Filed 7/17/26 Abasolo v. Menasco CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
JOSEPH ABASOLO, as Trustee, etc., A173231
Plaintiff and Respondent,
(Alameda County
v.
Super. Ct. No. RP22119647)
JAMES KENNETH MENASCO,
Defendant and Appellant.
Following a multi-day bench trial, the court voided a joint tenancy deed
between appellant James Kenneth Menasco—a licensed real estate agent—
and his longtime friend and client, Julian Abasolo (decedent herein), finding,
among other things, that Menasco had acted in bad faith when he unduly
influenced decedent to remove property from decedent’s trust and convey it
into a joint tenancy with Menasco on the promise that Menasco would
perform according to a related purchase agreement. The court awarded
double damages under Probate Code1 section 859, calculated from the
1 All further undesignated statutory references are to the Probate Code.
1
reasonable value of the property offset by improvements made by Menasco
for a total of $1,758,136.06; attorney fees were also awarded subject to proof.
On appeal, Menasco asserts the court improperly applied the presumption of
undue influence pursuant to section 21380. He further claims the damages
award was speculative and excessive. We affirm.
I.
BACKGROUND
Pursuant to section 850, Joseph Abasolo,2 as successor trustee of The
Julian Abasolo Living Trust, dated July 13, 2017 (trust), sought recovery of
property and damages from Menasco. The operative petition alleged
Menasco acted in bad faith by wrongly taking property belonging to the trust
and decedent’s estate. The petition further alleged Menasco unduly
influenced decedent to enter into a purchase agreement for 2520 Clement
Avenue, Alameda, California (the property) and unduly influenced decedent
to execute a joint tenancy deed for the property, thereby amending decedent’s
estate plan. Decedent died approximately three months after executing the
joint tenancy deed. Upon decedent’s death, Menasco claimed, “this is my
house.”
II.
EVIDENCE AT TRIAL
A. Living Trust and Transfer Deed
On July 13, 2017, decedent executed the trust. Joseph and his wife
were the named beneficiaries. Along with settling the trust, decedent
executed a trust transfer deed, which conveyed his primary residence
(referenced as the property herein) in favor of the trust. In conjunction with
2 For purposes of clarity we refer to Joseph Abasolo by his first name
and intend no disrespect.
2
the trust, decedent executed a pour-over will, gifting the remainder of his
estate to the trust.
B. Decedent’s Trusting Nature, Illiteracy, and Medical Issues
It was widely known that decedent could not read, had limited
comprehension, and suffered from debilitating medical issues that required
him to rely on others for basic needs. Five witnesses testified about
decedent’s intellectual, mental, and physical problems.
Decedent’s younger brother, Joseph, petitioner herein, testified
although he was seven years younger than decedent, their mother’s last
words to Joseph were, “ ‘Take care of your brother . . . .” Joseph explained his
brother “was dependent, on everything . . .[H]e didn’t clean his clothes. He
didn’t . . . feed himself. [¶] He had the homeless there in his house to feed
him.” “They would bring him food, they’d always pick up something off the
street and bring it to his house and leave it.” Decedent provided housing for
unhoused people in exchange for their help; he was disabled from a back
injury he sustained when he was 18. Decedent was “morbidly obese”
weighing “over 300 pounds” and an “[i]nsulin-dependent diabetic.” He had
three strokes during the last three to four years of his life. In 2018, he was in
a coma for a week at the hospital.
Joseph testified that decedent “couldn’t read very well” and “didn’t
understand basic rules.” In terms of decedent’s difficulties with reading,
Joseph explained, “He just gave up . . . He didn’t try to read. He didn’t wear
his glasses when he got older . . .[¶] [H]e depended on other people to read
and understand – interpret . . . – what was written.” Decedent “could read
simple words, cat, hat, and stuff like that . . . [¶] . . . He just trusted other
people to read his information for him.”
3
Joseph explained that over the years decedent’s property had fallen
into disrepair. Neighbors complained about the property, including the sight
and smell of the trash build-up, as well as a rat problem. Eventually, the city
began citing decedent for various code violations and “Red Tagging” his
house. Joseph met Menasco in 2013, when the city issued the first Reg Tag
notice. “Anytime the [c]ity came,” Menasco was there. At some point during
the end of July 2021, decedent told Joseph that Menasco “purchased the
house and was helping him abate . . . the Red Tag.”
Joseph testified that within a few hours of learning of decedent’s death,
Menasco called him and said, “ ‘I’m responsible for the mortgage now’ and
‘This is my house.’ ” Later that day, Menasco went out to the property and
“followed” Joseph around and “watched” him picking up decedent’s things.
Diane Marie Ferrari lived near decedent and had known him for over
10 years before his death. Early on in their friendship, decedent admitted he
could not read; often, he would ask Ms. Ferrari to read and explain
documents to him. She testified that decedent was a trusting person, who
was a “bad judge of character,” which resulted in people taking “advantage of
him.” Decedent was surrounded by “[d]erelicts,” who stayed at the property
rent free; even after the derelicts twice stole his truck, decedent still allowed
them to stay at his property. Ms. Ferrari knew decedent had severe diabetes
and required insulin. However, it seemed like “he never really had enough
money for insulin.” Shortly before he died, decedent’s “feet were really
bothering him,” making it difficult for him to drive. Ms. Ferrari observed
that “sometimes he would just be confused.”
Decedent had two strokes, one in 2021 shortly before he died. Ms.
Ferrari testified that towards the end of his life, decedent “seemed a little
more confused, but just as trusting as he always was throughout his whole
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life.” She explained if someone told him “something, no matter what it was,
he would believe you . . . [¶] . . . [¶] . . . He was a kind, gentle, believing soul.”
Paula Rivera, a real estate agent and loan broker, was a family friend
who had known decedent since he was two years old and she was four. While
growing up, their families spent every summer together. Ms. Rivera said
that decedent struggled with health issues when he got older. As far as she
knew, decedent struggled with “blood-pressure,” “weight,” and “heart” issues.
During the entire time she knew him, Ms. Rivera never saw him read
anything. She explained that people “would read to him.” When Ms. Rivera
was trying to procure a loan for decedent in 1990, he told her he could not
read. She reassured him that she would explain everything to him in detail.
In addition to having people read and explain things to him, decedent had
people help him with his finances. Decedent’s cousin Irene paid his bills and
managed his accounts. Ms. Rivera became aware that Irene had been taking
advantage of decedent. Decedent told Ms. Rivera and her husband that Irene
“had been taking money from him.”
During the last nine years of his life, Ms. Rivera witnessed decedent
“declining physically.” She knew he had been hospitalized at least three
times. Decedent also had a stroke within the last three years of his life.
Ms. Rivera’s husband, Dennis Rivera, also knew decedent from an early
age. During “the ‘90s,” decedent admitted that he could not read. Mr. Rivera
helped decedent with code violations on his property. About two or three
years before he died, decedent asked Mr. Rivera for help regarding a “Red
Tag” notice he received on the property. Mr. Rivera explained that decedent
“had problems reading and comprehending and understanding,” such that he
“would go over the paperwork with [decedent] step by step, telling him the
process” for making needed repairs. Mr. Rivera further explained that
5
decedent had “reading and comprehension” problems “most of his life, but it
really got bad after he had the heart attacks.” As a result, Mr. Rivera “had to
keep going over the same thing over and over, verbally telling him.”
Following the heart attacks, decedent “was having emotional problems” and
“saw a psychiatrist.”
Attorney Richard Meier knew decedent upwards of ten years prior to
his death. Decedent, “to [his] knowledge,” was functionally illiterate.” Mr.
Meier did not know if decedent could write, as he “never saw him sign
anything,” but he did know decedent could not read. Occasionally, decedent
sent him “documents to look at that he got in the mail, thinking they were
important.” When decedent asked Mr. Meier to look over a proposed sale of
his property to Menasco, he said he “didn’t want to touch that . . . document,
with a 10-foot pole.” Mr. Meier told decedent, in the presence of Menasco,
there was “no reason for a joint tenancy. None whatsoever.” He understood
that Menasco would give him a new document to look over and approve;
however, he did not receive any further documents. Instead, the deal was
“done behind [his] back.”
Mr. Meier considered decedent a friend and he did not want him to
enter this deal with Menasco. He did not review the grant deed before
decedent signed it. Mr. Meier believed that decedent would not have
understood what putting his property into “ ‘joint tenancy’ ” meant. He
opined “the proposed transfer, was wrong, bad, improper, and possibly illegal
when done by a Real Estate Broker with this long-time client.” Mr. Meier
“was aghast that a Real Estate Broker would try and pull this one off on a
client who he had to know was illiterate and did not know what was going
on.” Towards the end of decedent’s life, Mr. Meier knew decedent “was in
very poor health” and “tremendously overweight.”
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C. Decedent’s Relationship with Menasco
Menasco testified that he had been a real estate agent and broker since
1987 and an appraiser since 1991. He had been friends with decedent for
over 30 years, during which time he represented him in numerous real estate
transactions. In 2018, Menasco began helping decedent with abatement
issues on the property.
Menasco said decedent was “one of the few people” in his life “that if he
said he was going to do something, he did it.” Menasco said that he “didn’t
need to have it in writing.” And, he believed decedent “felt the same way
about” him. When asked about decedent’s level of comprehension, Menasco
said, “Well. [He] could read. He wasn’t a reader. If he had a choice between
reading a book or watching T.V., he’d watch T.V. [¶] But he could read. And
he wasn’t illiterate, and he wasn’t dumb or slow. [He] was extremely
intelligent.”
D. Initial Listing to Sell Property
In July 2019, decedent, with the help of Menasco, listed the property
for sale for $1.1 million. Menasco was designated as the “Listing Broker.”
Even though Menasco thought the property was worth closer to $700,000, he
listed it for $1.1 million because that was the figure decedent requested.
Although the typical listing period is 90 days, the property remained on
the market for two years. During this time there was no interest in the
property, other than one verbal offer. Menasco testified it was not a real offer
because the person never even went inside the property. He further testified
that the amount was $900,000; however, he was impeached by his prior
7
deposition testimony and email to Joseph referencing a “verbal offer last year
for $950,000 that [decedent] rejected.”3
City officials were growing impatient and believed the property had
been listed for sale as a stall tactic. Menasco testified the city was “upset
because the house didn’t sell.” Menasco further testified that the city “said
they were going to start the abatement process again.” At some point,
Menasco said he would buy the property “just to buy time and get the [c]ity
off [their] backs.”
E. Purchase Agreement
A few days before the listing expired, Menasco prepared the May 11,
2021 purchase agreement. The purchase agreement listed Menasco as the
buyer, with a purchase price of $1,012,500. Close of escrow was to occur
within 10 days after acceptance. The purchase price of $1,012,500 was to be
deposited with the “Escrow Holder pursuant to Escrow Holder instructions.”
The “Escrow and Title” section indicated that buyer would pay an escrow fee
to “North American Title.”
Under the heading “Other Terms,” the purchase agreement provided:
“The buyer, Ken Menasco is a license [sic] real estate appraiser and license
[sic] real estate broker. See Addendum.” (See para. 6, original bolding and
capitalization omitted.) Menasco and decedent signed the agreement on June
19, 2021. Decedent signed the agreement in his individual capacity; no
mention of the property being held in trust was referenced.
The attached addendum, also signed by decedent and Menasco on June
21, 2021, listed seven additional terms: “1) The purchase is being made
‘subject to’ the first and second mortgage which is currently on the property.
3 The email, which was admitted into evidence as Exhibit 32, is not
included in the record on appeal.
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[¶] 2) The subject property is being purchased in it’s [sic] ‘as is’ condition.
[¶] 3) The monthly mortgage is approximately $2,000 per month and will be
paid by seller until seller has moved himself and all personal property off of
the property. [¶] 4) A third mortgage will be placed on the subject property
for $100,000.00 in favor of the seller which represents approximately 10 per
cent for transfer tax purposes. Title will be held as joint tenant [sic], buyer is
to pay for all remodeling cost and permits. Buyer is responsible for all labor
cost [sic] and seller is to maintain current insurance on the property. [¶] 5)
After remodeling is completed it will be listed with Westland Real Estate by
Ken Menasco (the buyer). Any proceeds of the subject property over
$1,500,000.00 will be split 50/50 between Julian Abasolo and Ken Menasco.
If for some reason the market declines and we are force [sic] to sell the
property for less than $1,025,000 the loss will be split 50/50 between Julian
Abasolo and Ken Menasco. [¶] 6) The buyer, Ken Menasco is a license [sic]
real estate broker working in this transaction as a principle [sic] Ken
Menasco is not representing the seller in this transaction. [¶] 7) The seller,
Juliun [sic] Abasolo is to have Mr. Richard Meyers [sic], his attorney, review
all documents on seller’s behalf.” (Original bolding and underlining omitted.)
Menasco was present with decedent when decedent’s attorney reviewed
the purchase agreement and advised him against creating a joint tenancy.
Attorney Meier testified that he understood Menasco would give him a new
document to look over and approve; however, he did not receive any further
documents. Instead, the deal was “done behind [the attorney’s] back.”
Attorney Meier “was aghast that a Real Estate Broker would try and pull
this one off on a client who he had to know was illiterate and did not know
what was going on.”
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F. Joint Tenancy Deed
On July 1, 2021, a joint tenancy deed for the property was recorded by
Redwood Escrow Service, Inc., specifying as follows: “FOR A VALUABLE
CONSIDERATION, receipt of which is hereby acknowledged, Julian Abasolo,
Trustee of the Julian Abasolo Living Trust dated July 17, 2017 hereby
GRANT(S) to Julian Abasolo, an unmarried man, as to an undivided 50%
interest and James K. Menasco, a married man, as to an undivided 50%
interest, as joint tenants.” (Original bolding omitted.)
G. Menasco’s Explanation of the Transactions
Menasco testified that he did not open an escrow account with North
American Title Company or order a title report as specified in the purchase
agreement because decedent did not want to pay for “escrow fees” or “for all
the notaries and all the additional stuff.” He maintained that he “didn’t
instruct the title company to do anything.” According to Menasco, North
American Title Company “referred” them to Redwood Escrow. He further
testified: “When we got to Redwood Escrow and [the escrow officer] saw the
Purchase Agreement and she saw the Joint Tenancy, she said: Well, this
won’t work; this Purchase Agreement is no good if you want Joint Tenancy.
[¶] And so, she prepared the documents and explained the documents to
[decedent] and myself on the transfer of the property.”
Menasco testified that in order to get the required permits for the
proposed renovations, he needed to be a licensed contractor or an owner. His
plan was to pay the minimum amount of transfer tax and purchase 10
percent of the property, to get on the title, and deal with the code
enforcement and city permit division. However, the escrow officer said, “You
can’t do Joint Tenancy with ten percent ownership; it has to be fifty-fifty.”
10
Menasco testified that the escrow officer made all of the changes and
explained it to him and decedent.
Menasco testified that it would have been a “deal-breaker” if joint
tenancy had not been part of the purchase agreement. Menasco testified that
he did not want the property conveyed as “ ‘ Tenants in Common’ ” because
he wanted “total control.” He added, “I don’t want other people picking my
partners. I’m old now.” He further testified: “If Julian [decedent] had died,
and we had Tenants in Common, those people would be my partners.”
Menasco gave the following example: “If I spent a hundred-thousand dollars
and something happened to me Julian [decedent] wouldn’t have had my wife
come back and ask for my $100,000 . . .[¶] And if something happened to
him, nobody would hold up my project, the same way. So, it protected both of
us.”
Menasco read part of the purchase agreement to decedent, but he could
not recall which parts. According to Menasco, decedent knew the purchase
price was $1,012,500; however, both Menasco and decedent “knew it wasn’t
going to close in ten days.”
Menasco further testified that he did not have a million dollars to
purchase the property; the property wasn’t appraised for a million dollars;
and they couldn’t get a loan on the property because it was “uninhabitable
and had abatements on it.” According to Menasco, “It was understood that
nobody would get paid until after the remodeling and the house was
restored.”
Menasco knew that decedent was afraid of losing his home to the city
due to the outstanding abatements. Menasco testified that he never told
decedent that the city was going to demolish the property on September 15,
2021. Menasco’s trial testimony was contradicted by his prior deposition
11
testimony, in which he averred that due to the unabated violations lodged by
the city, “ ‘[t]hey were saying if they didn’t do this, they were going to
demolish the building on September 15, 2021 at 1:00 p.m.’ ”
III.
STATEMENT OF DECISION4
Menasco did not identify any issues for determination by the court.
Joseph identified the following nine issues for determination: 1) undue
influence exerted by Menasco over decedent to enter into the purchase
agreement; 2) undue influence by Menasco by inducing decedent to execute
the joint tenancy deed for the property amending decedent’s estate plan; 3)
attorney fees under section 21380, subdivision (d); 4) cancellation of the
purchase agreement and grant deed; 5) fraud by Menasco based on his
admission he entered the purchase agreement knowing he did not have the
funds to pay the purchase price; 6) breach of contract due to Menasco’s failure
to perform; 7) Menasco’s breach of his fiduciary duty to decedent; 8) double
damages pursuant to section 859 based on undue influence or wrongful
taking; and 9) attorney fees pursuant to section 859 and the purchase
agreement.
In an abbreviated, proposed statement of decision, the trial court found
in Joseph’s favor on all issues. Menasco raised the following six objections to
the proposed statement of decision: 1) the court failed to address the standard
for adult dependency; 2) the court failed to determine whether the purchase
agreement was an executory contract or an executed contract; if this was an
executed contract the court needed to clearly identify what the breach was; if
4 On our own motion, we take judicial notice of the final statement of
decision, which was attached as an exhibit to Joseph’s brief but not included
in the record on appeal. (Evid. Code, §§ 452, subd. (d)(1), 459, subd. (a).)
12
executory then court needed to identify what requirements of the purchase
agreement did Menasco failed to perform after decedent’s death; 3) the court
failed to identify the basis for voiding the joint tenancy deed; 4) the court
failed to identify the basis of the breach of fiduciary duty; 5) the court failed
to define bad faith and identify the factual basis of the bad faith before
imposing double damages under section 859; and 6) the court needed to
provide a factual basis for the $950,000 value of the property.
In a truncated, final statement of decision, the court determined
Menasco’s testimony was “inconsistent and shaded to present him in the best
possible light.” Menasco was found to be a “savvy real estate professional”,
whom decedent “trusted . . . completely on real estate matters.” The court
further found Menasco’s credibility as “highly suspect” regarding his
assertions that decedent was “extremely intelligent” and neither illiterate nor
“ ‘dumb or slow.’ ”
The court found the presumption of undue influence or fraud as
described in section 21380 applied to Menasco because of his fiduciary
relationship with decedent as his real estate agent and broker, when the joint
tenancy deed was procured, transcribed, and executed. The court determined
Menasco failed to overcome this presumption by clear and convincing
evidence. Menasco also acted in bad faith when he unduly influenced
decedent to remove the property from the trust and convey it in joint tenancy
with Menasco on the promise that Menasco would perform according to the
purchase agreement.
The court further determined Menasco: 1) exerted undue influence on
decedent under Welfare and Institutions Code section 15610.70; and 2) failed
to perform under the purchase agreement by “both failing to complete repairs
to the property, failing to sell the real property, and failing to pay the agreed
13
upon purchase price.” While Menasco failed to perform, decedent transferred
the property to Menasco in joint tenancy trusting that Menasco would
perform under the agreement.
The court concluded Menasco’s representation that he ceased
representing decedent when he became the buyer was not based on credible
evidence. The court concluded the estate was entitled to double damages
under section 859 based on decedent’s status as a dependent adult within the
meaning of Welfare and Institutions Code section 15610.23, subdivision (a),
based on his inability to read and limited comprehension, as well as his
significant medical issues and inability to function without assistance. The
court awarded damages in the amount of $1,758,136.06 and attorney fees
subject to proof. Using its equitable powers, the court voided the joint
tenancy deed and reinstated or reformed it to reflect the property as an asset
of decedent’s trust.
Menasco did not lodge any objections to the final statement of decision.
This timely appeal followed.
IV.
DISCUSSION
Menasco raises a variety of claims on appeal; we summarize the salient
issues as follows: 1) the court failed to apply the governing standards of
testamentary and contractual capacity (§§ 6100.5, 812); 2) the court
erroneously applied section 21380; and 3) the damage award was speculative
and excessive.
A. Principles of Appellate Procedure
An appellant bears the burden of providing an adequate record for
review, citing to specific facts in the record in support of any argument made
on appeal, and tailoring any argument to the appropriate standard of review;
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the failure to comply with any of these requirements constitutes forfeiture of
any claim of error on appeal. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–
609 [failure to provide adequate record on appeal requires issue be resolved
against appellant]; Southern California Gas Co. v. Flannery (2016) 5
Cal.App.5th 476, 483 [reporter’s transcript is often “indispensable” to
establishing error under abuse of discretion or substantial evidence
standards of review].)
Here, Menasco failed to include the final statement of decision in the
record on appeal. The reporter’s transcript for closing arguments, as well as
the related trial briefs are also missing. Additionally, the record does not
include all of the exhibits the trial court relied on when rendering the
statement of decision. For example, the original MLS listing for the property
(Exhibit 27) is not included. We also note that the record is incomplete
regarding the pre-trial proceedings—the summary adjudication ruling and
related transcripts are not included.5
While we could deem Menasco’s failure to provide an adequate record a
forfeiture, we have elected not to do so. However, as we explain, Menasco’s
issues fail on the merits.
B. Standard of Review
“In reviewing a judgment based upon a statement of decision following
a bench trial, we review questions of law de novo. [Citation.] We apply a
substantial evidence standard of review to the trial court’s findings of fact.
5To the extent Menasco complains the trial court contradicted its own
summary adjudication ruling that decedent was not a dependent adult for a
standalone financial abuse claim (see § 15610.30), this issue is not properly
before us. In any event, it appears the court referenced financial abuse of
dependent adult as factor in reaching its conclusion that Menasco had unduly
influenced decedent.
15
[Citation.] Under this deferential standard of review, findings of fact are
liberally construed to support the judgment and we consider the evidence in
the light most favorable to the prevailing party, drawing all reasonable
inferences in support of the findings.” (Thompson v. Asimos (2016) 6
Cal.App.5th 970, 981 (Thompson).)
“A single witness’s testimony may constitute substantial evidence to
support a finding. [Citation.] It is not our role as a reviewing court to
reweigh the evidence or to assess witness credibility. [Citation.] ‘A judgment
or order of a lower court is presumed to be correct on appeal, and all
intendments and presumptions are indulged in favor of its correctness.’
[Citation.] Specifically, ‘[u]nder the doctrine of implied findings, the
reviewing court must infer, following a bench trial, that the trial court
impliedly made every factual finding necessary to support its decision.’ ”
(Thompson, supra, 6 Cal.App.5th at p. 981.)
To disable the doctrine of implied findings on appeal, an “appellant
must secure a statement of decision under Code of Civil Procedure section
632 and, pursuant to Code of Civil Procedure section 634, bring any
ambiguities and omissions in the statement of decision to the trial court’s
attention.” (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th
42, 58.) “Where a party fails to ‘specify . . . controverted issues’ or otherwise
‘make proposals as to the content’ of a statement of decision under [Code of
Civil Procedure] section 632 (forcing the trial court to guess at what issues
remain live during preparation of the statement of decision), or where a party
complies with [Code of Civil Procedure] section 632 but fails to object under
[Code of Civil Procedure] section 634 (depriving the trial court of the
opportunity to clarify or supplement its statement of decision before losing
16
jurisdiction), objections to the adequacy of a statement of decision may be
deemed waived on appeal.” (Thompson, supra, 6 Cal.App.5th at p. 983.)
Here, Menasco failed to identify any issues for decision by the court.
And although he raised objections to the proposed statement of decision, he
failed to bring any deficiencies in the final statement of decision to the court’s
attention. Accordingly, we apply the doctrine of implied findings. We will
infer the trial court made the implied findings favorable to the estate and will
review those implied factual findings under the substantial evidence
standard. (Fladeboe v. American Isuzu Motors, Inc., supra, 150 Cal.App.4th
at pp. 59–60.)
C. Applicable Law6
‘ “Undue influence” means excessive persuasion that causes another
person to act or refrain from acting by overcoming that person’s free will and
results in inequity.’ ([Welf. & Inst. Code,] § 15610.70.) In certain
circumstances, there may be a presumption of undue influence. Section
21380 “prohibits donative transfers to broad categories of persons who,
because of their relationship with the [testator], might exercise undue
influence.” (Butler v. LeBouef (2016) 248 Cal.App.4th 198, 208.) As is
6 On appeal, Menasco does not address the trial court’s order voiding
and reinstating or reforming the joint tenancy deed. The trial court found
Menasco breached the purchase sale agreement but awarded no damages for
the breach. Although the trial court made separate findings regarding the
estate’s claims for breach of contract and breach of fiduciary duty we conclude
the dispositive issue on appeal pertains to the undue influence determination
and damages pursuant to section 859. Accordingly, our discussion is confined
to whether substantial evidence supports the trial court’s finding that
Menasco unduly influenced decedent, a dependent adult, to convey the joint
tenancy deed based on Menasco’s promise to perform under the purchase
agreement.
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relevant here, “[a] provision of an instrument making a donative transfer to
any of the following persons is presumed to be the product of fraud or undue
influence: [¶] . . . A person who transcribed 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).) The presumption of fraud or undue
influence arising for a donative transfer to a fiduciary may be rebutted by
clear and convincing evidence that the donative transfer was not the product
of fraud or undue influence. (§ 21380, subd. (b).) Finally, “[i]f a beneficiary is
unsuccessful in rebutting the presumption, the beneficiary shall bear all costs
of the proceeding, including reasonable attorney’s fees.” (§ 21380, subd. (d).)
Section 21380 does not apply to a donative transfer to a “person . . .
related by blood or affinity, within the fourth degree, to the transferor or is
the cohabitant of the transferor.” (§ 21382, subd. (a).)
D. Menasco’s Argument Regarding Testamentary and Contractual
Capacity is Without Merit
Menasco argues the trial court erred by failing to apply the governing
standards of testamentary capacity and contractual capacity under sections
6100.5 and 812. Although it appears Menasco raised this issue in his motion
for summary judgment, nothing suggests that he raised this issue at trial;
moreover, he did not challenge either the proposed or final statement of
decision on this ground. It is axiomatic that a party must raise an issue in
the trial court if they would like appellate review. (Ramirez v. Superior Court
(2023) 88 Cal.App.5th 1313, 1335.) Even assuming this issue was adequately
preserved on appeal, it fails on the merits. First, section 6100.5 pertains to a
person’s testamentary capacity to make a will—an issue not raised herein.
Also, to the extent section 812 sets forth the general sliding-scale of
contractual capacity (see Lintz v. Lintz (2014) 222 Cal.App.4th 1346, 1352–
1353), undue influence—which is at the heart of this case—does not require a
18
showing that the transferor lacked contractual capacity. Rather, the issue is
whether the person’s free will was overborne by excessive persuasion. (Welf.
& Inst. Code, § 15610.70.) In other words, an individual with contractual
capacity may still be subject to undue influence depending on the
circumstances. Accordingly, any error in failing to determine whether
decedent had contractual capacity under section 812 is not dispositive of
whether he was subject to undue influence; thus, any error would be
harmless.
E. The Trial Court Did Not Err in Applying the Presumption of
Undue Influence and Determining Menasco Failed to Rebut It
Menasco asserts a multi-front challenge to the application of section
21380.1) the joint tenancy deed was not a donative transfer but based on
adequate consideration—namely his improvements to the property; 2) he did
not transcribe or cause the deed to be transcribed; 3) he was not in a fiduciary
relationship with decedent when the joint tenancy deed was transcribed; and
4) section 21382 exempts the joint tenancy deed from the presumption of
undue influence due to his “preexisting relationship” with decedent.
1. Substantial Evidence Supports the Implied Finding that The Joint
Tenancy Deed Was a Donative Transfer
Menasco asserts the joint tenancy deed was not a donative transfer
because it was “executed pursuant to a structured investment agreement”
that required him to “assume mortgage obligations . . . , fund and oversee the
renovations, and share in profits or losses.” According to Menasco, these
“hallmarks of a business transaction” are incompatible with the finding of a
“gratuitous gift.”
Although not cited by either party, we find guidance in Jenkins v.
Teegarden (2014) 230 Cal.App.4th 1128 (Jenkins), which examines the
meaning of “donative transfer” under former section 21350, the predecessor
19
to section 21380, and under section 21380. (Id. at pp. 1130–1131.) The
decedent in Jenkins quitclaimed his house to his caregiver (who did not
dispute that she drafted the quitclaim deed), and Jenkins, the trustee and
beneficiary of the decedent’s trust, sought to void the transfer. (Id. at pp.
1131–1134, 1144 & fn. 8.) The court considered the meaning of “donative
transfer” as a matter of first impression. (Id. at p. 1142.) It observed there
was no statutory definition, and the statutory language was ambiguous. (Id.
at pp. 1138–1139.) After reviewing the legislative history, the court
concluded that “donative transfer” “include[d] not only a transfer for zero
consideration, but also a transfer for unfair or inadequate consideration.”
(Id. at p. 1142.) The test for inadequate consideration was not whether the
transfer exceeded the value of the consideration, but whether the
consideration received was fair and reasonable under the circumstances.
(Ibid.)
Here, we conclude substantial evidence supports the court’s implied
finding that the joint tenancy deed was a donative transfer based on
inadequate consideration. Although Menasco may have contributed some
consideration in the form of repairs to the property, overall that consideration
was unfair and unreasonable under the circumstances. Menasco received a
$950,000 property for which he paid nothing other than some remodeling
costs. Menasco’s argument to the contrary is unavailing. Even if the
purchase agreement was enforceable, its terms did not provide fair and
reasonable consideration under the circumstances.
Menasco put no money down based on the promise that he would
remodel the property and then put it up for sale as the listing agent—
presumably receiving a commission. Decedent’s interest in the proceeds was
contingent upon the property selling for more than $1.5 million; whereas,
20
Menasco was entitled to proceeds regardless of the sales price. Moreover, if
the property sold for less than $1,025,000, decedent would be required to bear
half of the loss. So structured, Menasco had everything to gain, while
decedent had everything to lose. Regardless of what the property sold for,
Menasco would be remunerated. And if the property sold for less than
$1,025,000, Menasco only had to shoulder half the loss. Considering the
remodel costs, it cannot be said that Menasco paid nothing for the property,
but it was next to nothing based on the structure of the deal.
2. Substantial Evidence Supports the Implied Finding that Menasco
“Caused” the Joint Tenancy Deed to be Transcribed
Menasco next argues the trial court erred in concluding that he
“caused” the joint tenancy deed to be transcribed. He maintains there is no
evidence that he actively participated in the drafting or transcribing of the
joint tenancy deed. Rather, he asserts an unnamed escrow officer—who,
incidentally, did not testify—prepared the joint tenancy deed. While we
agree there was no direct evidence that Menasco prepared the joint tenancy
deed himself—no such evidence was required. “ ‘Direct evidence as to undue
influence is rarely obtainable and hence a court or jury must determine the
issue of undue influence by inferences drawn from all the facts and
circumstances.’ (Estate of Hannam (1951) 106 Cal.App.2d 782, 786; see
David v. Hermann (2005) 129 Cal.App.4th 672, 684 [proof of undue influence
in the execution of a testamentary instrument by circumstantial evidence
usually requires a number of factors]; In re Estate of Easton (1934) 140
Cal.App. 367, 371 [requiring direct or circumstantial evidence of ‘pressure
which overpowers the volition of the testator and operates directly on the
testamentary act’].) Thus, . . . undue influence[] may be established by
circumstantial evidence. [Citations.] As a matter of law, the probate court’s
undue influence finding need not be supported by direct evidence of undue
21
influence at the moment decedent signed the [challenged] instruments.’ ”
(Lintz v. Lintz, supra, 222 Cal.App.4th at p. 1355, italics added.)
Here, there was ample circumstantial evidence that Menasco “caused”
the joint tenancy deed to be transcribed. First, he testified that not having
joint tenancy would have been a “deal-breaker.” In explaining why he did not
pursue a tenancy in common, he said that in that scenario he “wouldn’t have
. . . total control.” Second, he prepared the purchase agreement, which
required that ownership be held in joint tenancy. Third, and most
importantly, five witnesses testified that decedent was illiterate and had
comprehension problems; decedent relied on others to read and explain
documents to him. Decedent’s former attorney testified that decedent would
not have understood the consequences of holding joint title with Menasco –
i.e., if he died before the renovations were completed, Menasco would solely
own the property and decedent’s family would get nothing.
We are not persuaded by Menasco’s assertion that decedent understood
what joint tenancy meant and its consequences. As the trial court noted,
Menasco’s testimony about decedent’s reading and comprehension abilities
was in “stark contrast” to the five witnesses who testified about his severe
limitations in these areas, which required him to rely on others. The court
further remarked that Menasco’s credibility was “highly suspect.” It was
within the exclusive province of the court, sitting as the trier of fact, to
determine Menasco’s credibility. (See People v. Young (2005) 34 Cal.4th
1149, 1181.) We will not second-guess this determination on appeal.
(Thompson, supra, 6 Cal.App.5th at p. 981.)
Menasco cites Rice v. Clark (2002) 28 Cal.4th 89, 101 (Rice) for the
position that passive involvement or mere benefit is insufficient to invoke the
presumption. In Rice, our supreme court held “a person who provides
22
information needed in the instrument’s preparation and who encourages the
donor to execute it, but who does not direct or otherwise participate in the
instrument’s transcription to final written form” did not cause the instrument
to be transcribed, pursuant to former section 21350, and was therefore not
“presumptively disqualified from taking under that instrument.” (Id. at p.
92, italics added.) The individual in Rice gave the attorney a list of the
decedent’s assets, arranged appointments with the attorney and drove the
decedent to those appointments, urged the attorney’s secretary to prepare the
documents promptly, and encouraged the decedent to sign them; the court
held he did not “ ‘cause’ ” the instruments to be transcribed. (Id. at p. 105.)
Here, by contrast, Menasco actively participated in securing joint tenancy of
the property. Not only did he draft the purchase agreement upon which the
joint tenancy deed is based,7 he accompanied decedent to his attorney’s office
and was present during the meeting to discuss the terms of the purchase
agreement. There is also evidence suggesting that Menasco preyed on
decedent’s fear that the city would take the property if the code violations
were not abated and that the purchase agreement (enforceable or not) enticed
decedent to sign the joint tenancy deed. Menasco engaged in more than
passive involvement. There is substantial evidence (albeit circumstantial)
that he directed the joint tenancy deed to be transcribed.
3. Substantial Evidence Supports the Finding that Menasco Had a
Fiduciary Relationship with Decedent When The Joint Tenancy Deed
Was Transcribed
It is well established that a real estate broker owes a fiduciary duty to
his client, which “requires the highest good faith and undivided service and
7On appeal, Menasco characterizes the joint tenancy deed as a
“collateral” to secure his investment in the property and “establish a
survivorship interest consistent with the parties’ agreement.”
23
loyalty.” (Field v. Century 21 Klowden-Forness Realty (1998) 63 Cal.App.4th
18, 25.) Despite this recognized principle, Menasco argues he was not in a
fiduciary relationship with decedent at the time the joint tenancy deed was
transcribed because the purchase agreement expressly disclosed Menasco’s
role as a buyer and disclaimed that he was not representing decedent in the
transaction.
“Real estate brokers are subject to two sets of duties: those imposed by
regulatory statutes, and those arising from the general law of agency.”
(Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 755.) “ ‘The existence and
extent of the duties of the agent to the principal are determined by the terms
of the agreement between the parties, interpreted in light of the
circumstances under which it is made, except to the extent that fraud,
duress, illegality, or the incapacity of one or both of the parties to the
agreement modifies it or deprives it of legal effect.’ ” (Ibid.)
Under the general law of agency, an agent cannot unilaterally define
the scope of the agency. (See Civ. Code, § 2322.) That said, an agent may
limit the extent of fiduciary duties by the terms of the contract with the
principal, limiting the scope of the agent’s responsibilities. (Miller & Starr, 2
Cal. Real Est. § 3:34 (4th ed.), citing Restatement (Third) of Agency § 8.06.)
However, when an agent seeks the principal’s consent to waive the general
fiduciary duty of loyalty, “the agent must obtain the principal’s express
informed consent after full disclosure of all material facts, and must continue
to act in good faith and to deal fairly with the principal in all matters.”
(Ibid.)
Menasco claims decedent “proceeded with full knowledge and benefit,
having received his full asking price and retained possession and control of
the [p]roperty.” The record belies this assertion. First, there is no evidence
24
of informed consent. Given that decedent relied on others to read and explain
documents, together with Menasco’s admission that he read part of the
purchase agreement to decedent, it is reasonable to conclude that decedent
neither read nor understood the meaning of Menasco’s disclaimer. Second,
decedent did not receive the full asking price or any portion thereof from
Menasco. Menasco testified that he did not have the funds to purchase the
property and given its state of disrepair a loan to secure the property was not
possible. As discussed ante, the joint tenancy deed was secured by Menasco’s
promise to renovate the property, which we have explained constituted
inadequate consideration. Third, under the terms of the purchase agreement,
decedent was obligated to pay the mortgage until such time as he vacated the
property and removed his personal property. Finally, given decedent’s
illiteracy and comprehension problems, inclusion of the joint tenancy
provision, coupled with the purported disclaimer, was inherently unfair
under the circumstances.
4. Section 21382 Does Not Apply to Menasco
Menasco asserts that even if the presumption of undue influence
applied, section 21382 exempted the joint tenancy deed based on his
“preexisting relationship” with decedent. Not only has Menasco forfeited this
issue by failing to raise it in the trial court, he misrepresents the plain
language of the statute. Section 21382 exempts “[an] instrument that is
drafted by or transcribed by a person who is related by blood or affinity,
within the fourth degree, to the transferor or is the cohabitant of the
transferor.” (Italics added.) Section 21374 defines “related by blood or
affinity” to include spouses, domestic partners, and “relatives within a
specified degree of kinship.” (Italics added.) Menasco’s 30-year friendship
25
with decedent notwithstanding, he is not related to decedent within the
meaning of the Probate Code.
5. Menasco Failed to Rebut the Presumption of Undue Influence
The presumption of undue influence “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).) On appeal, Menasco makes
no attempt to rebut the presumption. Instead, he focuses on the court’s
purported error in shifting the burden without establishing the presumption
of undue influence and on how the court’s finding is unsupported by clear and
convincing evidence. Accordingly, Menasco has forfeited any argument on
appeal that he rebutted the presumption. (See, e.g., Tiernan v. Trustees of
Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4 [issue not
raised on appeal deemed forfeited or waived]; Wall Street Network, Ltd. v.
New York Times Co. (2008) 164 Cal.App.4th 1171, 1177–1178 [“[g]enerally,
appellants forfeit or abandon contentions of error regarding the dismissal of a
cause of action by failing to raise or address the contentions in their briefs on
appeal”]; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 685
[“[c]ourts will ordinarily treat the appellant’s failure to raise an issue in his
or her opening brief as a waiver of that challenge”].) In any event, Menasco
presented no credible evidence to rebut the presumption.
Notwithstanding the presumption, this case was replete with evidence
supporting a finding that Menasco exerted undue influence over decedent
under Welfare and Institutions Code section 15610.70. (See also CACI No.
3100 [Financial Abuse – Essential Factual Elements], and CACI No. 3117
[Financial Abuse – “Undue Influence” Explained].) “The test for ‘undue
influence’ is governed by a series of listed factors, including the ‘vulnerability
of the victim’ ([Welf. & Inst. Code,] § 15610.70, subd. (a)(1)), the ‘influencer’s
26
apparent authority’ (id., subd. (a)(2)), the ‘actions or tactics used by the
influencer’ (id., subd. (a)(3)), and the ‘equity of the result’ (id., subd. (a)(4)).”
(Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 857.)
As to the first factor, the vulnerability of the victim, “[e]vidence of
vulnerability may include, but is not limited to incapacity, illness, injury, age,
. . . impaired cognitive function, emotional distress, isolation, or dependency,
and whether the influencer knew or should have known of the alleged
victim’s vulnerability.” (Welf. & Inst. Code, § 15610.70, subd. (a)(1).) These
factors were present here. Decedent, who due to his physical and intellectual
limits, was entirely dependent on others for all facets of his life. Multiple
witnesses testified that decedent could not read and relied on others to
explain things to him. Witnesses also testified about decedent’s trusting
nature, which left him susceptible to being taken advantage of. He was also
morbidly obese and had suffered numerous strokes during the last three
years of his life.
There was also evidence Menasco knew or should have known of
decedent’s vulnerability. Menasco testified that he had known decedent for
over 30 years. It is unfathomable how during the course of this long-term
friendship Menasco was unaware of decedent’s cognitive limitations and his
physical ailments.
As to the second factor, the influencer’s apparent authority (Welf. &
Inst. Code, § 15610.70, subd. (a)(2)), there was evidence decedent placed a
great deal of trust in Menasco. Not only had decedent and Menasco been
friends for 30 years, Menasco had represented decedent in several prior real
estate transactions. Menasco was in a position to influence decedent because
he trusted him, and Menasco knew or should have known about his
vulnerabilities. (See Estate of Baker (1982) 131 Cal.App.3d 471, 475, 480
27
[confidential relationship existed between the testator and a trusted friend
the testator considered knowledgeable].)
The third factor is evidence of the influencer’s “actions or tactics,” such
as “[c]ontrolling . . . the victim’s access to information,” “[u]se of affection,
intimidation, or coercion” and “[i]nitiation of changes in personal or property
rights, use of haste or secrecy in effecting those changes, effecting changes at
inappropriate times and places, and claims of expertise in effecting changes.”
(Welf. & Inst. Code, § 15610.70, subd. (a)(3).) Here, there is evidence that
Menasco was the point person for dealing with the abatement notices from
the city. Using this information, Menasco preyed on decedent’s fear of losing
his house. Also, the joint tenancy deed was filed without review from
decedent’s attorney and occurred less than three months before decedent’s
death. The evidence suggests that Menasco—an experienced realtor and real
estate broker–used his expertise to effect the joint tenancy transfer.
Finally, there was evidence of an inequitable result. Instead of the
property going to decedent’s brother as decedent had intended, upon
decedent’s death Menasco became the sole owner of the property. (See Welf.
& Inst. Code, § 15610.70, subd. (a)(4) [divergence from a testator’s prior
intent is relevant to the inequity analysis].) As discussed, there is ample
evidence that Menasco was actively involved in transferring the property
from the trust to a joint tenancy. (See Estate of Carter (2003) 111
Cal.App.4th 1139, 1154 [substantial evidence includes reasonable inferences];
Getty v. Getty (1972) 28 Cal.App.3d 996, 1003 [same].)
F. The Court Properly Applied Section 859
Menasco argues the damages award was speculative and excessive.
According to Menasco, the court relied on a “hypothetical” sales price, which
it then erroneously doubled under section 859. Also, for the first time in his
28
reply brief, Menasco argues that “[d]ouble damages require bad faith taking
of property.” Even if this argument were not forfeited for Menasco’s failure to
raise it in his opening brief (see Cox v. Griffin, supra, 34 Cal.App.5th at p.
453), his argument that his “[o]ngoing performance” is inconsistent with bad
faith is without merit. We address Menasco’s claims in reverse order.
Section 859 provides for an award of double damages under three
circumstances: “[1] If a court finds that a person has in bad faith wrongfully
taken . . . property belonging to a conservatee, a minor, an elder, a dependent
adult, a trust, or the estate of a decedent, or [2] has taken . . . the property by
the use of undue influence in bad faith or [3] through the commission of elder
or dependent adult financial abuse, as defined in Section 15610.30 of the
Welfare and Institutions Code, the person shall be liable for twice the value of
the property recovered by an action under this part.” (Italics added.)
Here, it is unclear under which circumstance the court awarded double
damages. From the statement of decision it would appear that the court
relied on all three. We need not determine the specific prong because
substantial evidence supports the implied finding that Menasco acted in bad
faith as to all three. Section 859 does not define “bad faith.” As our
colleagues in Division 2 have stated, “ ‘[B]ad faith’ can be many different
things, depending on the context. For example: The general rule is that an
agent is not liable on a written contract in the name of the principal. So, if
the agent has no authority to make the contract, the usual remedy of the
third party is on the warranty of authority. But if, in addition to the lack of
authority, there is ‘bad faith’ – that is, the agent enters into the contract
without believing, in good faith, that he or she has authority to do so – the
California rule makes the agent liable on the contract as a principal.
[Citations.] [¶] Code of Civil Procedure section 580b is the anti-deficiency
29
statute, shielding a mortgagor from liability in damages. However, if the
mortgagor commits waste in ‘bad faith,’ he or she can be liable for damages.
[Citation.] [¶] The most frequent application of ‘bad faith’ is in insurance
cases, the concept based on a tortious breach of the covenant of good faith and
fair dealing.” (Hill v. Superior Court (2016) 244 Cal.App.4th 1281, 1287–
1288.) “As noted in Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d
94, 100 [citation], ‘ “ ‘[b]ad faith, is defined as ‘[t]he opposite of “good faith,”
generally implying or involving . . . a design to mislead or deceive another, or
a neglect or refusal to fulfill some duty or some contractual obligation, not
prompted by an honest mistake . . ., but by some interested or sinister
motive[,] . . . not simply bad judgment or negligence . . . .’ ” ’ ” (People v.
Superior Court (Sokolich) (2016) 248 Cal.App.4th 434, 447.)
Applying the aforenoted principles governing “bad faith”
determinations, we conclude there is substantial evidence in the record to
support the court’s ruling that Menasco exerted undue influence in bad faith
in the procurement of the joint tenancy deed. Menasco was present with
decedent when decedent’s attorney advised him against creating a joint
tenancy. Attorney Meier testified that he understood Menasco would give
him a new document to look over and approve; however, he did not receive
any further documents. Instead, the deal was “done behind [the attorney’s]
back.” Attorney Meier “was aghast that a Real Estate Broker would try and
pull this one off on a client who he had to know was illiterate and did not
know what was going on.” Menasco testified that he did not want to hold the
property as tenants in common because he wanted “total control” in the event
that decedent died. It was well known that decedent “was in very poor
health” and “tremendously overweight” towards the end of his life. Indeed,
decedent died less than three months after the joint tenancy was established.
30
This evidence, together with all of the evidence supporting the finding that
Menasco exerted undue influence over decedent, constitutes substantial
evidence that Menasco had an ulterior motive when he facilitated the
transfer of the property from the trust into a joint tenancy. Menasco used his
real estate expertise to prey on a long-term client and friend, who was overly
trusting, functionally illiterate, suffering from serious medical conditions,
and concerned about the city taking and demolishing his property.
Finally, Menasco criticizes the court for relying on the $950,000 verbal
offer without considering any “market data.” However, no such evidence was
admitted. Menasco cites no authority—nor have we discovered any—
regarding the calculation of the “value of the property” under section 859.
Rather, he relies on principles of contract damages. But the court did not
award contract damages. Instead, the trial court awarded relief under
section 850 and 859. “ ‘Section 850 et seq. provides a mechanism for court
determination of rights in property claimed to belong to a decedent or
another person.’ [Citation.] The statutory scheme’s ‘evident purpose’ is to
carry out the decedent’s intent and to prevent looting of estates.” (Estate of
Kraus (2010) 184 Cal.App.4th 103, 111.)
Consistent with this purpose and the overall equitable nature of relief
sought under section 850, we conclude the court was not required, as
Menasco suggests, to determine the value of the property “with reasonable
certainty and supported by concrete evidence of actual loss.” We are
similarly not persuaded by his misguided interpretation of section 859 as
requiring damages be based on “actual loss.” Section 859 is a civil penalty
imposed for enumerated misconduct; it is “punitive in nature.” (Estate of
Kraus, supra, 184 Cal.App.4th at pp. 111–112.) “However, double damages
are not the equivalent of ‘punitive damages, and the proof required for
31
punitive damages is not required.’ ” (Conservatorship of Ribal (2019) 31
Cal.App.5th 519, 525.)
Here, the court assigned a value of $950,000 based on Menasco’s
deposition testimony that a verbal offer had been made in this amount but
had been turned down by decedent. Also, in evidence—but not included in
the record on appeal—was an email from Menasco to Joseph confirming the
prior verbal offer of $950,000. We conclude the assigned value was
permissible under section 859 and supported by substantial evidence.
In sum, we conclude the trial court properly applied section 859.
III. DISPOSITION
The judgment is affirmed. Joseph is entitled to his costs on appeal.
32
_________________________
Sweet, J.*
WE CONCUR:
_________________________
Brown, P. J.
_________________________
Streeter, J.
A173231/Abasalo v. Menasco
* Judge of the Superior Court of California, County of Marin, assigned
by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.
33