Filed 6/12/25 McClintock v. Brennan CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
COLIN MCCLINTOCK,
Plaintiff and Respondent, v.
LISA ANN BRENNAN,
Defendant and Appellant.
B329187
(Los Angeles County Super. Ct. Nos.
19STCV16203,
20STCV01975)
APPEAL from a judgment of the Superior Court of Los Angeles County, Theresa M. Traber, Judge. Affirmed. Outwater & Pinckes and M. Candice Bryner Crosby for Defendant and Appellant.
Sullivan, Workman & Dee, Charles D. Cummings, Holly E. Acevedo, and Theresa M. Pranata; Ferguson Case Orr Paterson and Wendy C. Lascher for Plaintiff and Respondent.
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Defendant and appellant Lisa Ann Brennan (Lisa) prepared change of beneficiary forms naming herself as the beneficiary of a term life insurance policy belonging to an elderly family friend, Robert "Sandy" McClintock (Sandy). After Sandy died and Lisa collected the life insurance proceeds, Sandy's son, plaintiff and respondent Colin McClintock (Colin), brought this action against Lisa and her husband, George Brennan (George). A jury found in Colin's favor, and in this appeal from the judgment thereafter entered, we consider whether Colin had standing to assert an elder abuse claim, whether Lisa's conduct triggered a conclusive presumption that a donative transfer to the drafter of an instrument is the product of fraud or undue influence, whether the trial court abused its discretion in excluding expert testimony that the life insurance policy was worthless at the time of the beneficiary change, and whether the jury's special verdict was internally inconsistent.
I. BACKGROUND
A. The Life Insurance Policy Sandy was born in 1944. He purchased a $200,000 life insurance policy in March 2016. He initially named Colin as the sole beneficiary.
Sandy was hospitalized in or around July 2016. He suffered nerve damage as a result of being intubated, lost the ability to swallow, and was in rehabilitation for several months. He appointed Lisa's husband George as his attorney-in-fact pursuant to a durable power of attorney in August 2016. George testified Sandy was his best friend and they had known each other since the 1960s.
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Roughly four months after his hospitalization (i.e., November 2016), Sandy signed a change of beneficiary form designating George's wife, Lisa, and Sandy's next door neighbor, Douglas Butler (Butler), as the new beneficiaries of the life insurance policy. Butler was a longtime friend who sometimes worked as a handyman for Sandy and drove him to medical appointments. According to Butler, Sandy said he "didn't want to pay the premium anymore, and he asked [Butler] if [he] wanted to do it, if [he] wanted to take it over." According to Lisa, she learned of the policy from Butler, who could not afford to pay the premium by himself and invited her to split the premium and any later insurance proceeds with him. Lisa claimed she then discussed the matter with Sandy and he "told [her] that he thought it was a great deal for [Butler] and [Lisa] to take it over. [¶] The policy would have lapsed. It was a term policy. It would have just lapsed. [¶] He also told [Lisa] unfortunately he did not want Colin to get any part of it" because he was "very disappointed in Colin" for not visiting him in hospital and rehabilitation facilities.1
Lisa subsequently printed a blank change of beneficiary form she found online and wrote in her and Butler's names, addresses, social security numbers, birthdates, and respective shares of the life insurance benefits. She gave the form to George, who brought it to Sandy to sign. Lisa then mailed the signed form to the insurance provider.
When Butler eventually decided he no longer wanted to pay the premium, Lisa reimbursed him for the premiums he already
1 Other friends of Sandy believed he remained mentally
"sharp" until his death and Colin "had broken his heart."
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paid and prepared another change of beneficiary form designating herself as the sole beneficiary. As before, she printed the blank form and wrote her information in the beneficiary section. Lisa "believe[d]" she filled in the form at George's office and then went with George to visit Sandy in January 2018, at which time he signed the form.
Sandy died in August 2018. Lisa submitted a claim to the insurance company and collected $200,000. She had paid approximately $11,000 in premiums.
B. The Consolidated Lawsuits
In May 2019, Colin sued Lisa and George, in his capacity as administrator of Sandy's estate, for elder abuse, breach of fiduciary duty, and negligence in connection with the sale of Sandy's home and dental practice. Those claims are not at issue in this appeal. In January 2020, Colin sued Lisa, and George in his individual capacity. Among other things, he alleged elder abuse and unjust enrichment arising from their involvement in changing the beneficiary on Sandy's life insurance policy.2Both cases were consolidated for all purposes.
C. Directed Verdict
At trial of the action, Colin moved for a directed verdict on his individual elder abuse cause of action on the theory that the change of beneficiary forms effected a "donative transfer" and were subject to Probate Code section 21380's (Section 21380's) presumption of fraud or undue influence. As we discuss in more
2 Colin dismissed a third cause of action for breach of fiduciary duty.
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detail post, Section 21380 establishes a conclusive presumption against the drafter of such an instrument and a rebuttable presumption against the transcriber of such an instrument. (§ 21380, subds. (a)(1), (a)(2), (b), (c).) The trial court ruled Colin was "entitled to a directed verdict on the elder abuse claim against Lisa . . . with respect to her status as the drafter, which is without regard to the damages issue." The trial court reasoned the change of beneficiary forms effected a donative transfer because Lisa gave no consideration for her designation as beneficiary and determined it was undisputed Lisa drafted the forms. The precise value of the life insurance policy, however, remained a question for the jury. D. Jury Findings
Among other things, the trial court instructed the jury that
"Plaintiff seeks damages from Defendants under more than one legal theory. However, each item of damages may be awarded only once, regardless of the number of legal theories alleged. [¶] . . . [¶] You will be asked to decide whether Defendants are liable to Plaintiff in his individual capacity under two legal theories of Elder Financial Abuse. [¶] For each lawsuit, Plaintiff may recover the economic and punitive damages sought in that lawsuit only once despite the multiple theories alleged."
The special verdict form for Colin's individual claim for elder abuse was divided into three sections: (1) "First Liability Theory: Drafting the Change of Liability Forms"; (2) "Second Liability Theory: Defendant Lisa Brennan as Care Custodian"; and (3) "Doug Butler."3We next summarize the specific questions
3 The first two sections included subsections concerning Lisa and George's respective liability. The jury found George was not
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relevant to Lisa's argument that the special verdict includes inconsistent findings.
Consistent with the directed verdict, there were only three questions concerning Lisa in the first section. Question No. 1 asked whether the life insurance policy's value exceeded $5,000. The jury answered yes. Question No. 2 asked what the value was. The jury answered $134,000. Question No. 3 asked what Colin's damages were. The jury answered $35,000. In the section concerning Lisa's liability as Sandy's care custodian, Question Nos. 9 through 12 asked whether Sandy was 65 or older within the relevant timeframe, whether he was a dependent adult, whether Lisa was his care custodian, and (again) whether the life insurance policy's value exceeded $5,000. The jury answered "yes" to each of these questions. Question No. 13 asked, "Was Plaintiff harmed by Defendant Lisa Brennan's conduct?" The jury answered "no" and did not respond to the next question, which asked what Colin's damages were. In the final section concerning Butler, Question No. 23 asked whether Lisa "prove[d] by clear and convincing evidence that [Sandy's] signing of the November 11, 2016[,] change of beneficiary form was not the product of undue influence over [Sandy]." The jury answered "yes."
During its deliberations, the jury asked several questions including this one: "In Question Number 3, 'What are plaintiff's damages?' Are these damages on top of the value of the life insurance policy? Are damages separate?" The trial court responded, "Plaintiff is seeking the value of the life insurance liable under either theory. There being no judgment against George, he is not a party to this appeal.
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policy as damages in his individual action and no other damages."4
E. Judgment The trial court entered a judgment awarding Colin $35,000 from Lisa on the elder abuse cause of action and awarding Sandy's estate $165,000 from Lisa for unjust enrichment. The trial court further ordered Lisa to pay Colin's reasonable attorney fees.
II. DISCUSSION
Lisa raises several procedural and substantive challenges to the judgment, none of which has merit.5
Lisa contends Colin lacked standing to assert the elder abuse claim. The relevant statute, Welfare and Institutions Code section 15657.3 (Section 15657.3), permits a decedent's successor in interest or an interested person to bring such a claim where the personal representative refuses to do so. (§ 15657.3, subds. (d)(1)-(2).) Although Colin is Sandy's personal representative, he effectively refused to amend the pleadings to assert the claim in a representative capacity when the issue was raised during the trial. But there is no dispute that he is also Sandy's successor in
4 The jury's questions and the trial court's responses are not included in the clerk's transcript, but they are discussed in the reporter's transcript.
5 Although Lisa also noticed an appeal from the trial court's denial of her motion for judgment notwithstanding the verdict or, in the alternative, for a new trial, she does not challenge this denial order on appeal.
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interest and an interested person that has standing under the terms of the statute. Although Colin did not file a declaration attesting to his successor in interest and interested person status, the issue is waived because Lisa opted not to object and the requirement of a declaration goes to capacity rather than standing.
Lisa also contends Section 21380's conclusive presumption of fraud or undue influence against drafters does not apply here—and the trial court therefore erred in granting Colin's motion for a directed verdict—because the change of beneficiary forms did not effect a donative transfer and filling in a pre- printed form did not make her a "drafter." With respect to whether the forms effected a donative transfer, Lisa's argument that she gave adequate consideration by paying the premiums fails because she never made a promise to pay them. With respect to her status as a drafter, Lisa's use of pre-printed forms suffices because her completion of the forms generated an original document.
Lisa additionally argues the trial court abused its discretion in excluding expert testimony that the policy was worth nothing, but even if the trial court did err in prohibiting the expert from expressing his bottom-line opinion as to the value of the policy under the relevant factors, it is not reasonably probable this would have yielded a result more favorable to Lisa. Finally, Lisa asserts the jury's special verdict is impermissibly inconsistent because it includes findings that Colin suffered $35,000 in damages for elder abuse under the drafter theory but no damages under the care custodian theory. In the context of jury instructions providing that each item of damages could be awarded only once, however, there is no
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improper inconsistency: the no-damages finding merely avoids a duplicative award.
A. Colin Has Standing to Assert a Claim for Elder Abuse and Lisa Waived Any Challenge to His Legal Capacity
1. Additional background Lisa and George argued during trial that Colin lacked standing to assert an elder abuse claim in his individual capacity. When their attorney first raised the issue, the discussion focused on whether Colin was entitled to the life insurance proceeds if he proved the change of beneficiary forms were the product of fraud or undue influence. When the discussion turned to whether Lisa and George needed to plead lack of standing as an affirmative defense, their attorney requested leave to amend their answer. The trial court suggested "[i]t's a double-edged sword to [request] leave to amend at this point, because if the estate has standing but [Colin] does not, then their leave to amend, if requested, would obviate this whole—avoid this whole argument. Right?"
The trial court then pointed out "the estate is part of this action."
Counsel for Lisa and George responded he should "perhaps . . . see if it's been asserted yet and then make a decision" and asked for additional time to research the issue. The trial court said it had not yet ruled on the issue and it would not "foreclose [counsel] from researching something."
Later the same day, Lisa and George filed a "bench brief re plaintiff's request for leave to amend to conform to proof
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(individual action)."6(Capitalization omitted.) In the brief, they argued Section 15657.3, subdivision (d) provides that, as a general matter, only a decedent's personal representative has standing to assert an elder abuse claim. Defendants argued Colin did not assert this claim in his representative capacity and contended he could not do so under provisions permitting successors in interest and interested persons to sue because he had no "property interest" in the life insurance policy and, in any case, he had not filed the declaration Code of Civil Procedure section 377.32 requires to sue in such a capacity. The trial court gave the parties an oral tentative ruling on Colin's standing the following day. The court observed standing is a jurisdictional issue that may be raised at any time, so there was no need for defendants to assert lack of standing as an affirmative defense. The court also discussed Estate of Lowrie (2004) 118 Cal.App.4th 220, emphasizing, among other things, the Court of Appeal's holding in that case that "[s]tanding, for purposes of the Elder Abuse Act, must be analyzed in a manner that induces interested persons to report elder abuse and to file lawsuits against elder abuse and neglect." (Id. at 230.) Turning to Section 15657.3, subdivision (d), the trial court "f[ou]nd that as the primary, the prior beneficiary of the life insurance policy as the only son of the decedent[,] [a]nd . . . as a person who is entitled to succeed to part of the . . . estate, that the plaintiff here has standing under . . . [S]ection 15657.3, and under the Probate [Code] sections that are being invoked, to bring the action for elder abuse that is being brought here."
6 The appellate record does not include the request for leave to amend itself.
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The trial court then invited argument, explaining it "didn't have written briefing by either side, and did this research on [its] own." Counsel for Lisa and George did not argue and instead submitted on the court's tentative ruling.
When the trial court later reviewed proposed jury instructions with the parties, its instruction on Colin's elder abuse claim provided in pertinent part as follows: "The court has . . . found that as the prior beneficiary on the life insurance policy and an heir of [Sandy], plaintiff Colin McClintock has standing to sue on this claim and to seek damages from defendant Lisa Brennan. He seeks to recover the entire life insurance proceeds of $200,000 received by defendant Lisa Brennan." There were no objections, and this was included in the final instructions.
2. Statutory framework Subject to certain exceptions, "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."
(§ 15657.3, subd. (d)(1).) If there is no personal representative, or the personal representative refuses to commence or maintain an action, the right to commence or maintain the action passes to an intestate heir, the decedent's successor in interest, and/or an
"interested person," which includes the decedent's child.7
(§ 15657.3, subds. (d)(1)-(2).) When a successor in interest or
7 Section 15657.3, subdivision (d)(1)(C) defines "interested person" by reference to Probate Code section 48. Probate Code section 48, subdivision (a)(1) defines interested persons to include a decedent's child.
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interested person proceeds as so authorized, he or she is required to file a declaration pursuant to Code of Civil Procedure section
377.32 that attaches the decedent's death certificate and attests, among other things, to the plaintiff's identity, the status of the estate, and the plaintiff's authority to commence or maintain an action. (§ 15657.3, subd. (d)(1).)
3. Analysis Although Lisa does not dispute that Colin is Sandy's personal representative—the consolidated case included claims he brought as the administrator of Sandy's estate—she argues Colin lacked standing to assert a claim for elder abuse in his individual capacity.8Lisa sometimes describes Colin's decision not to assert this claim in a representative capacity as
"[i]nexplicabl[e]" and at other times as motivated by unidentified
"strategy reasons." As we shall discuss, however, the manner in which Colin proceeded was in accord with the trial court's pragmatic orders.
As the trial court indicated, it would have been a straightforward matter for Colin to amend the pleadings to assert the elder abuse claim as Sandy's personal representative. And Lisa does not dispute that Colin is Sandy's successor in interest or, at a minimum, an interested person under Section 15657.3, subdivisions (d)(1)(B) and (d)(1)(C). Rather, she contends these provisions do not come into play unless there is no personal
8 We grant Lisa's motion to augment the record with the special verdict forms relating to the estate action, which she says
"demonstrate that Colin . . . was a personal representative of his late father . . . and had the right and ability to pursue claims for elder abuse against Lisa Ann Brennan in the Estate Action."
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representative or the personal representative refuses to assert the claim—and neither of these exceptions apply because Colin is Sandy's personal representative. In essence, Lisa's position is that Colin lacks individual standing to maintain an action for elder abuse because there was no impediment to his maintaining the action in his representative capacity.
Lisa's construction of Section 15657.3, however, is contrary to the Legislature's express intent "to enable interested persons to engage attorneys to take up the cause of abused elderly persons and dependent adults." (Welf. & Inst. Code, § 15600, subd. (j); Lowrie, supra, 118 Cal.App.4th at 227 ["This statement of legislative intent suggests the Legislature intended a broad definition of standing in the context of elder abuse cases"].) Indeed, Section 15657.3 provides courts with substantial flexibility in addressing conflicts among persons claiming the right to maintain an elder abuse action. (§ 15657.3, subd. (e) ["the court in which the action or proceeding is pending, may make any order concerning the parties that is appropriate to ensure the proper administration of justice in the case pursuant to Section 377.33 of the Code of Civil Procedure"]; Code Civ. Proc., § 377.33 ["The court in which an action is commenced or continued under this article may make any order concerning parties that is appropriate to ensure proper administration of justice in the case, including appointment of the decedent's successor in interest as a special administrator or guardian ad litem"].)
Here, Colin effectively refused to amend the pleadings to maintain the elder abuse cause of action as Sandy's personal representative because nobody—neither defendants nor the trial court—insisted that he do so. Moreover, the trial court's ruling
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that Colin could proceed with the elder abuse claim based on his status as Sandy's successor in interest is tantamount to an order justified by the flexibility granted to courts under Section 15657.3, subdivision (e). For these reasons, the fact that Sandy had a personal representative (i.e., Colin) does not preclude Colin from proceeding as his successor in interest or as an interested person.
Lisa alternatively argues that even if Colin did have standing in his capacity as Sandy's successor in interest or an interested person, he failed to file the declaration required under Code of Civil Procedure section 377.32. This argument fails because Lisa did not raise it at her earliest opportunity (instead waiting until trial was underway)—and even then, she did not object when the trial court did not address the argument in its ruling on standing. That is a waiver of the issue, and there is no legal doctrine that precludes finding such a waiver. Although lack of standing is a jurisdictional defect that may be raised at any time, a plaintiff's lack of legal capacity to sue is subject to waiver. (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1604 [explaining that although "lack of standing to sue can be raised at any time, even for the first time on appeal," "a plea in abatement such as lack of capacity to sue 'must be raised by defendant at the earliest opportunity or it is waived'"]; see also Parsons v. Tickner (1995) 31 Cal.App.4th 1513, 1523-1524 [holding that Code of Civil Procedure section 377.32 "does not require that the affidavit be filed as a condition precedent to commencing or continuing the action. However, failure to file the affidavit could possibly subject the action to a plea in abatement"]; Aghaian v. Minassian (2021) 64 Cal.App.5th 603,
614.)
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B. The Trial Court Properly Granted a Directed Verdict on the Issues of Whether Lisa Drafted the Change of Beneficiary Forms and Whether This Constituted a Donative Transfer
Section 21380 provides, in pertinent part, that "[a] provision of an instrument making a donative transfer to" certain persons "is presumed to be the product of fraud or undue influence . . . ." (§ 21380, subd. (a).) Among these are "[t]he person who drafted the instrument" (§ 21380, subd. (a)(1)) and
"[a] person who transcribed the instrument or caused it to be transcribed and who was in a fiduciary relationship with the transferor when the instrument was transcribed" (§ 21380, subd. (a)(2)). With respect to a drafter and certain others, the presumption is conclusive.9(§ 21380, subd. (c).) We review de novo Lisa's contention that the trial court erred in granting a partial directed verdict based on this conclusive statutory presumption against drafters. (Shah v. Skillz Inc. (2024) 101 Cal.App.5th 285, 314.)
1. Donative transfer In Jenkins v. Teegarden (2014) 230 Cal.App.4th 1128, the Court of Appeal construed the phrase "donative transfer" in former Probate Code section 21350, which Section 21380 replaced
"with only minor changes." (Id. at 1138.) Noting the lack of a
9 In other cases, "[t]he presumption created by this section is [merely] a presumption affecting the burden of proof" and it "may be rebutted by proving, by clear and convincing evidence, that the donative transfer was not the product of fraud or undue influence." (§ 21380, subd. (b).)
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statutory definition, and holding that the plain text did not disclose whether a donative transfer is one for no consideration or merely "inadequate or disproportionate consideration," the Court of Appeal turned to legislative history. (Id. at 1139.) Citing evidence that the Legislature did not intend to invalidate transfers "'for fair and adequate consideration,'" the Court of Appeal inferred the Legislature intended the phrase "donative transfer" to include "not only a transfer for zero consideration, but also a transfer for unfair or inadequate consideration." (Id. at 1141-1142.)
Fleshing out "how inadequate is too inadequate," Jenkins explained that "requiring a perfect fit between the value of the transfer and the value of the consideration would disrupt too many perfectly innocent transactions after the fact" and found
"[a] better model . . . in the realm of specific performance."
(Jenkins, supra, 230 Cal.App.4th at 1142.) "'The test "is not whether the [vendor] received the highest price obtainable for his property, but whether the price he received is fair and reasonable under the circumstances." [Citation.]' [Citation.]" (Id. at 1142.) Section 21380 has been amended twice since Jenkins was decided, with no changes to the meaning of "donative transfer."
(Stats. 2017, ch. 56, § 1; Stats. 2019, ch. 10, § 1.) Indeed, the Legislature has affirmatively recognized Jenkins's construction of the term when replacing the term "gift" with "donative transfer"
in related statutes. (Legis. Counsel's Dig., Sen. Bill No. 153 (2017-2018 Reg. Sess.) ["Existing case law construes the term 'donative transfer' to include, in addition to gifts, a transfer for inadequate or unfair consideration"].)
Lisa contends the jury should have determined whether her payment of premiums constituted adequate consideration for her
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designation as a beneficiary of Sandy's life insurance policy. She concedes she paid nothing to Sandy, but she argues Sandy benefited by retaining the right to change beneficiaries while she prevented the policy from lapsing.
This arrangement was not, however, something that Sandy bargained for. (Rest.2d Contracts, § 71.) Lisa testified she paid the premiums because Sandy "told [her] that he thought it was a great deal for [Butler] and [her]" and he would otherwise allow the policy to lapse. Similarly, Butler testified Sandy "didn't want to pay the premium anymore, and he asked [Butler] if [he] wanted to do it, if [Butler] wanted to take it over." Contrary to Lisa's suggestion that she assumed Sandy's liability for premiums to the insurance company, there is no evidence that she or Butler promised to continue paying the premiums or even to let Sandy know if they planned to stop making payments. (Beatrice Co. v. State Board of Equalization (1993) 6 Cal.4th 767, 782 ["An agreement to assume liabilities is a contractual promise to perform the obligations of another"].) In short, the premium payments Lisa made after she was designated as a beneficiary were not consideration for that designation because she never assumed an obligation to pay them.
2. Drafter vs. transcriber Section 21380 does not define "drafted" or "transcribed."
Dictionary definitions suggest drafting involves composing the original or initial version of a document. (Oxford English Dict. Online (2024) <
https://www.oed.com/dictionary/draft_v?tab=meaning_and_use#6 223468> [as of Mar. 10, 2025] ["draft" includes "[t]o write (a document, esp. a legal or official one); to write a preliminary
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version of (a text), which may be altered or improved afterwards"]; Black's Law Dict. (12th ed. 2024) ["draft" includes
"[t]o write or compose (a plan, letter, report, etc.) in its initial form, which will need to be revised and polished before it is finished"]; Merriam-Webster Dict. Online (2025) < https://www.merriam-webster.com/dictionary/draft#dictionary- entry-3> [as of Mar. 10, 2025] ["draft" includes "to draw the preliminary sketch, version, or plan of" and "compose, prepare"].) By contrast, transcribing involves copying or taking dictation of an original work. (Oxford English Dict. Online (1914) < https://www.oed.com/dictionary/transcribe_v?tab=meaning_and_ use#17929908> [as of Mar. 10, 2025] ["transcribe" includes "[t]o make a copy of (something) in writing; to copy out from an original; to write (a copy)"]; Black's Law Dict. (12th ed. 2024) ["transcribe" includes "[t]o make a written or typed copy of (spoken material, esp. testimony)"]; Merriam-Webster Dict. Online (2025) < https://www.merriam-
webster.com/dictionary/transcribe> [as of Mar. 10, 2025] ["transcribe" includes "to make a written copy of" and "to make a copy of (dictated or recorded matter) in longhand or on a machine (such as a typewriter)"].)
Opinions construing the meaning of "drafted" and
"transcribed" in the predecessor to Section 21380 concur in drawing the line between composition on the one hand and copying or recording on the other. In Estate of Swetmann (2000)
85 Cal.App.4th 807, for instance, the Court of Appeal considered whether a person who (among other things) called, met, and paid an estate planning agency on the decedent's behalf caused a will to be transcribed within the meaning of former Probate Code section 21350, subdivision (a)(4). (Id. at 811, 817.) Recognizing
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this person could perhaps be said to have caused the will to be drafted, the Court of Appeal emphasized "[t]he 'caused to' language now applies only to a fiduciary who causes the instrument to be transcribed." (Id. at 819.) (The same is true of Section 21380.) "Because the Legislature ha[d] obviously drawn a distinction between drafting an instrument and transcribing it," the Court of Appeal "construe[d] 'transcribing' to mean something separate from the acts (typically performed by attorneys) of creating or composing the contents of the document. . . . [T]ranscribing is the act that follows the composition of the document and reduces the creation to its final, written form." (Ibid.) In Rice v. Clark (2002) 28 Cal.4th 89, our Supreme Court endorsed Swetmann's analysis of former Probate Code section 21350 and described "[t]ranscription" as "the process of reducing an instrument to final written form." (Id. at 102-103.) Lisa, however, asserts "drafting" cannot involve completion of a pre-printed form. She suggests Swetmann demonstrates that drafting involves "thought and creation, and the exercise of independent judgment in composing substantive language . . . as opposed to the mechanical filling in blanks with information dictated or articulated by another." Swetmann, however, does not conceive of drafting as a purely creative endeavor in which forms and templates have no role.10Identifying and populating
10 Lisa suggests Jenkins, supra, supports her view that filling in blanks on a form does not amount to drafting. The Court of Appeal offered no view on the matter in Jenkins, however. Although the opinion remarks that it would be "putting it too strongly" to suggest that a party who admitted to filling in blanks on a form quitclaim deed thereby admitted to being a drafter within the meaning of former Probate Code section 21350, the party did not dispute their role as drafter and the issue was
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the correct form to carry out a person's wishes will often require discretion, and that discretion is at the heart of the distinction between a drafter and a transcriber.
In this case, Lisa selected the change of beneficiary forms, completed them outside of Sandy's presence, and then she or George presented them to Sandy for his signature. With respect to the second form that made Lisa the sole beneficiary of the life insurance policy, there is no evidence that Lisa or anyone else spoke with Sandy before Lisa prepared the form. Rather, she prepared the form to carry out an agreement between herself and Butler. Although these tasks were not particularly complicated, they required some measure of judgment—selecting the wrong form, for instance, would have been more than a transcription error. This was drafting under both the pertinent dictionary definitions and Swetmann.
Lisa's contention that she was acting "according to the express[ ] wishes of [Sandy] by filling in blanks" is not an argument against applying Section 21380, subdivision (a)(1)'s conclusive presumption in this case. It is an argument against having such a presumption at all, and that is an argument for the Legislature, not a court. Her more general arguments concerning testamentary freedom are also inapposite. Section 21380 is governing law, intended to provide strong protection for decedents from fraud and undue influence (Rice, supra, 28 Cal.4th at 97), and its conclusive presumption applies here. deemed forfeited. (Jenkins, supra, 230 Cal.App.4th at 1144 & fn.
8.)
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C. The Trial Court Committed No Reversible Error in Excluding Expert Testimony That the Life Insurance Policy Was "Worthless" at the Time of the Beneficiary Change
1. Additional background Lisa sought to introduce expert testimony by Harold Fairman III (Fairman), a tax attorney experienced in valuing life insurance policies, that Sandy's term life insurance policy had no value when he signed the change of beneficiary forms. When Fairman testified that term life insurance policies have "no cash value," meaning "no surrender value," Colin's attorney objected. At sidebar, Lisa's attorney argued this testimony was relevant to show she gave adequate consideration in exchange for being designated as a beneficiary. The trial court reiterated its earlier determination "that the payments, the premium payments on this term life insurance policy are not adequate consideration as a matter of law under this case." The court reasoned Sandy "got no benefit out of [Lisa's] premium payments" because, although
"it preserve[d] the ability at some point for [Sandy] to have this policy," he was "basically saying, 'I'm not paying for it anymore.' [¶] . . . [¶] He [did not] want it preserved. He[ was] basically giving it to [Lisa and Butler]." With sidebar discussion completed, the trial court ordered Fairman's testimony on the point stricken from the record.
Later in the trial, Lisa's attorney argued another basis for admitting Fairman's testimony. The presumption established by Section 21380 does not apply where the donative transfer involves "property valued at five thousand dollars ($5,000) or less, if the total value of the transferor's estate equals or exceeds"
a statutory minimum that is undisputedly satisfied here. (Prob.
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Code, § 21382, subd. (e).) The trial court held an Evidence Code section 402 hearing at which Fairman opined the policy had neither surrender value nor market value because "no one will buy an insurance policy in the first two years, if it's contestable."
The trial court determined it would exclude the testimony, reasoning that Fairman did not consider other factors relevant to determining the value of a life insurance policy in analogous contexts. Although Fairman could not testify the policy had "no value at all," the court stated it was "open to . . . Fairman testifying about the features of this policy that would tend to increase or decrease its value. [¶] So, for example, he can't say it's worth nothing, but he could point out, as an expert of insurance policies, that it has no surrender value. You can't cash it in. [¶] He could point out that the insured, or owner of the policy, has the right to change the beneficiary until death."
In a minute order, the trial court explained further. Fairman had testified that his opinion the policy was worth nothing "would remain unchanged regardless of the face value of the policy, the amount of the premium, the life expectancy of [Sandy], the age and health of [Sandy], or any other factual circumstances," and the court found the opinion was contrary to law. Among other things, the trial court cited In re Marriage of Gonzalez (1985) 168 Cal.App.3d 1021, in which the Court of Appeal held that factors relevant to determining the value of a term life insurance policy include "the face value of the policy, the amount of the premium, the life expectancy of the insured, whether the policy is convertible to whole life insurance, replacement cost, and when, if ever, the policy 'vests' and is deemed fully paid." (Id. at 1026.)
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Lisa subsequently recalled Fairman, who testified before the jury that factors impacting the value of the policy include its face value, the fact that it was not convertible, the fact that it would expire in 2024, increased premiums after Sandy turned 75, Sandy's life expectancy, and the issue date (because "every life insurance policy for the first two years of coverage has a contestability period where the insurance company can deny paying the death benefit" for reasons such as fraud or suicide). The trial court ultimately instructed the jury on factors relevant to determining the value of the life insurance policy derived from Marriage of Gonzalez.
2. Relevant legal principles
"Issues concerning the admissibility of evidence are ordinarily reviewed under the abuse of discretion standard. However, when the issue is one of law, a de novo standard applies." (Sanjiv Goel, M.D., Inc. v. Regal Medical Group, Inc. (2017) 11 Cal.App.5th 1054, 1060.) "We review claims of evidentiary error for prejudice applying the '"miscarriage of justice"' or 'reasonably probable' harmless error standard. [Citations.] Thus, an erroneous evidentiary ruling requires reversal only if '"there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error."' [Citation.]" (D.Z. v. Los Angeles Unified School District (2019) 35 Cal.App.5th 210, 231.)
3. Analysis Lisa contends the factors identified in Marriage of Gonzalez do not apply outside the family law context and, in any case, Marriage of Gonzalez does not conflict with Fairman's opinion
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that the life insurance policy was worth nothing. We hold that any error the trial court made by applying the Marriage of Gonzalez principles to bar Fairman from testifying the policy was worth nothing was harmless under the circumstances. Fairman was permitted to testify the policy was not convertible to a whole life policy. He explained the significance of the contestability period. And though he did not do so, the trial court did not prohibit Fairman from further testifying there is no commercial market for term life insurance policies within the contestability period. The trial court's ruling prevented Fairman from suggesting any single factor is dispositive, but he was free to explain how the specific characteristics of Sandy's policy impacted its value.
There is no reasonable probability that allowing Fairman to also testify to his bottom-line opinion that the policy was worth nothing would have yielded a result more favorable to Lisa. Even if such testimony would have reduced the jury's valuation to some degree, its $134,000 valuation vastly exceeded the $5,000 threshold for applying the presumption against Lisa as the drafter of the change of beneficiary forms. Moreover, there is no reasonable probability that a reduced valuation would have yielded a lower damages finding as to Colin; the discount may well have reflected uncertainty that Colin would have remained a beneficiary even without Lisa's intervention, but the jury's rationale is ultimately inscrutable. Moreover, even if the proposed testimony would have resulted in a reduced damages award to Colin, it is not reasonably probable the trial court would have deviated from its decision to award the balance of the $200,000 to the estate under an unjust enrichment theory.
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D. The Special Verdict Is Not Internally Inconsistent
1. Relevant legal principles
"If the special verdict is not 'hopelessly ambiguous,' the court may interpret the verdict '"from its language considered in connection with the pleadings, evidence and instructions,"' and counsel's argument to the jury." (Fuller v. Department of Transportation (2019) 38 Cal.App.5th 1034, 1038.) However, "[a] special verdict is inconsistent if there is no possibility of reconciling its findings with each other. [Citation.]" (Singh v. Southland Stone, U.S.A., Inc. (2010) 186 Cal.App.4th 338, 357.)
"'On appeal, we review a special verdict de novo to determine whether its findings are inconsistent.' [Citation.] 'Where there is an inconsistency between or among answers within a special verdict, both or all the questions are equally against the law. [Citation.] The appellate court is not permitted to choose between inconsistent answers. [Citations.]' [Citations.] If the special verdict is inconsistent, the proper remedy is to order a new trial. [Citations.]" (Missakian v. Amusement Industry, Inc. (2021) 69 Cal.App.5th 630, 655.) "'With a special verdict, unlike a general verdict or a general verdict with special findings, a reviewing court will not infer findings to support the verdict.' [Citation.]" (Id. at 660.)
2. Analysis Lisa contends the special verdict form is hopelessly ambiguous because the jury awarded Colin damages of $35,000 on the theory that Lisa committed elder abuse by drafting the change of liability forms but determined he was not harmed by Lisa's conduct as Sandy's care custodian (and accordingly left blank the line for damages under the latter theory). Interpreting
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the special verdict form in light of the jury instructions, however, the apparent discrepancy is reconcilable without "choos[ing] between inconsistent answers" or "infer[ring] findings."
(Missakian, supra, 69 Cal.App.5th at 655, 660.) The trial court instructed the jury that Colin's individual elder abuse claim was based on two separate legal theories, he was only seeking the value of the life insurance policy as damages, and "each item of damages may be awarded only once, regardless of the number of legal theories alleged." Nonetheless, the special verdict form at least arguably invited duplicative damages for elder abuse under alternative theories. In this context, the jury could have reasonably understood Question No. 13 (concerning harm under the care custodian theory) to be asking about damages over and above those it awarded in Question No. 3 under the drafter theory. Indeed, polling on these questions tends to indicate an overwhelming majority of the jurors read the special verdict form in this manner. The jury was split ten-to-two on both questions, with only two of the ten jurors who voted to award Colin $35,000 under the drafting theory thinking it was also necessary to find he was harmed under the care custodian theory.
Lisa further argues the damages finding in Question No. 3 is inconsistent with the finding in Question No. 23 that Lisa proved by clear and convincing evidence the first change of
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forms was the product of fraud or undue influence for Colin to recover under that theory.
DISPOSITION
The judgment is affirmed. Colin is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
HOFFSTADT, P. J.
MOOR, J.
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