Filed 1/2/20 Zetterberg v. Cohlman CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION TWO

MARY PATRICIA ZETTERBERG,

Plaintiff and Appellant,

v.

JAMES COHLMAN,

Defendant and Respondent.

A157011

(Alameda County

Super. Ct. No. RP18903778)

In 1992, trustor Mary Hedgecock (Mary) created a trust, which contained two inconsistent provisions for distribution of trust assets at the time of her death. One provided for the distribution of trust assets in three equal shares to her son, James Hedgecock (James) and her daughters, Carole Hedgecock (Carole) and Mary Patricia Zetterberg (hereafter appellant). Another provided for the distribution of all trust assets to James only.

Due to the confusion, Mary created a new trust in 2017, calling for the distribution of all trust assets to James, and listed Carole’s son, James Cohlman, as a secondary trustee. Neither Carole nor appellant was identified as a trustee or beneficiary of the 2017 trust.

Mary died on April 20, 2017, at 93 years of age. Less than a month later, acting in propria persona, appellant filed a petition to determine the validity of the purported trust and to impose a constructive trust pursuant to section 17000, subdivision (b)(3), of the Probate Code. Appellant claimed the 2017 trust was void for four reasons: (1) Mary’s mental incapacity; (2) the undue influence by James of decedent; (3) the “fraudulent attempt to avoid Department of Health and Human Services inheritance recovery efforts and/or loss of disability coverage”; and (4) “the fraudulent misleading of decedent to true intent of the trust.” After a two-day bench trial the court rejected this claim, ruling that “the 2017 Trust was entirely consistent with the intent of the trustor at the time the 2017 Trust was signed.” Appellant filed a timely notice of appeal from the written order denying her petition.

Appellant elected to represent herself on this appeal, as she did before the probate court. It is certainly her right to do without an attorney, but she must know her status brings her no special privileges. “A lay person . . . who exercises the privilege of trying his own case must expect and receive the same treatment as if represented by an attorney—no different, no better, no worse.” (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1009.) She is “ ‘restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts.’ ” (City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 819.)

Our Supreme Court recently stated: “[I]t is a fundamental principle of appellate procedure that a trial court judgment is ordinarily presumed to be correct and the burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] ‘This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’ [Citations.] ‘In the absence of a contrary showing in the record, all presumptions in favor of the trial court’s action will be made by the appellate court. “[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.” ’ [Citation.] ‘ “A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.” ’ [Citation.] ‘Consequently, [the appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [the appellant].’ [Citation.]” (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)

Appellant also elected to proceed without a reporter’s transcript of the evidentiary hearing conducted in the probate court. When she made this decision she acknowledged “I understand that without a record of the oral proceedings in the superior court, the Court of Appeal will not be able to consider what was said during those proceedings in determining whether an error was made in the superior court proceedings.” Instead, appellant chose to submit her appeal on the clerk’s transcript and some of the exhibits produced at the hearing. This places her at a severe disadvantage.

“[An] appeal on the clerk’s transcript and certain exhibits is treated as an appeal on the judgment roll . . . .” (Kopf v. Milam (1963) 60 Cal.2d 600, 601.) “The law is established in California that, where the appeal is on the judgment roll alone, the findings will be conclusively presumed to be supported by the evidence.” (Estate of Mautner (1940) 38 Cal.App.2d 521, 522.) Not only are the trial court’s findings of fact conclusive, “ ‘they are to receive, if possible, such a construction as will uphold rather than defeat the order of the court; they must be liberally construed and any ambiguity or inconsistency must be resolved in favor of sustaining the order. On such an appeal every presumption and intendment is resolved in favor of the regularity of the proceedings in the trial court. The order of the trial court will not be reversed except for some fatal error appearing on the face of the judgment roll.’ ” (Ibid.)

The probate court recited at the beginning of its order that it was “mak[ing] the following factual findings based on the trial testimony of petitioner Mary Zetterberg, Jeremy Zetterberg, respondent James Hedgecock, Carole Hedgecock, Kavon Kohl, and Erma Spangler.” The dispositive findings made by the court were that “neither James nor Carole exerted undue influence upon the trustor [i.e., Mary] concerning the 2017 Trust,” and “Mary [i.e., appellant] failed to prove to the court that James fraudulently coerced the trustor into signing the 2017 Trust.”

In the authority cited by the probate court, Estate of Sarabia (1990) 221 Cal.App.3d 599, it is stated: “As a general proposition, California law allows a testator [or trustor] to dispose of property as he or she sees fit without regard to whether the dispositions specified are appropriate or fair. [Citations.] Testamentary competence is presumed. [Citations.]

“This presumption can be overcome if it is shown that the testator was affected by undue influence, a concept with a very definite meaning. ‘Illustrative expressions of the courts demonstrate the stringency with which they protect the testamentary disposition against the attack of undue influence. Thus such influence must “destroy the testator’s free agency and substitute for his own another person’s will.” [Citation.] “Evidence must be produced that pressure was brought to bear directly upon the testamentary act

. . . . [The influence] must amount to coercion destroying free agency on the part of the testator.” [Citations.] “[T]he circumstances must be inconsistent with voluntary action on the part of the testator” [citation]; and “[the] mere opportunity to influence the mind of the testator, even coupled with an interest or a motive to do so, is not sufficient.” ’ [Citation.] Undue influence, then, is the legal condemnation of a situation in which extraordinary and abnormal pressure subverts independent free will and diverts it from its natural course in accordance with the dictates of another person. [Citations.]

“The presumption in favor of a will may be neutralized by a presumption that undue influence was brought to bear on the testator. The presumption of undue influence arises only if all of the following elements are shown: (1) the existence of a confidential relationship between the testator and the person alleged to have exerted undue influence; (2) active participation by such person in the actual preparation or execution of the will, such conduct not being of a merely incidental nature; and (3) undue profit accruing to that person by virtue of the will. If this presumption is activated, it shifts to the proponent of the will the burden of producing proof by a preponderance of evidence that the will was not procured by undue influence. It is for the trier of fact to determine whether the presumption will apply and whether the burden of rebutting it has been satisfied. [Citations.]” (Estate of Sarabia, supra, 221 Cal.App.3d at pp. 604–605.)

The headings of appellant’s arguments in her opening brief are framed as follows: “I. The presumption of undue influence shifted the burden and it was not overcome in the court trial”; “II. During the trial a compelling piece of video evidence of the decedent was determined as inadmissible by opposing counsel in error”; “III. James had a confidential relationship with his mother which afforded him the opportunity to supplant his will for hers”; “IV. James actively participated in the procuring, preparation, and execution of the 2017 Trust”; and “V. James unduly benefited from the creation of the 2017 Trust.”

Without a reporter’s transcript, we cannot know upon what ground the probate court excluded the “compelling piece of video evidence.” Therefore, appellant cannot satisfy the burden of demonstrating that the probate court’s evidentiary ruling was erroneous.

Regarding the third, fourth, and fifth of appellant’s arguments, even conceding she is correct, this would only lead to the presumption of undue influence coming to life. It would not exclude the possibility that the presumption was rebutted. The probate court clearly determined that if the presumption did come into effect, it was then rebutted and thus disappeared. Whether the presumption was rebutted was a question of fact committed to the probate court. (Estate of Lances (1932) 216 Cal. 397, 404; In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 737.) And, as a finding of fact, indeed, the ultimate finding, it is conclusive for purposes of this appeal. (Estate of Mautner, supra, 38 Cal.App.2d at p. 522.)

The order is affirmed.

 

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Zetterberg v. Cohlman (A157011)