McDonald v. Carey

McDonald v. Carey

Filed 9/29/08 McDonald v. Carey 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

GARRETT McDONALD, et al., Plaintiffs and Appellants, v. THOMAS J. CAREY, Defendant and Respondent.

A113265 (San Mateo County Super. Ct. No. 437249)

Plaintiffs Garrett McDonald and William McDonald appeal from the trial courts final judgment, entered upon the courts granting of defendant Thomas J. Careys motion for judgment. Plaintiffs argue that the lower court erred in finding that the relevant trust instruments were not procured by undue influence and fraud; erred in ruling that plaintiffs did not have standing to pursue certain claims and proposed new causes of action; abused its discretion in denying plaintiffs motions to amend their complaint, reopen discovery, and continue the trial date; failed to properly weigh, and demonstrate its weighing of the evidence; and improperly adopted defendants proposed statement of decision without modification or change. We affirm the judgment.

BACKGROUND

Mary Colter McDonald died unmarried in September 2003 at the age of 85, survived by her four children. In 1991, Mary,[1] as settlor, executed documents, including a declaration of trust (1991 Trust) creating the Mary Colter McDonald Trust, a revocable inter vivos trust, and a pour-over will placing her assets in that trust. Plaintiffs contend that, previously, Marys will, executed in 1972, had left her estate to her children.[2] The parties agree that in 1980, Mary disclaimed certain properties she inherited from her parents in equal parts to her children that had an estimated value for each of approximately $117,000 in 1979 and $208,000 in 1996. The 1991 Trust, however, including as subsequently amended and restated in 1996 (1996 Amended and Restated Trust) and amended in 2001 (2001 Amendment) and 2002 (2002 Amendment) (collectively, the 2001 and 2002 Amendments), excluded her children from receiving any of the trust estate, much of which was listed on schedules attached to the trust documents. Her trust made defendant, who was her nephew via her sister Helen, a licensed real estate broker, Marys long-time confidant and manager of her affairs, and the trustee of the trust at the time of her death, a beneficiary to approximately 60 percent of the trust estate listed in the schedules, with an estimated value of more than $8.6 million.

Specifically, when Mary died, a large part of her trust estate consisted of interests in hundreds of parcels of real property and mineral rights that were set forth in schedules denominated A, B, D, and E, which were incorporated by reference into the 1996 Amended and Restated Trust and amended by the 2001 Amendment. The only estimated gross value of these trust assets presented at trial was a 2002 appraisal estimating them at $15,758,455.[3] The trust provided that the assets listed in schedules A and D, which estimated value was $8,601,255, were to be distributed to defendant. The assets listed in schedule B, which estimated value was $1,362,200, were to be distributed to certain religious organizations, and the assets listed in schedule E, which estimated value was $5,795,000, were to be distributed to 14 persons, including Marys sister and brother-in-law (defendants parents), and certain religious organizations. All the rest, residue and remainder of the trust estate was to be distributed to defendant. In the event he predeceased Mary, the gifts to him were to be distributed to his issue instead. Marys children were specifically excluded from receiving any of the trust estate, even in the event that Mary and all beneficiaries were deceased before full distribution of the estate occurred, in which case the trust estate was to be distributed to legal heirs of Mary other than her children.

In February 2004, plaintiffs, along with a sibling who is not a party to this appeal, filed an action contesting the trust and seeking to void the 1991 Trust, the 1996 Amended and Restated Trust, the 2001 Amendment, and the 2002 Amendment. Plaintiffs alleged that Mary executed these documents as the result of the undue influence and fraud of defendant.[4] Defendant, as the trusts trustee, filed an answer denying all allegations.

The parties engaged in certain pre-trial motions relevant to this appeal. After a change in legal representation in the first half of 2005, plaintiffs moved to continue the trial date and extend discovery, which defendant opposed and the court denied. Plaintiffs also moved for leave to file a first amended complaint to add certain causes of action, which defendant also opposed, and which the court denied without prejudice.

Plaintiffs renewed their motion for leave to amend their complaint on the first day of trial, which the trial court denied without prejudice, while indicating that it would allow wide latitude in the evidence presented. The court denied plaintiffs motion for leave to add a financial elder abuse claim during the trial. This court denied plaintiffs petition for peremptory or alternative writ of mandamus and request for stay in case No. A110681 on July 12, 2005. Subsequently, in the court below, defendant filed a stipulation of non-opposition to certain amendments to the complaint and requested the court amend the complaint sua sponte, but the court took no action on this request.

During 26 days of trial, the court heard testimony from over 20 witnesses and considered over 200 documents introduced into evidence. After presenting their case in chief, plaintiffs renewed their motion for leave to file a first amended complaint, or at least to add a financial elder abuse cause of action, and defendant moved for judgment pursuant to Code of Civil Procedure section 631.8. Defendant argued that plaintiffs had not established the merits of any of their causes of action regarding the 1991 Trust or the 1996 Amended and Restated Trust and, therefore, the court should grant his motion, as well as find that plaintiffs did not have standing to pursue their other claims in light of the validity of these trust documents.

Plaintiffs argued that they had presented evidence which showed that defendant, along with his purportedly undisclosed attorney and agent Walter MacDonald (MacDonald), unduly influenced and defrauded Mary for years so that she would exclude her children from receiving trust assets and make him the major beneficiary of her estate, and so that he could gain control over the trusts assets and engage in various breaches of fiduciary duty and self-dealing for his own financial advantage, that they had standing to contest all of the trust documents, that they should be granted leave to add a cause of action for financial elder abuse, and that the 2001 and 2002 Amendments were invalid because the uncontradicted evidence showed that Mary lacked mental capacity after 1999.

The court, after hearing, denied plaintiffs motion, and granted defendants. At the courts direction, defendant prepared and submitted a proposed 58-page statement of decision, which the court adopted without making any substantive changes.

The court entered judgment in December 2005. Plaintiffs Garrett and William subsequently filed timely appeals.

DISCUSSION[5]

I. Evidence Regarding Undue Influence and Fraud

Plaintiffs first argue that, contrary to the trial courts findings, Marys execution of her trust instruments was ineffective because she did so as a result of undue influence and fraud. They also argue that they at least presented evidence sufficient to raise the presumption of undue influence. Plaintiffs are incorrect.

A. Standard of Review

The court granted defendants motion for judgment pursuant to Code of Civil Procedure section 631.8. It states in relevant part: After a party has completed his presentation of evidence in a trial by the court, the other party, without waiving his right to offer evidence in support of his defense or in rebuttal in the event the motion is not granted, may move for a judgment. The court as trier of the facts shall weigh the evidence and may render a judgment in favor of the moving party, in which case the court shall make a statement of decision as provided in Sections 632 and 634, or may decline to render any judgment until the close of all the evidence. (Code Civ. Proc.,  631.8, subd. (a).)

The purpose of Code of Civil Procedure section 631.8 is to enable the court, when it finds at the completion of plaintiffs case that the evidence does not justify requiring the defense to produce evidence, to weigh evidence and make findings of fact. [Citation.] Under the statute, a court acting as trier of fact may enter judgment in favor of the defendant if the court concludes that the plaintiff failed to sustain its burden of proof. [Citation.] In making the ruling, the trial court assesses witness credibility and resolves conflicts in the evidence. (People ex rel. Dept. of Motor Vehicles v. Cars 4 Causes (2006) 139 Cal.App.4th 1006, 1012.)

The standard of review after a trial court issues judgment pursuant to Code of Civil Procedure section 631.8 is the same as if the court had rendered judgment after a completed trialthat is, in reviewing the questions of fact decided by the trial court, the substantial evidence rule applies. An appellate court must view the evidence most favorably to the respondents and uphold the judgment if there is any substantial evidence to support it. (Pettus v. Cole (1996)49 Cal.App.4th 402, 424-425; accord, Jordan v. City of Santa Barbara 46 Cal.App.4th 1245, 1254-1255.) Of course, we are free to draw our own conclusions regarding issues of law. (Pettus, at p. 425.)

Plaintiffs argue that the relevant findings of the trial court were not supported by any substantial evidence. When a finding of fact is attacked on the ground that there is not any substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether there is any substantial evidence contradicted or uncontradicted which will support the finding of fact.  (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) Where a statement of decision sets forth the factual and legal basis for the decision, any conflict in the evidence or reasonable inferences to be drawn from the facts will be resolved in support of the determination of the trial court decision. (In re Marriage of Hoffmeister (1987) 191 Cal.App.3d 351, 358.) Substantial evidence includes circumstantial evidence and the reasonable inferences flowing therefrom. (Conservatorship of Walker (1989) 206 Cal.App.3d 1572, 1577.)  The testimony of a single credible witness may constitute substantial evidence.  (City and County of San Francisco v. Ballard (2006) 136 Cal.App.4th 381, 396, quoting Marriage of Mix (1975) 14 Cal.3d 604, 614.) With these basic rules in mind, we turn to a consideration of plaintiffs arguments.

B. Undue Influence

In their complaint, plaintiffs alleged that each of the trust documents executed by Mary was the result of defendants undue influence. Plaintiffs prayed for the court to find that the [p]urported Trust and each amendment are void due to the undue influence of the defendants.

On appeal, plaintiffs argue that Marys execution of the 1991 Trust and 1996 [Amended and Restated Trust] thereof, as well as the 2001 and 2002 trust amendments, were obtained by undue influence exercised by [defendant] and [MacDonald], and, further that an inference of undue influence per se was proved directly by the greater weight of the evidence, including circumstantial, and separately by operation of a presumption thereof upon proof by a preponderance of the evidence of the three-pronged factual elements necessary to trigger the presumption, specifically that: defendant Carey, as the proponent of the Trust and its primary beneficiary, (1) sustained a confidential relationship with Mary, as trustor; (2) actively participated, along with his attorney, in procuring execution of the trust and its amendments; and (3) unduly profited thereby. With the proof of these preliminary facts by a preponderance of the evidence, appellants contend that the burden of proof shifted to defendant Carey as a proponent of the instruments to prove the entire instrument, and not just the disinheritance or exclusion clause thereof, was not obtained or induced by his undue influence.

We first discuss plaintiffs claim that they proved at trial that defendant exercised undue influence over Mary, and then that the court erred in failing to find they had proved a presumption of undue influence.

1. Insufficient Evidence of Undue Influence

In order to set aside a will on grounds of undue influence, [e]vidence must be produced that pressure was brought to bear directly on the testamentary act . . . . Mere general influence . . . is not enough; it must be influence used directly to procure the will and must amount to coercion destroying free agency on the part of the testator. [Citation.] There must be proof of a pressure which overpowered the mind and bore down the volition of the testator at the very time the will was made. (Estate of Mann (1986) 184 Cal.App.3d 593, 606; see also Prob. Code, 6104, 8252.)[6] In other words, undue influence consists of conduct which subjugates the will of the testator to the will of another and constrains the testator to make a disposition of his property contrary to and different from that he would have done had he been permitted to follow his own inclination or judgment. (Estate of Franco (1975) 50 Cal.App.3d 374, 382.) It is not undue influence unless the pressure has reached a point where the mind of the person subjected to it gives way before it so that the action of such person taken in response to the pressure does not in fact represent his conviction or desire . . . but represents in

truth . . . the conviction or desire of another. (Estate of Ventura (1963) 217 Cal.App.2d 50, 58.)

The trial court found a lack of evidence that defendant exercised any undue influence over Mary with regard to the creation of the 1991 declaration of trust and 1996 Amended and Restated Trust.[7] In its statement of decision, the court stated: The trial testimony of witnesses, especially Marys attorneys, Anthony J. Mercant, Richard M. Pitagora, and [MacDonald], bears out that Mary made her own decisions about the disposition of her property. Mary knew the nature and extent of her assets, and she knew who all of her family members were up until the time she died. There is no evidence, either direct or circumstantial, of coercion, threats, or duress exerted on Mary by [defendant] in an attempt to control the disposition of her property. In fact, there is not one scintilla of evidence that there was undue influence, much less a preponderance of the evidence, of any such activity by [defendant].

The trial court concluded that plaintiffs had failed to meet their burden of proving the existence of undue influence at the time Mary executed the 1991 Trust and at the time she executed the 1996 Amended and Restated Trust, under both the preponderance of the evidence and clear and convincing evidence standards.[8] There is substantial evidence to support the trial courts determination, particularly as found in the testimony of Mercant, Pitagora, and MacDonald, and related documentary evidence.[9]

a. The 1991 Trust

In March 1991, Mary executed the 1991 Trust. Marys initials appear on every page of the 1991 Trust and of each of the schedules. The 1991 Trust provided for a number of different people, including defendant, to receive portions of Marys interests in certain real property and mineral rights assets upon her death, which assets were divided by her percentage interests into categories A through E on attached schedules that were referenced therein. Defendant also was designated as the recipient of all the rest residue and remainder of Marys trust estate. The 1991 Trust expressly excluded Marys four children from receiving any assets, stating in Article IX, paragraph H: Except as otherwise provided for in this instrument, the settlor has intentionally and with full knowledge failed to provide for her heirs including, but not limited to her sons MICHAEL McDONALD, GARRETT McDONALD and WILLIAM McDONALD, and to her daughter THERESA BALKO, it being settlors determination that they have received from other inheritances a sufficient sum and that she does not desire that they receive anything further from her estate.

The 1991 Trust was drafted by attorney Mercant, a 1951 graduate of the Santa Clara University Law School, whose practice included estate planning for most of the 30 years prior to 1991. Mercant was retained as a result of a referral from MacDonald, who was a tenant of Mercants in the building where they both practiced law. MacDonald drafted the schedules that were attached to the 1991 Trust. Both attorneys testified at trial.

i. Mercants Testimony

The trial court found Mercants testimony to be believable and credible, and that he represented the very best of the legal profession and what every attorney should aspire to be. His testimony indicates that Mary firmly intended from the beginning to exclude her children from receiving any of the trust estate and, conversely, to make defendant a beneficiary of a substantial portion of it.

Mercant testified that he first met with Mary in June 1990, with MacDonald and defendant also present. Mercant ran the meeting, and he and Mary did most of the talking. He could not recall defendant or MacDonald talking during the time Mary sat with him and talked about what she wanted to do. Although the parties do not raise this fact in their appellate briefing, Mercants notes from this first meeting include the statements, Thomas J. Carey to be the beneficiary of one-third interest in real property. Mercants notes also state, Specifically exclude the children. Children have their share already. Mercant testified that Mary gave as reasons for leaving nothing to the children: past litigation, that her children already had been given their share, and that she had not talked to them for a long time.[10] Mercant had defendant leave the room for 30 minutes while he discussed the gifts Mary proposed at that time to give to defendant. Mercant testified that I asked her did [defendant] try to influence her, especially with the distribution of the estate, and that Mary indicated that defendant did not do so. His notes of the meeting state that defendant left the room while they discussed her proposed gifts to him, and that Mercant [m]ade sure that it was her sole intent and not influenced by defendant.

Mercant testified that he understood MacDonald and defendant were pretty good friends, but he did not know that MacDonald had represented defendant. If he had known it, it might have caused him some concern that they were in cahoots or something. Mercant sent MacDonald draft trust documents and received some feedback from MacDonald. He never heard Walter badmouth Marys children. Mercant, in his contacts with defendant, never heard him promote the idea of Mary disinheriting her children.

Mercant also testified that Mary discussed her sister and brother-in-law, defendants parents, with him. Specifically, she said [t]hey were advising her on real estate matters, and he was very kind to her, and she was, too.

Mercant further testified that in December 1990 he received from MacDonald a 13-page letter written by Mary entitled Details for dispersal of my estate, which was introduced into evidence at trial. In this December 1990 handwritten letter, Mary wrote that she previously had disclaimed to her four children her fathers half of that portion of her parents community property estate that she had inherited from them, giving each of her own four children 12.5 percent of the total given to her, while she kept for herself the 50 percent portion of the inheritance that came from her mother. She wrote, so that means that the four inherited my interests in the real estate properties of Dad, gifted to me, by him, in probate of community properties of Thomas Callan estate. Mary also wrote, My children have been given all their inheritance from me by this deed or action, in my lifetime. Nothing else to be given. This gift to the children is all their inheritance, plus all the considerations and gifts the four have already received. I know they are able to care for their own children and their own desires! She continues, They (My 4 children) already have all I intend them to have from me! And Nothing more, no personal property, no jewelry, no cars, no assets.

Mary further stated in her December 1990 letter that the proceeds from the sales of the properties in which she held a one-third interest should go to certain persons, who appeared to be affiliated with religious organizations. She stated that these sales are a priority.

Mary also wrote that defendant was to receive an Arizona condominium and, along with Sarah and Michele, her personal property, stocks, and bank accounts. She stated that she had great faith and trust in defendant, naming him as a co-executor, stating that he was among her closest confidants, and stating that he was among those authorized with the sole discretion as to the dispersal of all matters outside of the realm of real estate properties, and to do, act, etc. in my behalf economicallyspirituallyreligiouslyin all concerning Mary Colter (Callan) McDonald.

Marys December 1990 letter also evidences her considerable knowledge about the extent of her property holdings. She referred to properties in which she held a one-third interest, a one-fifth interest, and a one-half interest, referred to various specific properties, and made a statement not only about those properties distributed to me from Bridgie Callan Community Properties Estate and probate of Thomas J. Callan Community Properties Estate, a plain reference to the properties she inherited from her parents, but also about properties gifted to me during life by my parents; property gifted by deed to me in 1966 by my parents; and all properties gifted to me in my lifetimes; also purchased by me in my lifetime.

Although neither party refers to it in their appellate papers, Mercant also testified that at some point between their first meeting and the day Mary executed the 1991 Trust, he discussed with her the total value of her estate, without defendants or MacDonalds involvement. She told him that the estate was worth $10 to $12 million. He also never heard, from Mary or anyone else, that Mary wanted to leave most or a majority or a great deal of her property to the Catholic Church.

While Mercant drafted the 1991 Trust, he testified that the schedules attached to the trust were prepared by MacDonald. Mercant testified that he met with Mary and MacDonald one week before Marys execution of the 1991 Trust for maybe an hour and a half and discussed the contents of her December 1990 letter with her. The discussion included changes in what she wanted to do. Mercant testified that she changed her mind regarding the distribution of her trust estate as a result of this meeting. These changes were reflected in the final trust document.

Mercant further testified that he arranged to have Marys execution of the 1991 Trust on March 28, 1991 videotaped because he could see a trust contest or a will contest coming. The videotape was viewed by the trial court, which stated that it was compelling evidence. It demonstrates that, at the time she signed the 1991 Trust, Mary had testamentary capacity and that she was not acting under undue influence. We agree. In the videotape, Mary sits in a conference room next to Mercant. Defendant and MacDonald are also sitting at the table. Mary indicates that she has reviewed the trust agreement and schedules, that while defendant helped in the preparation of the exhibits, he had nothing to do with the preparation of the trust document itself, and that the trust document has been prepared in connection with her instructions and wishes given to Mercant. She indicates that she has deliberated over the matter of planning for a long time, and has been planning for eight and a half months. Mercant specifically asks Mary if she understands that defendant is the beneficiary of schedule A, which contains the properties in which she holds a one-third interest. Mary, who looks through the pages of the documents handed to her, answers readily and affirmatively to this and other questions about the disposition of her trust estate, concurs that she has initialed various pages before the videotape began, and initials pages of the documents on camera as well. She specifically confirms her desire to exclude her children as beneficiaries. She answers affirmatively when Mercant says, You feel that theyve been properly taken care of already as far as youre concerned and youre intentionally omitting them. Is that correct? There is no indication on the videotape that Mary has been, or is being influenced, by defendant or MacDonald in any way. To the contrary, she pays little, if any, attention to them, and appears fully aware of the contents of the documents Mercant hands to her and of the significance of Mercants questions.

Mercant also testified that, in his opinion, as of March 28, 1991, Mary had sufficient mental capacity to understand the nature of her testamentary act, understand and recollect the nature and situation of her property, and remember and understand her relations to living descendants and those whose interests were to be affected by her trust. He stated that Mary never wavered in her decision to give nothing to her children.

ii. MacDonalds Testimony

The court also found that MacDonalds testimony was believable and credible. His testimony provides further substantial evidence for the trial courts ruling.

MacDonald testified that he met defendant in his first year in college in the early 1970s, and represented him for the first time in 1989 on some lease or some real estate contract matter, very short term and when defendant was deposed as a witness. He also represented defendant on a very minor collection case in which no action was filed in the '90s, and formed a limited liability company for him related to defendants development of property in Half Moon Bay. His later testimony indicated he represented defendant in certain limited liability company work starting in 1997.

MacDonald testified that he first met Mary when he painted a couple of houses for her in the late 1970s or early 1980s, and may have met her at defendants wedding. She then retained him to prepare certain exhibits related to her real estate interests, which ultimately became schedules in Marys trust. When they first met, defendant was present; defendant had also called MacDonald to give him a heads-up that his aunt was going to contact him. Mary stated that she wanted to talk to another attorney for a will or trust, work MacDonald did not do. At that time, she indicated that she wanted most of her estate to go to the church.

According to MacDonald, Mercant prepared the trust document, and MacDonald did not make any corrections in the trust or suggest corrections to Mercant so that a particular beneficiary would receive a particular exhibit. He worked on schedules A through E, describing his activities as getting all of the schedules, legal descriptions, following Marys directions regarding that, and himself as just the schedule man. MacDonald also testified that he received some documents from defendant as part of his preparation of the schedules. After he prepared the schedules, he gave them to Mary and defendant for review to make sure he had everything.

MacDonald recalled that, in June or July 1990, he had a conversation with Mercant after Mercant had met privately with Mary, and discussed the fact that the properties in which Mary held a one-third interest were to go to defendant. He recalled hearing numerous times from Mary that she intended to give defendant the schedule A properties. He also recalled that in their very first conversation, Mary said she wanted to give a substantial portion of her estate to the church, or church people, church charities, things like that, and may have said this later as well.

MacDonald testified that Mary gave him two documents prior to her execution of the 1991 Trust. A few days before December 10, 1990, Mary appeared at his office unannounced and alone, and gave him her December 1990 letter. He looked at it quickly, dictated a memo, and had both sent to Mercant.

In January 1991, Mary gave him some revisions she had made to a draft will or a draft trust from Mercant. She indicated in her own handwriting certain changes in the schedules, that the properties in schedule A were to go to defendant upon her death, and that the properties in schedule D were to go to her sister, Helen Carey, who was defendants mother. MacDonald gave the document to Mercant and did not keep a copy. No such document was introduced into evidence at trial.

MacDonalds testified that he revised the final of the schedules on the day Mary executed the 1991 Trust. He met with Mary and defendant to go over the schedules and make sure they were accurate. Mary made a couple of changes because of recent property sales. He recalled that Mary also spoke alone with Mercant. MacDonald did not help create the outline of questions used by Mercant in the videotape.

He recalled Mary saying at some point in 1990 that her estate was worth in excess of $1 million or $1.5 million, but he did not know the values of the items listed in the schedule or of the residuary.

b. The 1996 Amended and Restated Trust

In December 1996, Mary executed the 1996 Amended and Restated Trust, as well as another will, and a uniform statutory form giving defendant power of attorney for asset management. Prior to preparation and execution of the 1996 Amended and Restated Trust, Mary and her children had engaged in a swap of the properties in which they shared interests, resulting in each of them owning 100 percent of specific properties.[11] The schedules A through E attached to the 1996 Amended and Restated Trust reflect the changes in Marys ownership interests as a result of these swaps.

The 1996 Amended and Restated Trust also indicates a different plan of trust estate distribution from the 1991 Trust. Defendant was to receive the real property listed in schedules A and D, certain stock, and the rest, residue, and remainder of the trust estate not distributed through schedules B, C and E.

Once more, Mary excluded her children. Section 7.03 of the 1996 Amended and Restated Trust states: If at any time before full distribution of the Trust Estate the Settlor is deceased and the residuary beneficiaries are deceased and no other disposition of the property is directed by this instrument, the remaining portion of the trust shall then be distributed to the legal heirs . . . to be determined in all respects as though the death of the Settlor had occurred immediately following the event requiring distribution, and shall be determined according to the laws of succession of the State of California in effect on the date of execution of this instrument relating to separate property not acquired from a parent, grandparent or previously deceased spouse. In no event, however, shall any distribution be made to the following persons: MICHAEL McDONALD, GARRETT McDONALD, WILLIAM McDONALD and THERESA BALKO. (Italics added.)

Furthermore, section 14.05 of the 1996 Amended and Restated Trust states in relevant part: Except as otherwise provided for in this instrument, the Settlor has intentionally and with full knowledge failed to provide for her heirs including, but not limited to her sons MICHAEL McDONALD, GARRETT McDONALD, and WILLIAM McDONALD, and to her daughter, THERESA BALKO.[12]

The 1996 Amended and Restated Trust was drafted by another attorney, Pitagora, who MacDonald was referred to by a secretary who knew them both.[13] Pitagora had practiced law since 1963, and his practice included estate planning, which comprised as much as 90 percent of his practice. The schedules attached to the 1996 Amended and Restated Trust were again prepared by MacDonald. Each page of the 1996 Amended and Restated Trust is initialed by Mary, but the schedules are not.

i. Pitagoras Testimony

The trial court also found Pitagoras testimony to be believable and credible, stating that it found Pitagora, very much like Mr. Mercant, to be the very best example of professionalism as an attorney and what every attorney would aspire to become.

Pitagora testified that he first met with MacDonald, who gave him background on Marys family, the 1991 Trust, and Marys wishes. MacDonald told him that defendant was a realtor who took care of Marys affairs, and that MacDonald and defendant were friends. MacDonald did not tell him that defendant was a client of his. At trial, he agreed that if an attorney who was representing the settlor of the trust and bringing them to a third attorney to work on that trust also represented a beneficiary, a major beneficiary to that trust, that that might be sort of a red flag that you would indicate could be a potential for undue influence.

Pitagora met twice with Mary, first in August 1996, along with MacDonald and another attorney, and then in December 1996 with no one else present, when she executed the documents. She was very specific about her desire to leave nothing to her children. She said that the children had already received enough from her, and that she did not get along with her sons. Based on his review of his August 1996 meeting notes, Pitagora thought that he had discussed with Mary the possibility that she leave something to her children so as to put some teeth into the trusts no contest clause; his recollection was that she was very adamant about not giving them anything else.

Pitagora indicated that he was the drafter of the 1996 Amended and Restated Trust. Pitagora understood from MacDonald before meeting with Mary that he should make the disinheritance language in the 1991 Trust stronger. The 1996 Amended and Restated Trust clauses regarding the exclusion of Marys children do not include the reference that they had received enough that was in the 1991 Trust.

Pitagora testified that MacDonald did not draft any of the 1996 Amended and Restated Trust, but did prepare the schedules. MacDonald also gave input about the contents of the trust. He indicated in writing to Pitagora and Mary in December 1996 that certain revisions were necessary based on Marys previously expressed intentions, including that the trust should indicate that defendant was to become the recipient of the schedule D properties and certain stock. Pitagora made the changes, and sent a revised trust document to Mary about 10 days before she executed the 1996 Amended and Restated Trust.

Pitagora testified that he never met defendant, and had no direct communication with him. Pitagora did receive a facsimile from defendant in August 1996, in which defendant provided background information that Pitagora would need to prepare the documentation for the trust. Mary indicated to Pitagora that she had absolute trust in defendant.

Pitagora also testified that he met with Mary on the day that she executed the 1996 Amended and Restated Trust, for about 35 minutes. His recollection was somewhat limited. Although he did not recall whether or not MacDonald was present, Pitagora believed he was not because Pitagora would have had him witness the will for him, and he did not witness it. Pitagora said he would have gone over certain trust provisions with Mary; specifically, he would have gone through the areas that had to deal with distributions and so on. It would have been his custom and practice to review the disinheritance provisions he had drafted with Mary before she executed them. Although he could not recall whether or not he had the schedules there, he testified that it was his custom to not proceed with execution of such a document unless the schedules were there, and so he must have reviewed some of the schedules with Mary. He stated that when she executed the 1996 Amended and Restated Trust, she understood the document. He said, She understood the major portions of it. She understood what she wanted to do, which was to divide her property in a certain way and to exclude her children.

At the time he prepared the 1996 Amended and Restated Trust, Pitagora thought that Mary had gifted to her children 50 percent of her total estate, valued at $1.5 million dollars. He indicated in his testimony that he did not know the value of properties listed in schedule D.

Pitagora, when asked about Marys mental attributes, testified that he had no problems with her, and that she seemed to be a very sharp woman. Pitagora, who had witnessed symptoms of dementia in his sister and mother-in-law, such as forgetfulness, said he did not witness these symptoms in Mary. After Pitagora reminded her that she might have to declare her 1996 gifts to her children, Mary wrote in some detail to point out that she had not gifted her children, but had previously disclaimed certain property to them from her inheritance.[14]

ii. MacDonalds Testimony

MacDonald recalled meeting with Mary, or talking with her over the phone, absent defendant, before they both met with Pitagora in 1996 regarding her trust. He was not representing defendant in real estate matters at the time. He met with Pitagora before Pitagora met Mary and told him about the changes Mary wanted to make in distribution, that MacDonald was going to do all the schedules, and about Marys history. MacDonald stated that he met with defendant once prior to meeting with Pitagora regarding schedules, regarding which had been sold and purchased and things like that. He delivered those.

Macdonald testified that among the major changes in the 1996 Amended and Restated Trust were those that needed to be made as a result of Marys swaps with her children, that schedule D property would go to defendant rather than Helen Carey, and the removal of some beneficiaries of the property listed in schedule E.

MacDonald recalled that at one time during the preparation of the 1996 Amended and Restated Trust, Mary stated in a conference with attorneys that her real property was worth three and a half million dollars or $3 million or something like that[.] MacDonald testified that he did not know the total value of Marys estate, or the value of what any of the beneficiaries would receive, at the time Mary executed the 1996 Amended and Restated Trust.

MacDonald further testified that defendant was not involved with any meetings with Pitagora at any time. MacDonald spoke to defendant about schedule revisions, but not designation revisions, which he discussed with Mary. MacDonald recalled that defendant told him that Mary wanted to change schedule D to him because she didnt want to . . . burden [defendants] mother with dealing with her four children in the future. Mary told MacDonald that as well. MacDonald instructed Pitagora about this change, and Pitagora confirmed it with Mary. MacDonald recalled in the course of reviewing his notes that Mary told him during a meeting that defendant was to get all properties in which Mary held a one-third interest.

The testimony of Mercant, MacDonald and Pitagora, Marys December 1990 letter, and the 1991 videotape provide substantial evidence that Mary firmly, clearly, and repeatedly, without any evidence that she was influenced by anyone or suffered any weakened mental condition, expressed the intent to exclude her children from receiving any part of her trust estate, doing so in 1990, 1991, and 1996, with ample time to consider her decision and the documents drafted based upon them. Mary repeatedly made representations and communicated decisions regarding her distribution of her trust estate directly to her attorneys. This evidence also indicates that defendant did not attempt to influence her decisions regarding her exclusion of her children or her distribution of her estate. While he helped gather information for the schedules, the attorneys assisting Mary worked directly with her, without input from defendant, on these issues. In short, there is substantial evidence supporting the trial courts finding that plaintiffs failed to establish by a preponderance of the evidence that Mary was unduly influenced with regard to the 1991 Trust or 1996 Amended and Restated Trust.

c. Plaintiffs Contentions

Plaintiffs almost entirely ignore the substantial evidence we discuss herein. This alone is a sufficient ground to reject their contentions. As defendant suggests in his reply brief, [i]t is well established that a reviewing court starts with the presumption that the record contains evidence to sustain every finding of fact. (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.) When a party contends there is no substantial evidence to support the challenged findings, its recitation of only its own evidence is not the demonstration contemplated . . . . (Ibid.) If a party contends that some particular issue of fact is not sustained, they are required to set forth in their brief all the material evidence on the point and not merely their own evidence. Unless this is done the error is waived. (Ibid., followed in Benson v. Kwikset Corp. (2007) 152 Cal.App.4th 1254, 1273, and Fassberg Construction Co. v. Housing Authority of the City of Los Angeles (2007) 152 Cal.App.4th 720, 755.) Furthermore, the burden to provide a fair summary of the evidence grows with the complexity of the record. (Boeken v. Philip Morris, Inc. (2005) 127 Cal.App.4th 1640, 1658.) Thus, an appellant will not prevail by filing a brief that is a mere challenge to respondent[] to prove that the court was right.  (Paterno v. State of California (1999) 74 Cal.App.4th 68, 102.)

Regardless of the inappropriate one-sidedness of plaintiffs briefing, their numerous contentions lack merit. We are bound by the trial courts determinations of fact unless they are unsupported by substantial evidence. We do not reweigh the evidence, and we resolve all conflicts in the evidence in favor of the judgment. (Tesco Controls, Inc. v. Monterey Mechanical Co. (2004) 124 Cal.App.4th 780, 789.) Plaintiffs argue that they established undue influence for a variety of reasons. These include that the trust provisions were unnatural, since they cut off Marys own children and provided so much to defendant; that these provisions were at variance with her intentions as expressed in her 1972 will, in which she left equal shares of her estate to her children, and by her in the years after, until MacDonalds purported intermeddling at defendants behest began; that the provisions were inconsistent with her express wishes to leave most of her properties to the Catholic Church, or one of its orders or individual clerics, as indicated in her December 1990 letter; that she never expressed a desire to leave the bulk of her estate to defendant; that defendants confidential, fiduciary relationship with Mary afforded him the opportunity to control her testamentary acts; that defendant purportedly used his undisclosed attorney and agent, MacDonald, to control the when, where, and circumstances of the dispositive provisions of Marys trust instruments; that MacDonald preconditioned controllable attorneys who would act as scriveners, which included Mercant and Pitagora; that MacDonald, [p]osing as the schedule man, purportedly conferred with defendant in the preparation of the schedules and identification of the beneficiaries to whom properties were to be distributed; that when Mary executed the 1991 Trust and 1996 Amended and Restated Trust, her mental condition supposedly was weakened such as to permit the suppression of her freedom of will; and that Mary was led to believe by defendant (and MacDonald) that the value of the property she had previously disclaimed to her children was sufficient in amount to warrant their exclusion from future inheritance, although defendant knew, unlike Mary, that her estate included hundreds of parcels of real property that she had received as gifts from her parents during her lifetime, while she had disclaimed to her children only 50 percent of the properties she had inherited from her parents, and concealed his knowledge from her. Plaintiffs state:

In short, Marys mental acuity was weakened substantially by thelie, by the subtle pressure exerted against her to change her plan, by her acceptability of the fact engendered by her nephew that, indeed, her children had already received enough, and then by her confusion when confronted with the enormity of it all. Finally, the concealment of the value of her properties and the failure of her fiduciary to correct her mistaken belief were part of the pressure constituting the undue influence. [Citation.] [] In this sense, Marys freedom of will to give her property to her children was overcome, and she became permanently susceptible to the fact that they had already received their inheritance.

Plaintiffs contentions fail under our substantial evidence standard of review for two reasons. First, the trial court determined that Mercant, Pitagora, and MacDonald provided credible, believable testimony. Generally, [c]onflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Guerra (2006) 37 Cal.4th 1067, 1141, disapproved on another ground in People v. Rundle (2008) 43 Cal.4th 76, 151; see also People v. Ramos (2004) 34 Cal.4th 494, 505.) Plaintiffs argue that MacDonalds testimony was inherently incredible, correctly noting that some appellate courts have found witness testimony so inherently improbable as to require interference with this exclusive province. (See, e.g., Wilson v. State Personnel Bd. (1976) 58 Cal.App.3d 865, 887.) We conclude based on our review of MacDonalds entire testimony that we have no reason to disturb the trial courts determination regarding his credibility.

Plaintiffs contend that defendant unduly influenced Mary in part because he concealed from her the value of her estate. According to plaintiffs, Mary was not aware of the extent and value of her properties, especially those deeded to her by her parents during their lifetimes. Furthermore, Mary believed, mistakenly, that a 50-50 division with her children of the property inherited from her parents would result in equal division of her entire estate. She did not appreciate that other properties deeded to her by her parents by inter vivos transfer were part of her estate or that they had value many times greater than that which she shared with her children. Despite her known ignorance, [defendant] never did anything to disavow her of her mistaken beliefs. Plaintiffs contentions cannot overcome the substantial evidence that Mary had an extensive understanding of her assets that was greater than that contended by plaintiffs. This includes Marys review of each of the schedules when she executed the 1991 Trust, as shown by the March 1991 videotape, and her initialing of each page of these schedules, which list many properties that she received outside of her inheritance from her parents, as well as her December 1990 letter, in which she discussed her holdings in significant detail and referred specifically to properties she received from her parents during their lifetime. It also ignores Mercants testimony that Mary told him her estate was worth $10 to $12 million prior to her execution of the 1991 Trust, and MacDonalds recollection that Mary stated the value of her estate to be $3 to $3.5 million at some point during the preparation of the 1996 Amended and Restated Trust. Plaintiffs also fail to establish that defendant, prior to Marys execution of the 1996 Amended and Restated Trust, had knowledge, or concealed from Mary, that, as they contend, the properties deeded to Mary from her parents were of great value. Other than their speculation that defendants knowledge as a San Mateo realtor somehow enabled him to know the value of these properties better than Mary, they rely largely on the 2002 appraisal for their contention, which was, of course, not available when the 1991 Trust and 1996 Amended and Restated Trust were prepared and executed.

Furthermore, we emphasize that Mercant and Pitagora testified that Mary was very clear about her intention to exclude her children, and appeared aware of what she was doing. These attorneys had very little contact with defendant in the course of creating the trust documents, and their testimony indicates he did not attempt to influence their work. Both also testified that they had private discussions with Mary, during which she maintained her intentions. Both attorneys were experienced practitioners who took steps to assure themselves that Mary understood the documents they prepared for her, which included providing her with time to review the documents before her execution of them and reviewing the documents with her.

Plaintiffs contend that defendant manipulated Mercant and Pitagora through his undisclosed attorney and agent MacDonald to create trust documents that favored defendant. Plaintiffs did not present any evidence showing this agency or attorney-client relationship, or that defendant and MacDonald worked together to influence Marys disposition of her assets. To the contrary, MacDonalds testimony indicated that he was not representing defendant at the time he represented Mary regarding the 1991 Trust and 1996 Amended and Restated Trust, that he did not communicate extensively with defendant regarding the content of these documents, that Mary asserted directly to him her intention to exclude her children, and directly provided him with instructions about the distribution of her estate. The testimony we have summarized indicates that defendant and MacDonald were friends, that prior to the execution of the 1996 Amended and Restated Trust, MacDonald had represented defendant in a few minor legal matters, that defendant was at times present in certain meetings with Mercant and/or MacDonald and Mary, that he had some knowledge about Marys determinations regarding the distribution of her assets and of the draft trust documents, and that defendant provided materials that were used to prepare the schedules and checked them with Mary for accuracy in 1991. Plaintiffs do not point to any evidence that MacDonald was retained by, or acted on behalf of, defendant as his attorney or agent with regard to Marys trust, that the two worked together in any way to influence Marys disposition of her trust assets or exclusion of her children, or that MacDonald attempted to unduly influence Mary about the disposition of her trust assets, the exclusion of her children, or any other aspect of the 1991 Trust or the 1996 Amended and Restated Trust. Plaintiffs contentions that defendant committed wrongdoing through MacDonalds agency amount to speculation.

Plaintiffs also contend that defendant received an unnatural bounty that should naturally have gone to Marys children. This is undermined by substantial evidence of Marys close relationship with defendant. Furthermore, there was substantial evidence that Mary had hard feelings about her children, such as Mercants testimony that she referred to litigation as a reason for her decision to exclude them, and Pitagoras testimony that she said she did not get along with her sons. Mary also repeatedly indicated that she believed that she had already provided enough for them, with the knowledge that the extent of her estate reached well beyond her inheritance from her parents. Therefore, we reject plaintiffs contention that Marys distribution of her estate as between defendant and her children was unnatural.

We also note that plaintiffs sometimes make factual contentions without providing relevant citations to the record.[15] We have no obligation to rely on such contentions.

It is the duty of the party to support the arguments in its briefs by appropriate reference to the record, which includes providing exact page citations. [Citation.] Because [t]here is no duty on this court to search the record for evidence [citation], an appellate court may disregard any factual contention not supported by a proper citation to the record [citation]. (Grant-Burton v. Covenant Care, Inc. (2002) 99 Cal.App.4th 1361, 1379, see also Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246 [noting that the Rules of Court require factual assertions to be supported by citations to the record].)

Thus, plaintiffs argument that we must reverse the trial courts judgment because they established undue influence lacks merit.

2. Presumption of Undue Influence

Plaintiffs also contend that they presented evidence sufficient to create a presumption of undue influence. This is incorrect as well.

[U]nder certain narrow circumstances, a presumption of undue influence may arise, shifting to the proponent of the disposition the burden of proving by a preponderance of the evidence that the donative instrument was not procured by undue influence. (David v. Hermann (2005) 129 Cal.App.4th 672, 684.) The presumption of undue influence arises if the challenger shows that (1) the person alleged to have exerted undue influence had a confidential relationship with the testator; (2) the person actively participated in procuring the instruments preparation or execution; and (3) the person would benefit unduly by the testamentary instrument. (Rice v. Clark (2002) 28 Cal.4th 89, 97.) The challenger must prove this presumption by a preponderance of the evidence in order to shift the burden of proof. (Estate of Gelonese (1974) 36 Cal.App.3d 854, 863.)

For the trier of fact to decide what influence was undue clearly entails a qualitative assessment of the relationship between the decedent and the beneficiary; to know what influence was undue requires knowledge of what influence, if any, would qualify for a more benign interpretation. [I]nfluence which reaches the stage of being undue influence is not at all the same in every case. In one case it takes but little to unduly influence a person; in another case much more. . . . Accordingly, every case must be viewed in its own particular setting. (Estate of Sarabia (1990) 221 Cal.App.3d 599, 607.)

The trial court found that [p]laintiffs failed to prove, by a preponderance of the evidence, that [defendant] actively participated in procuring the execution of the 1991 Trust or 1996 Restated Trust. Plaintiffs also failed to prove, by a preponderance of the evidence, that [defendant] unduly profited from the 1991 Trust and/or the 1996 Restated Trust . . . . Therefore, the burden of proof did not shift to [defendant], and he did not have the burden of proving that the 1991 Trust and the 1996 Restated Trust were not induced by undue influence.

As we have discussed, and as plaintiffs acknowledge in their opening appellate brief, we review the trial courts findings pursuant to a substantial evidence standard of review. We focus on the trial courts finding that plaintiffs did not prove, by a preponderance of the evidence, that defendant unduly profited from Marys execution of the 1991 Trust and 1996 Amended and Restated Trust.

a. Undue Benefit

In evaluating undue benefit, we bear in mind the analysis stated in Estate of Sarabia: To determine if the beneficiarys profit is undue the trier must necessarily decide what profit would be due. These d