Filed 3/23/20 Charles v. Baner CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JEFFREY CHARLES,

Plaintiff, Cross-defendant and Appellant,

v.

YVONNE BANER,

Defendant, Cross-complainant and Respondent.

D076193

(Super. Ct. No. RIC 1406506)

APPEAL from a judgment of the Superior Court of Riverside County, Irma Poole Asberry and John D. Molloy, Judges. Affirmed.

Holstrom, Block & Parke and Ronald B. Funk, for Plaintiff, Cross-defendant and Appellant.

Disenhouse Law, Bruce E. Disenhouse and Gary O. Poteet, for Defendant, Cross-complainant and Respondent.

 

BACKGROUND

Procedure

Plaintiff and cross-defendant Jeffrey Charles filed a complaint against defendant and cross-complainant Yvonne Baner, alleging causes of action for fraud, negligent misrepresentation, civil conspiracy, tortious interference, elder abuse, intrusion into private affairs, intentional interference with expected inheritance, racketeering, intentional infliction of emotional distress, preliminary and permanent injunctive relief, and declaratory relief. Baner answered and cross-complained for abuse of process, malicious prosecution, extortion, defamation, elder abuse, intentional infliction of emotional distress, injunctive relief and declaratory relief.

The court excluded all evidence of Charles’s claims for fraud, misrepresentation and elder abuse in response to motions in limine filed by Baner, effectively dismissing those causes of action. Charles withdrew his causes of action for intrusion into private affairs and for racketeering. A jury returned special verdict forms, finding against Charles and in favor of Baner on all remaining claims. It awarded general and punitive damages to Baner in the total amount of $290,600.

The circumstances of the notice of appeal, which we conclude was timely, are discussed post.

 

Statement of Facts

Edith Charles (Edith ) has two children, Cheryl Corwin and Charles. Edith had a stroke in 2009, when she was about 76 years old. After the stroke, Corwin asked her neighbor, Baner, to help her draft documents so Corwin could move Edith from the hospital to an assisted living facility. Baner, who is an attorney, notary public and real estate broker, was 82 years old in 2017. Baner prepared a physician’s directive and a durable power of attorney, with Corwin having the primary power of attorney and Charles having secondary power. Baner took the documents to the hospital and spent more than three hours there with Edith and Corwin, explaining the documents to Edith. Baner sat on Edith’s bed, holding her hand and reading the documents to her. Baner asked Edith to squeeze her hand to indicate when she understood what was going on. Baner was convinced that Edith understood the documents. Edith signed the documents in front of Baner, and Baner notarized them. Baner had the general power of attorney recorded with the county in May 2009.

A few months later, Baner reviewed Edith’s property records. Edith and her husband had placed their residential property in Murrieta into a revocable inter vivos trust in 1997, with Charles and Corwin named as the eventual beneficiaries. Recorded documents showed, however, that the property had been removed from the trust by grant deed, and another grant deed transferred the property to Edith after her husband died. Baner asked Edith what she wanted to do with the property. Edith said she wanted it placed back into a trust, as her husband had planned. Baner prepared a trust transfer deed transferring Edith’s property back into the revocable living trust set up by Edith and her husband and discussed it with both Edith and Corwin. Baner witnessed Edith sign the deed and notarized it, and had it recorded on March 14, 2010. Edith was not mentally incapacitated when she signed the deed and understood what she was signing.

DISCUSSION

1. The Appeal is Timely

Baner first argues that the appeal is untimely under California Rules of Court, rules 8.104 and 8.108.

Charles filed his notice of appeal on April 16, 2018, 84 days after filing a motion for judgment notwithstanding the verdict (JNOV) and to vacate the judgment. Baner contends that this posttrial motion was untimely and improper. As we explain below, the posttrial motion was timely filed and was adequate to extend the time for filing a notice of appeal.

The court entered judgment on December 19, 2017. Charles then declared bankruptcy. Baner notified the court on November 17, 2017, that she had obtained relief from the automatic stay of the litigation. Baner’s attorney prepared a notice of entry of judgment, served the notice on Charles on January 5, 2018, by regular mail at his address in Nevada, and filed it with the court on January 8, 2018. Charles contested the results of the trial by filing a motion for JNOV and to vacate the judgment on January 22, 2018. Rule 8.108 extends the time to appeal when a party files a motion to vacate the judgment or a motion for JNOV. Charles filed a notice of appeal on April 16, 2018, 84 days after filing his posttrial motion. The appeal was timely if there was no error in filing the motion for JNOV or to vacate the judgment. (Rule 8.108(c), (d).)

Notice of intention to file the motion for JNOV and to vacate the judgment must be filed within 15 days of service of notice of entry of judgment. (Code Civ. Proc.,

§ 659, subd. (a)(2).) The extension of time provided for service (Code Civ. Proc., § 1013) does not extend the date for filing those motions. (Code Civ. Proc., § 659, subd. (b).) Charles thus had until January 20, 2018, in which to file his posttrial motions. We take judicial notice that January 20, 2018, was a Saturday, pursuant to Evidence Code section 459 and 452, subdivision (h). (See People v. Cunningham (1950) 99 Cal.App.2d 296, 300 [“Courts may draw inferences predicated on judicial notice taken of calendar dates of the week on which days fall”].) If the last day for some action falls on a Saturday, Sunday or legal holiday, the time is extended until the next court day. (Rule 1.10(a).) Charles’s motion for JNOV and to vacate the sentence was due on the next court day after January 20, which was Monday, January 22, 2018. The motion was thus timely filed.

We note the record, including the register of actions, contains no information about a hearing on the motion, an extension of time for hearing, or its disposition. We conclude it was denied by operation of law within 60 days, pursuant to former Code of Civil Procedure 660, which was effective through December 31, 2018. Sixty days from filing of the motion expired on March 24, 2018. The notice of appeal was due within 30 days after denial of the motion by operation of law, or April 23, 2018. (Rule 8.108(d)(1)(B).) Charles thus filed a timely notice of appeal on April 16, 2018.

Baner also contends that the motion was improper, contending that Charles did not follow the procedures set out for a motion to vacate judgment, or for JNOV. Code of Civil Procedure section 659, subdivision (a) states that the party intending to move for a new trial “shall file with the clerk and serve upon each adverse party a notice of his or her intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both.” The moving party then “shall” serve and file his brief and accompanying documents within 10 days, including affidavits in support of the motion. (Code Civ. Proc., § 659a.) Charles filed his points and authorities on January 22, instead of filing a notice of intention and then the supporting documents 10 days later.

Baner also complains that Charles never served a notice of hearing specifying the date, time and location of the motion hearing. The motion has a date of July 23, 2018, stamped on it, however, and Baner states that the motion was denied for lack of jurisdiction.

Charles substantially complied with the requirements of Code of Civil Procedure sections 659 and 659a because he stated the relief he requested and the grounds for that relief. “[C]ompliance (or substantial compliance) with the requirements of subdivision (a) of Code of Civil Procedure section 659 depends upon whether the request provides the relevant information to the opposing party and the court and gives the adverse party a reasonable opportunity to oppose the request on its merits. [Citations.] These functions are satisfied when the written request designates the grounds upon which it is made.” (Watson Bowman Acme Corp. v. RGW Construction, Inc. (2016) 2 Cal.App.5th 279, 299.) The motion stated that the evidence at trial was insufficient to support the jury’s verdict that Charles was liable to Baner for malicious prosecution, wrongful use of civil proceedings and abuse of process. The grounds were stated and Baner had ample time to reply. (See ibid.)

Charles’s motion for JNOV or to vacate the judgment substantially complied with procedural requirements such that it triggered the extension of time to appeal under rule 8.108. His appeal was timely filed within the dictates of that rule.

2. Charles Had No Standing to Claim Elder Abuse, Fraud and Misrepresentation on Behalf of his Mother

Charles contends that the trial court erred in dismissing three of his causes of action—elder abuse, fraud and misrepresentation—by ruling on motions in limine that he had no standing to pursue those claims. Edith was the only one who would benefit or be injured by a judgment on those causes of action and therefore was the real party in interest who had standing to pursue those claims. Charles was neither a successor to those claims nor a conservator of Edith. He could not pursue claims that had no actual impact on him. Standing does not extend to contingent heirs or beneficiaries when the elder is still alive.

Background

Charles alleged in his fifth cause of action that Baner committed elder abuse against Edith. He asserted that Baner created and notarized a fraudulent power of attorney for Edith, forged Edith’s name on checks; appropriated Edith’s property for her own use; prevented Charles from visiting Edith; failed to provide her with adequate air conditioning provided negligent medical care for Edith; and planned to sell off her home. He alleged in his first claim for relief that Baner committed fraud by forging Edith’s signature on a trust transfer deed, transferring her property into a revocable trust. He alleged in his second claim that Baner made negligent misrepresentations when she recorded the allegedly forged trust transfer deed.

Baner moved in limine to exclude evidence of the allegations of fraud, misrepresentation and elder abuse because Charles had no standing to assert these causes of action on behalf of Edith. The trial court granted both motions. It stated that Edith was a living person who had an actual and substantial interest in the charges brought by Charles, and she was the only one who would be benefited or injured by the result of his claims. Charles was not Edith’s conservator. The public guardian had been appointed over the person and estate of Edith. The court noted that the trust was a revocable trust. Edith, with her public guardian trustee, could make changes to the trust. Charles was a beneficiary of the trust, but his interest was contingent. The court stated that the trustee owed a duty of care only to the settlor of the trust as long as the settlor was alive, citing Estate of Giraldin (2012) 55 Cal.4th 1058 at page 1062 (Giraldin). The court ruled that Charles had no standing to pursue his causes of action for elder abuse, fraud and misrepresentation, as he was not the real party of interest in those claims. Baner owed duties to Edith, not to Charles. Only Edith, her conservator or her trustee could pursue those causes of action. Charles had no claim for fraud or for negligent misrepresentation as to Baner because Baner had no duties toward him. The court granted both motions in limine 5 and 9.

The Court Could Exclude Evidence of These Causes of Action by way of Motions in Limine

Charles argues that the court erred in making dispositive rulings in response to motions in limine, which are ordinarily used to make rulings on evidence before the trial begins in order to streamline the trial and to prevent the jury from hearing inadmissible evidence, citing Amtower v. Photon Dynamics, Inc. (2008) 158 Cal.App.4th 1582 (Amtower).

In Amtower, the court granted a motion in limine excluding all evidence of a cause of action because it was barred by the statute of limitations. The appellate court noted that the use of motions in limine as dispositive motions had become “increasingly common,” and expressed its concern about “the proliferation of such shortcut procedures.” (Amtower, supra, 158 Cal.App.4th at p. 1588.) It said, “The better practice in nearly every case is to afford the litigant the protections provided by trial or by the statutory processes.” (Ibid.) In addition to the lack of procedural protections for the nonmoving party, more reversals can occur when a motion in limine results in a dispositive ruling, because the ruling must be reviewed in the light most favorable to the nonmoving party and against the judgment. Once an issue has been tried, all inferences are drawn in favor of the judgment. (Id. at pp. 1594–1595.) Despite the drawbacks of motions in limine on dispositive issues, however, trial courts have inherent power to control the litigation by this procedure. (Id. at p. 1595.) The Amtower court found no error in disposing of a cause of action by motion in limine in the case before it because the responding party could not have prevailed under any circumstances. (Ibid.)

Although the court has the inherent power to conduct dispositive motions through the use of in limine motions (K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939 (K.C. Multimedia); Kinda v. Carpenter (2016) 247 Cal.App.4th 1268 (Kinda)), we believe the better practice is to use such in limine motions conservatively. We proceed to review the substance of the motions because they are before us, although we disapprove of this practice.

Standard of Review

The court’s granting of motions in limine numbers 5 and 9 precluded three of Charles’s causes of action. The rulings are “subject to independent review on appeal as though the court had granted a motion for nonsuit. [Citations.] Under those circumstances, the appellate court ‘review[s] the court’s order de novo, examining the record in the light most favorable to the party offering the evidence.’ [Citation.] That is, ‘all inferences and conflicts in the evidence must be viewed most favorably to the nonmoving party.’ ” (Kinda, supra, 247 Cal.App.4th at pp. 1279–1280; Amtower, supra, 158 Cal.App.4th at p. 1595.)

“Initially, we note that when a demurrer or pretrial motion to dismiss challenges a complaint on standing grounds, the court may not simply assume the allegations supporting standing lack merit and dismiss the complaint. Instead, the court must first determine standing by treating the properly pled allegations as true. If, having taken the allegations as true, the court finds no standing, it should sustain the demurrer or dismiss the petition. If it finds standing by contrast, the court should allow the litigation to continue.” (Barefoot v. Jennings (2020) 8 Cal.5th 822, 827 (Barefoot).)

Charles Had No Standing

Edith was alive at the time of trial, and the public guardian was the conservator of her person and estate. She transferred her property into a revocable trust. Charles was one of two contingent beneficiaries of the trust. Even if we accept as true, for the purpose of review only, Charles’s claims that Baner fraudulently forged the trust transfer deed, caused the deed to be recorded by misrepresentations, and otherwise harmed Edith, none of these actions caused any injury to Charles. Transfer of the property into the trust of which he was a beneficiary gave Charles a contingent future share of the property. He had no standing to pursue the causes of action for elder abuse, fraud and negligent misrepresentation on behalf of Edith.

Only a Real Party in Interest, Who Stands to Gain or Lose, Has Standing to Pursue a Claim

“Every action must be prosecuted in the name of the real party in interest.” (Code Civ. Proc., § 367.) ” ‘The real party in interest has ” ‘an actual and substantial interest in the subject matter of the action,’ and stands to be ‘benefited or injured’ by a judgment in the action.” [Citation.]’ ” (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525 (Turner).)

Claims related to an allegedly fraudulent or forged transfer of property to Edith’s revocable trust, and the recording thereof, could be brought only by Edith while she was alive. The property transferred into the trust remained Edith’s property throughout her lifetime. (Prob. Code, § 15800; Giraldin, supra, 55 Cal.4th at pp. 1065–1066.) And, as settlor and owner of the trust property, she could divest or change a beneficiary, or revoke the trust itself, throughout her lifetime. As we have noted, Charles was named as a beneficiary of the trust, but he was a contingent beneficiary whose interest could ” ‘ “evaporate in a moment at the whim of the[settlor].” ‘ ” (Giraldin, at p. 1066.)

Probate Code section 15800 states that the “person holding the power to revoke, and not the beneficiary, has the rights afforded beneficiaries under this division[; and the] duties of the trustee are owed to the person holding the power to revoke.” Thus, Charles had no standing to pursue causes of action for financial elder abuse, fraud or misrepresentation, as he did not stand to be benefitted or injured even if he prevailed on his claims. (Turner, supra, 27 Cal.App.5th at p. 525.)

Charles Had No Standing Under the Elder Abuse Act

Charles contends that the court erred because it relied only on the law respecting breach of fiduciary duty. He contends that Giraldin, supra, 55 Cal.4th 1058 did not apply to his claims for elder abuse because they were brought not under the Probate Code but under the Elder Abuse and Dependent Adult Civil Protection Act (Elder Abuse Act or Act) (Welf. & Inst. Code, § 15600 et seq.). The Elder Abuse Act protects dependent adults and those over 65 from financial abuse as well as from other forms of abuse and custodial neglect. (Tepper v. Wilkins (2017) 10 Cal.App.5th 1198, 1203–1204 (Tepper).) Charles alleged that Baner caused Edith mental suffering and neglect as well as financial abuse. He argues that the trial court erred in limiting its reasoning to trust law and breach of a fiduciary duty without addressing Charles’s claim of abuse under the Elder Abuse Act.

Even if Baner caused Edith mental suffering and neglect, Edith was the one who allegedly suffered injury from those acts and only she or her conservator had standing to pursue those claims while she was still living. (Turner, supra, 27 Cal.App.5th at p. 525.) Similarly, if Baner had forged Edith’s name to the trust transfer deed and had made misrepresentations about that deed, it was Edith, the living settlor, who suffered damage and had standing to sue. (Prob. Code, § 15800; Giraldin, supra, 55 Cal.4th at pp. 1065–1066.) Charles was not harmed by the transfer of the property into the trust, prospectively or currently, because he remained a contingent beneficiary with an expectation of one-half the value of the property upon Edith’s demise.

Charles, however, contends that the Elder Abuse Act extends standing to a broader range of persons than just those who have standing to pursue a claim for breach of fiduciary duty. One of the legislative purposes of the Act, he asserts, was to enable all “interested persons” to bring claims for elder abuse.

Charles is correct that the Elder Abuse Act broadened the range of people who can recover damages for elder abuse after the elder has died. However, that group is composed of personal representatives. (Welf. & Inst. Code, § 15610.30, subd. (d).) A personal representative is defined as a person or entity that is either: “(1) [a] conservator, trustee, or other representative of the estate of an elder or dependent adult[, or] (2) [a]n attorney-in-fact of an elder or dependent adult who acts within the authority of the power of attorney.” (Ibid.) Charles does not fit any of these categories. Edith had a public guardian as a conservator who could have sued if Edith were subject to elder abuse.

Charles relies on Estate of Lowrie (2004) 118 Cal.App.4th 220 (Lowrie) to support his theory of expanded standing under the Elder Abuse Act. In Lowrie, a granddaughter alleged that her uncle had abused her grandmother, neglecting and isolating her while manipulating her finances such that the uncle ended up as the primary beneficiary of her estate. (Id. at p. 222.) The Lowrie court held that the granddaughter had standing to seek damages for elder abuse of the decedent by her uncle, who was the principal beneficiary of the decedent’s trust, when the uncle obtained that primary position by abuse, neglect and isolation of the elderly grandmother. (Id. at p. 227.) The court explained the purpose of the Elder Abuse Act was to encourage the reporting of abuse and neglect of elders. (Id. at p. 226.) The Act increased incentives for private civil enforcement. (Id. at

pp. 226–227.) The court examined Welfare and Institutions Code, section 15657.3, subdivision (d), which delineated who had “standing to bring an elder abuse lawsuit after the death of an elder or dependent adult.” (Lowrie, at p. 227, italics added.) At the time, that subdivision conferred standing on ” ‘the personal representative of the decedent, or if none, to the person or persons entitled to succeed to the decedent’s estate.’ ” (Ibid.) Legislative history suggested that “the Elder Abuse Act was intended to ‘enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.’ ” (Ibid.) Limiting standing to the uncle, as the successor to the estate, would eviscerate the Act by rewarding a person like the uncle who had abused an elder for his or her own personal gain. (Ibid.) The Lowrie court therefore broadly construed the language of legislative intent to include the granddaughter. (Id. at p. 229.) In the court’s view, the granddaughter, as the contingent successor beneficiary of the trust, had a strong incentive to pursue the action, fulfilling the purpose of the Act by protecting a vulnerable elder. The court analogized the granddaughter to an “interested person” under Probate Code section 48 and gave the granddaughter standing to pursue the causes of action for elder abuse. (Lowrie, at pp. 229–231.) Probate Code section 48, subdivision (b) states that “[t]he meaning of ‘interested person’ as it relates to particular persons may vary from time to time and shall be determined according to the particular purposes of, and matter involved in, any proceeding.” Under the Probate Code, the scope of interested persons for purposes of standing is fluid concept and it is often necessary to resolve the substantive claims and the parties’ relationship before deciding the standing issue. (Arman v. Bank of America (1999) 74 Cal.App.4th 697, 702.) The granddaughter had standing in Lowrie to sue for damages for abuse to her grandmother, payable to the estate, because her grandmother was deceased. Here, in contrast, Edith was alive and could sue for damages caused by abuse by herself or through her guardian.

As Charles points out, the Legislature subsequently amended the Welfare and Institutions Code to clarify, in accordance with Lowrie, that upon the death of an elder (or dependent adult), the right to maintain an action passed to the decedent’s personal representative or, in the absence of an interested personal representative, to an intestate heir, the decedent’s successor-in-interest or an “interested person” as defined in Probate Code section 48. (See Lickter v. Lickter (2011) 189 Cal.App.4th 712, 732 (Lickter) [Legislature amended Welf. & Inst. Code, § 15657.3, subd. (d) “with the apparent intent of codifying Lowrie”].) Welfare and Institutions Code section 15657.3, subdivision (d) now includes “[a]n interested person, as defined in Section 48 of the Probate Code,” other than a creditor or claimant who is not an heir or beneficiary of the decedent’s estate. (Welf. & Inst. Code, § 15657.3, subd. (d)(1)(C).)

Charles desires we place him in this category of interested persons, but both Lowrie and Welfare and Institutions Code section 15657.3 specifically apply “after the death” of the elder. (Lowrie, supra, 118 Cal.App.4th at pp. 227–230; Welf. & Inst. Code, § 15657.3, subd. (d)(1) [“after the death of the elder or dependent adult, the right to commence or maintain an action shall pass to the personal representative of the decedent” or the other parties identified when no personal representative is available (italics added)].) Charles contends that Lowrie is not limited to standing after an elder has died, but no language within Lowrie and no subsequent cases support Charles’s interpretation. Courts have applied Lowrie on the issue of standing to commence an action only on behalf of a deceased elder. (Lickter, supra, 189 Cal.App.4th at p. 716 [standing to commence action on behalf of deceased elder]; Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1284 [standing to bring claim on behalf of deceased dependent adult].) We find no basis for extending Lowrie or Welfare and Institutions Code section 15657.3 to cases in which the elder is still alive and able to bring his or her own claims under the Elder Abuse Act.

Reliance on Tepper v. Wilkins, supra, 10 Cal.App.5th 1198 is misplaced. In that case, the daughter of an elderly woman sued her siblings, who were trustees of her mother’s revocable living trust, for financial abuse of an elder. The mother was permitted to intervene. She asserted that she was the real party in interest and that the plaintiff lacked standing to file the lawsuit on her behalf. (Id. at p. 1201.) The Tepper court found the plaintiff had no standing to sue because she had no cognizable interest in her mother’s estate. Even if she were a contingent beneficiary, ” ‘[a]ny interest that beneficiaries of a revocable trust have in trust property is “merely potential” and can “evaporate in a moment at the whim of the [settlor].” ‘ ” The court noted that if the plaintiff thought her mother lacked capacity to manage her affairs, she could seek appointment as her mother’s conservator, or could seek to proceed on her behalf as guardian ad litem. (Id. at

p. 1206, quoting Steinhart v. County of Los Angeles (2010) 47 Cal.4th 1298, 1319; accord, Giraldin, supra, 55 Cal.4th at p. 1065.)

Further, the Tepper court found that the plaintiff was not an interested person within the meaning of either Welfare and Institutions Code, section 15600, subdivision (j) or Probate Code, section 48. (Tepper, supra, 10 Cal.App.5th at pp. 1205–1206.) Welfare and Institutions Code section 15600, subdivision (j), states, “It is the further intent of the Legislature . . . to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults.” (Italics added.) The Act encourages civil enforcement of elder abuse cases by providing incentives such as higher damage awards that make the cases more attractive to attorneys. This declaration of legislative intent, however, “neither defines ‘interested person’ nor extends standing beyond the specific provisions of the Elder Abuse Act.” (Tepper, at p. 1205.) Probate Code section 48 was used to broaden standing requirements in Estate of Lowrie, supra, 118 Cal.App.4th 220, but is applicable when administering estates in probate court after the elder has passed away. (Tepper, at p. 1206; Lowrie, at pp. 228–-230; Estate of Sobel (2014) 225 Cal.App.4th 771, 782 [Prob. Code, § 48 gives probate court flexibility to determine which parties have an interest in estate].)

The Tepper court concluded that the plaintiff there, like Charles, could have sued for elder abuse on behalf of her mother if she were a “personal representative” as defined in Welfare and Institutions Code section 15610.30, subdivision (d)—conservator, trustee, attorney-in-fact—but they were not. (See Tepper, supra, 10 Cal.App.5th at p. 1207.)

 

The Probate Code Does Not Assist Charles

The Supreme Court recently held that the Probate Code grants standing in probate court to individuals who claim that trust amendments eliminating their beneficiary status arose from incompetence, undue influence, or fraud. (Barefoot v. Jennings, supra, 8 Cal.5th at p. 828.) In a factual scenario reminiscent of Lowrie, the plaintiff in Barefoot was a daughter of the trust’s settlor, who was originally a named beneficiary but who was removed as a beneficiary by a series of amendments that resulted in the bulk of the property going to her two sisters, the defendants. The plaintiff filed a petition in probate court challenging the amendments on the grounds that her mother was incompetent to amend the trust, and that the amendments were a product of the undue influence and fraud of the defendants. (Id. at pp. 825–826.) The court ruled that the plaintiff had standing to challenge the merits of the Trust amendments on the grounds of incompetence, undue influence, or fraud, under Probate Code sections 24 and 17200. (Id. at p. 828.) The plaintiff had a present or future interest in the trust if her allegations were true (Prob. Code, § 24, subd. (c) ), which gave her standing as a beneficiary who could participate in litigation about the internal affairs and existence of the trust (Prob. Code, § 17200 ). Barefoot is applicable to the examination of an estate in probate court after the elder has passed away and does not help Charles any more than Lowrie does. Charles had no standing because he had not been injured by the transfer of property into the trust, and the other claims would benefit Edith but not him.

Conclusion

In sum, Charles did not have standing to pursue claims of fraud, neglect and misrepresentation on behalf of Edith because any damage or benefit accrued to Edith, not to him. The trial court did not err in making this ruling in response to motions in limine. Charles had ample time to respond to the standing argument and has suggested no additional evidence or arguments that he would have added in another context.

3. Sufficient Evidence Supported the Verdict for Defamation

Charles also contends substantial evidence does not support the jury verdict for defamation. He claims that accusing Baner of criminal conduct was not sufficient to constitute defamation, and that he was not responsible for publishing the defamatory words to a third party. We disagree on both points.

Background

On August 1, 2014, Charles wrote, signed and sent a letter to Baner at her business address on Business Park Drive in Temecula. The letter said in part, “You are in enough trouble already, and your criminal behavior has caused me and my mother incalculable damages.” Charles knew that Baner was an attorney and wrote to her in her capacity as an attorney. Baner testified that secretaries and other attorneys worked in an open office at the Business Park Drive address. Baner asked a secretary to open her mail and read it to her over the telephone so she would not have to drive to Temecula. The secretary read the August 1 letter out loud to her, during working hours. Whoever was in the office could hear the secretary talking.

The jury found each element of defamation true in response to questions on a special verdict form. The jury awarded $100 in damages to Baner for assumed harm to her reputation and for shame, mortification or hurt feelings. The jury also awarded punitive damages in the amount of $2,000 to Baner, after determining that Baner had proved by clear and convincing evidence that Charles had acted with malice, oppression or fraud.

Analysis

Sufficiency of the Evidence

When a party challenges the sufficiency of the evidence, we “look to the entire record of the appeal,” and if there is substantial evidence, “it is of no consequence that the [jury] believing other evidence, or drawing other reasonable inferences, might have reached a contrary conclusion.” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873–874, italics deleted.) ” ‘[T]he test is not the presence or absence of a substantial conflict in the evidence. Rather, it is simply whether there is substantial evidence in favor of the respondent.’ ” (Dane-Elec Corp., USA v. Bodokh (2019) 35 Cal.App.5th 761, 770.) “If this ‘substantial’ evidence is present, no matter how slight it may appear in comparison with the contradictory evidence, the judgment must be upheld.” (Howard v. Owens Corning (1999) 72 Cal.App.4th 621, 631.) In determining the sufficiency of the evidence, we “may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the verdict] must be accepted as true and conflicting evidence must be disregarded.” (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118; accord, Howard, at p. 631.) The testimony of a single witness, including that of a party, may be sufficient (Evid. Code, § 411; In re Marriage of Mix (1975) 14 Cal.3d 604, 614); whereas even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890).

Defamation

Defamation is established by either libel or slander. (Civ. Code, § 44.) “Libel is a false and unprivileged publication by writing . . . which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him [or her] to be shunned or avoided, or which has a tendency to injure him [or her] in his [or her] occupation.” (Civ. Code, § 45.) A statement is defamatory when it tends “directly to injure [a person] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office or other occupation peculiarly requires, or by imputing something with reference to his office, profession, trade, or business that has a natural tendency to lessen its profits[.]” (Civ. Code, § 46, subd. 3.) Statements that contain such a charge directly, and without the need for explanatory matter, are libelous per se. (Civ. Code, § 45a; McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 112.)

To prevail on a libel claim a plaintiff must show (1) the defendant published a statement about the plaintiff; (2) the statement declares or implies a provably false factual assertion; (3) the factual assertion is false; (4) the factual assertion has a natural tendency to injure or cause special damage; and (5) the defendant failed to take reasonable care to determine the truth or falsity of the assertion. (Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1369–1370.)

“Publication” means the intentional or negligent communication of the defamatory matter to someone other than the person defamed. (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 877–878.) Communication to a single individual is sufficient to demonstrate publication. (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.) A plaintiff cannot manufacture a defamation cause of action by publishing the statements to third persons himself; the publication must be done by the defendant. The exception to the rule occurs when it is foreseeable that the defendant’s act would result in plaintiff’s publication to a third person. (Live Oak Publishing Co. v. Cohagan (1991) 234 Cal.App.3d 1277, 1284 (Live Oak Publishing).) The statement need not be intentionally communicated to the third person. A defamatory statement negligently communicated to a third party will suffice. (Haley, at pp. 877–878.) A statement is negligently communicated if a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person. (Id. at pp. 877–879; Live Oak Publishing, at p. 1284 [“When it was foreseeable that a defendant’s act would result in publication to a third person, the plaintiff may maintain a libel action.”].)

The jury was instructed with the rules of law defining defamation and with the elements of proof. It was specifically instructed that the plaintiff cannot manufacture a defamation claim by publishing the statements herself, and with the exception when it was foreseeable that the defendant’s acts would result in the plaintiff’s publication to a third person.

Publication

Charles contends that he did not publish the comments to any third person. He claims, instead, that Baner caused the publication of the comments by asking her secretary to read the letter aloud.

The jury could reasonably decide that Charles would recognize that sending a business letter to an attorney at her office created an unreasonable risk that the defamatory matter would be communicated to a secretary, peer or other staff in the ordinary course of business: opening, responding to and filing of the letter. Sufficient evidence supported the jury’s finding that Charles published the defamatory comment about Baner, i.e., that Charles knew that sending a business letter to an office created an unreasonable risk that the contents of the letter would be read or heard by others.

Charles relies on Live Oak Publishing, supra, 234 Cal.App.3d at page 1284, for his claim that Baner manufactured defamation. The circumstances of that case are not applicable here. In Live Oak Publishing, a woman wrote a letter to an editor of a newspaper and asked that it be published as a full-page advertisement. (Live Oak Publishing, supra, 234 Cal.App.3d at p. 1282.) The newspaper published the full-page ad, then sued the woman for libel and slander. (Ibid.) The court found the newspaper was responsible for the publication because it was not coerced into publishing it. The newspaper could easily have refused the woman’s request. The court recited the general rule that a plaintiff cannot manufacture a cause of action for defamation by being the one to publish a defendant’s defamatory statements about the plaintiff. (Id. at p. 1284.) It then noted the exception that applies when it is foreseeable that a defendant’s act would result in publication to a third party, because the act of disclosure arises from necessity. (Ibid.) Nothing made it necessary for the newspaper to publish a full-page ad castigating itself. That was voluntary, and not a basis for defamation. (Id. at p. 1287.)

Baner had no idea of the content of Charles’s letter when she asked her secretary to read the letter aloud to her, unlike the newspaper that voluntarily published a defamatory advertisement. Baner did not manufacture the defamation cause of action. The jury determined as a matter of fact that it was foreseeable that Charles’s letter would result in publication to a third person. Sufficient evidence supports the verdict.

Libel Per Se

Charles also contends that his words were not libelous per se because they did not, on their face, expose Baner to “hatred, contempt, ridicule, or obloquy,” or did not have “a tendency to injure [her] in [her] occupation.”

The letter said to Baner, “your criminal behavior has caused me and my mother incalculable damages.” ” ‘False statements that accuse [a person] of criminal conduct are defamatory on their face.’ ” (Charney v. Standard General, L.P. (2017) 10 Cal.App.5th 149, 157, quoting Grenier v. Taylor (2015) 234 Cal.App.4th 471, 486.) Charles’s statements implied that Baner had committed specific criminal conduct that damaged Charles and Edith. Any third party would reasonably interpret his words as stating actual behavior by Edith. Such statements had a tendency to injure Baner in her occupation as an attorney. No person would hire an attorney known to have committed criminal acts that harmed her clients. Charles’s statements exposed Baner on their face to contempt, ridicule and obloquy, if not hatred, and had a tendency to injure her pursuit of her occupation. We conclude that substantial evidence supported the jury’s finding that Charles defamed Baner.

DISPOSITION

The judgment is affirmed. Costs on appeal to be awarded to respondent Baner.

BENKE, Acting P. J.

WE CONCUR:

O’ROURKE, J.

IRION, J.