court’s finding Uriostegui procured the 2015 Trust amendments by undue influence. As discussed, the testimony of Gregory, Carleen, Dr. Henry, and Dr. Thomas about Prescott’s behavior, the accusations and other statements in Prescott’s letters, and the similarity between how Prescott disinherited Gregory in favor of Uriostegui and how Downen left her house to Uriostegui rather than her son supported the trial court’s finding that each of the factors in section 15610.70, subdivision (a), was present and that Prescott amended the Trust because of Uriostegui’s undue influence.

C. The Trial Court Did Not Err in Declaring the 2009 Trust the Governing Trust Document

Before executing the 2015 Trust, Prescott signed an amended Trust in June 2014 that purported to leave some of the trust assets to Uriostegui and some of the trust assets to Gregory. Uriostegui argues that, even if the 2015 Trust is void, the trial court should have reinstated the 2014 Trust.

Uriostegui, however, forfeited this argument by failing to timely raise it in the trial court. “It is well established that appellate courts will ordinarily not consider errors that ‘could have been, but [were] not raised below,’” both as “to defenses as well as theories of liability.” (Findleton v. Coyote Valley Band of Pomo Indians (2018) 27 Cal.App.5th 565, 569 (Findleton); see Sachs v. Sachs (2020) 44 Cal.App.5th 59, 66; In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826.)

Gregory alleged in his petition that, because the 2015 Trust was void, the 2009 Trust governed the disposition of the trust estate. At trial, Uriostegui argued only that Gregory failed to show the 2015 Trust was void. Even though Uriostegui was aware of its existence, she did not argue that the 2014 version of the Trust should govern if the court voided the 2015 Trust. It was not until the court issued its proposed statement of decision that Uriostegui argued for the first time in her objections that the trial court should enforce the 2014 Trust rather than the 2009 Trust. That was too late. (See Colony Ins. Co. v. Crusader Ins. Co. (2010) 188 Cal.App.4th 743, 751 [plaintiff forfeited an argument by failing to raise it “until its posttrial objections to the statement of decision”].) And Uriostegui’s failure to raise the issue at trial prevented Gregory from having the opportunity to argue Uriostegui procured the amendments to the 2014 Trust through undue influence as well. (See Findleton, supra, 27 Cal.App.5th at p. 569 [“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.”].)

Moreover, even if Uriostegui’s objections to the statement of decision were sufficient to preserve the argument for appeal, she did not in her objections respond to the evidence at trial that the 2014 Trust was invalid. Morris, the attorney who drafted the 2015 Trust, knew of the 2014 Trust and believed it was “illegal” and unenforceable because it purported to amend irrevocable provisions of the Trust. He also stated that, after he discussed his opinion with Prescott, Prescott decided to treat the 2014 Trust document as a “nonevent.” (See Gardenhire v. Superior Court (2005) 127 Cal.App.4th 882, 888 [“‘In construing trust instruments, as in the construction and interpretation of all documents, the duty of the court is to first ascertain and then, if possible, give effect to the intent of the maker.’”].)

D. The Trial Court Erred in Ordering Uriostegui To Transfer an Ownership Interest in Her Home to Gregory

Uriostegui argues that, even if the trial court did not err in voiding the 2015 Trust, the court erred in requiring her to transfer an ownership interest in the Olive Street property because Gregory’s petition did not include a claim to recover payments Prescott made toward the property or to obtain an interest in that property. Uriostegui is correct on this point.

“[A] party must recover on the cause of action alleged in the complaint and not on a separate and distinct cause of action disclosed by the evidence . . . . ‘A judgment that goes beyond the issues litigated is void insofar as it exceeds those issues.’” (People v. Toomey (1984) 157 Cal.App.3d 1, 11.) “But only a ‘material variance’ between the pleading and proof is fatal to the case,” (ibid.), and a variance is not material “unless it has actually misled the adverse party to his or her prejudice in maintaining his or her action or defense upon the merits.” (Code Civ. Proc., § 469.) “‘“If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses.”’” (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1378 (Duchrow); see Garcia v. Roberts (2009) 173 Cal.App.4th 900, 910.)

In his petition Gregory did not assert a claim to recover Prescott’s payment toward or an interest in the Olive Street property. While Gregory’s petition included a claim for financial abuse under section 15657.5, that claim sought only damages caused by Prescott’s amendment to the Trust (and attorneys’ fees), not damages caused by Prescott’s payment toward the Olive Street property. In addition, while Gregory sought damages and attorneys’ fees relating to the Trust amendments, he did not seek damages, an injunction, or declaratory relief concerning the payments Prescott made toward the Olive Street property, nor did Gregory seek to recover any other money Prescott may have given to Uriostegui before he died. The first time Gregory made a claim relating to Prescott’s investment in or payment regarding the Olive Street property was at the end of counsel for Gregory’s closing argument.

Gregory’s failure to request an interest in the Olive Street property until closing argument prejudiced Uriostegui because it exposed her to an order requiring her to give Gregory an interest in her home in addition to returning Trust assets. (See Duchrow, supra, 215 Cal.App.4th at pp. 1379-1381 [amendment at the end of trial seeking additional damages under a different clause of agreement was prejudicial].) Had Uriostegui known she risked losing her home of over 10 years, she would have had an opportunity and the motivation to litigate the issue vigorously and different incentives to resolve the case. (See id. at pp. 1381 1382 [defendant’s knowledge of additional potential liability would have affected willingness to compromise].) Gregory did not put Uriostegui on notice she would need to defend against the possibility she could lose some or all of her interest in her house until after the close of evidence. Gregory’s late-minute “claim by ambush” precluded Uriostegui from defending against a claim that was never alleged. (See Harshad & Nasir Corp. v. Global Sign Systems, Inc. (2017) 14 Cal.App.5th 523, 544, 546 [variance was material where during the arbitration the plaintiffs asserted a new claim for lost profits that the defendant did not reasonably believe it had to defend].)

Gregory asserts Uriostegui is estopped from arguing she did not have notice of the claim for an interest in the Olive Street property because the issue came up during the trial. “‘It is well settled that where the parties and the court proceed during the trial upon a theory that a certain issue is presented for adjudication, the doctrine of estoppel precludes either party from thereafter asserting that no such issue was in controversy, even though it was not actually raised by the pleadings.’” (Meritplan Ins. Co. v. Universal Underwriters Ins. Co. (1966) 247 Cal.App.2d 451, 460; see Estate of Pieper (1964) 224 Cal.App.2d 670, 680.) The record does not support Gregory’s assertion. Counsel for Gregory discussed the Olive Street property payment in his trial brief and opening statement, but he did so in connection with a different issue. Gregory argued Prescott conflated the amount he paid toward Gregory’s home with the amount he paid toward the Olive Street property, which was evidence Prescott lacked testamentary capacity to amend the Trust, but Gregory did not contend until closing argument that he was entitled to recover Prescott’s payment toward the Olive Street property or that he was entitled to ownership interest in that property. (See Lein v. Parkin (1957) 49 Cal.2d 397, 400-401 [plaintiff’s failure to object to the evidence relied on by the trial court did not estop the plaintiff from arguing the trial court’s ruling was beyond the scope of pleadings where the evidence was relevant to a different issue raised by pleadings]; Miller v. Peters (1951) 37 Cal.2d 89, 93 [“‘evidence which is relevant to an issue actually raised by the pleadings cannot be considered as authorizing the determination of an issue not presented’”].)

Gregory argues that, even if there was a material variance between his petition and the evidence, Uriostegui forfeited her right to complain by failing to timely object. As Gregory points out, Uriostegui did not object during counsel for Gregory’s closing argument. But she did object as soon as the court issued its proposed statement of decision and she learned the court was ruling on a claim Gregory had not raised in his petition or during the presentation of evidence. While a party may forfeit an objection to a variance between the evidence and the pleadings by failing to timely object, that “‘rule is based upon the principle of equitable estoppel. It is unfair for a party to withhold [the] objection . . . which, if pointed out in time might have been remedied by amendment, thereby inducing his opponent to rely upon his pleading as sufficient, until it is too late to correct the defect . . . .’” (Stephens v. Baker & Baker (1957) 150 Cal.App.2d 558, 559.) Here, Uriostegui did not induce Gregory to believe his complaint was sufficient to recover an interest in the Olive Street property; it was Gregory who surprised Uriostegui by raising a new theory of liability and claim for relief for the first time after the close of evidence. Under the circumstances, Uriostegui did not forfeit her argument that the trial court erred in awarding Gregory an interest in her home. (Cf. Wishart v. Claudio (1962) 207 Cal.App.2d 151, 154 [defendant forfeited a variance objection where the plaintiff’s pretrial statement specified the theory of recovery]; Viglione v. City and County of San Francisco (1952) 109 Cal.App.2d 158, 160 [defendant forfeited the argument that certain issues were outside the pleadings where the plaintiff’s attorney raised the issues during opening statements and the defendant did not object to the trial court’s findings of fact].)

DISPOSITION

The judgment is modified to delete the provision ordering Uriostegui to transfer an ownership interest in the Olive Street property to Gregory (paragraph 5 of the judgment). As modified, the judgment is affirmed. The parties are to bear their costs on appeal.

SEGAL, J.

We concur:

PERLUSS, P. J.

FEUER, J.